Loard v. Sorenson , 561 F. App'x 703 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
April 8, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ROBERT D. LOARD,
Plaintiff-Appellant,
v. No. 13-4141
(D.C. No. 2:11-CV-00596-CW)
DENNIS SORENSON; MELVIN (D. of Utah)
COULTER; CRAIG BALLS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **
Robert Loard is an inmate in Utah state prison. In 1993, in the wake of an
altercation with another inmate that resulted in the inmate’s hospitalization, a
Utah Department of Corrections (DOC) hearing officer ordered Loard to pay
restitution in the amount of one-half of the inmate’s medical expenses. The DOC
warden adopted the findings and ordered restitution in the amount of $15,030.52.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
In 2011, Loard filed suit in district court against several DOC officials under 42
U.S.C. § 1983, alleging that the DOC’s accounting and collection practices
violate his due process, equal protection, and Eighth Amendment rights. He also
alleged the defendants conspired to defraud him. The district court granted
summary judgment for defendants.
Because we find Loard’s claims are barred by the statute of limitations, we
AFFIRM.
I. Background
In 1993, Loard assaulted another inmate, resulting in the inmate’s
hospitalization. The inmate incurred $35,542.17 in medical bills. A prison
hearing officer found Loard guilty of fighting and sentenced him to thirty days in
punitive isolation. The officer also ordered Loard to pay restitution in the amount
of one-half of the other inmate’s medical bills. The DOC warden issued an order
adopting the hearing officer’s findings and setting the amount of restitution at
$15,030.52. Soon after, Loard unsuccessfully filed a grievance with the DOC.
According to DOC policy, authorized deductions, including payments of
restitution, may be taken from an offender’s account. The policy requires
attachment of 60% of an inmate’s account balance to satisfy restitution
obligations and attachment of 60% of all incoming receipts thereafter. The
Inmate Funds Accounting Office (IFAO) has garnished Loard’s account since
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1993, and it will continue to deduct 60% from incoming receivables on his
account until the restitution is paid in full.
In 2010, Loard filed another grievance with the DOC objecting to the
garnishment of his inmate account. The Grievance Coordinator, defendant
Melvin Coulter, denied Loard’s grievance because he still owed $9,355.77 in
restitution for the 1993 incident. Hearing Officer Craig Balls, another defendant,
responded to Loard’s grievance and indicated that Utah Code § 64-13-23 allows
the DOC to withhold funds for department-ordered restitution. Another
defendant, Warden Dennis Sorenson, concluded that collections from Loard’s
accounts conformed with DOC policy and did not violate the Constitution.
In 2011, Loard filed suit in federal court, asserting that the defendants’
accounting and collection practices violate his due process, equal protection, and
Eighth Amendment rights. He also alleged the defendants conspired to defraud
him. The district court granted summary judgment for defendants. The court
concluded that, to the extent Loard’s complaint is based on the 1993 restitution
order, it is barred by the statute of limitations; and the defendants were entitled to
qualified immunity on any timely claims. Loard filed a timely appeal.
II. Analysis
We review a grant of summary judgment de novo, drawing all reasonable
inferences and resolving all factual disputes in favor of the non-moving party.
Yousuf v. Cohlmia, 741 F.3d 31, 37 (10th Cir. 2014). Summary judgment is
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appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Because Loard is proceeding pro se, we construe his filings
liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
The district court correctly concluded that the statute of limitations
prevents Loard from bringing his claims. Utah has a four-year statute of
limitations period for § 1983 claims, Utah Code § 78B-2-307(3), which accrue on
the date of the constitutional violation. See Wallace v. Kato, 549 U.S. 384, 388
(2007). Loard’s claim accrued when the restitution order became final and his
account was subjected to the initial 60% garnishment in 1993. He cannot bring
what is essentially a challenge to this restitution order seventeen years after its
issuance.
Loard argues that we should apply the “continuing violation” doctrine to
allow him to proceed. 1 According to Loard, the clock for the applicable statute of
limitations time period begins to run anew every time the IFAO garnishes his
account. For support, he cites Havens Realty Corp. v. Coleman, 455 U.S. 363
1
The government argues that Loard is prevented from raising the
continuing violation doctrine on appeal because he did not present this argument
to the district court. See Shell Rocky Mountain Prod., LLC v. Ultra Res., Inc.,
415 F.3d 1158, 1164 (10th Cir. 2005) (“As a general rule, we do not review
matters raised for the first time on appeal.”). Although Loard did not expressly
present the continuing violation theory to the district court, it is clear that the
complaint alleged injury each time the IFAO garnished his account. Pursuant to
our obligation to construe pro se filings liberally, we find that Loard sufficiently
raised the issue to the district court.
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(1982). In Havens, the Supreme Court held that, for purposes of the 180-day
limitations period for Fair Housing Act claims, a complaint is timely if filed
within 180 days of the last alleged discriminatory act. Id. at 380–81.
Accordingly, argues Loard, his complaint was timely because it was filed within
four years of the latest alleged unconstitutional garnishment of his account.
Although we have never announced a precedential rule as to the
applicability of the continuing violation doctrine to § 1983 claims, we have had
occasion to decline to apply the doctrine to certain claims. For example, in Pike
v. City of Mission, we held that a plaintiff was barred from bringing a claim
arising from a termination that occurred outside the limitations period even
though the defendants denied him reinstatement and a due process hearing within
the limitations period. 731 F.2d 655, 660 (10th Cir. 1984) (en banc), abrogated
on other grounds by Baker v. Bd. of Regents, 991 F.2d 628 (10th Cir. 1993). We
held that “a plaintiff may not use the continuing violation theory to challenge
discrete actions that occurred outside the limitations period even though the
impact of the acts continues to be felt.” Id. The denial of reinstatement and a due
process hearing were the “natural result of the original employment decision and
are therefore not grounds for permitting Pike to challenge defendants’ time-barred
conduct under the theory of continuing violation.” Id.; see also Bergman v.
United States, 751 F.2d 314, 317 (10th Cir. 1984) (“A continuing violation is
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occasioned by continual unlawful acts, not by continual ill effects from the
original violation.”) (internal quotation marks and citation omitted).
In an unpublished opinion, a panel of this court determined that a plaintiff’s
unconstitutional seizure claim was barred because the allegedly false arrest and
imprisonment occurred outside the limitations period. McCormick v. Farrar, 147
F. App’x 716 (10th Cir. 2005). In McCormick, the plaintiff was arrested on a
Friday, July 22. The arresting officer told the plaintiff that, because the plaintiff
was going to be charged with battery, jail policy required his detention until he
could see a judge, which could not occur until Monday, July 24. Even though the
end of the plaintiff’s incarceration, July 24, was within the limitations period,
“[t]he fact that he had to remain in jail . . . [was] simply the continuing effect of
the application of the policy on July 22.” Id. at 723. Because the date the policy
was applied fell outside the limitations period, the plaintiff’s claim was barred.
Assuming, without deciding, that the continuing violation doctrine applies
to § 1983 claims, Loard is still barred from bringing his constitutional claims
against the prison officials. In 1993, the DOC ordered Loard to pay restitution
and, ever since, the IFAO has been garnishing Loard’s account pursuant to that
order and the relevant prison policies concerning collection. The alleged injuries
are the continuing effects of a “discrete act”—the imposition of the 1993
restitution order. Id. This order triggered the DOC’s attachment policies and
permitted garnishment of 60% of Loard’s 1993 account balance and 60% of all
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income thereafter. Any recent garnishment of Loard’s income was not a new,
discrete constitutional violation; rather, it was simply the natural result of the
allegedly unconstitutional 1993 restitution order. Because Loard’s claim accrued
when the order became final and the DOC first garnished his account in 1993, the
district court correctly concluded that Utah’s statute of limitations bars Loard’s
claims. 2
Loard also argues the district court erred in denying his motion to amend
the complaint. On appeal, he explains that he needed the opportunity to amend
his complaint to provide more facts concerning the 1993 altercation. Specifically,
Loard wanted to include information that the inmate with whom he fought was an
Oregon convict who was being held in Utah pursuant to an interstate compact.
See Utah Code § 77-28-1. Because the compact requires the sending state to
cover medical expenses, Loard believes that Utah’s collection of restitution is an
example of “double-dipping.” But even if his motion had been properly framed
and argued, this new information does not change the fact that Loard’s claims are
2
Loard also alleged the defendants, by rejecting the grievances he filed in
2010, conspired to defraud him. This claim is not barred by the statute of
limitations, but the district court was correct to conclude that Loard has
introduced no facts that tend to show a conspiracy existed. Each defendant’s
independent rejection of Loard’s grievances, pursuant to applicable DOC
collection policies, does not establish the existence of a conspiracy to defraud.
Cf. Backus v. Ortiz, 246 F. App’x 561, 565–66 (10th Cir. 2007) (holding that
defendants’ collection of money from plaintiff’s account to satisfy restitution
order demonstrated “only a concerted effort to apply [plaintiff’s] funds to the
payment of the criminal judgment entered against him,” not a conspiracy to
violate his constitutional rights).
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barred by the statute of limitations. Because Loard’s amendment would have
been futile, the district court did not err in denying his motion. See Curley v.
Perry, 246 F.3d 1278, 1281–82 (10th Cir. 2001).
III. Conclusion
Because Loard’s claims are barred by the statute of limitations, we need not
address the defendants’ qualified immunity claims. We AFFIRM the judgment of
the district court and GRANT the motion to proceed in forma pauperis. We
decline to accept Loard’s untimely reply brief.
ENTERED FOR THE COURT,
Timothy M. Tymkovich
Circuit Judge
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