Madero Pouncil v. James Tilton ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MADERO L. POUNCIL, No. 10-16881
Plaintiff-Appellee,
D.C. No.
v. CIV S-09-1169-
LKK-CMK-P
JAMES E. TILTON , Director, CDC;
MATTHEW CATE , Secretary of the
CDC; D. FOSTON , Facility Captain; OPINION
and W. MARTEL, Warden/Acting
Warden, MCSP,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Argued and Submitted
March 14, 2012—San Francisco, California
Filed November 21, 2012
Before: Consuelo M. Callahan and Carlos T. Bea, Circuit
Judges, and Mark W. Bennett, District Judge.*
Opinion by Judge Bennett
*
The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
2 POUNCIL V . TILTON
SUMMARY**
Prisoner Civil Rights
The panel affirmed the district court’s denial of prison
officials’ motion to dismiss a prisoner civil rights complaint
on statute of limitations grounds.
The prisoner asserted that the denials by prison officials
of his request for a conjugal visit with his wife violated the
Religious Land Use and Institutionalized Persons Act and the
First Amendment by interfering with his practice of a tenet of
his Islamic faith requiring him to marry, consummate his
marriage, and father children. The panel held that because
the prisoner’s claim was based on an independently wrongful,
discrete act in 2008, which was the denial of his request for
conjugal visits with his second wife, his claims were not
time-barred, notwithstanding the denial, pursuant to the same
regulation, of his prior request for conjugal visits with his
first wife in 2002.
COUNSEL
Tritia M. Murata of Morrison & Foerster, Los Angeles,
California, for the plaintiff-appellee.
Kamala D. Harris, Attorney General of California; Rochelle
C. East, Sr. Asst. Attorney General; Vickie P. Whitney,
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
POUNCIL V . TILTON 3
Supervising. Dep. Atty. General; Misha D. Igra, Dep. Atty.
General, Sacramento, California, for defendants-appellants.
OPINION
BENNETT, District Judge:
A state prisoner asserts that denials by prison officials of
his request for a conjugal visit with his wife violated the
Religious Land Use and Institutionalized Persons Act
(RLUIPA) and the First Amendment to the United States
Constitution by interfering with his practice of a tenet of his
Islamic faith requiring him to marry, consummate his
marriage, and father children. The immediate question,
however, is not the merits of his claims, but when the
limitations period began to run on them. Was it in 2008,
when the prisoner’s request for a conjugal visit with his
second wife was denied pursuant to a prison regulation that
had been in force, essentially unchanged, since 1996, or in
2002, when the prisoner’s request for a conjugal visit with his
first wife was denied pursuant to that regulation? The answer
turns not only on the precise nature of the prisoner’s claims,
but on which of two apparently conflicting lines of authority
is controlling on the accrual date of the prisoner’s claims.
Indeed, this appears to be the kind of case, forecast by the
United States Supreme Court, “where it will be difficult to
determine when the [limitations] time period should begin to
run.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
115 n.7 (2002). It is symptomatic of the difficulty of the
question that two district judges in the Eastern District of
California reached contrary results on it, in two very similar
cases, within the space of a few months. The appellant prison
official contends that one of the district judges, the one in this
4 POUNCIL V . TILTON
case, got it wrong, when he denied the prison official’s
motion to dismiss the prisoner’s claims as untimely. We
affirm.
1. BACKGROUND
a. Factual Background
Plaintiff-appellee Madero L. Pouncil is a California state
prisoner serving a sentence of life imprisonment without
parole (LWOP) at Mule Creek State Prison (MCSP). He
alleges in his pro se Complaint, pursuant to 42 U.S.C. § 1983,
that he is a Muslim, that marriage is one of the most
important institutions in Islam and is incumbent on every
Muslim, and that the main duties of a Muslim to his or her
spouse are to consummate their marriage to solidify the
validity of the marriage and to have sexual relations as a form
of worship.
Pouncil married his first wife in 1999 while Pouncil was
already in prison.1 In 2002, Pouncil requested a conjugal visit
with his wife, but that request was denied. On March 26,
2002, Pouncil filed a grievance stating, in part, “I’m told, ‘I
can’t apply for a Family visit, cause of the time I’m serving,
and nature of the crime committed,’” but that the denial of a
1
Although this matter is before the court on an appeal from the denial
of a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, which ordinarily would limit this court to consideration
of allegations in the Complaint, see, e.g., Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008), at the defendant’s
request, the magistrate judge to whom the defendant’s motion to dismiss
was referred took judicial notice of marriage certificates indicating that
Pouncil was married on September 16, 1999, and remarried on July 14,
2007.
POUNCIL V . TILTON 5
conjugal visit restricted him from complying with a duty of
his religion. His grievance was denied as was his “Second
Level” appeal, because a prison regulation, CAL. CODE REGS.
tit. 15, § 3174, did not permit LWOP prisoners to have
conjugal visits.
The parties agree that Pouncil was subsequently divorced
from his first wife. The parties also agree that Pouncil
remarried on July 14, 2007, and that, on or about July 21,
2008, Pouncil submitted another request for conjugal visits.
That request was denied on August 1, 2008, by a counselor,
who stated, “Per CCR 3177(b)(2) LWOP inmates are not
permitted family visits.” The regulation on which the
counselor relied is essentially the same one cited in the denial
of Pouncil’s request for a conjugal visit in 2002, which had
been recodified in 2006 as § 3177. Pouncil’s administrative
appeals were denied at the “Informal Level,” on August 7,
2008; in a “Second Level Appeal Response,” dated
September 3, 2008; and in a “Director’s Level Decision,”
dated December 9, 2008. The “Director’s Level Decision”
expressly stated that it “exhaust[ed] the administrative
remedy available to the appellant within CDCR.”
b. Procedural Background
On April 27, 2009, Pouncil signed, and on April 29, 2009,
the Clerk of Court for the United States District Court for the
Eastern District of California filed, Pouncil’s pro se
Complaint pursuant to the Civil Rights Act, 42 U.S.C.
§ 1983. The Complaint named as defendants James Tilton,
identified as the Director of the California Department of
Corrections and Rehabilitation (CDCR); D. Foston, identified
as Facility Captain; and M. Martel, identified as the Warden
or Acting Warden at MCSP. In his Complaint, Pouncil stated
6 POUNCIL V . TILTON
that he had brought the lawsuit against the CDCR “for
implementing a rule to the California Code of Regulation
(3177(b)(2)) that violates Petitioner[’s] Constitutional right
to practice his religion and be married as a Muslim under the
RLUIPA act. . . . Petitioner all so [sic] claims a violation of
his 14th. and 8th. amendment rights.” Complaint at 4.
Pouncil also alleged that “[t]his rule dose [sic] not provide
intimate time (family visiting) for Muslim Inmates serving a
life without parole term, wherefore making it impossible for
Petitioner to consummate his marriage/have sexual relations
with his wife and practice his religion and perform his duties
to his wife as commanded by (ALLAH) and affirmed in the
teaching of prophet Muhammad. [A]nd by denying Petitioner
the right to perform his religious duties to his wife or
potential wife is to deny him his right to be married as a
Muslim.” Complaint at 5. Pouncil sought the following
relief: “Reinstate Family Visits for Lifers, and Life without
the possibility of parole Inmate so I can fulfill my duties
religiously to my wife, and guide my children in my family
with direct understanding of my faith.” Complaint at 2.
Pouncil’s Complaint makes no express mention of his
applications for conjugal visits in either 2002 or 2008 or
denials of those applications. It does, however, aver that
Pouncil completed the administrative review process for his
claims, explaining what happened at each level of
administrative review. The administrative exhaustion that
Pouncil cites relates entirely to his 2008 application for a
conjugal visit.
The docket below reflects that Tilton and Foston filed
waivers of service of the Complaint, but that Martel was
never served with the Complaint. Tilton and Foston filed a
motion to dismiss arguing, among other things, that Pouncil’s
POUNCIL V . TILTON 7
Complaint is time-barred. The defendants argued that
Pouncil’s claims accrued in 2002 when he first filed an
inmate grievance concerning conjugal family visitation, so
that the statute of limitations had run by 2009, when Pouncil
filed suit. Pouncil argued that his claims accrued only after
he remarried in 2007, and that his action relates only to
matters addressed in his 2008 inmate grievance, so that his
lawsuit is timely.
On February 19, 2010, a magistrate judge filed Findings
and Recommendations concerning the defendants’ motion to
dismiss. The magistrate judge found that the applicable
statute of limitations for a § 1983 claim, using California’s
statute of limitations for personal injury actions, was two
years, and that the statute of limitations was tolled while the
prisoner exhausted administrative remedies. The magistrate
judge dismissed any contention that an amendment of the
pertinent prison regulation in 2007 affected the accrual
analysis, because the portion of the regulation preventing
Pouncil from having conjugal visits had been in place
unchanged since 1996. The magistrate judge construed
Pouncil’s claims as, in essence, a constitutional challenge to
the prison regulation prohibiting LWOP inmates from having
conjugal family visits and concluded that this regulation
remained the same and was applicable to Pouncil without
regard to whom he was married at the time. In other words,
the magistrate judge concluded, Pouncil’s claims were not
tied to a particular spouse. Thus, the magistrate judge
concluded that Pouncil knew from his experience in 2002 that
he would not be allowed conjugal visitation with any wife so
long as he remained an LWOP inmate. The magistrate judge
also dismissed application of a continuing violation theory,
because the denial of Pouncil’s request for a conjugal visit in
2008 was simply an effect of the regulation that Pouncil had
8 POUNCIL V . TILTON
originally challenged in 2002. Therefore, the magistrate
judge recommended that the defendants’ motion to dismiss be
granted.
Pouncil filed objections to the magistrate judge’s Findings
and Recommendations on March 12, 2010, and,
consequently, on March 31, 2010, a district judge2 conducted
a de novo review of the case. The district judge declined to
adopt the magistrate judge’s Findings and Recommendations.
In the district judge’s view, Pouncil’s complaint did not
allege an injury from the denial of his request for conjugal
visits with his ex-wife in 2002, but an injury from the denial
of his request for conjugal visits with his current wife on
August 1, 2008. The district judge also concluded that the
2008 denial constituted an individual, actionable injury upon
which Pouncil had standing to bring suit, so that his action
did not accrue until his request was denied on August 1,
2008.
The district judge found that the two-year statute of
limitations for a § 1983 claim would not run until August of
2010, and that the four-year statute of limitations for a
RLUIPA claim would not run until August of 2012. Thus, he
found that Pouncil’s claims, filed in 2009, were timely. The
district judge cited, without comment, Henderson v.
Hubbard, 2010 WL 599886 (E.D. Cal. Feb. 18, 2010), in
which another district judge in the same district adopted a
different magistrate judge’s findings and recommendation to
dismiss a similar claim on timeliness grounds. The district
court did, however, grant the motion to dismiss as to
defendant Foston, because defendant Foston was not in any
2
The Honorable Lawrence K. K arlton, District Judge for the U.S.
District Court for the Eastern District of California.
POUNCIL V . TILTON 9
position to implement the injunctive relief that Pouncil was
requesting, and substituted the current Secretary of the
CDCR, Matthew Cate, for defendant Tilton, who had retired.3
On June 10, 2010, on defendant Tilton’s motion, the
district judge certified for interlocutory appeal the question of
whether Pouncil’s claims are barred by the statute of
limitations.4 This case was stayed in the district court until a
mandate issues from this court. This court granted Tilton’s
subsequent petition for permission to appeal the certified
question of whether Pouncil’s claims are barred by the statute
of limitations and directed appointment of pro bono counsel
to represent Pouncil on appeal.
2. LEGAL ANALYSIS
a. Applicable Standards
Pouncil asserts claims pursuant to the RLUIPA and the
First Amendment to the United States Constitution.5 The
RLUIPA provides, in relevant part, that “[n]o government
shall impose a substantial burden on the religious exercise of
3
Like the parties, for the sake of simplicity, we will continue to identify
the defendant-appellant as Tilton, rather than Cate.
4
The district judge declined Tilton’s request that he also certify for
interlocutory appeal the scope of the lawsuit and who is a party.
5
Tilton argues that the only claim on which Pouncil was allowed to
proceed, after initial review, was his RLUIPA claim. However, the
district judge treated both Pouncil’s RLUIPA claim and his First
Amendment claim as viable for purposes of the statute of limitations
analysis, and we will do the same, taking no position on whether Pouncil’s
First Amendment claim is also properly before the court.
10 POUNCIL V . TILTON
a person residing in or confined to an institution . . . even if
the burden results from a rule of general applicability,” unless
the government demonstrates that the burden is “in
furtherance of a compelling governmental interest” and is
“the least restrictive means of furthering that . . . interest.”
42 U.S.C. § 2000cc-1(a). The First Amendment of the United
States Constitution prohibits government restrictions on the
fundamental right to freely exercise one’s religious beliefs.
See U.S. CONST . amend. I. Section 1983 of title 42 of the
United States Code provides a cause of action against any
person who, acting under the color of state law, abridges
rights created by the laws of the United States. “[F]ederal
courts must take cognizance of the valid constitutional claims
of prison inmates.” Turner v. Safley, 482 U.S. 78, 84 (1987).
The parties agree that, because there is no specified
statute of limitations for an action under 42 U.S.C. § 1983,
the federal courts look to the law of the state in which the
cause of action arose and apply the state law of limitations
governing an analogous cause of action. See Wallace v. Kato,
549 U.S. 384, 387 (2007). The parties also agree that the
analogous cause of action in this case is California’s personal
injury action, which has a two-year statute of limitations. See
Maldonado v. Harris, 370 F.3d 945, 954-955 (9th Cir. 2004).
Similarly, they agree that the RLUIPA does not contain its
own statute of limitations period, but that civil claims, such
as RLUIPA claims, “arising under an Act of Congress
enacted after [December 1, 1990],” have a four-year period
of limitations. See Jones v. R.R. Donnelley & Sons Co.,
541 U.S. 369, 382 (2004).
What the parties do dispute is when the statutes of
limitations on Pouncil’s claims began to run. A statute of
limitations begins to run on the date on which the plaintiff’s
POUNCIL V . TILTON 11
claim “accrues.” Lukovsky v. City and County of San
Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). Federal law
determines when a cause of action for a Section 1983 claim
accrues and, hence, when the statute of limitations begins to
run. See Wallace, 549 U.S. at 388. Under federal law,
accrual occurs when the plaintiff has a complete and present
cause of action and may file a suit to obtain relief. Id.; see
also Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996)
(“Under federal law, ‘the limitations period accrues when a
party knows or has reason to know of the injury’ which is the
basis of the cause of action.” (quoting Golden Gate Hotel
Ass’n v. San Francisco, 18 F.3d 1482, 1486 (9th Cir. 1994))).
An action ordinarily accrues on the date of the injury. Ward
v. Westinghouse Canada, Inc., 32 F.3d 1405, 1407 (9th Cir.
1994). A federal claim accrues when the plaintiff knows or
has reason to know of the injury that is the basis of the action.
Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th
Cir. 1991) (quoting Trotter v. Int’l Longshoreman’s and
Warehouseman’s Union, 704 F.2d 1141, 1143 (9th Cir.
1983)).
When the statute of limitations begins to run for an action
at law is reviewed de novo. See Oja v. U.S. Army Corps. of
Engineers, 440 F.3d 1122, 1127 (9th Cir. 2006); see also Orr
v. Bank of Am., NT & SA, 285 F.3d 764, 780 (9th Cir. 2002).
Whether a claim is barred by the statute of limitations is also
reviewed de novo. Orr, 285 F.3d at 780. However, “[t]he
question of when a claim accrues is a fact intensive inquiry,
and we have held that a district court’s factual finding
concerning when a claim accrues is entitled to deferential
review.” Hells Canyon Pres. Council v. U.S. Forest Serv.,
403 F.3d 683, 691 (9th Cir. 2005).
12 POUNCIL V . TILTON
b. Arguments Of The Parties
Tilton asserts that Pouncil is now challenging a regulation
that he originally challenged in 2002, when he was married
to his first wife, so that his claims accrued in May 2002, when
the warden of the MCSP notified him that, in accordance with
provisions of the California Code of Regulations, he would
not be permitted to have conjugal visitation with any spouse
because of his life sentence. Tilton relies on Knox v. Davis,
260 F.3d 1009, 1014 (9th Cir. 2001), for the proposition that
“[a]ll of the allegations in the complaint regarding Pouncil’s
inability to have sex with his second wife are merely the
delayed, but inevitable, consequence of the original decision
that he is subject to regulations preventing LWOP inmates
from participating in conjugal visits.” Appellant’s Brief at
16.
In contrast, Pouncil argues that he is challenging the
denial of his 2008 application for a conjugal visit with his
second wife. Pouncil relies on National Railroad Passenger
Corp. v. Morgan, 536 U.S. 101, 113 (2002), to contend that
the August 2008 denial of his request for a conjugal visit with
his second wife was a discrete act that started a new clock
running for the filing of his claims.
In reply, Tilton argues that Pouncil’s argument relies on
a transformation of his claims from challenges to the
regulation into challenges to the denial of a specific request
for a conjugal visit. Tilton points out that Pouncil’s
Complaint never even mentions that he had been denied a
conjugal visit in 2008. Instead, it challenges
“implementation” of a regulation preventing inmates serving
LWOP from participating in conjugal visits.
POUNCIL V . TILTON 13
We conclude that when Pouncil’s claims accrued
depends, in part, on what those claims are.
c. The Nature Of Pouncil’s Claims
Pouncil filed this action pro se. We have repeatedly
stated that “[w]e construe pro se complaints liberally.” Silva
v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hamilton
v. Brown, 630 F.3d 889, 893 (9th Cir. 2011). This rule
protects the rights of pro se litigants to self-representation and
meaningful access to the courts, Rand v. Rowland, 154 F.3d
952, 957 (9th Cir. 1998), and we have recognized that it is
“‘particularly important in civil rights cases.’” Johnson v.
State of California, 207 F.3d 650, 653 (9th Cir. 2000)
(quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.
1992)).
Tilton is correct that Pouncil nowhere mentions the 2008
denial of his application for a conjugal visit in his pro se
Complaint. On the other hand, neither does Pouncil mention
the 2002 denial of his application for a conjugal visit with his
first wife. The question is whether his failure to identify the
2008 denial as the specific basis for his claims is dispositive
of the nature of his claims. We think it is not, giving
Pouncil’s pro se Complaint the liberal construction to which
it is entitled. See Silva, 658 F.3d at 1101; Johnson, 207 F.3d
at 653.
First, Tilton is correct that Pouncil stated in his Complaint
that he had brought the lawsuit against the CDCR “for
implementing a rule to the California Code of Regulation
(3177(b)(2)) that violates Petitioner[’s] Constitutional right
to practice his religion and be married as a Muslim under the
RLUIPA act.” Complaint at 4 (emphasis added).
14 POUNCIL V . TILTON
Nevertheless, we do not agree with Tilton’s argument that
claims based on “implementing” a rule equate with claims
based on “enacting” or “adopting” the rule. Appellant’s
Reply at 2l-23. A liberal construction of Pouncil’s Complaint
would just as reasonably read “implementing” the rule to
mean “applying” the rule to him. See, e.g., MERRIAM
WEBSTER ’S COLLEGIATE DICTIONARY 583 (10th ed. 1995)
(defining “implement,” inter alia, as “CARRY OUT ,
ACCOMPLISH ; esp. to give practical effect to and ensure of
actual fulfillment by concrete measures”); ROGET ’S II: THE
N E W T H E S A U R U S , www.educat i o n . ya h o o . c o m /
reference/thesaurus/?=implement (last accessed May 15,
2012) (identifying “implement” and “apply” as synonyms of
“use” and identifying “implement” as a synonym of “apply”).
Second, in his Complaint, Pouncil explains that he has
exhausted administrative remedies by citing the levels of
review and summarizing the results of those reviews in a
manner that plainly matches the administrative steps of his
2008 grievance, the only grievance involving a third level of
administrative review. See Complaint at 2. Third, Pouncil
cites only the version of the rule as it was recodified in 2006
as § 3177, not as it existed in 2002, when it was codified as
§ 3174. Liberally construed, Pouncil’s Complaint suggests
that the focus of Pouncil’s challenges is the application of the
rule to him in 2008.
Tilton argues that, by suing the Secretary of the CDCR
for injunctive relief, Pouncil has also necessarily challenged
the regulation itself, not the denial of his request for a
conjugal visit in 2008. Tilton points out that he was not
personally involved in the specific denial of Pouncil’s
request. This argument is too clever by half, in the context of
pro se pleadings, because it relies on precisely the kind of
technical requirements that liberal construction of pro se
POUNCIL V . TILTON 15
pleadings is intended to mitigate. See Wyatt v. Terhune,
315 F.3d 1108, 1119 (9th Cir. 2003).
It also is not entirely clear whether the injunctive relief
that Pouncil seeks is limited to relief for him from the
challenged regulation, or relief for all LWOP prisoners. In
his Complaint, Pouncil sought the following relief:
“Reinstate Family Visits for Lifers, and Life without the
possibility of parole Inmate [sic] so I can fulfill my duties
religiously to my wife, and guide my children in my family
with direct understanding of my faith.” Complaint at 2
(emphasis added). This statement ambiguously refers to all
“Lifers,” but only to one LWOP “Inmate,” and to relief
allowing Pouncil to fulfill his religious duties. When read in
the context of Pouncil’s requests for relief in the
administrative proceedings, however, it appears that Pouncil
seeks relief from application of the regulation to him. In his
August 4, 2008, Appeal Form, Pouncil requested the
following action as relief: “I would like my family visiting
previlleges [sic] be reinstated and to stay as such, until I’m
set free where I can continue to practice my Religious beliefs,
and be an upstanding citizen.” In a “Second Level Appeal
Response,” the warden of the MCSP characterized Pouncil’s
request for relief to be “to have his right to Family Visiting
restored to him.” The “Director’s Level Response” also
characterized Pouncil’s request for relief to be “that his
family visiting privileges be reinstated and to stay as such
until the appellant is released.” Thus, the relief that Pouncil
requests does not necessarily demonstrate that he has asserted
challenges to the regulation itself, rather than claims based on
denial of his request for a conjugal visit in 2008.
Moreover, Tilton (or his successor), as Secretary of the
CDCR, is the proper defendant on a claim for prospective
16 POUNCIL V . TILTON
injunctive relief from a prison regulation, because he would
be responsible for ensuring that injunctive relief was carried
out, even if he was not personally involved in the decision
giving rise to Pouncil’s claims. See, e.g., Gonzalez v.
Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (the prison
warden was the proper defendant for a claim of injunctive
relief, notwithstanding his lack of personal involvement in the
challenged conduct, because he would be responsible for
ensuring that the injunctive relief was carried out). Tilton
cannot raise qualified immunity to such a claim. See Vance
v. Barrett, 345 F.3d 1083, 1091 n.10 (9th Cir. 2003) (noting,
“[A] defense of qualified immunity is not available for
prospective injunctive relief.” (citing Presbyterian Church
(U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989)).
Thus, Pouncil’s prayer for injunctive relief in no way
demonstrates conclusively that his claims are not premised on
denial of his application for a conjugal visit in 2008, nor does
it demonstrate that Pouncil’s appellate counsel has
reconfigured his claims to attempt to evade the time-bar that
Tilton asserts. Rather, liberally construed, we read Pouncil’s
claims to be challenges to the denial of his 2008 request for
a conjugal visit.
d. Discrete Act Versus Inevitable Consequence
Once Pouncil’s claims are understood as arising from the
2008 denial of his application for a conjugal visit, the
question is, when did such claims accrue? What makes this
question particularly daunting here is that two different lines
of authority appear to lead to different conclusions. Tilton
relies on one line of authority to argue that, even if Pouncil is
challenging the 2008 denial of his request for a conjugal visit,
that denial is simply the inevitable consequence of the 2002
denial of his first request for a conjugal visit pursuant to the
POUNCIL V . TILTON 17
same regulation. Relying on a different line of authority,
Pouncil contends that the 2008 denial was a discrete act,
notwithstanding a prior denial pursuant to the same
regulation.
i. The Ricks/Knox line
Appellants rely on Knox, 260 F.3d at 1014, for the
proposition that “all of the allegations in the complaint
regarding Pouncil’s inability to have sex with his second wife
are merely the delayed, but inevitable, consequence of the
original decision that he is subject to regulations preventing
LWOP inmates from participating in conjugal visits.”
Appellant’s Brief at 16. Tilton argues that Pouncil’s cause of
action, therefore, accrued on the date that he received the
denial of his first request for conjugal visits, in May of 2002.
Appellant’s Brief at 13.
Knox involved an attorney who, after receiving a letter on
January 20, 1996, revoking all of her legal mail and visitation
rights to all inmates at all penal institutions in California,
continued to receive denials of these rights between January
20, 1996, and July 21, 1997, when she filed suit. Knox,
260 F.3d at 1011-1012. The denials subsequent to the
January 20, 1996, letter, relied on the suspension
implemented in that letter as the basis for denying Knox
either legal visitation or correspondence privileges with
inmates. Id. at 1012. Knox conceded that her § 1983 claim
accrued on January 20, 1996. Id. at 1013. She argued,
however, “that each time that she was denied access to one of
her clients housed in a CDCR facility, a new cause of action
ar[ose] under the continuing violation theory.” Id.
18 POUNCIL V . TILTON
This court explained that, since Knox had not alleged a
system or practice of discrimination, the only way that she
could hope to show a continuing violation was to “‘state facts
sufficient . . . [to] support[ ] a determination that the alleged
discriminatory acts related closely enough to constitute a
continuing violation, and that one or more of the acts falls
within the limitations period.’” Id. (quoting DeGrassi v. City
of Glendora, 207 F.3d 636, 645 (9th Cir. 2000)). This court
rejected Knox’s continuing violation argument, however,
because this court had “repeatedly held that a mere
continuing impact from past violations is not actionable.” Id.(internal quotation marks and citations omitted) (emphasis in
the original). This court held,
Knox’s cause of action accrued when she
received Tristan’s permanent and complete
suspension letter on January 20, 1996. The
continuing violation doctrine is inapplicable
because Knox has failed to establish that a
new violation occurs each time she is denied
her visitation or mail privileges. Rather, the
CDC’s subsequent and repeated denials of
Knox’s privileges with her clients is merely
the continuing effect of the original
suspension.
Knox, 260 F.3d at 1013.
This court concluded that the outcome in Knox was
compelled by the United States Supreme Court’s decision in
Delaware State College v. Ricks, 449 U.S. 250 (1980). See
Knox, 260 F.3d at 1013-14. In Ricks, the Supreme Court
considered whether a college professor had timely
complained under Title VII that he had been denied academic
POUNCIL V . TILTON 19
tenure because of his national origin. 449 U.S. at 252. Ricks
had received a letter on June 26, 1974, informing him of the
denial of tenure, but renewing his contract until the end of the
1974-75 school year. Id. at 253-54. The district court had
held that the statute of limitations began to run on Ricks’s
claim on the date he had been notified that he would be
offered a 1-year “terminal” contract, but the Third Circuit
Court of Appeals reversed, concluding that the statute of
limitations did not begin to run until Ricks’s “terminal”
contract expired on June 30, 1975. Id. at 255.
The Supreme Court found that Ricks had not alleged any
discriminatory acts that continued until, or that occurred at
the time of, the actual termination of his contract. Id. at 257.
To the contrary, the Court concluded, the “termination of
employment at Delaware State [wa]s a delayed, but
inevitable, consequence of the denial of tenure.” Id. at 257-
58. In short, “the only alleged discrimination occurred—and
the filing limitations period therefore commenced—at the
time the tenure decision was made and communicated to
Ricks.” Id. at 258. This was so, “even though one of the
effects of the denial of tenure—the eventual loss of a teaching
position—did not occur until later.” Id. (emphasis in the
original). The emphasis in the statute of limitations analysis,
the Court concluded, is not on effects, but “is [upon] whether
any present violation exists.’” Id. (quoting United Air Lines,
Inc. v. Evans, 431 U.S. 553, 558 (1977), with emphasis in the
original).
This court explained that the attorney plaintiff in Knox,
like the college professor plaintiff in Ricks, “had notice of all
the wrongful acts she wished to challenge at the time of the
suspension letter because the letter informed her that she was
permanently denied all visitation or mail privileges.” Knox,
20 POUNCIL V . TILTON
260 F.3d at 1014. Similarly, Tilton argues—not without
some appeal—that Pouncil also had notice of all the wrongful
acts that he wished to challenge at the time that he received
the 2002 notice of denial of his request for a conjugal visit
because that denial informed him that he was permanently
barred from conjugal visits as an inmate serving LWOP.
ii. The Morgan/Cherosky line
There is, however, another line of authority that appears
to lead to a conflicting result—i.e., to the conclusion that
Pouncil’s claims arising from the denial of his request for
conjugal visits in 2008 are timely, notwithstanding the prior
denial of a request for conjugal visits in 2002.
Subsequent to Knox, the United States Supreme Court
decided Morgan, 536 U.S. 101. In Morgan, which, like
Ricks, was an employment discrimination case, the plaintiff
filed a charge of discrimination and retaliation against his
employer. 536 U.S. at 105. Some of the allegedly
discriminatory acts about which Morgan complained occurred
within 300 days of the time that he filed his charge with the
EEOC—that is, within the 300-day limitations period for
filing such a charge—but many took place prior to that time
period. Id. at 106. Morgan argued that the various acts,
including those that occurred prior to the 300-day time
period, were part of “an unlawful employment practice” that
constituted an ongoing violation. Id. at 110. What is
instructive here, however, is not the Morgan Court’s analysis
of the continuing violation doctrine, but its explanation of
what constitutes a “discrete act” that starts the running of a
limitations period.
POUNCIL V . TILTON 21
The Court derived several principles from its prior cases,
including Ricks, Evans, Electrical Workers v. Robbins &
Myers, Inc., 429 U.S. 229 (1976), and Bazemore v. Friday,
478 U.S. 385 (1986) (per curiam):
First, discrete discriminatory acts are not
actionable if time barred, even when they are
related to acts alleged in timely filed charges.
Each discrete discriminatory act starts a new
clock for filing charges alleging that act. The
charge, therefore, must be filed within the
180- or 300-day time period after the discrete
discriminatory act occurred. The existence of
past acts and the employee’s prior knowledge
of their occurrence, however, does not bar
employees from filing charges about related
discrete acts so long as the acts are
independently discriminatory and charges
addressing those acts are themselves timely
filed. Nor does the statute bar an employee
from using the prior acts as background
evidence in support of a timely claim.
Morgan, 536 U.S. at 113. Thus, Morgan instructs that a court
must determine whether a claim is based on an independently
wrongful, discrete act, and if it is, then the claim accrues, and
the statute of limitations begins to run, from the date of that
discrete act, even if there was a prior, related past act.
In Cherosky v. Henderson, 330 F.3d 1243 (9th Cir. 2003),
this Court discussed the application of Morgan to claims by
employees of the United States Postal Service that the Postal
Service had violated their rights pursuant to the
Rehabilitation Act by denying their requests for respirators.
22 POUNCIL V . TILTON
In order to bring a claim under the Rehabilitation Act, a
federal employee was required to consult with an EEOC
counselor within 45 days of the effective date of the action.
See Cherosky, 330 F.3d at 1245. Failure to comply with the
45-day consultation requirement was fatal to a federal
employee’s claim. Id. The employees in Cherosky did not
initiate contact with an EEOC officer within 45 days of the
denial of their requests to wear respirators and could not point
to any discrete, discriminatory act that occurred within the
45-day period. Id. at 1245-46. The employees argued,
however, that their claims were timely under the continuing
violations doctrine. Id. at 1246.
In Cherosky, this court, relying on Morgan, determined
that discrete acts, such as the denials of the employees’
requests for respirators, are only timely where such acts
occurred within the limitations period, but that the postal
employees had not alleged that any discriminatory acts had
occurred after the initial denials, which were outside of the
limitations period. See id. This court quoted with approval
the district court’s observation that the “‘heart of plaintiffs’
complaint does not stem from the policy regarding the use of
respirators, but rather from the individualized decisions that
resulted from implementation of a policy originating from
OSHA.’” Id. at 1247. The court concluded that “these
individualized decisions are best characterized as discrete
acts, rather than as a pattern or practice of discrimination.”
Id.The Cherosky court compared the “wrong” alleged by the
postal employees, the denial of each application for a
respirator, to the “wrong” in Bazemore, 478 U.S. at 395, the
receipt of a periodic paycheck pursuant to a discriminatory
salary policy. The Cherosky court explained, “Just as the
POUNCIL V . TILTON 23
wrong in Bazemore accrued each time the salary policy was
implemented, the alleged wrong here occurred and accrued
when the policy was invoked to deny an individual
employee’s request.” Cherosky, 330 F.3d at 1247.
Thus, Cherosky and Morgan suggest that each time a
policy is invoked to deny an individual plaintiff’s request, an
independently wrongful, discrete act occurs, a claim accrues,
and the limitations period begins to run. Pouncil argues that
this is precisely what occurred in 2008: The 2008 denial of
his individual request for a conjugal visit was independently
wrongful, and his claims accrued at that time, even though the
same regulation invoked to deny the 2008 request had been
invoked to deny his 2002 request for a conjugal visit.
iii. Reconciling the lines of authority
In Ledbetter v. Goodyear Tire & Rubber Co., Inc.,
550 U.S. 618 (2007), superseded by statute, Lilly Ledbetter
Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat 5., another
employment discrimination case, the Supreme Court clarified
how the “discrete acts” language of Morgan could be
reconciled with its prior case law, including Ricks and Evans.
The Court explained,
The instruction provided by Evans, Ricks,
Lorance [v. AT & T Tech., Inc., 490 U.S. 900(1989)], and Morgan is clear. The EEOC
charging period is triggered when a discrete
unlawful practice takes place. A new
violation does not occur, and a new charging
period does not commence, upon the
occurrence of subsequent nondiscriminatory
acts that entail adverse effects resulting from
24 POUNCIL V . TILTON
the past discrimination. But of course, if an
employer engages in a series of acts each of
which is intentionally discriminatory, then a
fresh violation takes place when each act is
committed. See Morgan, supra, at 113, 122
S. Ct. 2061.
Ledbetter, 550 U.S. at 628. Although the Supreme Court’s
decision in Ledbetter was later superseded by statute, that
decision nevertheless clarified the distinction between
Ledbetter’s paycheck case and Bazemore’s paycheck case, on
the ground that, in order to state a “present violation,”
Ledbetter would have to allege a current intentionally
discriminatory decision that accompanied a current action,
which she had failed to do. See Ledbetter, 550 U.S. at 633-37
(citing Bazemore, 478 U.S. at 396-97).
This court has applied the “discrete act” language of
Morgan, as explained in Ledbetter, in a prisoner rights case
brought pursuant to § 1983. See Ngo v. Woodford, 539 F.3d
1108, 1109-10 (9th Cir. 2008). In Ngo, a prison inmate
serving a life sentence was informed, on December 22, 2000,
after an administrative hearing, that he would be released
from administrative segregation, but that he could not
participate in “special programs.” 539 F.3d at 1109. Three
months later, Ngo asked the deputy warden if he could play
on the prison’s baseball team and whether he “was entitled to
participate in any and all special programs.” Id. The deputy
warden informed Ngo that he could participate in “any
recreational programs” and that the prison’s community
resources manager was authorized “to review [Ngo’s] request
to participate in any other program.” Id. Pursuant to a prison
regulation, prisoners were required to “appeal within 15
working days of the event or decision being appealed.” Id.POUNCIL V . TILTON 25
Ngo did not submit a formal appeal to the prison’s Appeal
Coordinator until approximately six months after the hearing
decision and approximately three months after he received the
response to his second request. See id.This court rejected Ngo’s argument that the December 22,
2000, order resulted in a continuing denial of his
constitutional rights, so that the 15-day limitations period
restarted each day that he was unable to participate in prison
special programs:
We rejected this argument in Knox v. Davis,
260 F.3d 1009 (9th Cir. 2001). Knox held that
a limitations period began running on the date
of a prison board’s initial determination, when
a prisoner “had notice of all of the wrongful
acts she wished to challenge at the time of the
[initial determination].” Id. at 1014.
Rejecting a continuing violation theory, we
explained that any continuing effects are
“nothing more than the delayed, but
inevitable, consequence of the [initial
determination].” Id. And in the context of
employment discrimination, the Supreme
Court recently emphasized that limitations
periods begin to run when the “discrete act”
adverse to the plaintiff occurs—“not from the
date when the effects of [that act] were felt.”
Ledbetter v. Goodyear Tire & Rubber Co.,
550 U.S. 618, 127 S. Ct. 2162, 2168, 167 L.
Ed. 2d 982 (2007). Here, the December 22
determination is the discrete act adverse to
Ngo, so the 15-working-day limitations period
began running against him on that date rather
26 POUNCIL V . TILTON
than on the date he actually felt the effects of
the order.
Ngo, 539 F.3d at 1109-10 (also concluding that the December
22 order gave the prisoner “ample notice” that he would be
barred from special programs and that the partial withdrawal
of that restriction by the deputy warden allowing the prisoner
to participate in recreation activities did not change that fact).
Thus, the apparent conflict between the Ricks/Knox line
of authority and the Morgan/Cherosky line of authority is not
a conflict at all; rather, the two lines of authority identify
different circumstances that lead to different accrual dates for
claims. The proper question, therefore, is whether, factually,
this is a Ricks/Knox case or a Morgan/Cherosky case. Put
another way, does this case involve the delayed, but
inevitable, consequence of the original 2002 decision, making
Pouncil’s claims arising from the 2008 decision time-barred,
or an independently wrongful, discrete act in 2008, which
began the running of the statute of limitations anew,
notwithstanding the prior denial pursuant to essentially the
same regulation in 2002? As this is a factual question, the
district court’s resolution is entitled to deferential review.
See Hells Canyon Pres. Council, 403 F.3d at 691.
e. Application
We affirm the district judge’s finding that the denial of
Pouncil’s request for a conjugal visit in 2008 is a separate,
discrete act, rather than a mere effect of the 2002 denial. This
is so, because Pouncil alleges, and the record supports, that
the second denial is a stand-alone violation of Pouncil’s First
Amendment and RLUIPA rights from which the statute of
limitations runs anew. See Morgan, 536 U.S. at 113. The
POUNCIL V . TILTON 27
2008 denial is an independently wrongful “present violation,”
because Pouncil’s claims do not rely on any acts that occurred
before the statute of limitations period to establish a violation
of his right to free exercise of religion or his rights under
RLUIPA. See Bazemore, 478 U.S. at 396-97, n.6 (Brennan,
concurring in part) (citing Evans, 431 U.S. at 558, for the
proposition that the “critical question” is whether any
“present violation” exists, and evaluating whether the
plaintiff’s claims of wrongfulness were “present violations”
by considering whether they relied on prior acts). Unlike
Ledbetter, who was unable to point to a later act that fully
established the alleged violation, Ledbetter, 550 U.S. at 629,
Pouncil does point to a later act, the 2008 denial, that fully
establishes a First Amendment and RLUIPA violation,
without reaching back to the 2002 denial to establish a
necessary element of his claims. To put it another way, the
2008 denial relied on a new application of the regulation to a
new request for a conjugal visit, it did not rely on the 2002
denial as barring all subsequent requests for conjugal visits.
In contrast, the cases on which Tilton relies each lacked
any allegation or showing of a subsequent and separately
wrongful act. For example, in Ricks, the college professor
failed to allege or show a subsequent and separately wrongful
act after notice of the denial of tenure. See Ricks, 449 U.S. at
257-58 (determining that the only wrongful decision alleged
was a wrongful denial of tenure and not an additional
wrongful discharge one year later). While the Supreme Court
in Ricks noted that the “proper focus is upon the time of the
discriminatory acts, not upon the time at which the
consequences of the acts became most painful,” it did so
based upon the finding that Ricks had pleaded only one
discrete wrongful act, the denial of tenure. See id. at 258
(citing Abramson v. University of Hawaii, 594 F.2d 202, 209
28 POUNCIL V . TILTON
(9th Cir. 1979)) (emphasis added). In contrast, Pouncil has
alleged a second, discrete wrongful act—the 2008 denial.
The failure to allege a subsequent, independently
wrongful act also explains the holdings in Knox, Cherosky,
and Ngo. In Knox, each of the denials subsequent to the
January 20, 1996, letter advising Knox that her legal mail and
visitation rights had been revoked relied on that letter as the
basis for denying Knox either legal visitation or
correspondence privileges with inmates. Knox, 260 F.3d at
1012. Moreover, Knox acknowledged that her claim had
accrued upon receipt of the letter suspending her visitation
and correspondence rights. See id. at 1013. Thus, the court
in Knox was simply never asked to consider whether each
subsequent denial was a separate violation of her rights, only
whether each subsequent denial was part of a continuing
violation. Id. Here, in contrast, Pouncil specifically asserts
that the 2008 denial of his request for a conjugal visit was a
discrete act, and the 2008 denial relied on a new application
of the regulation to a new request for a conjugal visit, rather
than on the 2002 denial as barring all subsequent requests for
conjugal visits.
In Cherosky, the employees did not point to any discrete,
discriminatory act that occurred within the period of
limitations. See Cherosky, 330 F.3d at 1245. The court in
Cherosky concluded, however, that if an employee’s new
request for a respirator were denied pursuant to the same
policy, the time period would begin to run anew, despite an
earlier denial. See id. at 1248. The situation contemplated in
Cherosky is exactly the situation here: Pouncil’s request for
a conjugal visit with his wife in 2008 was denied pursuant to
the same policy as the denial in 2002, so that the time period
should be found to run anew from the later denial, despite an
POUNCIL V . TILTON 29
earlier denial. In other words, the “heart” of Pouncil’s
claims, like the “heart” of the plaintiffs’ complaint in
Cherosky, “does not stem from the policy regarding the
[denial of conjugal visits to LWOP prisoners], but rather from
the individualized decisions that resulted from
implementation of a policy originating from [the CDCR].”
Cf. id. at 1247. As in Cherosky, “these individualized
decisions are best characterized as discrete acts, rather than as
a pattern or practice of discrimination.” Id. The difference
between Pouncil’s claim and the plaintiffs’ claims in
Cherosky is that his individualized decision in 2008 fell
within the limitations period.
Again, in Ngo, the plaintiff did not allege a second
adverse decision. Instead, Ngo alleged one decision
announced at the conclusion of a hearing, that he would be
unable to participate in “special programs.” That decision
was followed by Ngo’s request to participate in baseball,
which was granted. Ngo’s additional query about
participation in other “special programs” was deferred until
a further request was actually made. See Ngo, 539 F.3d at
1109. Thus, Ngo involved one adverse decision followed by
one positive decision and a statement that no decision would
be made regarding other matters until a specific request was
made. Id.In contrast to the plaintiffs in Rick, Knox, Cherosky, and
Ngo, the district judge found that Pouncil has alleged a
second adverse decision that is independently wrongful
within the limitations period. In addition to showing proper
deference to the district court’s factual finding that Pouncil
had alleged a current violation and injury, see Hells Canyon
Pres. Council, 403 F.3d at 691, our determination that the
2008 denial of Pouncil’s request for conjugal visits was a
30 POUNCIL V . TILTON
separate, discrete, and independently wrongful act is
consistent with prior cases analyzing the application of
Morgan’s “discrete act” language. See, e.g., Cherosky, 330
F.3d at 1245-47; Ngo, 539 F.3d at 1109-1110. Those cases
lead to the conclusion that each wrongful act starts a new
clock for filing a claim alleging that act. Such a
determination also fits with Morgan’s rule that the existence
of past acts and the claimant’s prior knowledge of their
occurrence does not bar a claimant from filing claims about
related discrete acts, so long as the subsequent acts are
independently wrongful and claims alleging those acts are
themselves timely filed. Morgan, 536 U.S. at 113.6
While Knox may, at first blush, appear to support a
finding that the second denial was merely a consequence of
the first denial, upon a closer reading, it does not support or
require such a finding, because it is distinguishable for the
reasons stated above. Furthermore, Knox does not require the
conclusion that multiple denials of rights pursuant to the same
prison policy are necessarily just effects of the original
discriminatory act, because Knox was decided before the
Supreme Court’s development of the discrete act analysis in
Morgan, and also prior to this court’s application of the
discrete act analysis to a prisoner’s § 1983 case in Ngo.
Finally, the district court’s decision in the similar case of
Henderson v. Hubbard, 2010 WL 599886 (E.D. Cal. Feb. 18,
2010) (slip op.) (findings and recommendations of magistrate
judge), is neither binding nor persuasive. In Henderson, the
6
Further, although we need not decide the issue, in those cases where
the filing period is not jurisdictional, the doctrines of estoppel, waiver, and
laches may still operate to ameliorate the specter of any excesses that may
be raised by this opinion. See Morgan, 536 U.S. at 121.
POUNCIL V . TILTON 31
plaintiff was a prisoner who complained in 2006 about the
same regulation at issue here, which prohibited conjugal
visits for him, because he was serving life sentences on which
no parole date had been set by the Board of Prison Terms.
Henderson, 2010 WL 599886 at *1 n.2. The district court
concluded that the prisoner had been aware of the policy in
June of 1998, when he was denied overnight visits with his
wife, and that the statute of limitations began to run “when he
became aware of the reason his conjugal visits were denied.”
Id. at *2. However, unlike the district court in Pouncil’s case,
the district court in Henderson did not apply or discuss
Morgan, Cherosky, or Ngo, all of which, for reasons
discussed above, suggest a different outcome—that is, that a
later denial pursuant to the same policy is an independently
wrongful “discrete act” that starts the statute of limitations
running, notwithstanding a prior denial.7
3. CONCLUSION
Because Pouncil’s claims are based on an independently
wrongful, discrete act in 2008, the denial of his request for
conjugal visits with his second wife, Pouncil’s claims are not
time-barred, notwithstanding the denial, pursuant to the same
regulation, of his prior request for conjugal visits with his
first wife in 2002.
AFFIRMED.
7
Also, unlike Pouncil, the plaintiff in Henderson did not oppose the
defendants’ motion to dismiss. Henderson, 2010 W L 599886 at *1. Thus,
although Henderson presented the same issues as this case, those issues
were never considered in Henderson in a contested proceeding.