United States District Court, D. Hawaii
DONNA GARCIA, Individually and As Guardian Ad Litem for Her Minor Children, J.L. and G.L. Plaintiff,
CITY AND COUNTY OF HONOLULU; RONALD J. LOMBARDI; APRIL DANIELS; ARLYNN ORPILLA; BONNIE McKEWEN; HAROLD UEHARA; TIMOTHY SLOVAK; MIKEL FREDERICK; ROBERT A. CRAVALHO; DARRIEN THORNLEY; GARY DANIELS; THOMAS NITTA; LEONARD NISHIMURA; BENJAMIN MOSZKOWICZ; ALAN RODRIGUES; KEITH VEGAS; LANELL ARAKAWA; BRIAN BLACKWELL; NATHAN HEE; BRANDON LAU; RYAN HIRONAKA; PAUL LEE; and JOHN and/or JANE DOES 1-10, Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS TO
C. KAY SR., UNITED STATES DISTRICT JUDGE
reasons set forth below, the Court GRANTS Defendants'
motions to dismiss for failure to state claims upon which
relief can be granted as follows:
1. The Court GRANTS WITH PREJUDICE the Officer
Defendants' Motion as to all claims except those asserted
against Officers Arakawa, Hee, and Lee in their individual
capacities, which are dismissed WITHOUT PREJUDICE;
2. The Court GRANTS WITH PREJUDICE Defendant Cravalho's
Motion and Defendant Moszkowicz's Motion as to all
3. The Court GRANTS WITHOUT PREJUDICE Defendant
Honolulu's Motion as to all claims.
March 15, 2018, Plaintiff Donna Garcia, individually and as
guardian ad litem for her minor children, J.L. and G.L.
(“Plaintiff”) filed a Complaint against the City
and County of Honolulu (“Defendant Honolulu”),
twenty-one Honolulu Police Department (“HPD”)
officers, and John and/or Jane Does 1-10 (“Doe
Defendants”). ECF No. 1 (“Compl.”)
¶¶ 11-14. The twenty-one HPD officer defendants are
sued in both their individual and official capacities, and
are Ronald J. Lombardi (“Defendant Lombardi”),
Robert A. Cravalho (“Defendant Cravalho”),
Benjamin Moszkowicz (“Defendant Moszkowicz”),
April Daniels, Arlynn Orpilla, Bonnie McKewen, Harold Uehara,
Timothy Slovak, Mikel Frederick, Darrien Thornley, Gary
Daniels, Thomas Nitta, Leonard Nishimura, Alan Rodrigues,
Keith Vegas, Lanell Arakawa, Brian Blackwell, Nathan Hee,
Brandon Lau, Ryan Hironaka, and Paul Lee (the “Officer
Defendants”). Id. ¶ 13.
Complaint asserts five causes of action. Counts I, II and
III, arising under 42 U.S.C. § 1983 (“Section
1983”), allege that Defendants violated Plaintiff's
rights under the Equal Protection Clause of the Fourteenth
Amendment. Id. ¶¶ 145-160. Counts IV and V
allege state law claims for intentional infliction of
emotional distress (“IIED”) and negligence.
Id. ¶¶ 161-164. Based on these claims,
Plaintiff requests monetary relief, as well as punitive
damages and attorneys' fees and costs. Id.
4, 2018, Defendant Honolulu filed a Motion to Dismiss. ECF
No. 20. (“Defendant Honolulu's Motion”). On
May 14, 2018, Defendant Cravalho filed a Motion to Dismiss.
ECF No. 25. (“Defendant Cravalho's Motion”).
On June 19, 2018, Defendant Moszkowicz filed a Motion to
Dismiss. ECF No. 40. (“Defendant Moszkowicz's
Motion”). On July 31, 2018, the remaining Officer
Defendants (with the notable exception of Defendant Lombardi)
filed a Motion to Dismiss. ECF No. 45. (“Officer
Defendants' Motion”). On October 11, 2018,
Plaintiff filed her “Omnibus Memorandum in
Opposition” to Defendant Honolulu's Motion,
Defendant Cravalho's Motion, and Defendant
Moszkowicz's Motion. ECF No. 54. (“Omnibus
Opposition”). On October 15, Plaintiff filed her
Memorandum in Opposition to Officer Defendants' Motion.
ECF No. 57 (“Second Opposition”). On October 18,
2018, Defendant Honolulu and Defendants Cravalho and
Moszkowicz filed their Replies. ECF Nos. 58 and 59. On
October 22, 2018, the remaining Officer Defendants filed
their Reply. ECF No. 60. The Court held a Hearing on
Defendants' Motions on November 9, 2018 at 11:00 a.m.
facts in this order are recited only for the purpose of
deciding Defendants' motions to dismiss and are not
intended to be findings of fact upon which the parties may
rely in future proceedings.
to the Complaint, Plaintiff is employed as an officer with
the Department of Homeland Security, Customs and Border
Protection and currently resides in Georgia, having left
Honolulu in 2009. Compl. ¶¶ 9-10. Defendant
Lombardi is currently employed as an HPD officer and resides
in Honolulu. Id. ¶ 12. Defendants Cravalho and
Moszkowicz, as well as the remaining Officer Defendants, are
all currently employed as HPD officers. Id. ¶
13. Defendant Honolulu is a municipal corporation of the
State of Hawai'i. Id. ¶ 11.
and Defendant Lombardi were married in November 1999.
Id. ¶ 15. They have two children together, J.L.
and G.L. Id. ¶ 16. Plaintiff and Defendant
Lombardi were separated in November 2007, and divorced on
February 14, 2011. Id. ¶ 17. The separation and
divorce were precipitated by Defendant Lombardi's sexual
abuse of his children and his physical domestic abuse of
Plaintiff. Id. ¶ 18. In the final divorce
decree, Plaintiff was awarded sole legal and physical custody
of the children. Id. ¶ 19. Defendant Lombardi
was permitted phone visitation with the children and
in-person visitation under the supervision and approval of
their current treating therapist and Plaintiff. Id.
Complaint states that Plaintiff has been victimized and
harassed by Defendant Lombardi on an ongoing basis since she
and Defendant Lombardi separated in November 2007.
Id. ¶ 3. On March 2, 2008, G.L. reported that
she was sexually assaulted by Defendant Lombardi.
Id. ¶ 20. On March 7, 2008, G.L. was
interviewed at the Children's Justice Center in Honolulu
regarding the reported sexual assault; J.L. was interviewed
regarding another incident where Defendant Lombardi
apparently sexually assaulted J.L. Id. ¶ 21-22.
the course of 2008, Plaintiff obtained three protective
orders against Defendant Lombardi. Id. ¶¶
27, 37 and 44. Plaintiff also obtained a pre-decree relief
order in her divorce action. Id. ¶ 34. The
first protective order was obtained on March 7, 2008 and
remained in effect until June 5, 2008. Id.
¶¶ 27-28. The second protective order was obtained
on June 18, 2008 and remained in effect until July 9, 2008,
when it was dissolved by agreement of the parties and
replaced by the pre-decree relief order dated July 15, 2008.
Id. ¶ 37. The third protective order was
obtained on September 26, 2008 and remained in effect until
March 26, 2009. Id. ¶ 44. The pre-decree relief
order stayed in effect until February 14, 2011 when
Plaintiff's final divorce decree was entered.
Id. ¶ 19.
first protective order was obtained based on threats by
Defendant Lombardi to Plaintiff and the physical assault of
J.L. and sexual assault of G.L. Id. ¶ 25. The
second protective order was obtained based on physical
threats involving fire arms directed at Plaintiff and
attempts by Defendant Lombardi to enter Plaintiff's
residence without permission. Id. ¶ 36. The
second protective order required Defendant Lombardi to
surrender all of his firearms to the HPD, but the HPD
apparently seized only three of Defendant Lombardi's four
firearms. Id. ¶¶ 37, 39. The third
protective order was obtained based on Defendant Lombardi
stalking Plaintiff and being in possession of firearms while
in Plaintiff's presence in violation of the pre-decree
relief order. Id. ¶ 43. Defendant
Lombardi's firearms were seized on September 28, 2008,
three days after the third protective order was issued.
Id. ¶ 47.
points out that upon service of each protective order,
Defendant Lombardi was placed on restricted duty, but that
the HPD restored his police authority shortly after each
protective order expired. Id. ¶¶ 28, 40,
51. Plaintiff avers that the rapid restoration of Defendant
Lombardi's police authority after each protective order
expired indicates that the HPD failed to conduct independent
internal investigations regarding the facts underlying the
protective orders. Id. ¶¶ 29, 41, 52.
also contends that the HPD, Doe Defendants and Defendant
Honolulu helped Defendant Lombardi pass a polygraph
examination with respect to the first protective order sought
after G.L. reported that Defendant Lombardi sexually
assaulted her. Id. ¶¶ 30-32. The Complaint
alleges that the HPD, Doe Defendants and Defendant Honolulu
provided Defendant Lombardi with the polygraph questions in
advance, selected the examiner, ignored physical evidence of
sexual assault on G.L.'s body in addition to other
evidence of sexual assault, and provided Defendant Lombardi
with the videotaped interviews of G.L. and J.L. regarding
their sexual assaults. Id. ¶¶ 23, 30-32.
June through November 2008, Plaintiff filed seven incident
reports with the HPD documenting Defendant Lombardi's
violations of the three protective orders and the pre-decree
relief order. Id. ¶ 53. The incident reports
described various violations, including that Defendant
Lombardi: (1) visited Plaintiff and entered her residence and
vehicle without her permission and while armed; (2) delivered
“disturbing books about murders, crime scene
investigation, and autopsies to Aikahi Elementary School to
be given to J.L.;” (3) harassed Plaintiff and the
children at a Jamba Juice in Kailua; (4) harassed and
threatened Plaintiff regarding unsupervised visitation with
the children; (5) visited G.L. at her pre-school without
permission; (6) and left Plaintiff a threatening
voicemail. Id. ¶¶ 54, 56-59,
61. The Department of the Prosecuting Attorney declined to
prosecute the latter two incident reports. Id.
¶ 64. Plaintiff believes that the HPD did not confer
with the Department of the Prosecuting Attorney regarding the
other incidents. Id.
August 2009, J.L. and G.L. both again reported that they were
sexually assaulted by Defendant Lombardi. Id. ¶
67. Their therapist, Dr. Becky Padua, reported this
information to Defendant Cravalho and Child Welfare Services,
along with her fear of reprisal from Defendant Lombardi for
reporting the information as required by law. Id.
¶ 68. In September 2009, Plaintiff provided a letter and
binder of evidence to the Prosecuting Attorney for the City
and County of Honolulu in order to seek its assistance
regarding these incidents. Id. ¶ 69. The
materials were turned over to Internal Affairs at HPD.
Id. ¶ 70.
contends that between June 2008 and June 2011, Defendant
Lombardi, with the assistance of various Officer Defendants,
filed six false police reports against Plaintiff in order to
harass, victimize, and harm her professionally, as well as
unduly influence the ongoing divorce and custody proceedings.
Id. ¶¶ 73-88.
Plaintiff moved to Ottawa, Canada for work in October 2012,
Defendant Lombardi continued to harass her via mail, phone
and email. Id. ¶¶ 89-90. Plaintiff
reported this information to the Ottawa Police Service
(“OPS”), which contacted the HPD and opened a
criminal harassment investigation into the matter.
Id. ¶¶ 91-92.
25, 2015, Plaintiff filed a written complaint with the
Professional Standards Office (“PSO”) of the HPD
regarding the handling of the three protective orders, the
pre-divorce decree, the OPS investigation, Defendant
Lombardi's continued harassment, threats of retaliation,
and violations of standing Family Court orders in Virginia
and Hawai'i. Id. ¶ 94. Plaintiff was
notified on May 11, 2017 that on November 9, 2015, her
complaint was closed after having been determined to be
“‘more of a civil matter.'”
Id. ¶ 95.
November 2015 and March 2016, Defendant Lombardi filed four
incident reports falsely accusing Plaintiff of custodial
interference, which were referred to the Department of the
Prosecuting Attorney. Id. ¶¶ 98, 104. In
May 2016, Defendant Lombardi attempted to use these reports
in a show cause action he brought in Fairfax County, Virginia
Juvenile and Domestic Relations Court to have Plaintiff held
in contempt for violating the custody agreement, despite the
fact that Plaintiff retained full custody of the children
after the divorce. Id. ¶ 108. That action was
subsequently dismissed. Id. ¶ 109. Plaintiff
was informed on February 27, 2017, that Department of the
Prosecuting Attorney would be taking no action on the
custodial interference reports. Id. ¶ 107.
March 15, 2017, Plaintiff filed a second written complaint
with the PSO regarding the four false incident reports that
Defendant Lombardi filed accusing Plaintiff of custodial
interference. Id. ¶ 109. Plaintiff was notified
on August 9, 2017 that her complaint was sustained.
Id. ¶ 111. On May 24, 2017 and on January 30,
2018, Defendant Lombardi sent Plaintiff emails wherein he
threatened to file additional police reports and bring
charges alleging custodial interference. Id.
¶¶ 110, 112.
has six standing policies which are designed to address the
misconduct that Plaintiff alleges in her Complaint. Omnibus
Opposition at 8-11. The policies are HPD Policy Nos. 2.21
(“Standards of Conduct”); 3.12 (“Employee
Early Recognition System”); 3.26 (“Employees
Involved in Domestic Violence”); 4.18 (“Abuse of
Family or Household Members”); 5.01 (“Complaints
and Internal Investigations”); and 7.09 (“Court
Orders for Protection”). Compl. ¶ 114.
Rule of Civil Procedure 12(b)(6) authorizes the Court to
dismiss a complaint that fails “to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
Rule 12(b)(6) is read in conjunction with Rule 8(a), which
requires only “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Although Rule 8 does not require
detailed factual allegations, “it demands more than an
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). “A pleading that offers
‘labels and conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not
do.'” Id. (quoting Twombly, 550
U.S. at 555).
survive a motion to dismiss, the complaint “must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. at 678 (2009) (quoting
Twombly, 550 U.S. at 570). “[T]he tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions.”
Id. (citing Twombly, 550 U.S. at 555).
Accordingly, “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice.” Id. “The plausibility
standard . . . asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id.
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of entitlement to relief.'”
Id. (quoting Twombly, 550 U.S. at 557).
the Court dismisses a complaint pursuant to Rule 12(b)(6) it
should grant leave to amend unless the pleading cannot be
cured by new factual allegations. OSU Student All. v.
Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).
statute of limitations defense may properly be raised in a
motion to dismiss if statute of limitations issues are
“apparent from the face of the complaint.”
Seven Arts Filmed Entm't Ltd. v. Content Media
Corp., 733 F.3d 1251, 1254 (9th Cir. 2013) (citations
first argue that Plaintiff's Section 1983 claims and
negligence claims are time-barred by the relevant statute of
limitations. Defendants next argue that, even if
Plaintiff's claims are not time-barred, the Complaint
fails to allege sufficient facts to state any plausible
Section 1983 claims or state law negligence claims.
statute of limitations for personal injury and negligence
actions in Hawai'i is two years. Haw. Rev. Stat. §
657-7. Plaintiff filed her Complaint on March 15, 2018. Only
the following allegations in the Complaint occurred within
the statute of limitations period: (1) on March 18, 2016,
Defendant Lombardi allegedly filed a police report, authored
by Officer Arakawa and approved by Officer Hee, accusing
Plaintiff of custodial interference, Compl. ¶ 103; (2)
at an unidentified time thereafter, Defendant Lombardi used
that police report in connection with his custody dispute
with Plaintiff, Id. ¶ 108; (3) on May 11, 2017,
Officer Lee notified Plaintiff via email that one of her
complaints against Defendant Lombardi had been closed on
November 9, 2015, Id. ¶¶ 95-96; (4) on
August 9, 2017, the PSO notified Plaintiff that her complaint
dated March 15, 2017 regarding the allegedly false police
reports that Defendant Lombardi filed against her was
sustained, Id. ¶¶ 109, 111; and (5)
Defendant Lombardi sent two emails to Plaintiff dated May 24,
2017 and January 30, 2018, where he threatened to bring
custodial interference charges against Plaintiff.
Id. ¶¶ 110, 112. Plaintiff alleges that
she immediately forwarded the first of these two emails to
Officer Lee. Id. ¶ 110.
Court first addresses whether Plaintiff's claims against
the moving defendants are time-barred, and then turns to the
question of whether Plaintiff's Complaint adequately
alleges claims upon which relief can be granted.
Statute of Limitations
argues that none of her claims are time-barred because she
has alleged a continuing violation with respect to Defendant
Honolulu and each of the individual Officer Defendants.
purposes of Section 1983 claims, federal courts apply the
forum state's statute of limitations and its tolling
provisions for personal injury tort actions. Klein v.
City of Beverly Hills, 865 F.3d 1276, 1278 (9th Cir.
2017). Hawai'i has a two-year statute of limitations for
personal injury actions. Haw. Rev. Stat. § 657-7.
However, federal law governs when Section 1983 claims accrue.
Klein, 865 F.3d at 1278. “Under federal law, a
claim accrues when the plaintiff knows or has reason to know
of the injury which is the basis of the action.”
Id. (citing Maldonado v. Harris, 370 F.3d
945, 955 (9th Cir. 2004)). However, where a plaintiff alleges
a “continuing violation, ” the claim accrues on
the date of the last injury. Heard v. Sheahan, 253
F.3d 316, 319 (7th Cir. 2001) (citing Matson v.
Burlington N. Santa Fe R.R., 240 F.3d 1233, 1237 (10th
continuing violation doctrine allows a plaintiff to sue where
her injuries are “the consequence of a numerous and
continuous series of events, ” which, under certain
circumstances, can permit a plaintiff to bring a claim based
on events that would normally be time-barred. Heard,
253 F.3d at 319. The doctrine is meant “to prevent a
defendant from using its earlier illegal conduct to avoid
liability for later illegal conduct of the same sort.”
O'Loghlin v. Cty. of Orange, 229 F.3d 871, 875
(9th Cir. 2000). A continuing violation is one where
“it would be unreasonable to require or even permit [a
plaintiff] to sue separately over every incident of the
defendant's unlawful conduct.” Heard, 253
F.3d at 319.
a plaintiff could invoke the continuing violation doctrine in
the Ninth Circuit in two ways: (1) the “related
acts” method; and (2) the discriminatory pattern or
practice method. The “related acts” method
required a plaintiff to allege timely acts that were
sufficiently related to time-barred acts, such that the acts
as a whole constituted a continuing violation. Gutowsky
v. Cty. of Placer, 108 F.3d 256, 259 (9th Cir. 1997).
The Supreme Court “invalidated the ‘related
acts' method of establishing a continuing violation,
stating that ‘discrete discriminatory acts are not
actionable if time-barred, even when they are related to acts
alleged in timely filed charges.'” Carpinteria
Valley Farms, Ltd. v. Cty. of Santa Barbara, 344 F.3d
822, 828 (9th Cir. 2003) (quoting Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113
Court has defined a discrete act as an “unlawful
practice that ‘occurred' on the day it
‘happened, '” which includes, for example,
‘termination, failure to promote, denial of transfer,
or refusal to hire.'” Yonemoto v.
Shinseki, 3 F.Supp.3d 827, 842 (D. Haw. 2014) (quoting
Morgan, 536 U.S. at 111, 114). Put another way, a
discrete act of discrimination is “one that constitutes
a separate, actionable unlawful practice that is temporally
distinct.” Mansourian v. Regents of the Univ. of
California, No. CIV. S 03-2591 FCD EFB, 2011 WL 1897428,
at *2 (E.D. Cal. May 18, 2011) (citing Morgan, 536
U.S. at 114). When a plaintiff alleges a claim based upon
discrete discriminatory acts, the statute of limitations runs
separately from each discrete act, and the continuing
violation doctrine is no longer applicable. Morgan,
536 U.S. at 113.
Morgan, “[o]ne of the only viable pathways to
maintaining a cause of action for past acts occurring outside
the statute of limitations period is where a plaintiff's
claims are based, not on discrete acts, but rather on
‘a series of separate acts that collectively constitute
one unlawful practice.'” Long, 2017 WL
5490835, at *5 (quoting RK Ventures, 307 F.3d at
1061 n. 13).
because Plaintiff may no longer avail herself of the
“related acts” method of bringing a Section 1983
claim, the question necessarily becomes whether
Plaintiff's Section 1983 claim is predicated upon a
series of discrete discriminatory acts or upon a systematic
pattern or practice of discrimination.
Ninth Circuit has determined that a claim based on discrete
time-barred acts involves a claim that “does not stem
from [a discriminatory] policy . . . but rather from the
individualized decisions that resulted from implementation of
a policy.” Pouncil v. Tilton, 704 F.3d 568,
579 (9th Cir. 2012) (citing Cherosky v. Henderson,
330 F.3d 1243, 1247 (9th Cir. 2003)). Indeed,
“pattern-or-practice claims cannot be based on
‘sporadic discriminatory acts' but rather must be
based on discriminatory conduct that is widespread.”
Cherosky, 330 F.3d at 1247 (quoting Int'l
Bhd. of Teamsters v. United States, 431 U.S. 324, 336
instant case, Plaintiff argues that Defendant Honolulu's
continuing violation of her constitutional rights is its
“de facto policy, practice and custom of
ignoring criminal conduct, misconduct, and violations of its
standing regulations and orders committed by [HPD]
officers.” Omnibus Opposition at 15. Although the
Complaint is replete with allegations of individual instances
in which various officer defendants engaged in acts of
misfeasance and nonfeasance in violation of numerous internal
HPD policies, the heart of Plaintiff's Complaint stems
not from these numerous individual acts, but from Defendant
Honolulu's alleged “de facto
policy.” Cf. Cherosky, 330 F.3d at 1247
(rejecting the continuing violation doctrine where “the
heart of plaintiffs' complaint [did] not stem from [a
discriminatory] policy regarding the use of respirators, but
rather from the individualized decisions that resulted from
implementation of a policy”).
Ninth Circuit in Gutowsky held that the Plaintiff
successfully invoked the continuing violation doctrine in a
Section 1983 case involving employment discrimination. 108
F.3d at 260. In that case, the Ninth Circuit stated that the
Plaintiff “presents specific examples of discrimination
which are not the basis of her charge of discrimination but
evidence that a policy of discrimination
pervaded” the employer's internal promotion
decisions, and that the employer engaged in “widespread
polic[ies] and practices of discrimination.”
Id. (emphasis in original) (internal quotations and
citation omitted). Similar to Gutowsky, the
Plaintiff in the instant case attacks a practice or
policy-Defendant Honolulu's alleged policy of ignoring
when HPD officers engage in misconduct that violates internal
HPD policies-which Plaintiff alleges violates her
constitutional rights and continues to affect her to this
day. Omnibus Motion at 19.
it is unclear that any single act that Plaintiff complains of
gave rise to a cause of action. A discrete act is one that
gives rise to a claim when the act occurs. See
Yonemoto, 3 F.Supp.3d at 842. Although Plaintiff's
allegations largely consist of acts by HPD officers, her
purported equal protection claim arises from Defendant
Honolulu and the Officer Defendants' failure to
discipline and take action against Defendant Lombardi and
other HPD officers when officers act in violation of HPD
Complaint also features numerous allegations of instances in
which the HPD apparently did respond to the police reports
and other complaints that she filed. For example, Plaintiff
alleges that one of the complaints she filed against
Defendant Lombardi was sustained, and that another of her
complaints was not sustained. Compl. ¶ 182. However,
these apparent contradictions do not disavow Plaintiff's
broader allegation that Defendant Honolulu and the HPD
officers have a “de facto policy” of
ignoring misconduct that HPD officers engage in. See
Shomo v. City of New York, 579 F.3d 176, 182 (2d Cir.
2009) (affirming the district court's finding that a
prisoner's continuing violation was based upon an ongoing
discriminatory policy of doctors and prison staff
disregarding medical treatment recommendations, even though
the prisoner was frequently seen by doctors).
the Court finds that Plaintiff's claims are based upon a
persistent discriminatory policy or practice, and not upon
discrete discriminatory acts. The next question is whether
Plaintiff has successfully alleged a continuing violation
invoke the continuing violation doctrine in a Section 1983
case, a plaintiff must show “the maintenance of a
discriminatory system both before and during” the
limitations period. Gutowsky, 108 F.3d at 260.
See also Mansourian, 602 F.3d at 974 (providing that
a plaintiff has adequately pled an ongoing claim if she
alleges that a systematic discriminatory policy or practice
operated, in part, within the limitations period). More
specifically, “the plaintiff ‘must allege both
the existence of an ongoing policy of discrimination and some