Nahmod Law

TO MY READERS

It has been a while since I reorganized all of my posts (including videos and podcasts) in order to provide greater and more efficient accessibility for readers. There are now more than 150 posts.

I consider this reorganization important, and I hope it is also useful to you, because my posts are not intended to be of short-term utility. Instead, they are intended to serve the continuing educational needs of lawyers, law students, academics and the public at large.

I encourage you to search within each post for case names, topics and the like, that you are interested in.

I thank all of you for your ongoing support of this blog. I also invite you to follow me on Twitter @NahmodLaw.

Sheldon Nahmod (snahmod@kentlaw.edu).

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What follows is the first of four posts (three are rather long) comprising all of my posts (with links) divided into the following four parts and four corresponding posts: PART I: SECTION 1983; PART II: CONSTITUTIONAL LAW; PART III: FIRST AMENDMENT; PART IV: EDUCATION

PART I: SECTION 1983

My New Video on Section 1983 Basics

All My Videos: Constitutional Law, Section 1983 and SCOTUS

Section 1983 Supreme Court Decisions–2009: A Video Presentation

A Section 1983 Podcast: Damages and Procedural Defenses

From Monroe to Connick: Video

From Monroe to Connick: Podcast

Article: The Long and Winding Road from Monroe to Connick

“Section 1983 Is Born”: A Working Paper

My New Article: The Birth of Section 1983 in the Supreme Court

A Section 1983 Primer (1): History, Purposes and Scope

A Section 1983 Primer (2): The Seminal Decision of Monroe v. Pape

A Section 1983 Primer (3): Constitutional States of Mind

A Section 1983 Primer (4): Causation and the Mt. Healthy Burden-Shift Rule

A Section 1983 Primer (5): Statutes of Limitations

A Section 1983 Primer (6): Claim and Issue Preclusion

A Section 1983 Primer (7): Introduction to Absolute Individual Immunity

A Section 1983 Primer (8): Absolute Legislative Immunity

A Section 1983 Primer (9): Absolute Judicial Immunity Read the rest of this entry »

Background

In a much-read post of October 27, 2011,  entitled A Section 1983 Primer (5): Statutes of Limitation, I blogged about statutes of limitations in section 1983 cases. There I briefly discussed the complicated issues of (1) choosing the right state statute of limitation, (2) accrual of section 1983 claims and (3) when section 1983 claims are tolled.

Subsequently, in my post of June 17, 2013, entitled A Section 1983 Primer (10): Statutes of Limitation and Accrual After Heck v. Humphrey, I discussed the special accrual rule of Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action.

Then, in my post of June 9, 2014, entitled A Section 1983 Primer (11): Statutes of Limitation and Continuing Violations, I discussed the continuing violation doctrine and quoted Judge Posner‘s useful statement of that doctrine.

This post addresses Montanez v. Secretary Pennsylvania Dept. of Corrections, 773 F.3d 472 (3^rd Cir. 2014), amending and superseding, 763 F.3d 257 (3^rd Cir. 2014), which has something for almost everyone on accrual, the continuing violation doctrine and equitable tolling.

The Montanez Case

In Montanez, the plaintiff inmates sued corrections officials under section 1983 alleging that the department of corrections violated procedural due process through the automatic deduction of funds from their inmate accounts to cover court-ordered restitution, fines and costs. Their arguments were that they should have been provided by the department with some notice of the policy and an opportunity to be heard prior to the first deduction and, also, that the current procedures were insufficient.

The Third Circuit affirmed the district court’s dismissal of the complaint of one of the inmates on the ground that it was time-barred under Pennsylvania’s two year limitations period. The inmate’s claim accrued when the defendants began deducting funds from his account on April 6, 2000 (which he knew about), but he only filed his lawsuit on November 29, 2004. At the very latest his claim accrued when he filed a grievance challenging the deductions on November 17, 2002.

The Third Circuit went on reject the inmate’s continuing violation doctrine argument because he was aware of the relevant injury shortly after it occurred. Furthermore, even though the defendants continued to make deductions thereafter until 2010, when the inmate’s debt was satisfied, their “decision to enforce the … policy against [plaintiff] and its first deduction from his prison account constituted a discrete and independently actionable act, which triggered [his] obligation to assert his rights.”

Finally, the Third Circuit rejected plaintiff’s equitable tolling/fraudulent concealment argument based on Pennsylvania law. There was no fraudulent concealment here but, even if there was, the allegedly fraudulent statements of the defendants were made in response to grievances he filed more than two years after his cause of action accrued. “[Plaintiff] simply delayed too long to take advantage of equitable tolling doctrines.”

Comments

1. Accrual: In Montanez, the Section 1983 claim accrued under the applicable federal law of accrual–the discovery rule– when the inmate first knew of the injury to him and who likely caused it, which was on April 6, 2000 or, at the latest, on November 17, 2002.

2. The Continuing Violation Doctrine: Even though the effects–the continuing deductions–of the defendants’ allegedly unconstitutional act lasted for approximately 10 years, that was not enough to constitute a continuing violation. The focus for this purpose was on the first discrete act, namely, the first deduction on April 6, 2000.

3. Equitable tolling/fraudulent concealment: It is important to understand that under applicable Supreme Court precedents, the forum state’s tolling law governs section 1983 claims. And that tolling law includes not only formal tolling law set out in the forum state’s statutes but also state tolling law that is not statutory, such as equitable tolling and/or fraudulent concealment.

I invite you to follow me on Twitter @NahmodLaw.

Background

My very first post, on August 19, 2009, dealt with the implications for supervisory liability of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). This was followed by my post on October 16, 2009, setting out my view that Iqbal got it right on supervisory liability. Readers should consult these posts for relevant background.

In addition, I blogged on July 20, 2011, and on July 11, 2014, about post-Iqbal supervisory liability decisions in the circuits.

This past year, I was preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.; West Group), when I came across recent Second, Third, Fourth and Eighth Circuit court decisions dealing with supervisory liability.

Here they are for your reading pleasure.

Second Circuit: Raspardo v. Carlone

A Second Circuit police supervisory liability case involved, among other things, § 1983 sexually hostile work environment claims against a police supervisor for failing to supervise a subordinate who sexually harassed the plaintiffs, former and current female police officers. Ruling for the supervisor on these claims, the Second Circuit, after noting that its pre-Iqbal decisions used a gross negligence standard for supervisory liability, observed that it did not have to decide whether this was still correct because even under that standard the supervisor was not liable. “He neither created a hostile work environment through his own direct actions nor was grossly negligent in his supervision or investigation of subordinate officers who allegedly harassed the plaintiffs on the basis of sex.”

Indeed, as soon as the supervisor became aware of the subordinate’s improper remarks to one of the plaintiffs, he placed him on administrative leave, and then began a broader investigation, including informing the prosecutor’s office when he learned of the subordinate’s sexual misconduct involving another plaintiff. The supervisor subsequently recommended the subordinate’s termination. Thus, the supervisor did not violate the plaintiffs’ constitutional rights either directly or in his supervisory capacity. Raspardo v. Carlone, 770 F.3d 97 (2^nd Cir. 2014).

Third Circuit: Barkes v. First Correctional Medical, Inc.

In a Third Circuit case involving a prison suicide, the court addressed whether and to what extent Iqbal affected the circuit’s precedent on supervisory liability in an Eighth Amendment setting. It noted that most courts had gravitated to the “center” such that the state of mind necessary for supervisory liability varies just as does the state of mind necessary for the underlying constitutional violation. The Third Circuit went on to determine that this was its position as well, at least in this case. Thus, in an Eighth Amendment setting, the state of mind necessary for supervisory liability is subjective deliberate indifference, just as it is for the Eighth Amendment violation itself. This was consistent with the circuit precedent in Eighth Amendment cases. Sample v. Diecks, 885 F.2d 1099 (3^rd Cir. 1989).

However, the Third Circuit left open the supervisory liability question with regard to different constitutional violations. Barkes v. First Correctional Medical, Inc., 766 F.3d 307 (3^rd Cir. 2014), cert granted sub nom Taylor v. Barkes and judgment reversed on qualified immunity grounds, 135 S. Ct. 2042 (2015)(per curiam).

Judge Hardiman dissented in the Third Circuit, arguing that after Iqbal more was now required for supervisory liability: personal involvement and identifying a specific supervisory practice or procedure. Neither was shown here by the plaintiffs. He also argued that the defendants were entitled to qualified immunity, as the Supreme Court per curiam ultimately ruled in this case.

Fourth Circuit: Wilkins v. Montgomery

In a decision involving a § 1983 supervisory liability claim against an assistant director at a state mental hospital that was brought by a mother whose son was murdered by another patient, the Fourth Circuit, without discussing Iqbal, simply applied the three-part test of Shaw v. Stroud, 13 F.3d 791 (4^th Cir. 1994),  and found that there was insufficient evidence of any of the three elements required for supervisory liability. Wilkins v. Montgomery, 751 F.3d 214 (4^th Cir. 2014).

Eighth Circuit: Jackson v. Nixon

In Jackson v. Nixon, 747 F.3d 537 (8^th Cir. 2014), the Eighth Circuit emphasized the personal involvement requirement where the director of the Missouri Department of Corrections and the warden and the director of substance abuse treatment program in a correctional center were sued under § 1983 for allegedly violating the First Amendment free exercise rights of the plaintiff atheist inmate by requiring him to participate in religious activities as part of his treatment.

As to the director of the department of corrections, state law gave him authority to make prison-wide policy decisions, including those concerning substance abuse treatment programs, which meant that his alleged failure to act constituted the requisite personal involvement.

As to the warden, general supervisory authority was insufficient. The plaintiff had to show the warden’s direct involvement in the formation, implementation or enforcement of the allegedly unconstitutional policy, which he had not yet done.

Finally, as to the director of the substance abuse treatment program, the plaintiff plausibly alleged her personal involvement when he claimed that she did not ameliorate the constitutional violation by allowing him to avoid the religious parts of the program.

Judge Smith dissented, 747 F.3d 537, 546, on the ground that the plaintiff did not allege a violation of his First Amendment free exercise rights in the first place.

Comments

Of these four cases, only the Third Circuit in Barkes expressly applied Iqbal‘s holding to the case before it. But even it hedged a bit when it stated that its decision was limited to the Eighth Amendment.

In contrast, the Second Circuit in Raspardo avoided taking a stand on Iqbal in ruling that even under its more lenient pre-Iqbal standard the plaintiff lost on her supervisory liability equal protection claim (which required purposeful discrimination).

The Fourth Circuit in Wilkins did not address Iqbal at all, but still found against the plaintiff.

Finally, the Eighth Circuit in Jackson ruled in a manner consistent with Iqbal (all the while emphasizing personal involvement) because several of the defendants apparently acted with the requisite purpose for a Free Exercise Clause violation.

I blogged on Sept. 11, 2009, about the basic elements of so-called section 1983 “malicious prosecution” claims. I then blogged on 9-8-11, 9-26-11, 8-7-13 and 4-8-14 about section 1983 malicious prosecution cases in the circuits.

What follows is an important recent Seventh Circuit decision dealing with such claims, a decision that I ran across in preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).

A subsequent post will address several other recent circuit court decisions dealing with section 1983 malicious prosecution claims. But this Seventh Circuit decision deserves its own post.

Llovet v. City of Chicago (7th Cir. 2014)

In Llovet v. City of Chicago, 761 F.3d 759 (7^th Cir. 2014), a decision written by Judge Posner, the plaintiff, acquitted in state court of aggravated battery, then sued police officers and the City of Chicago alleging section 1983 malicious prosecution under both due process and the Fourth Amendment.

The Due Process Claim

Affirming the dismissal of plaintiff’s due process-based claim on the authority of Newsome v. McCabe, 319 F.3d 301 (7th Cir. 2003), the Seventh Circuit, refusing to overrule Newsome, reaffirmed that case’s holding that such a suit, insofar as it is based on due process, is available only where the forum state does not provide an adequate remedy. Here, Illinois provided such a remedy.

The Fourth Amendment Claim

The Seventh Circuit then went on to reject the plaintiff’s additional arguments, premised on a section 1983 Fourth Amendment malicious prosecution theory, that “the Fourth Amendment’s prohibition of seizures of persons without probable cause does not terminate when the person arrested becomes detained pursuant to legal process (normally an arraignment …); and further that a [Fourth Amendment] claim … for malicious prosecution ‘accrues upon the favorable termination of criminal proceedings’ and thus does not have to be filed within the statute of limitations for the unlawful arrest.”

According to the Seventh Circuit in Llovet, a seizure was necessary for a Fourth Amendment-based malicious prosecution claim (the possible existence of which Newsome did not deny). Here, the initial seizure was supported by probable cause because the plaintiff was already in jail on a misdemeanor charge and was unable to make bail. Also, there was no causal relation between the aggravated battery charge and the deprivation of plaintiff’s liberty in being arrested and jailed on the misdemeanor charge. Even if the plaintiff was in jail longer than he would have been had it not been for the defendants’ alleged framing of him for aggravated battery, the initial seizure was still supported by probable cause.

The Continuing Seizure Doctrine

The Seventh Circuit then rejected the continuing seizure doctrine in this case. For one thing, Heck v. Humphrey, 512 U.S. 477 (1994), and Wallace v. Kato, 549 U.S. 384 (2007), implied that the Fourth Amendment falls out of the picture when detention by arrest becomes detention by arraignment. For another, some of the other circuits did not accept the continuing seizure argument. The Seventh Circuit also expressed concern that the continuing seizure doctrine would unduly enlarge the scope of the Fourth Amendment. Finally, the court rejected the plaintiff’s alternative argument that there was a second seizure in this case when the filing of the aggravated battery charge caused the plaintiff to be held in jail longer than he would otherwise have been for the misdemeanor charge. “There is a difference between seizing a person and not letting him go.” In the latter situation, the due process clause becomes applicable.

See also Welton v. Anderson, 770 F.3d 670 (7^th Cir. 2014), reaffirming that the continuing seizure doctrine is not the law in the Seventh Circuit.

Comment

Llovet certainly covers a lot of section 1983 malicious prosecution ground: due process, the Fourth Amendment and, especially, continuing seizures.

For those interested in the subject, Llovet is worth reading in its entirety.