Marcum v. Harris

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-2-2009
Marcum v. Harris
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1123
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1123
ROY L. MARCUM,
Appellant
v.
GWENDOLYN HARRIS; DEVON BROWN; JOHN E. MAIN; MERRILL MAIN;
GRACE ROGERS; PAUL LEGANA; JOHN VARNEY; JACKLYN OTINO;
HEATHER BURNET; SHANTAY BRAME; STATE OF NEW JERSEY;
GREEN, Department of Corrections Officer
GLENN FERGUSON; JOHN DOE NO. 1-10
(Name being gender neutral and fictitious as the
true identity is unknown) Individually and in their respective
Official Capacities, Jointly, Severally and Individually
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 06-cv-04556)
District Judge: Honorable Peter G. Sheridan
Submitted Under Third Circuit LAR 34.1(a)
March 23, 2009
Before: SLOVITER, BARRY, ROTH, Circuit Judges
(Opinion Filed: April 2, 2009)
OPINION
BARRY, Circuit Judge
Roy Marcum appeals the order of the District Court granting defendants’ motion
for summary judgment on statute of limitations grounds in Marcum’s action brought
under 42 U.S.C. § 1983. We will affirm.
I.
Marcum is civilly committed at the Special Treatment Unit (STU) in Kearny, New
Jersey, pursuant to the New Jersey Sexually Violent Predator Act, see N.J.S.A. §§ 30:4-
27.24 – 27.38. On April 8, 2004, he was en route to an appointment with his privately-
retained psychologist when an STU officer informed him that he would not be able to
take his comb into the meeting. A verbal confrontation between Marcum and the STU
officer ensued, and Marcum was assigned to the Modified Activities Program (MAP)
later that day.1
MAP is a component of the clinical treatment program at the STU that focuses on
stabilizing the disruptive behavior of uncooperative residents. Residents who are placed
in MAP have fewer privileges than their fellow committees at STU – visiting hours are
restricted, random cell searches are conducted more often, contact with other residents is
greatly diminished, and their unescorted movement is limited. See M.X.L. v. N.J. Dep’t of
Human Servs., 876 A.2d 869, 873-74 (N.J. Super. Ct. App. Div. 2005). An essential
1
It appears from the record that Marcum was not the aggressor in that confrontation.
(Appendix at 81); (see id. at 95 (STU’s “clinical impression is that [Marcum] had a
relatively limited contributory role in the volatile interaction”).
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element of the program is an exploration of “the behavior that resulted in MAP
placement” through discussion in group therapy. Id. at 874.2
Marcum believed that he was unjustly placed in MAP, but refused to discuss his
behavior in group therapy. Instead, on June 7, 2004, he wrote to the Program Coordinator
of the STU and requested a “hearing . . . to resolve the [justification underlying] his
placement in MAP.” (Dist. Ct. Docket No. 8-4, at 75). In response, by letter dated June
17, 2004, the Program Coordinator informed him that a hearing was not necessary
because his route out of MAP was straightforward, requiring no more than attendance at
“several consecutive [group therapy] sessions.” (Id. at 80.) 3 Marcum wrote the STU’s
Director of Psychology on at least three occasions – June 7, 16, and July 7, 2004 –
requesting reconsideration of his MAP status and a hearing on the merits of his original
placement. He received two responses. First, on July 16, 2004, the Director of
Psychology notified him that “the place to deal with the matters raised in your
2
MAP group therapy serves a limited purpose that is unrelated to the sex offenses
underlying the residents’ commitment in the STU. (See Appendix at 95-96 (“MAP group
[therapy] is not sex offender specific treatment. Residents’ criminal sexual histories are
generally not relevant and not discussed”)); see also M.X.L., 876 A.2d at 874 (therapy is
aimed at fostering an understanding of residents’ actions within the STU to avoid “similar
problem[atic behavior] in the future”).
3
The Program Coordinator elaborated, writing that Marcum’s response to his MAP
placement “[was] possibly more noteworthy than the verbal confrontation that
precipitated [his] placement in MAP.” (Dist. Ct. Docket No. 8-4, at 80.) He further
stated that Marcum’s “behavior (e.g. poor attendance [at group therapy]) subsequent to
[his] MAP placement . . . led to [his] extended stay in the MAP program.” (Id.)
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correspondence is in MAP group.” (Appendix at 95); (see id. (“you would almost
certainly have been back in general population long ago had you attended MAP group and
exerted any effort to discuss [your behavior]”)). On August 19, 2004, Marcum was
further informed that he would not be transitioned out of MAP until he demonstrated at
group therapy that he was stable enough to join the general population. (Id. at 97.)
Marcum persisted in his decision not to attend group therapy, and instead,
according to his complaint, “filed numerous civil lawsuits and innumerable grievances”
regarding his MAP placement. (Id. at 56.) He was not permitted to rejoin the general
population until March 21, 2006, after nearly two years in MAP.
Marcum filed this action on September 22, 2006, alleging that his initial placement
into MAP, without a hearing, violated procedural due process, and that the subsequent
conditions of that placement ran afoul of substantive due process. He further contends
that his MAP placement gave rise to a host of other constitutional violations, including
violations of the First, Fourth, Fifth and Sixth Amendments.
Defendants, who are employees of the New Jersey Department of Corrections and
the New Jersey Department of Human Services (and the State itself), moved to dismiss
on, inter alia, statute of limitations grounds. The District Court converted that motion
into a motion for summary judgment, and held that because the alleged constitutional
claims were the continued effects of Marcum’s initial placement in MAP, they accrued on
April 8, 2004. The Court therefore concluded that this action, filed on September 22,
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2006, was time-barred.
II.
We have jurisdiction over Marcum’s appeal from a final order of the District Court
under 28 U.S.C. § 1291, and “our standard of review of a grant of summary judgment is
plenary.” Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 557 (3d Cir. 2008).
Actions brought under 42 U.S.C. § 1983 are governed by the personal injury
statute of limitations of the state in which the cause of action arose. Wallace v. Kato, 549
U.S. 384, 387 (2007). “For [§] 1983 actions in New Jersey, ‘that statute is N.J.S.A. [§]
2A:14-2, which provides that an action for an injury to the person caused by a wrongful
act, neglect, or default, must be convened within two years of accrual of the cause of
action.’” O’Connor v. City of Newark, 440 F.3d 125, 126-27 (3d Cir. 2006) (quoting
Brown v. Foley, 810 F.2d 55, 56 (3d Cir. 1987)). Thus, the limitations period for
Marcum’s claims is two years. Id. The date on which that period begins, however, is a
question of federal law. See Wallace, 549 U.S. at 388 (“the accrual date of a § 1983
cause of action is a question of federal law that is not resolved by reference to state law”)
(emphasis in original). Accrual occurs “when the plaintiff has a complete and present
cause of action . . . that is, when the plaintiff can file suit and obtain relief.” Id.
(quotations and citations omitted). In the context of § 1983, “[t]hat is the date that the
plaintiff knew or should have known that his constitutional rights had been violated.”
Savory v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006).
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Marcum contends that because his MAP placement did not end until March 21,
2006 – or well within the statutory period – his claims remain actionable. We expressly
held in O’Connor, however, “that time-barred claims cannot be resurrected by being
aggregated and labeled continuing violations.” 440 F.3d at 129; cf. National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (holding, in the context of
employment discrimination, that “discriminatory acts are not actionable if time barred,
even when they are related to acts alleged in timely filed charges”). Marcum’s § 1983
action stems from two affirmative acts by the defendants – first, his initial placement in
MAP, and second, the decision to condition his release from MAP on participation in
MAP group therapy. Every other alleged constitutional wrong is a “lingering
consequence[]” of those two discrete decisions. See Savory, 469 F.3d at 673; cf. Del.
State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (quoting Abramson v. University of Hawaii,
594 F.2d 202, 209 (9th Cir. 1979)) (in employment discrimination context, “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”) (emphasis in Ricks). Marcum was aware
of his placement on April 8, 2004, and by August 19, 2004 he had received three letters
from the administration of the STU informing him that the placement would not be
revisited unless he attended group therapy. At minimum, “[t]he law required him to sue
within two years of the [later date].” O’Connor, 440 F.3d at 129; see Wallace, 549 U.S.
at 391 (claim accrues on date alleged wrongful act is known, not when the full extent of
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the injury comes to be known).
Marcum contends, in the alternative, that the statute of limitations should be
equitably tolled because defendants fraudulently concealed the accrual of his claim. More
specifically, he argues that the Residents’ Guide to the STU provides that a resident can
challenge his MAP placement by filling out a “Request System & Remedy Form,” which
will initiate an administrative grievance process. Marcum filled out the form on
November 5, 2004, requesting a meeting to “discuss [his] continued . . . MAP status,”
(Appendix at 79), and was notified on November 11, 2004 that his request was denied but
that his “MAP status concerns” could be raised at MAP group therapy. (Id. at 80) He
contends that he did not become aware of his constitutional claims until that date.
Defendants point out, accurately, that Marcum failed to raise this argument in the District
Court, and that it is therefore waived. See Gass v. V.I. Tel. Corp., 311 F.3d 237, 246 (3d
Cir. 2002) (“[i]t is well established that failure to raise an issue in the district court
constitutes a waiver of the argument” and “[w]e only depart from this rule when a
manifest injustice would result”) (quotations and citations omitted).
In any event, a plaintiff seeking to establish fraudulent concealment bears a heavy
burden. Marcum must demonstrate “(1) ‘active misleading’ by the defendant, (2) which
prevents [him] from recognizing the validity of [his] claim within the limitations period,
[and] (3) [that his] ignorance is not attributable to [his] lack of ‘reasonable due diligence
in attempting to uncover the relevant facts.’” Matthews v. Kidder, Peabody & Co., Inc.,
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260 F.3d 239, 256 (3d Cir. 2001) (quoting Forbes v. Eagleson, 228 F.3d 471, 486-88 (3d
Cir. 2000)). While Marcum may have been initially misled by the Residents’ Guide, any
doubt regarding the availability of an administrative grievance process was resolved by
the letters he received in June, July, and August 2004. The November 11, 2004 denial of
his “Request System & Remedy Form” contained no new information; it merely reiterated
that Marcum’s concerns about MAP could only be addressed in group therapy.4 There is
no showing of fraudulent concealment here.
Because Marcum knew or should have known about his constitutional claims on
(or before) August 19, 2004, when he was told for the third time that his release from
MAP was conditioned upon participation in group therapy, his “cause of action persisted
for two years [from that date] and then lapsed.” O’Connor, 440 F.3d at 129.
III.
Marcum’s § 1983 action is time-barred. We will, therefore, affirm the District
Court’s order granting defendants’ motion for summary judgment.
4
In response to our request for letter briefing, Marcum argued for the first time that
the statute of limitations should have been tolled while he was exhausting available
administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. §
1997e. Because that argument, too, was waived, we note only that Marcum was not a
“prisoner” within the meaning of the Act. Id. at § 1997e(h); see Page v. Torrey, 201 F.3d
1136, 1140 (9th Cir. 2000) (holding that plaintiff detained pursuant to California’s
Sexually Violent Predators Act is not a “prisoner” as that term is used in 42 U.S.C. §
1997e because his “detention is not . . . punishment for his criminal conviction but rather
a civil commitment for non-punitive purposes”).
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