Gonzalez v. Hasty

Decision Date03 September 2015
Docket NumberDocket No. 13–2844.
Citation802 F.3d 212
PartiesEsteban GONZALEZ, Plaintiff–Appellant, v. Dennis W. HASTY, James Sherman, Salvatore LoPresti, Ortiz, Inspector Barrere, C.O. White, # 8413, Defendants–Appellees.
CourtU.S. Court of Appeals — Second Circuit

Ameer Benno, Benno & Associates, P.C., New York, N.Y. (Michael A. Young, New York, N.Y., on the brief), for PlaintiffAppellant.

Rachel Balaban, Assistant United States Attorney (Varuni Nelson, Assistant United States Attorney, on the brief), for Kelly T. Currie, Acting United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for DefendantsAppellees Dennis W. Hasty, James Sherman, Ortiz, Inspector Barrere, C.O. White, # 8413.

Before: SACK, LYNCH, and CHIN, Circuit Judges.

Opinion

SACK, Circuit Judge:

This is an appeal from a July 22, 2013, judgment of the United States District Court for the Eastern District of New York (Brian M. Cogan, Judge ), granting the defendants' motion to dismiss1 plaintiff Esteban Gonzalez's First, Fifth, and Eighth Amendment claims, brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), relating to his confinement in the Special Housing Units in two federal prison facilities, both located within the City of New York. The district court concluded that the plaintiff failed to file his complaint within the three-year statute of limitations applicable to Bivens claims. The result was premised principally on a determination that the continuing violation doctrine did not apply to any of Gonzalez's claims. We conclude that the continuing violation doctrine does apply to Gonzalez's Eighth Amendment claim, but that it does not apply to his First or Fifth Amendment claims. Certain aspects of his Fifth Amendment claim may nevertheless be timely.

BACKGROUNDFacts

On February 28, 1999, Gonzalez stabbed a fellow inmate at the Metropolitan Correctional Center in Manhattan (the “MCC”), with a “knife-like” object.2 Gonzalez was placed under administrative detention in the Special Housing Unit (the “SHU”) later that day, and remained confined therein for more than two years, until July 24, 2001.

On July 24, 2001, Gonzalez was transferred from the MCC to the Metropolitan Detention Center (the “MDC”)3 in Brooklyn, New York. When he arrived, he was immediately placed in the MDC SHU. He remained there for more than nine additional months, until on or about May 11, 2002.4 Gonzalez alleges that the MCC warden, defendant Dennis Hasty, ordered Gonzalez's transfer to the MDC prior to his reassignment to the post of MDC warden so that Hasty could continue to supervise Gonzalez. An MCC corrections officer told Gonzalez, [y]ou're going to MDC to be with your friend Warden Hasty.” Compl. ¶ 41 (Pl.'s App'x 72). Defendant Salvatore LoPresti, captain of security at the MDC (Brooklyn), “accepted that transfer with the knowledge that it was being made to enable [Hasty] to continue to exercise control over and abuse Plaintiff Gonzalez.” Id.

Hasty made it known that he had a personal vendetta against [ ] Gonzalez, [and] that [Hasty] would not release [ ] Gonzalez from [the] SHU under any circumstances....” Compl. ¶ 29 (Pl.'s App'x 68). Gonzalez contends that this vendetta was motivated by racial animus, as evidenced by the fact that the Federal Bureau of Prisons (“BOP”) previously had ordered Hasty to remove a Confederate flag from his office.

While in the SHU, Gonzalez was not afforded all of the procedural protections to which he asserts he was entitled under 28 C.F.R. § 541.22(c)(1).5 This rule required that within three work days of an inmate's confinement in the SHU, a Segregation Review Officer (“SRO”) review the administrative detention. The SRO was further required to review the case outside of the inmate's presence for every week of confinement, and hold a formal hearing and review with the inmate present every 30 days. 28 C.F.R. § 541.22(c)(1). The BOP was also required to conduct a psychological assessment every 30 days to determine, inter alia, whether the inmate posed an ongoing threat to himself or others. Id.

Instead of complying with these regulations, the defendants falsified forms to make it appear as though they were in compliance, “held unauthorized weekly meetings to determine which inmates were to be released from [the] SHU and returned to general population,” Compl. ¶ 27 (Pl.'s App'x 68), and ignored psychological assessments suggesting that Gonzalez “was not in need of further SHU confinement,” Compl. ¶ 38 (Pl.'s App'x 71). In sum, Gonzalez alleges that the defendants “agreed, confederated and conspired with Defendant Hasty throughout the period of [ ] Gonzalez's confinement in [the] SHU to keep [ ] Gonzalez unlawfully confined to [the] SHU under harsh conditions....” Compl. ¶ 30 (Pl.'s App'x 69) (capitalization altered).

While at the MCC (Manhattan) SHU, Gonzalez filed at least twenty-nine administrative complaints. Six of them, the first of which was filed on May 2, 2000, related to his SHU confinement. He exhausted his MCC SHU-related administrative remedies on November 15, 2000, when the BOP denied his last appeal.

While confined in the MDC (Brooklyn) SHU, Gonzalez filed at least forty-two administrative complaints, three of which related to his MDC SHU confinement. He filed his first MDC SHU-related request on February 14, 2002. The BOP denied this request on July 2, 2002. He administratively exhausted all of his MDC SHU-related remedies on August 8, 2002, when the BOP denied his last request.

As noted, Gonzalez was released from the MDC SHU on May 11, 2002, which was shortly after Hasty retired. The district court accordingly concluded that the statute of limitations should be tolled for as few as 116 or as many as 174 days, representing the period during which Gonzalez was exhausting his administrative remedies.6 Gonzalez v. Hasty, No. 12–cv–5013, 2013 WL 3816587, at *4, 2013 U.S. Dist. LEXIS 102215, at *12–13 (E.D.N.Y. July 22, 2013).

Gonzalez commenced this Bivens action on May 31, 2005, in the United States District Court for the Southern District of New York, alleging that his confinement in the MCC and MDC SHUs violated his First, Fifth, and Eighth Amendment rights. As a result, his suit was timely under the applicable three-year statute of limitations insofar as it relates to claims dating back to on or about February 4, 2002 (assuming a 116–day tolling period) or December 8, 2001 (assuming a 174–day tolling period). Because the parties do not discuss which, if either, of these dates represents the correct tolling period, and such a determination is not necessary to the analysis that follows, we leave it to the district court on remand to determine the date by which any timely claims must have accrued. We hereinafter refer to that date as the “cutoff date.”

A summary of key dates is as follows:

February 28, 1999 Gonzalez was placed in the MCC (Manhattan) SHU
May 2, 2000 Gonzalez lodged his first administrative complaint alleging that his MCC SHU detention was improper
November 15, 2000 All of Gonzalez's MCC SHU-related administrative complaints were exhausted
July 24, 2001 Gonzalez was transferred from the MCC SHU to the MDC (Brooklyn) SHU
February 14, 2002 Gonzalez made his first MDC SHU-related request for administrative remedy
May 11, 2002 Gonzalez was released from the MDC SHU
July 2, 2002 The BOP denied Gonzalez's first MDC SHUrelated administrative complaint
August 8, 2002 All of Gonzalez's MDC SHU-related administrative requests were exhausted
May 31, 2005 Gonzalez commenced a Bivens action in the Southern District of New York
Procedural History

On May 31, 2005, Gonzalez brought suit against Hasty, in his capacity as warden of both the MCC (Manhattan) and MDC (Brooklyn), and various other personnel from both facilities, in the United States District Court for the Southern District of New York. On March 27, 2007, the district court (Richard M. Berman, Judge ) dismissed Gonzalez's MCC claims as time-barred. Gonzalez v. Hasty, No. 05–cv–6076, 2007 WL 914238, at *3, 2007 U.S. Dist. LEXIS 21668, at *8–9 (S.D.N.Y. Mar. 27, 2007), vacated, 651 F.3d 318 (2d Cir.2011). It concluded that the applicable three-year statute of limitations had run because Gonzalez's claims ripened when he was transferred out of the MCC, on July 24, 2001. Id. The district court dismissed Gonzalez's MDC claims for improper venue, explaining that none of the events underlying those claims had occurred in the Southern District.7 Id., 2007 WL 914238, at *3, 2007 U.S. Dist. LEXIS 21668, at *11.

Gonzalez appealed. We decided that the district court erred in failing to apply tolling to the statute of limitations during the time in which Gonzalez was exhausting his administrative remedies. Gonzalez v. Hasty, 651 F.3d 318, 323–24 (2d Cir.2011). Because it was not clear from the record when Gonzalez first initiated his administrative claim, thereby commencing the tolling period, we vacated the dismissal and remanded the case to the district court. Id. at 324. We also directed the district court to transfer Gonzalez's MDC claims to the Eastern District of New York if it once again determined that venue did not lie in the Southern District. Id. at 325. We expressly “decline[d] to decide on th[e] record [before us] 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 [the] SHU.”Id. at 320 n. 1.

On remand, the district court granted the defendants' motion for partial summary judgment, concluding that Gonzalez's claims against all of the MCC defendants except for Hasty were time-barred.8 Gonzalez v. Hasty, 05–cv–6076, 2012 WL 4473689, at *7–9, 2012 U.S. Dist. LEXIS 141251, at *22–27 (S.D.N.Y. Sept. 28, 2012). The court rejected Gonzalez's argument that the continuing violation doctrine, described at some...

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