07-1787-pr Gonzalez v. Hasty
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
_______________________
August Term, 2008
(Argued: April 24, 2009 Decided: June 22, 2011)
Docket No. 07-1787-pr _______________________
ESTEBAN GONZALEZ,
Plaintiff-Appellant, -v.-
WARDEN DENNIS W. HASTY, WARDEN GREGORY PARKS, ASSOCIATE WARDEN PERKINS, ASSOCIATE WARDEN JAMES SHERMAN, ASSOCIATE WARDEN POWERS, AGENT JOHN FEENEY, SPECIAL INVESTIGATIVE, CAPTAIN NELSON APONTE, CAPTAIN SALVATORE LOPRESTI, LIEUTENANT BARRY, LIEUTENANT GURINO, DEPUTY CAPTAIN VENERONI, STEVEN BARRERE, LIEUTENANT RODRIGUEZ, PSYCHOLOGIST DR. KAWERSKI, PSYCHOLOGIST DR. HESS, LIEUTENANT WHITE, LINTON THOMAS KUCHARSKI,
Defendants-Appellees. _______________________
Before: DENNIS JACOBS, Chief Judge, ROSEMARY S. POOLER, PETER W. HALL, Circuit Judges.
Plaintiff-Appellant Esteban Gonzalez appeals from an order of the United States District Court for the Southern District of New York (Berman, J.) granting defendants’ motion to dismiss. We hold that an inmate is entitled to
-1- equitable tolling of the statute of limitations for a civil action while he is exhausting administrative remedies as prescribed by the Prison Litigation Reform Act. VACATED and REMANDED.
Judge Jacobs concurs in a separate opinion. _______________________
MICHAEL A. YOUNG, New York, New York, appearing for Plaintiff-Appellant.
BRIAN M. FELDMAN (David S. Jones, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, appearing for Defendants-Appellees. _______________________
HALL, Circuit Judge:
Esteban Gonzalez appeals from the judgment of the
United States District Court for the Southern District of
New York (Berman, J.) granting defendants-appellees’ motion
to dismiss Gonzalez’s claims brought pursuant to 18 U.S.C. §
1983 and Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). Gonzalez claims
that the district court erred in finding that the statute of
limitations had run on the first of his two causes of action
and in dismissing his second cause of action for improper
venue. We VACATE and REMAND on the grounds that claims
brought by an inmate under the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a), are entitled to equitable
tolling during the time-period the inmate is exhausting his
-2- administrative remedies, as required by the PLRA. We also
VACATE the judgment insofar as it dismissed some of
Gonzalez’s claims for improper venue and REMAND with
instructions that the court transfer those claims to the
United States District Court for the Eastern District of New
York if the court deems it proper to do so upon
reexamination of all of Gonzalez’s claims.
BACKGROUND
Beginning on February 28, 1999, Esteban Gonzalez, an
inmate in the Metropolitan Correction Center (“MCC”) in
lower Manhattan, was confined to the MCC’s special housing
unit (“SHU”). Gonzalez maintains that he was confined in
the SHU for two and a half years, after which he was
transferred to the Metropolitan Detention Center (“MDC”), in
Brooklyn, New York, on July 24, 2001. Upon arriving at the
MDC, Gonzalez alleges that he was immediately confined in
that facility’s SHU, and remained there until his transfer
out of the MDC nearly ten months later. Gonzalez claims
that he was unlawfully confined in SHU for almost eleven
hundred consecutive days.
A “special housing unit” separates inmates from the
general population either via “administrative detention” or
-3- “disciplinary segregation.” 28 C.F.R. §§ 541.20, 541.22.
Gonzalez was placed in administrative detention, a “non-
punitive” form of separation, 28 C.F.R. § 541.21, whereby,
Gonzalez claims, inmates are confined to their cells for 23
hours per day, privileges are limited, and handcuffs are
mandatory whenever the SHU inmate is outside of his cell.
3] Administrative detention is used when “the inmate’s
continued presence within the general population would pose
a serious threat to life, property, self, staff or other
inmates, or to the security or orderly running of the
institution.” 28 C.F.R. § 541.22(a).
In order to ensure inmates are placed in a SHU for
cause, and once there, only for a limited period of time,
federal regulations governing the Bureau of Prisons (“BOP”)
designate that a Segregation Review Officer (“SRO”) be
responsible for conducting a review of the administrative
detention within three work days of its commencement, hold a
hearing for each inmate confined for over seven continuous
days, and “thereafter review these cases on the record (in
the inmate’s absence) each week, and hold a hearing and
review these cases formally at least every 30 days.” 28
C.F.R. § 541.22(c)(1). Whenever administrative detention
-4- extends beyond 30 days a psychiatric or psychological
assessment is required in order to assess whether the inmate
poses a threat to himself or others. Id. Administrative
detention should only be imposed for short periods of time
except when it is for the inmate’s protection or there are
exceptional circumstances concerning security or complex
investigations, in which case a monthly report is required.
Id. “The SRO shall release an inmate from administrative
detention when reasons for placement cease to exist.” Id.
Gonzalez, pro se, filed a Bivens complaint in the
New York on May 31, 2005 against Dennis Hasty, warden of the
MCC during Gonzalez’s confinement, who then became the
warden of MDC shortly before Gonzalez was transferred to
that institution. Gonzalez also named as defendants
correctional and mental health staff in both facilities.
The verified complaint alleged, inter alia, that the
defendants failed to conduct segregation review hearings
during Gonzalez’s SHU confinement in the MCC and the MDC,
falsely completed and furnished Gonzalez records of hearings
that never occurred, and at no point conducted meaningful
psychological assessments. The complaint raised two
-5- separate claims, the first addressing his treatment at the
MCC (in Manhattan), and the second focusing on the MDC (in
Brooklyn). Gonzalez alleged that the reason for this
mistreatment by two separate penal facilities was a
conspiracy engineered by Hasty as retribution for Gonzalez’s
allegations that Hasty was a racist. The consequence of the
defendants’ conspiratorial activities, Gonzalez pleaded,
were numerous violations of his First, Fifth and Eighth
Amendment rights. Gonzalez alleged that he exhausted his
administrative remedies on August 8, 2002.
Following a substantial delay arising from Gonzalez’s
failure to effect proper service, Defendants moved to
dismiss Gonzalez’s MCC claims as time-barred by a three-year
statute of limitations, and the MDC claims on the grounds of
improper venue. They asserted that the last date upon which
Gonzalez could base any of his claims against the MCC
defendants was July 2001 when he was transferred to the MDC,
and that the statute of limitations, therefore, expired in
July of 2004. Gonzalez, through counsel, argued in response
that his claims were timely under the continuing violation
doctrine, adding that he “was compelled to exhaust his
-6- administrative remedies prior to filing his lawsuit.”1
Gonzalez pointed to the PLRA, which mandates that “[n]o
action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law,
by a prisoner . . . until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997(e)(a). And
relying on the Fifth Circuit’s decision in Harris v. Hegman,
198 F.3d 153, 157-59 (5th Cir. 1999) (reversing the
dismissal of a prisoner’s civil rights suit on grounds that
his exhaustion of administrative remedies tolled the
applicable statute of limitations), he argued that he had
complied with the PLRA and that this “had the effect of
1 Gonzalez asserted that because Warden Hasty was the “thread that tie[d] all of the[] allegations together,” the continuous violation began with his February 1999 incarceration at the MCC and continued until his transfer out of the MDC in May 2002. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002) (holding that in the context of a hostile work environment claim filed under Title VII of the Civil Rights Act of 1964 only one incident comprising the hostile work environment need fall within the relevant limitations period because the continuing violation doctrine will render the entire claim timely); see also Shomo v. City of New York, 579 F.3d 176, (2d Cir. 2008) (applying the continuing violation doctrine to deliberate indifference claims brought under 42 U.S.C. § 1983). We decline to decide on this record, however, whether the continuing violation doctrine allows the two confinements to be aggregated in order to preserve MCC claims that might otherwise have been lost absent prolonged tolling, and to lengthen the period of confinement in SHU. -7- tolling the limitations period.” As for the defendants’
allegations of improper venue, Gonzalez argued that his
injuries suffered in the MDC were a continuation of those
begun in the MCC, and that dismissal would result in a
miscarriage of justice.
In February 2007, Magistrate Judge Ellis issued a
report and recommendation stating that Gonzalez’s
“allegations of a conspiracy at the MCC . . . would be
barred by the three year statute of limitations,” and “any
conspiracy to deprive [Gonzalez] of his constitutional
rights at the MDC would constitute a new conspiracy, and the
Southern District would not be the proper venue.” The
magistrate judge also found that Gonzalez “fail[ed] to
establish a provable claim.” Gonzalez filed an objection to
the report, arguing that: (1) under the continuing violation
doctrine his claims were still timely, (2) venue was proper
because of a “sufficient connection between the offending
conduct and the district in which the action [had] been
filed,” and (3) he had made sufficient factual allegations
to support his causes of action.
The district court found that, even assuming Gonzalez
had shown the “compelling circumstances” necessary to
-8- prevail on a continuing violation theory, his MCC claim
nonetheless ripened when he was transferred out of the MCC
on July 24, 2001, and any constitutional violations that
allegedly occurred at the MDC would constitute a new
conspiracy. Gonzalez, 2007 U.S. Dist. LEXIS 21668, at *8, 9
(S.D.N.Y. Mar. 27, 2007). The court declined to reach
Gonzalez’s exhaustion of administrative remedies argument
“because, as noted . . . , the Southern District of New York
is not the proper venue for determination of the MDC Claim.”
Id. at *10 n.5. The district court failed to address,
however, whether tolling of the statute of limitations
should apply to Gonzalez’s MCC claims, which arose in
Manhattan and where venue was proper. The district court
dismissed Gonzalez’s MDC’s claims for improper venue,
finding that none of the events or occurrences giving rise
to the claims occurred in the Southern District of New York.
Id. at *11.
DISCUSSION
A. Standard of Review
We review de novo a district court’s grant of a motion
to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, accepting as true all allegations in the
-9- complaint and drawing all reasonable inferences in favor of
the non-moving party. Vietnam Ass’n for Victims of Agent
Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008).
When the district court makes a venue determination on the
basis of the pleadings and affidavits, we review de novo the
legal question of whether petitioner has established a prima
facia case that venue was proper. Gulf Ins. Co. v.
Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005).
B. Tolling the Statute of Limitations
Gonzalez was transferred from the MCC to the MDC on
July 24, 2001, and his complaint was not received by the
court until May 31, 2005. Absent tolling, therefore, his
claims against the MCC officials would be barred by the
three-year statute of limitations applied by federal courts
sitting in New York to Bivens claims. See Kronisch v.
United States, 150 F.3d 112, 123 (2d Cir. 1998) (“Federal
Courts in New York apply a three-year statute of limitations
period to Bivens claims.”). Gonzalez asserts that the
statute of limitations should be tolled for the time period
during which he was actively exhausting his administrative
remedies, and that because he filed his complaint less than
-10- three years after he had exhausted all of his administrative
remedies, all of his claims are timely.
A statute of limitations provides an affirmative
defense, and the burden is on the defendant to establish
when a federal claim accrues. See Fed. R. Civ. P. 8(c).
Notwithstanding that exhaustion is an affirmative defense
not required to be pleaded in an inmate’s complaint, Jones
v. Bock, 549 U.S. 199, 216 (2007), Gonzalez did plead it.
See Complaint ¶ 30. We thus accept as true that on the
stated date, August 8, 2002, Gonzalez exhausted his
administrative remedies. See Dow Chem. Co., 517 F.3d at
115.
We have not previously determined whether the statute
of limitations in a civil action by an inmate should be
tolled during the time it takes the inmate to exhaust his
administrative remedies under the PLRA. See Sims v. Goord,
151 F. App’x 12, 14 (2d Cir. 2005) (unpublished summary
order) (recognizing that is unsettled in this Circuit
whether a statute of limitations for a civil rights claim
should be tolled while an inmate exhausts his administrative
remedies). “Statutes of limitations are generally subject
to equitable tolling where necessary to prevent unfairness
-11- to a plaintiff who is not at fault for her lateness in
filing.” Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d
318, 322 (2d Cir. 2004). “Equitable tolling is an
extraordinary measure that applies only when plaintiff is
prevented from filing despite exercising that level of
diligence which could reasonably be expected in the
circumstances.” Id. (emphasis added). Our sister circuits
that have squarely confronted the question presented here
have answered in the affirmative, holding that tolling is
applicable during the time period in which an inmate is
actively exhausting his administrative remedies. See Brown
v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005); Clifford v.
Gibbs, 298 F.3d 328, 332 (5th Cir. 2002); Johnson v. Rivera,
272 F.3d 519, 522 (7th Cir. 2001); Brown v. Morgan, 209 F.3d
595, 596 (6th Cir. 2000).2
2 We note that as opposed to tolls that result in an entirely “intact” statute of limitations, e.g., a minority toll wherein once a claimant reaches the age of majority he still retains the entire statute of limitations applicable to the underlying claim, courts that toll PLRA claims apply the toll only to the time period in which the inmate is actively exhausting his administrative remedies, and not the anterior time period in between the accrual of the claim and when the prisoner initiated the administrative remedy process. See, e.g., Brown, 209 F.3d at 596 (“[T]he statute of limitations which applied to Brown’s civil rights action was tolled for the period during which his available state remedies were being exhausted.” (emphasis added)). For example, if an inmate’s claim accrues on January 1, 2010, -12- Defendants assert that we need not decide whether to
adopt an exhaustion toll for claims filed under the PLRA.
Assuming arguendo equitable tolling is applicable,
defendants argue that Gonzalez’s claim still fails because
BOP regulations provide an administrative remedy period, “at
the long end of the spectrum,” of one hundred and forty days
from the filing of a remedy request, while Gonzalez’s claim
implicates an administrative remedy period in excess of
three hundred days. The PLRA’s administrative remedy
program for inmate grievances, 28 C.F.R. §§ 542.11-542.18,
requires that an inmate first attempt resolution of his or
her grievance through informal channels before submitting a
Request for Administrative Remedy (“RAR”). 28 C.F.R. §
542.13(a). Should informal remedies prove unsuccessful, the
inmate has twenty days from the occurrence of the incident
to submit an RAR, although an extension may be allowed where
the inmate demonstrates a valid reason for delay. 28 C.F.R.
and the inmate does not begin pursuing administrative remedies until December 1, 2010, any subsequent tolling that may be applicable would not include this eleven month period. Cf. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (explaining that for habeas petitioners filing under 28 U.S.C. § 2254 the “tolling provision excludes time during which properly filed state relief applications are pending, but does not reset the date from which the one-year statute of limitations begins to run”). -13- § 542.14. The warden has 20 calendar days to respond to an
RAR and, if not satisfied with the warden’s response, the
inmate may appeal to the appropriate regional director
within 20 calendar days of the date the warden signs the
response. 28 C.F.R. §§ 542.15(a), 542.18. If not satisfied
with the regional director’s response, the inmate may appeal
to the general counsel within 30 calendar days of the date
the regional director signs the response. 28 C.F.R. §
542.15(a). Once an appeal is filed, the regional director
must respond within 30 calendar days and the general counsel
within 40 calendar days, and if the time to respond is
insufficient, it may be extended once by 20 days at the
institution level, 30 days at the regional level, and 20
days at the central office level. 28 C.F.R. § 542.18.
Upon the inmate’s showing of a valid reason for delay, all
the deadlines may be extended. 28 C.F.R. § 542.15(a).
Under this latter provision, therefore, the time for
achieving a resolution under the PLRA could be considerably
longer than 140 days. In some instances, it is certainly
possible that a full three years could pass while an inmate
exhausts his administrative remedies. Cf. Abney v.
McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) (“[E]xhaustion
-14- may be achieved in situations where prison officials fail to
timely advance the inmate’s grievance or otherwise prevent
him from seeking his administrative remedies . . . .”).
Defendants’ assertion that there is a statutory maximum
time-period beyond which equitable tolling will not save a
claim thus finds no support in the applicable regulations,
and certainly not in juxtaposition to the allegation in the
complaint that Gonzalez’s administrative remedies were not
exhausted until August 8, 2002.
As noted, the Ninth, Fifth, Seventh, and Sixth Circuits
have all adopted the rule that equitable tolling is
applicable to the time period during which a prisoner-
plaintiff is exhausting his administrative remedies pursuant
to the PLRA. See Brown, 422 F.3d at 942-43; Clifford, 298
F.3d at 332; Johnson, 272 F.3d at 522; Brown, 209 F.3d at
596.3 “The ‘catch-22’ . . . is self-evident: the prisoner
who files suit . . . prior to exhausting administrative
remedies risks dismissal based upon § 1997e; whereas the
prisoner who waits to exhaust his administrative remedies
risks dismissal based upon untimeliness.” Johnson, 272 F.3d
3 The Tenth Circuit has also adopted this rule, although not in a published opinion. See Roberts v. Barreras, 109 F. App’x 224 (10th Cir. 2004). -15- at 522. Indeed, the exhaustion requirement in some
circumstances may be nothing other than a “legal cause which
prevent[s] the courts or their officers from taking
cognizance of or acting on [a] plaintiff's action.” Harris,
198 F.3d at 158 (quoting Burge v. Parish of St. Tammany, 996
F.2d 786, 788 (5th Cir. 1993) (internal quotations
omitted)). Furthermore, any other interpretation of the
PLRA could “permit [prison officials] to exploit the
exhaustion requirement through indefinite delay in
responding to grievances.” Lewis v. Washington, 300 F.3d
829, 833 (7th Cir. 2002) (internal quotations omitted). For
these reasons, we join our sister circuits and hold “that
the applicable statute of limitations must be tolled while a
prisoner completes the mandatory exhaustion process.”
Brown, 422 F.3d at 943.
Applying this rule here raises a problem, however.
Although we accept as true Gonzalez’s allegation that he
exhausted all of his administrative remedies by August 8,
2002, the record is devoid of any facts indicating when
Gonzalez first raised his administrative claims, thus
initiating the exhaustion process. And because the date on
which Gonzalez first raised his administrative claims
-16- demarcates the commencement of the period of time during
which he was actively exhausting those claims, this
fact—which is absent from the record—controls whether
Gonzalez’s MCC claims are timely. That is, under the rule
we articulate today, the applicable three-year statute of
limitations is tolled only during that exhaustion period and
not during the period in between the accrual of those claims
and when Gonzalez began the administrative remedy process.
See Brown, 209 F.3d at 596.
We cannot resolve this issue on the existing record.
But because it is entirely possible that Gonzalez raised his
administrative claims sufficiently in advance of August 8,
2002, so as to render his MCC claims timely, we vacate the
district court’s dismissal of those claims and remand with
instructions that the court determine when Gonzalez
initiated his administrative proceedings and whether, based
on that date, his MCC claims are timely.4
4 Assuming that Gonzalez’s MCC claims accrued on July 24, 2001 (the date he was transferred out of the MCC), those claims are timely only if the three-year statute of limitations period was tolled for at least 312 days, since Gonzalez filed his complaint on May 31, 2005 and, absent tolling, the limitations period expired on July 24, 2004 (July 24, 2004 to May 31, 2005 = 312 days). Accordingly, assuming that Gonzalez finished exhausting his administrative remedies on August 8, 2002, the length of that exhaustion period—i.e., the period of time between when -17- C. Venue
Under 28 U.S.C. § 1406(a), district courts are
instructed to dismiss an action brought in the wrong venue
“or if it be in the interest of justice, transfer such case
to any district or division in which it could have been
brought.” In a Bivens action, venue is governed by 28
U.S.C. § 1391(b), which provides that where jurisdiction is
not founded on diversity of citizenship, a civil action may
be brought only in “a judicial district in which a
substantial part of the events or omissions giving rise to
the claim occurred.” We held in Daniel v. American Board of
Emergency Medicine, 428 F.3d 408, 436 (2d Cir. 2005), that
while “[c]ourts enjoy considerable discretion in deciding
whether to transfer a case in the interest of justice . . .
[a] ‘compelling reason’ for transfer is generally
acknowledged when a plaintiff’s case, if dismissed, would be
time-barred on refiling in the proper forum.” Nonetheless,
we should abstain from fashioning such a remedy when that
Gonzalez initiated his administrative claims and when he exhausted those claims on August 8, 2002—must be at least 312 days so as to render his MCC claims timely; that would be the length of time during which the three-year statute of limitations would be tolled. -18- case is a “sure loser.” Moreno-Bravo v. Gonzalez, 463 F.3d
253, 263 (2d Cir. 2006).
In dismissing Gonzalez’s MDC claims on the grounds of
improper venue, the district court found that “any
conspiracy to deprive Gonzalez of his constitutional rights
at the MDC would constitute a new conspiracy . . . involving
a different time period and a different group of
Defendants.” Gonzalez, 2007 U.S. Dist. LEXIS, at *9.
Clearly, if the claims must be re-filed in the Eastern
District of New York, the only forum in which a substantial
part of Gonzalez’s MDC claims arose, the action would be
time-barred regardless of the time it has taken him to
exhaust administrative remedies. Gonzalez alleges nearly
eleven hundred uninterrupted days of SHU confinement. In
light of BOP regulations stipulating that “[a]dministrative
detention is to be used only for short periods of time
except where an inmate needs long-term protection . . ., or
where there are exceptional circumstances” we decline to
find that Gonzalez’s case is a “clear loser.” 28 C.F.R. §
541.22(c); Moreno-Bravo, 463 F.3d at 263. We instruct the
district court on remand, therefore, that if on
reexamination of the entirety of plaintiff’s claims it
-19- determines that venue for the MDC claims is still improper
in the Southern District of New York, then it shall transfer
Gonzalez’s MDC claims to the United States District Court
for the Eastern District of New York.
CONCLUSION
For the foregoing reasons, we VACATE the District
Court’s grant of defendants-appellees motion to dismiss, and
REMAND for factual findings on the length of the
administrative exhaustion period, its effect on the
applicable statute of limitations, and for such further
action as may be appropriate. In addition, the District
Court shall transfer Gonzalez’s MDC claim to the United
States District Court for the Eastern District of New York
if it deems it proper to do so upon reexamination of
Gonzalez’s claims.
-20- DENNIS JACOBS, Chief Judge, concurring:
I concur in the very thorough opinion of the Court, and
I write separately to register my view that, at this
juncture, it would not be premature to affirm the dismissal
as to all of the defendants other than Warden Hasty, on the
alternative ground that the allegations of conspiracy are
conclusory and perfunctory.
It is sound craft to affirm on the alternative grounds,
just as it is likewise sound for my colleagues to limit
themselves to the grounds stated by the district court. At
the same time, the conspiracy claims that link other
officials and employees of the prison to the warden are
wholly insufficient, and appear based on nothing but the
fact that all of these people worked for Warden Hasty at
some time or another. See, e.g., Gallop v. Cheney, --- F.3d
----, 2011 WL 1565858, at *3 (2d Cir. Apr. 27, 2011) (“It is
well settled that claims of conspiracy ‘containing only
conclusory, vague, or general allegations of conspiracy to
deprive a person of constitutional rights cannot withstand a
motion to dismiss.’” (quoting Leon v. Murphy, 988 F.2d 303,
311 (2d Cir. 1993))). I do not consider the allegations
against Warden Hasty to be actually insufficient because
1 Gonzalez was confined in SHU at MCC and MDC, and Warden
Hasty was the warden at both prisons at the time the
Gonzalez was so confined.