Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding D.C. No. CIV S-09-1169-LKK-CMK-P
The opinion of the court was delivered by: Bennett, District Judge:
Argued and Submitted March 14, 2012-San Francisco, California
Before: Consuelo M. Callahan and Carlos T. Bea, Circuit Judges, and Mark W. Bennett, District Judge.*fn1
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.
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 case, got it wrong, when he denied the prison official's motion to dismiss the prisoner's claims as untimely. We affirm.
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. 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*fn3 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."
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 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 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 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 judge 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*fn4 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.*fn5
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. 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 ...