Opinion
CASE NO. C15-5655 BHS
02-16-2016
MICHAEL W. WILLIAMS, Plaintiff, v. BERNIE WARNER, et al., Defendants.
ORDER DECLINING TO ADOPT THE REPORT AND RECOMMENDATION AND REREFERRING FOR FURTHER CONSIDERATION
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 84), and the parties' objections to the R&R (Dkts. 85, 87).
I. PROCEDURAL AND FACTUAL BACKGROUND
In 2005, Plaintiff Michael Williams ("Williams") was convicted of various crimes in state court. Dkt. 19 ("Comp.") ¶ 47. Following Williams's conviction, the Washington Department of Corrections ("DOC") created a classification category called "De Facto Life Without the Possibility of Parole ('De Facto LWOPP')." Id. ¶ 50. In October 2010, Williams was classified as a De Facto LWOPP and his custody level was changed. Id. ¶¶ 54-56. Subsequent custody review hearings were held in May 2011, April 2012, 2013, and April 2015. Id. ¶¶ 61-62, 63-69. Williams objected to his custody level and De Facto LWOPP classification at each of these hearings, but his custody level was maintained with an LWOPP override. Id.
On September 21, 2015, Williams filed a 42 U.S.C. § 1983 complaint against thirty-three defendants, including the State of Washington, DOC, and various DOC employees (collectively "Defendants"). Dkt. 9. Two days later, Williams filed an amended complaint, alleging Defendants violated his due process, equal protection, and First Amendment rights, as well as the Ex Post Facto Clause. Comp. ¶¶ 75-85.
On October 19, 2015, Defendants moved to dismiss, arguing Williams's claims are barred by the statute of limitations. Dkt. 43. Alternatively, Defendants argued Williams failed to state a claim. Id.
On December 15, 2015, Judge Creatura issued the R&R. Dkt. 84. Judge Creatura first determined Williams's claims are timely because the continuing violation doctrine applies. Id. at 6-8. Next, Judge Creatura recommended granting Defendants' motion to dismiss because Williams failed to state a claim. Id. at 8-17. Judge Creatura also recommended granting Williams leave to amend his equal protection, First Amendment retaliation, and ex post facto claims, as well as the personal participation of all named defendants. Id. at 17-18. Finally, Judge Creatura recommended denying Williams leave to amend his due process claim. Id. at 18.
On December 22, 2015, Defendants filed objections. Dkt. 85. On January 4, 2016, Williams filed objections and a response to Defendants' objections. Dkt. 87.
II. DISCUSSION
Defendants object to the R&R, arguing Judge Creatura erred by concluding Williams's claims are timely and by granting Williams leave to amend his ex post facto claim. Dkt. 85. Williams, in turn, argues Judge Creatura erred by recommending the Court deny Williams leave to amend his due process claim. Dkt. 87.
A. Standard
Federal Rule of Civil Procedure 72(b) governs objections to a magistrate judge's recommended disposition. Rule 72(b) provides:
The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.Fed. R. Civ. P. 72(b)(3).
B. Statute of Limitations
Defendants object to Judge Creatura's conclusion that Williams's claims are timely. Dkt. 85 at 2. Williams filed his § 1983 suit in September 2015, and the applicable statute of limitations is three years. See Joshua v. Newell, 871 F.2d 884, 886 (9th Cir. 1989). Thus, any claims that accrued prior to September 2012 are barred by the statute of limitations.
In this case, there are two issues at play: (1) when Williams's claims accrued; and (2) whether the continuing violation doctrine applies to Williams's claims. As to the first issue, "[a] statute of limitations begins to run on the date on which the plaintiff's claim 'accrues.'" Pouncil v. Tilton, 704 F.3d 568, 573 (9th Cir. 2012). "A federal claim accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action." Id. at 574. "In Pouncil, [the Ninth Circuit] emphasized that an act must be 'discrete' or 'independently wrongful' to cause a new claim to accrue." Ervine v. Desert View Reg'l Med. Ctr. Holdings, LLC, 753 F.3d 862, 870 (9th Cir. 2014) (citing Pouncil, 704 F.3d at 581). "If the act is merely the 'delayed, but inevitable, consequence' of a prior discriminatory act, it will not cause a new statute of limitations to run." Id. (citing Pouncil, 704 F.3d at 581).
As for the second issue, the continuing violation doctrine allows a plaintiff to seek relief for the cumulative effects of repeated conduct that began outside the limitations period and continued into the limitations period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115-21 (2002). The doctrine, however, does not apply to discrete acts that are time barred, even when they relate to acts within the limitations period. Id. at 113. The doctrine also does not apply to the continuing impact from a wrongful act outside the limitations period. Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001).
With these standards in mind, the Court turns to Williams's claims.
1. Due Process, Equal Protection, and Ex Post Facto Claims
Construing Williams's complaint liberally, Williams is challenging the decision to classify him as a De Facto LWOPP in October 2010, as well as the decisions to maintain his custody level in May 2011, April 2012, 2013, and April 2015. Comp. ¶¶ 61-62, 63-69.
Judge Creatura determined the continuing violation doctrine applied because Williams "alleges that the constitutional violations continued from 2010 to 2015 when defendants repeatedly revisited and reaffirmed [his] classification status . . . ." Dkt. 84 at 7. In reaching this conclusion, it appears Judge Creatura relied on an erroneous legal standard. Judge Creatura explained that Williams could invoke the continuing violations doctrine by showing "a series of related acts, one or more of which falls within the limitations period . . . ." Id. at 6 (quoting Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir. 1997)). "Prior to Morgan, a plaintiff arguably could invoke the continuing violations doctrine by demonstrating . . . a series of related acts, one or more of which falls within the limitations period . . . ." Cherosky v. Henderson, 330 F.3d 1243, 1246 (9th Cir. 2003) (internal quotation marks and citation omitted). "In Morgan, however, the Supreme Court substantially limited the notion of continuing violations: 'discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.'" Id. (quoting Morgan, 536 U.S. at 122).
The question nevertheless remains whether the classification decision and the subsequent custody decisions constitute discrete acts. The answer to this question will determine when Williams's claims accrued and whether the continuing violation doctrine applies.
The Ninth Circuit's decision in Pouncil is instructive. Pouncil was a "state prisoner serving a sentence of life imprisonment without parole ('LWOP')." Pouncil, 704 F.3d at 570. In 2002, Pouncil requested a conjugal visit. Id. The request was denied because a prison regulation did not allow LWOP prisoners to have conjugal visits. Id. at 570-71. In 2008, Pouncil requested another conjugal visit. Id. at 571. This request was also denied based on essentially the same prison regulation. Id. The Ninth Circuit held the 2008 denial constituted a discrete act that caused a new limitations period to run. Id. at 582-83. The Ninth Circuit explained that Pouncil's claims "[did] 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 [California Department of Corrections and Rehabilitation]." Id. at 582 (quoting Cherosky, 330 F.3d at 1245).
In light of Pouncil, the Court finds that the decision to classify Williams as a De Facto LWOPP in October 2010 constitutes a discrete act—the alleged wrong occurred when Williams's classification status was changed. The subsequent decisions to maintain Williams's custody level in August 2011, April 2012, 2013, and April 2015 also constitute discrete acts. Liberally construed, Williams alleges his custody level was revisited at each review hearing. He further alleges he objected to his custody level before these hearings, but the hearing officers declined to change his custody status. Each custody decision is therefore best characterized as a discrete act. See Pouncil, 704 F.3d at 581; Cherosky, 330 F.3d at 1247. Because each decision constitutes a discrete act, the continuing violation doctrine does not apply. Morgan, 536 U.S. at 113.
Although each decision constitutes a discrete act, not all of the acts fall within the statute of limitations. As noted above, Williams may only bring claims that accrued prior to September 2012. Thus, Williams's due process, equal protection, and ex post facto claims are barred to the extent they are based on the classification decision in 2010 and the custody decisions in May 2011 and April 2012. Williams may nevertheless bring claims based on the custody decisions in 2013 and April 2015.
While claims based on the custody decisions in 2013 and April 2015 are not time barred, it is not clear that Williams has stated a claim for relief based on those custody decisions. Rather than proceeding to address this issue here, the Court concludes it should be rereferred to Judge Creatura for further consideration.
2. Retaliation Claim
With regard to Williams's retaliation claim, Williams alleges he objected to the De Facto LWOPP classification before the custody hearings, and Defendants retaliated against him because of his objections. Comp. ¶¶ 60-62, 65-69. Defendants did not fully brief whether each alleged instance of retaliation constitutes a discrete act. If each instance of retaliation is a discrete act, then a new claim would accrue—and a new statute of limitations would run—for each instance of retaliation. See Morgan, 536 U.S. at 113. It seems Williams could bring a retaliation claim for each discrete act that occurred within the limitations period. See id. at 114. Conversely, if each instance of retaliation is not a discrete act but a consistent pattern of discrimination because of Williams's continued objections, the continuing violation doctrine could possibly apply. Because this issue was not fully addressed, however, the Court declines to determine at this time whether Williams's retaliation claim is time barred.
C. Conclusion
For these reasons, the Court declines to adopt the R&R. Because the legal framework for this case has changed significantly, the Court also declines to address the parties' remaining objections. This matter is referred to Judge Creatura for further consideration of the issues identified above.
III. ORDER
The Court having considered the R&R, the parties' objections, and the remaining record, does hereby find and order:
(1) The Court DECLINES to adopt the R&R;
(2) Williams's due process, equal protection, and ex post facto claims are DISMISSED with prejudice to the extent those claims rely on acts before September 2012; and
(3) The case is REREFERED for further proceedings.
Dated this 16th day of February, 2016.
/s/_________
BENJAMIN H. SETTLE
United States District Judge