What follows are three recent circuit court decisions dealing with accrual. Recall that the section 1983 accrual question is one of federal law.
For a comprehensive discussion of this technical subject, see NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 9 (4th ed. 2013)(CIVLIBLIT on Westlaw).
Fifth Circuit: Accrual and Knowledge of Parental Injury
Where the mother of a thirteen year old arrestee sued law enforcement officers, alleging that they violated her parental due process rights when they interrogated him outside of her presence and over her objections and thereby obtained what turned out to be a false confession, the Fifth Circuit ruled that the claim, filed on March 20, 2009, was time barred under Mississippi’s general or residual personal injury three year limitations period. The court reasoned that the cause of action accrued on May 12, 2003, when the plaintiff immediately became aware of her separation from her son, at which time she believed that it was in his best interest not to answer questions without her. Edmonds v. Oktibbeha County, 675 F.3d 911, 916 (5th Cir. 2012), referring to MISS. CODE ANN. § 15-1-49 (2011).
Seventh Circuit: Knowledge of Medical Injury and Its Cause
According to the Seventh Circuit, “[t]he statute of limitations for a § 1983 deliberate indifference claim brought to redress a medical injury does not begin to run until the plaintiff knows of his injury and its cause.” In this case, plaintiff alleged in his October 2007 lawsuit that prison medical staff improperly delayed ordering a prostate biopsy for him until April 2005, and metastasized prostate cancer was discovered six months later. This delay occurred even though in 2000, when he entered the prison system, he had told the prison medical staff that he had prostate problems and needed to be tested within two to four years, and even though, in February 2004, a PSA test had disclosed highly elevated PSA. Reversing the district court, the Seventh Circuit found the Eighth Amendment claim timely: the plaintiff did not know of his injury in April 2005 when the defendants finally ordered a biopsy but only discovered the injury six months later when he found out he had cancer that might have been diagnosed and treated earlier. It was at that time that his cause of action accrued, and he filed suit shortly before the applicable Indiana two year limitations period expired. The Seventh Circuit emphasized that the plaintiff was suing for his actual physical injury and rejected argument that the limitations period began to run before plaintiff knew he had cancer. Devbrow v. Kalu, 705 F.3d 765 (7th Cir. 2013).
Ninth Circuit: Discrete Act Starting Limitations Period Anew
The plaintiff, a Muslim, sued prison officials on April 29, 2009, under § 1983, alleging that they violated his First Amendment rights when, in 2008, they denied his request for a conjugal visit with his second wife pursuant to a prison regulation that permanently prohibited him from having such visits. Complicating the accrual question—California’s two year personal injury limitations period applied–was the fact that he had previously been denied a conjugal visit with his first wife in 2002 under the same regulation. The defendants argued that the plaintiff had notice of the allegedly wrongful acts in 2002 when he was denied a conjugal visit under the regulation and that his § 1983 claim was therefore untimely. However, the Ninth Circuit rejected this argument and found that the denial of a conjugal visit in 2008 was an independent discrete act that began the running of the two year limitations period all over again. Thus, his § 1983 claim was timely. Pouncil v. Tilton, 704 F.3d 568 (9th Cir. 2012). The plaintiff also brought a claim under the Religious Land Use and Institutionalized Persons Act which was governed by a federal four year limitations period.
I hope you find it of interest.
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Town of Greece v. Galloway: Pending Supreme Court Decision on Legislative Prayer and the Establishment Clause
The Town of Greece Case
Suppose a town, over a period of a decade or so, regularly invited Christian clergymen to lead the opening prayers in town board meetings. Suppose also that these clergymen, more often than not, invoked Jesus and/or the Holy Ghost in their prayers and that, typically, everyone was asked to stand, bow his/her head or join in the prayer, which some did. At the same time, the town occasionally, albeit infrequently, invited a few others, including non-Christian clergy, to lead the opening prayer. Did this pattern violate the Establishment Clause?
“We emphasize what we do not hold. We do not hold that the town may not open its public meetings with a prayer or invocation. Such legislative prayers, as Marsh holds and as we have repeatedly noted, do not violate the Establishment Clause. Nor do we hold that any prayers offered in this context must be blandly “nonsectarian.” A requirement that town officials censor the invocations offered — beyond the limited requirement, recognized in Marsh, that prayer-givers be advised that they may not proselytize for, or disparage, particular religions — is not only not required by the Constitution, but risks establishing a “civic religion” of its own. Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution. Nor are we adopting a test that permits prayers in theory but makes it impossible for a town in practice to avoid Establishment Clause problems. To the contrary, it seems to us that a practice such as the one to which the town here apparently aspired — one that is inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief — is fully compatible with the First Amendment.
“What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.”
The Supreme Court granted certiorari, Town of Greece v. Galloway, No. 12-696, and will give us its answer to the Establishment Clause question this Term. Oral argument takes place on November 6, 2013.
The Second Circuit used Justice O’Connor‘s endorsement test in holding that the Establishment Clause was violated. See Lynch v. Donnelly, 465 U.S. 668 (1984), involving religious displays. There were also hints of the oft-derided (especially by Justice Scalia) Lemon test with its insistence on a secular effect. See Lemon v. Kurtzman, 403 U.S. 602 (1971), dealing with aid to religious schools.
What was not really mentioned by the Second Circuit is Justice Kennedy‘s coercion test, set out in Lee v. Weisman, 505 U.S. 577 (1992), which involved a middle-school authorized prayer at graduation . If such a test were applied here, the result probably would be that these opening prayers did not violate the Establishment Clause because adults were involved and the situation was not really coercive. So an important question is: which of these tests will the Court use?
The Court could scuttle the endorsement test in the course of reversing the Second Circuit and apply the less restrictive, more deferential coercion test. Or it could retain the endorsement test and rule narrowly that the circumstances did not amount to an endorsement of religion.
In the background, and perhaps the foreground, is Marsh v. Chambers, 463 U.S. 783 (1983), the only case in which the validity of legislative prayer has been considered by the Supreme Court. Here, the Court ruled that the Nebraska legislature’s practice of opening its sessions with a prayer delivered by a state-employed clergyman did not violate the Establishment Clause. The Court used an historical approach to interpreting the Establishment Clause, emphasizing that the Framers themselves, by their practice in Congress, did not view legislative prayers led by government-employed clergy as violations of the Establishment Clause. In addition, and importantly, the Court noted that the Judeo-Christian content of the prayers in Marsh did not establish religion because the prayers did not proselytize, advance any religion or disparage any religion.
I have long thought that Marsh was a questionable decision: the Framers’ practice should not have been determinative of the validity under the Establishment Clause of legislative prayers led by government employed clergy.
But assuming that Marsh was sound and should be followed, is Town of Greece nevertheless distinguishable from Marsh on the ground that the prayers here advanced Christianity?
My prediction is that the Court will reverse the Second Circuit. The more important issue is how the opinion will be written and by whom.
(For general background on the Establishment Clause, see my post, The Religion Clauses: ‘Tis the Season).
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Section 1983, Statutes of Limitation and Accrual: Recent Circuit Decisions Applying Heck v. Humphrey
This post, which is a follow-up, contains four recent circuit court decisions that apply Heck.
Considerably more information on this topic may be found in chapter 9 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2013, West), also available on Westlaw as CIVLIBLIT.
The Fifth Circuit: What Is A Favorable Termination?
After the plaintiff served one-third of his original community supervision period for the illegal possession of child pornography, a Texas trial court terminated the remainder of his probationary term, dismissed the proceedings and discharged him from any penalties or disabilities resulting from the offense. The question was whether this constituted a favorable termination under Heck so that the plaintiff’s § 1983 lawsuit against the police officers for allegedly engaging in an illegal search of his home and obtaining the evidence used against him could go forward.
According to the Fifth Circuit, the answer was NO. The trial court’s order did not say that it invalidated his conviction and it did not include express language dismissing his indictment, withdrawing his guilty plea, setting aside the verdict or restoring his civil liberties. Also, the fact that the plaintiff was no longer in custody and thus could not seek habeas corpus relief did not excuse him from Heck’s favorable termination requirement. Morris v. McAllester, 702 F.3d 187 (5th Cir. 2012).
The Seventh Circuit: The Availability Of Collateral Relief During Incarceration
The plaintiff, who had pleaded guilty to attempted burglary in state court and never sought to challenge his conviction through habeas corpus, filed a § 1983 damages action against Illinois correctional officers alleging a violation of his right of access to the courts. The defendants had allegedly denied him the library materials necessary to file a motion to withdraw his guilty plea and to research grounds for appealing his sentence. Plaintiff was paroled from prison in November 2011 and the mandatory supervised release portion of his sentence was scheduled to expire in November 2012. The defendants argued that Heck barred plaintiff’s claim because he had not received a favorable termination and, moreover, the unavailability of collateral relief to plaintiff at this point was irrelevant.
Agreeing that Heck barred the plaintiff’s claim, the Seventh Circuit, first, reasoned that since the plaintiff sought the library materials in order to withdraw his guilty plea, and that this required him to show there was merit to the claim that he should have been able to withdraw the plea, success on that claim would imply the invalidity of the judgment of conviction against him. Second, there was nothing that prevented the plaintiff from seeking collateral review of his conviction during his period of incarceration and mandatory supervised relief, and he offered no excuse for his failure to do so.
“[W]e hold that Heck applies where a § 1983 plaintiff could have sought collateral relief at an earlier time but declined the opportunity and waited until collateral relief became unavailable before suing.” Burd v. Sessler, 702 F.3d 429, 436 (7th Cir. 2012)(emphasis in original).
The Eighth Circuit: What Is A Favorable Termination?
In Marlowe v. Fabian, 676 F.3d 743 (8th Cir. 2012), the plaintiff, convicted of criminal sexual conduct, sued correctional officials for allegedly wrongfully imprisoning him for 375 days beyond the date on which he became eligible for supervised release. The Eighth Circuit affirmed the district court’s dismissal for failure to satisfy Heck’s favorable termination requirement. The Minnesota court of appeals decision remanding his habeas claim to the trial court was not a favorable termination because all it did was direct the department of corrections to consider restructuring the plaintiff’s release plan so that he could possibly be released from prison later.. This was not an invalidation of his conviction or incarceration for Heck purposes.
The Ninth Circuit: What If Another’s Conviction Is At Issue?
Does Heck apply even where the success of a plaintiff’s § 1983 claim would imply the invalidity of another’s conviction? According to the Ninth Circuit in Beets v. County of Los Angeles, 669 F.3d 1038, 1046 (9th Cir. 2012), the answer is sometimes YES.
In this case, the plaintiffs alleged that a police officer used excessive force when he shot and killed their son. However, the decedent’s accomplice was convicted on several counts, including aiding and abetting in the assault on a police officer with a deadly weapon, and the jury had determined that the police officer acted within the scope of his employment and did not use excessive force. Thus, a verdict in plaintiffs’ favor would tend to undermine the accomplice’s conviction. In addition, the accomplice had challenged the police officer’s conduct in her criminal trial and her interests were not inconsistent with those of the plaintiffs.
The Ninth Circuit relied on its decision in Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en banc). “Our choice of language [in City of Hemet] suggests that the Heck preclusion doctrine may apply to civil actions brought by individuals other than the convicted criminal if such application does not otherwise violate any constitutional principles.” Moreover, the plaintiffs reasonably should have expected to be bound by the jury’s decision in the accomplice’s case: the decedent and she were accomplices, she was convicted of assaulting the police officer with a deadly weapon and a single action—shooting the decedent—was crucial to her conviction and the plaintiffs’ § 1983 excessive force claim.
Background on Garcetti and Public Employee Free Speech
Some time ago I blogged critically about the Supreme Court‘s game-changing public employee free speech decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Court held, 5-4, that a public employee whose speech is part of his or her official duties is not protected by the First Amendment from employer discipline for that speech.
Subsequently, I argued in a law review article, Academic Freedom and the Post-Garcetti Blues, that Garcetti should not apply to a college or university professor’s teaching and scholarship.
The Ninth Circuit’s Decision in Demers v. Austin
This month, the Ninth Circuit, in Demers v. Austin (PDF), No. 11-35558 (9th Cir. Sept. 4, 2013), agreed with the proposition that Garcetti should not apply to a university professor’s teaching and scholarship.
In Demers, a tenured associate professor, suing under section 1983 for damages and injunctive relief, claimed that the defendant university administrators retaliated against him in violation of the First Amendment because he distributed a short pamphlet and drafts from an in-progress book. The pamphlet, which dealt critically with a reorganization plan at the university. was distributed both internally and to the print and broadcast media as well as published on a website. In addition, the plaintiff attached drafts of his in-progress book, which included material critical of the University, on his application for sabbatical. The defendants argued that the pamphlet and the drafts were written and circulated as part of the plaintiff’s official duties and were therefore not protected by the First Amendment under Garcetti.
Rejecting that argument, the Ninth Circuit, opinion by Judge W. Fletcher, declared broadly:
“We hold that Garcetti does not apply to teaching and writing on academic matters by teachers employed by the state. Rather, such teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968).” The Ninth Circuit emphasized the importance of academic freedom for teaching and writing, particularly at the university level.
Here, according to the Ninth Circuit, the pamphlet addressed a matter of public concern within the meaning of Pickering and was protected by the First Amendment. The district court therefore erred in granting summary judgment to the defendants on this issue. On the other hand, there was insufficient evidence to show that the in-progress book drafts triggered any retaliation.
Still, the defendants won on the plaintiff’s section 1983 damages claim because the defendants were entitled to qualified immunity given the uncertain state of the law after Garcetti. However, on remand, the district court should address the propriety of the plaintiff’s section 1983 injunctive relief claim.
1. The pamphlets were distributed to the public as well as internally, thereby triggering Pickering directly. Thus, there might have been no need for the Ninth Circuit to address the applicability of Garcetti: the plaintiff, at least in part, wrote as a citizen, and not as an employee.
2. The drafts of the in-progress book were not a motivating factor in the alleged retaliation against the plaintiff. Thus, strictly speaking, the Ninth Circuit’s language about Garcetti‘s inapplicability to writing (in the sense of scholarship) was dictum. The pamphlets were not scholarship.
3. Nevertheless, this decision overall is sound in its emphasis on the First Amendment protection of a college or university professor’s teaching and scholarship.
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I blogged on March 29, 2012, about the Supreme Court‘s grant of certiorari in Reichle v. Howards, a case arising out of the Tenth Circuit. The Supreme Court had granted certiorari to deal with the important question of whether there should be a probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech.
That post should be consulted for relevant background, including the important decision in Hartman v. Moore, 547 U.S. 250 (2006). Note also that the answer to the question will apply equally to section 1983 claims.
On June 4, 2012, the Court, in an opinion by Justice Thomas, avoided the merits and ruled instead that the defendants were protected by qualified immunity. See my post of June 13, 2012, analyzing the decision.
I came across the following post-Reichle decisions from the Fourth, Seventh and Ninth Circuits as I was preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(West)(available on Westlaw at CIVLIBLIT).
Note that, of these circuits, only the Ninth Circuit has taken the position that probable cause is not a defense.
In Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013), the plaintiff alleged that he was retaliated against by Transportation Security Agency (TSA) agents in violation of the First Amendment when they seized and arrested him at an airport for displaying the text of the Fourth Amendment on his chest. According to the Fourth Circuit, the defendants were not entitled to qualified immunity because it was clearly settled in September 2010 that the First Amendment protected peaceful non-disruptive speech in an airport and that such speech could not be punished because government disagreed with it. A case on all fours was not required. In addition, the Supreme Court’s decision in Reichle v. Howards was distinguishable because here the plaintiff specifically alleged that his arrest was not supported by probable cause. Judge Wilkinson dissented, 706 F.3d 379, 394, arguing that this airport security case was an especially appropriate one justifying the applicability of qualified immunity.
The Seventh Circuit, following Reichle, held that the defendant police officers who allegedly arrested the plaintiff because of what he said, even though there was probable cause for the arrest, were protected by qualified immunity. Thayer v. Chiczewski, 705 F.3d 237 (7th Cir. 2012). The Seventh Circuit also noted that the First Amendment retaliation/probable cause issue was unresolved in its circuit.
In contrast to the Seventh Circuit in Thayer, the Ninth Circuit stated that it was adhering to its earlier position in Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006), that an arrestee has a “First Amendment right to be free from police action motivated by retaliatory animus, even if probable cause existed for that action.” Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013). The plaintiff alleged that the defendant officers violated his First Amendment rights when they booked and jailed him in retaliation for his protected speech—criticizing them for an allegedly racially motivated traffic stop—even though there was probable cause for the initial arrest. The Ninth Circuit also went on to rule that the defendants violated clearly settled law in July 2007 and were thus not entitled to qualified immunity.
Judge Callahan dissented, arguing, first, that the Ninth Circuit’s precedents did not necessarily apply after an arrestee has been detained, and second, that the defendants did not violate clearly settled law “forbidding an officer from considering the comments of a legally detained individual when determining whether to book the individual.” 706 F.3d, at 1197.
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I blogged on May 9, 2012, about Filarsky v. Delia, 132 S. Ct. 1657 (2012), the Supreme Court‘s important private individual immunity decision which ruled that an individual hired by the government to work for it is indeed protected by qualified immunity, even though that individual does not work for the government on a permanent or full-time basis.
Here are two post-Filarsky decisions from the Fourth and Sixth Circuits which, contrary to my suggestion in the earlier post that Richardson is now an “outlier,” ruled qualified immunity inapplicable.
I came across these cases in the course of preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West Group) (CIVLIBLIT on Westlaw).
The Fourth Circuit
In Gregg v. Ham, 678 F.3d 333 (4th Cir. 2012), the plaintiff sued a bail bondsman under § 1983 alleging various constitutional violations arising out of the defendant’s efforts to catch a fugitive in and around plaintiff’s home. A jury found for the plaintiff and awarded compensatory and punitive damages, but the defendant on appeal challenged the district court’s qualified immunity instruction to the jury on the ground that this issue was not for the jury. Affirming, the Fourth Circuit held that there was no error because the defendant, as a bail bondsman, was not entitled to qualified immunity.
The court expressly followed the Richardson approach in looking at the history and policy of qualified immunity and finding that neither supported qualified immunity for bail bondsmen. There was no historical evidence demonstrating that bail bondsmen were given immunity or that they were considered as arms of the court performing a public function. Moreover, they were motivated primarily by profit and thus, per Richardson, there was no need for qualified immunity to ensure an adequate number of bail bondsmen.
Finally, Filarsky did not change this result: the defendant here was not an arm of the court, he was not employed by the sheriff’s department, he did not report to law enforcement, he was not asked to assist in apprehending the fugitive and he was in charge of the search. Thus, Filarsky was inapposite.
The Sixth Circuit
McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012), involved a § 1983 Eighth Amendment lawsuit brought by a deceased inmate’s mother against a psychiatrist employed by an independent non-profit organization who was working part-time as a prison psychiatrist at the time he was allegedly deliberately indifferent to the serious medical needs of the inmate.
Ruling that the defendant was not entitled to claim qualified immunity, the Sixth Circuit, looking to history and the common law, found that a private physician working for a public institution in 1871 would not have been immune from damages liability at common law. In addition, the policies underlying § 1983 immunity doctrine—promoting independent decision-making, encouraging persons to go into public service and guarding against distraction—indicated that qualified immunity would not be appropriate here. As was true in Richardson, market forces would accomplish these same goals.
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