Gonzalez v. HastyGonzalez v. Hasty
We conclude that the district court correctly applied the three-year statute of limitations to Gonzalezʹs First Amendment claim, but that it erred in holding that his Fifth and Eighth Amendment claims are time-barred in their entirety.
We therefore AFFIRM in part, and VACATE and REMAND to the district court in part for further proceedings.
AMEER BENNO, Benno & Associates, P.C., New York, NY, (Michael A. Young, New York, NY, on the brief), for Plaintiff–Appellant.
RACHEL BALABAN, Assistant United Statеs Attorney (Varuni Nelson, Assistant United States Attorney, on the brief), for Kelly T. Currie, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY, for Defendants–Appellees Dennis W. Hasty, James Sherman, Ortiz, Inspector Barrere, C.O. White, # 8413.
SACK, Circuit Judge:
This is an appeal from a July 22, 2013, judgment of the United States District Court for the Eastern District of New York (Brian M. Cogan, Judge),
Facts
On February 28, 1999, Gonzalez stabbed a fellow inmate at the Metropolitan Correctional Center in Manhattan (the ʺMCCʺ), with a ʺknife-likeʺ object.2 Gonzalez was placed under administrative detention in the Special Housing Unit (the ʺSHUʺ) later that day, and remained confined therein for more than two years, until July 24, 2001.
On July 24, 2001, Gonzalez was transferred from the MCC to the Metropolitan Detention Center (the ʺMDCʺ)3 in Brooklyn, New York. When he arrived, he was immediately placed in the MDC SHU. He remained there for more than nine additional months, until on or about May 11, 2002.4 Gonzalez alleges that the MCC warden, defendant Dennis Hasty, ordered Gonzalezʹs transfer to the MDC prior to his reassignment to the post of MDC warden so that Hasty could continue to supervise Gonzalez. An MCC corrections officer told
Hasty made it known that ʺhe had a personal vendetta against [] Gonzalez, [and] that [Hasty] would not release [] Gonzalez from [the] SHU under any circumstances . . . .ʺ Compl. ¶ 29 (Pl.ʹs Appʹx 68). Gonzalez contends that this vendetta was motivated by racial animus, as evidenced by the fact that the Federal Bureau of Prisons (ʺBOPʺ) previously had ordered Hasty to remove a Confederate flag from his office.
While in the SHU, Gonzalez was not afforded all of the procedural protections to which he asserts he was entitled under
Instead of complying with these regulations, the defendants falsified forms to make it appear as though they were in compliance, ʺheld unauthorized weekly meetings to determine which inmates were to be released from [the] SHU and returned to gеneral population,ʺ Compl. ¶ 27 (Pl.ʹs Appʹx 68), and ignored psychological assessments suggesting that Gonzalez ʺwas not in need of further SHU confinement,ʺ Compl. ¶ 38 (Pl.ʹs Appʹx 71). In sum, Gonzalez alleges that the defendants ʺagreed, confederated and conspired with Defendant Hasty throughout the period of [] Gonzalezʹs confinement in [the] SHU to keep [] Gonzalez unlawfully confined to [the] SHU under harsh conditions . . . .ʺ Compl. ¶ 30 (Pl.ʹs Appʹx 69) (capitalization altered).
While at the MCC (Manhattan) SHU, Gonzalez filed at least twenty-nine administrative complaints. Six of them, the first of which was filed on May 2, 2000, related to his SHU confinement. He exhausted his MCC SHU-related administrative remedies on November 15, 2000, when the BOP denied his last appeal.
While confined in the MDC (Brooklyn) SHU, Gonzalez filed at least forty-two administrative complaints, three of which related to his MDC SHU confinement. He filed his first MDC SHU-related request on February 14, 2002. The BOP denied this request on July 2, 2002. He administratively exhausted all of his MDC SHU-related remedies on August 8, 2002, when the BOP denied his last request.
As noted, Gonzalez was released from the MDC SHU on May 11, 2002, which was shortly after Hasty retired. The district court accordingly concluded that the statute of limitations should be tolled for as few as 116 or as many as 174 days, representing the period during which Gonzalez was exhausting his administrative remedies.6 Gonzalez v. Hasty, No. 12-cv-5013, 2013 WL 3816587, at *4, 2013 U.S. Dist. LEXIS 102215, at *12-13 (E.D.N.Y. July 22, 2013).
A summary of key dates is as follows:
| February 28, 1999 | Gonzalez was placed in the MCC (Manhattan) SHU |
| May 2, 2000 | Gonzalez lodged his first administrative complaint alleging that his MCC SHU detention was improper |
| November 15, 2000 | All of Gonzalezʹs MCC SHU-related administrative complaints were exhausted |
| July 24, 2001 | Gonzalez was transferred from the MCC SHU to the MDC (Brooklyn) SHU |
| February 14, 2002 | Gonzalez made his first MDC SHU-related request for administrative remedy |
| May 11, 2002 | Gonzalez was released from the MDC SHU |
| July 2, 2002 | The BOP denied Gonzalezʹs first MDC SHU-related administrative complaint |
| August 8, 2002 | All of Gonzalezʹs MDC SHU-related administrative requests were exhausted |
| May 31, 2005 | Gonzalez commenced a Bivens action in the Southern District of New York |
Procedural History
On May 31, 2005, Gonzalez brought suit against Hasty, in his capacity as warden of both the MCC (Manhattan) and MDC (Brooklyn), and various other personnel from both facilities, in the United States District Court for the Southern District of New York. On March 27, 2007, the district court (Richard M. Berman, Judge) dismissed Gonzalezʹs MCC claims as time-barred. Gonzalez v. Hasty, No. 05-cv-6076, 2007 WL 914238, at *3, 2007 U.S. Dist. LEXIS 21668, at *8-9 (S.D.N.Y. Mar. 27, 2007), vacated, 651 F.3d 318 (2d Cir. 2011). It concluded that the applicable three-year statute of limitations had run because Gonzalezʹs claims ripened when he was transferred out of the MCC, on July 24, 2001. Id. The district court dismissed Gonzalezʹs MDC claims for improper venue, explaining that none of the events underlying those claims had occurred in the Southern District.7 Id., 2007 WL 914238, at *3, 2007 U.S. Dist. LEXIS 21668, at *11.
On remand, the district court granted the defendantsʹ motion for partial summary judgment, concluding that Gonzalezʹs claims against all of the MCC defendants еxcept for Hasty were time-barred.8 Gonzalez v. Hasty, 05-cv-6076, 2012 WL 4473689, at *7-9, 2012 U.S. Dist. LEXIS 141251, at *22-27 (S.D.N.Y. Sept. 28, 2012). The court rejected Gonzalezʹs argument that the continuing violation
After the case was transferred, the remaining defendants moved to dismiss or, in the alternative, for summary judgment. Gonzalez v. Hasty, Motion, 12-cv-5013, Dkt. No. 106 (Feb. 13, 2013). Gonzalez argued that the continuing violation doctrine should apply to his Bivens claims to delay the start of the limitations period until the date of his release from the MDC SHU. Doing so, he argued, would render his claims timely after taking into account administrative tolling. The district court rejected this argument and granted the defendantsʹ motion to
The district court observed that a claim typically acсrues when a plaintiff has full knowledge of the material facts that give rise to it. Id., 2013 WL 3816587, at *2, 2013 U.S. Dist. LEXIS 102215, at *6. The court further reasoned that Gonzalez had complained that his lengthy SHU confinement at the MCC (Manhattan) was improper, and if that were so, he was thereby demonstrating knowledge that his placement in the MDC (Brooklyn) SHU similarly was improper. Id., 2013 WL 3816587, at *3, 2013 U.S. Dist. LEXIS 102215, at *7. But Gonzalez did not commence the MDC action until May 31, 2005, which was more than three years after he entered the MDC SHU, taking into account administrative tolling. Id., 2013 WL 3816587, at *4, 2013 U.S. Dist. LEXIS 102215, at *12-13. The court also failed to rule on Gonzalezʹs request for discovery.
Gonzalez appeals from the district courtʹs dismissal, arguing that the continuing violation doctrine applies to his claims against Hasty, which relate to his confinement at both the MCC and MDC, and his claims against the other MDC defendants: James Sherman, Salvatore LoPresti, ʺOrtiz,ʺ Inspector Barrere,
DISCUSSION
I. Standard of Review
We review the district courtʹs grant of the defendantsʹ motion to dismiss under
II. Statute of Limitations
A. The Nature and Scope of the Continuing Violation Doctrine
The statute of limitations for Bivens claims is governed by the statute of limitations applicable to New York state law ʺpersonal injury claims not sounding in intentional tort.ʺ Chin v. Bowen, 833 F.2d 21, 23-24 (2d Cir. 1987).
The continuing violation doctrine, where applicable, provides an ʺexception to the normal knew-or-should-have-known accrual date.ʺ Harris v. City of New York, 186 F.3d 243, 248 (2d Cir. 1999). It applies to claims ʺcomposed of a series of separate acts that collectively constitute one unlawful [] practice.ʺ Washington v. Cty. of Rockland, 373 F.3d 310, 318 (2d Cir. 2004) (quoting Natʹl R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111 (2002)). The continuing violation doctrine thus applies not to discrete unlawful acts, even where those discrete acts are part of a ʺserial violation[],ʺ but to claims that by their nature accrue only after the plaintiff has been subjected to some threshold amount of mistreatment. Morgan, 536 U.S. at 114-15.
Accordingly, where the continuing violation doctrine applies, the limitations period begins to run when the defendant has ʺengaged in enough activity to make out an actionable . . . claim.ʺ Id. at 117. A claim will be timely, however, only if the plaintiff ʺallege[s] . . . some non-time-barred actsʺ contributing to the alleged violation. Harris, 186 F.3d at 250.
The continuing violation doctrine typically arises in the context of a complaint of unlawful workplace discrimination challenged under
To prevail, a plaintiff alleging a hostile work еnvironment claim under Title VII, for example, must show that under the totality of the circumstances, the alleged conduct was so ʺsevere or pervasive as to create an objectively hostile or abusive work environment.ʺ Patterson v. Cty. of Oneida, 375 F.3d 206, 227 (2d Cir. 2004) (internal quotation marks omitted). The alleged conduct in many hostile work environment cases must be repeated or ongoing before it is adequately severe or pervasive to constitute a violation. Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (ʺAs a general rule, incidents must be more than episodic; they
While the doctrineʹs use is most often encountered in connection with actions asserting Title VII violations, its application is by no means limited to that context. We have, for example, applied it to an Eighth Amendment claim of deliberate indifference to serious medical needs brought under
We see no reason why the doctrine thus applied from time to time to Eighth Amendment claims against state actors brought under section 1983 would not in a proper case be applicable to an Eighth Amendment claim against federal officials brought under Bivens. Cf. Chin v. Bowen, 833 F.2d at 24 (ʺBoth Bivens and
In an attempt to rebut the plaintiffʹs position that the continuing violation doctrine can apply in a Bivens action, the defendants rely on our decision in Mix v. Delaware & Hudson Railway Co., 345 F.3d 82 (2d Cir. 2003). There we concluded that the continuing violation doctrine did not apply to a claim for injury under the
Bivens and section 1983 claims, like those under FELA, typically are subject to a ʺdiscovery-based trigger.ʺ But we do not read Mix as recognizing a categorical bar to the continuing violation doctrineʹs application to claims that otherwise would be subject to the discovery rule. Doing so would cast serious doubt on our decision to apply the continuing violation doctrine to a claim otherwise subject to the discovery rule, as we did in Shomo, and would render our prior characterization of the continuing violation doctrine as аn ʺexceptionʺ to the discovery rule senseless. See Harris, 186 F.3d at 248. We therefore do not read Mix as a barrier to the application of the doctrine to Gonzalezʹs constitutional claims.
B. The Continuing Violation Doctrineʹs Application to Gonzalezʹs Claims
The defendants argue that the district court was correct to conclude that Gonzalezʹs MDC-related claims accrued on July 24, 2001, when he was transferred from the MCC (Manhattan) SHU to the MDC (Brooklyn) SHU, because he ʺknew of his alleged injuryʺ on that date. Def.sʹ Br. 30. They also contend that even if the continuing violation doctrine can apply to some Bivens
We agree that the continuing violation doctrine does not apply to Gonzalezʹs First and Fifth Amendment claims, which are based on discretе acts by the defendants, each of which would start the running of the statute of limitations for that act. Some of those discrete acts, however, appear to have occurred after the cutoff date and therefore may provide a basis for a timely claim even absent application of the doctrine, although damages would only be available for acts within the limitations period. Moreover, for the reasons that follow, we conclude that the continuing violation doctrine may apply to Gonzalezʹs Eighth Amendment claim. We leave it to the district court to evaluate in the first instance the defendantsʹ alternative arguments for dismissal, premised
1. First Amendment Retaliation
The continuing violation doctrine does not apply to Gonzalezʹs First Amendment claim.10 In order to state a claim for retaliation in violation of the First Amendment, a plaintiff must allege ʺ(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.ʺ Garcia v. SUNY Health Scis. Ctr., 280 F.3d 98, 106-07 (2d Cir. 2001) (internal quotation marks omitted). Gonzalezʹs claim, as it is pled, is premised on the discrete act of рlacing him in the SHU for 1163 days ʺin retaliation for statements which he had made concerning [] Hasty.ʺ Compl. ¶ 56 (Pl. Appʹx 75).
Hastyʹs decision to confine Gonzalez to the MCC (Manhattan) SHU was a discrete act that occurred on or about February 28, 1999. His decision to confine Gonzalez to the MDC (Brooklyn) SHU similarly was a discrete act that occurred on or about July 24, 2001. Any claim that Gonzalez may have had for those acts accrued on the dates on which they occurred, both of which were more than
Gonzalez might have had a timely First Amendment claim against Hasty and the other defendants to the extent that they made periodic retaliatory decisions to maintain Gonzalez in the SHU after the cutoff date.11 But he does not allege that Hasty or any of the other defendantsʹ periodic decisions not to release him from the SHU were motivated by such retaliation. See, e.g., Compl. ¶ 56 (Pl. Appʹx 75) (alleging that his ʺconfinement in [the] SHU . . . for 1163 days in retaliation for statements which he had made concerning Defendant HASTY violated his rights to free speech under the First Amendmentʺ).
We therefore conclude that Gonzalezʹs First Amendment claim is untimely.
2. Fifth Amendment Due Process
Gonzalez alleges that the defendants deprived him of due process in violation of the Fifth Amendment by failing to provide him with ʺrequired
In determining whether an inmateʹs confinement effects a violation of procedural due process, we consider ʺwhether the plaintiff had a protected liberty interest in not being confined . . . and, if so, [] whether the deprivation of that liberty interest occurred without due process of law.ʺ Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000) (internal quotation marks omitted; ellipsis in original). ʺA prisonerʹs liberty interest is implicated by prison discipline, such as SHU confinement, only if the discipline imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life . . . .ʺ Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) (internal quotation marks omitted). Determining whether the hardship imposed is ʺatypical and significantʺ requires consideration of ʺ[b]oth the conditions and their duration.ʺ Id. (internal quotation marks omitted). A period of confinement under typical SHU conditions lasting longer than 305 days, for example, triggers a protected liberty interest, whereas a period of confinement lasting between 101 and 305
Failure to provide an inmate with the procedural protections afforded under
Gonzalez may have a timely claim, however, for a violation of his right to procedural due process notwithstanding the inapplicability of the continuing violation doctrine. He alleges, inter alia, that the defendants failed to hold required weekly and monthly reviews to assess the need for his continued SHU
Where, as here, a plaintiff complains of a discrete act or series of discrete acts, each of which violates the law, the plaintiff has a separate claim for each act, and each act carries its own limitations period. Cf. Morgan, 536 U.S. at 113 (ʺEach discrete discriminatory act starts a new clock for filing charges alleging that act.ʺ).
We leave it to the district court to determine in the first instance at what point, if any, a protected liberty interest attached under the facts of this case, and what portion, if any, of Gonzalezʹs Fifth Amendment claims accrued after the cutoff date.
3. Eighth Amendment Cruel and Unusual Punishment
Finally, Gonzalez claims that the length and conditions of his confinement in the SHU ʺviolated his rights under the Eighth Amendmentʹs prohibition
ʺConfinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under Eighth Amendment standards.ʺ Hutto v. Finney, 437 U.S. 678, 685 (1978). In order to establish an Eighth Amendment violation, an inmate must show ʺ(1) a deprivаtion that is objectively, sufficiently serious that he was denied the minimal civilized measure of lifeʹs necessities, and (2) a sufficiently culpable state of mind on the part of the defendant official . . . .ʺ Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (internal quotation marks omitted). Although ʺ[i]t is perfectly obvious that every decision to remove a particular inmate from the general prison population for an indeterminate period could not be characterized as cruel and unusual[,] . . . [i]t is equally plain [] that the length of confinement cannot be ignored in deciding whether the [overall conditions of] confinement meet[] constitutional standards.ʺ Hutto, 437 U.S. at 686. In other words, whether incarceration in the SHU violates the Eighth Amendment, like the liberty interest inquiry discussed above, depends on the duration and conditions of the confinement.
An Eighth Amendment claim predicated on SHU confinement therefore typically accrues only after an inmate has been confined in the SHU for a prolonged period of time. This is properly analogous to the Eighth Amendment deliberate indifference claim in Shomo, in which the plaintiff ʺchallenge[d] a series of acts that together comprise[d]ʺ his Eighth Amendment claim, 579 F.3d at 182, and Morgan, in which the hostile work environment claim accrued only after the plaintiff had been subjected to some threshold amount of workplace abuse, 536 U.S. at 114-15. It follows that the сontinuing violation doctrine should be applied to an Eighth Amendment claim of this nature.
Gonzalezʹs claim as he has pled it, assuming it otherwise is viable, accrued only after the defendants had confined him in the SHU for some threshold period of time. This renders the continuing violation doctrine applicable. At what point Gonzalezʹs claim accrued, though, is a question of fact determinable only by a close assessment of the conditions to which Gonzalez was subjected as a function of the length of that confinement. But, assuming his claim accrued some months or years before the cutoff date, Morgan stands for the proposition
III. Discovery
The district court did not rule on or otherwise address Gonzalezʹs discovery request for ʺ[a]ll documents, requests, communications, approvals and orders pertaining to plaintiff Gonzalezʹs transfer from [the] MCC to [the] MDC on or about July 24, 2001 and the names and titles of all staff who were in any way involved with said documents.ʺ Pl.ʹs Appʹx 58-59. Gonzalez appeals from the courtʹs implicit denial of his request. Taking into account Gonzalezʹs failure to move to compel discovery under
IV. Reassignment on Remand
Gonzalez contends that the case should be reassigned to a different judge on remand because the district court displayed ʺprejudice[]ʺ and ʺanimosityʺ
Reassignment is granted only in ʺunusual circumstances.ʺ United States v. Robin, 553 F.2d 8, 9-10 (2d Cir. 1977) (en banc) (per curiam); see also United States v. City of New York, 717 F.3d 72, 99 (2d Cir. 2013) (ʺ[Reassignment] is an extreme remedy, rarely imposed . . . .ʺ). We consider three factors in determining whether reassignment is warranted:
(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
Martens v. Thomann, 273 F.3d 159, 174 (2d Cir. 2001) (quoting Mackler Prods., Inc. v. Cohen, 225 F.3d 136, 146-47 (2d Cir. 2000)).
We find nothing in the record that would serve as a basis for a conclusion that the district judge would have difficulty putting aside any of his previous views of the case that are contrary to those of this Court expressed or implied in
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED in part and VACATE and REMANDED in part for further proceedings in the district court.