Knox v. Davis

• Citation: 260 F.3d 1009
• Decision Date: 08 August 2001
• Docket Number: CSP-LA,No. 98-55871,PLAINTIFF-APPELLANT,DEFENDANTS-APPELLEES,98-55871
• Parties: (9th Cir. 2001) MONICA KNOX,, v. GRAY DAVIS, <A HREF="#fr1-*" name="fn1-*">* GOVERNOR OF CALIFORNIA, DEFENDANT. AND T. A. TERHUNE, DIRECTOR OF CDC; DAVID TRISTAN, DEPUTY DIRECTOR, DEPARTMENT OF CORRECTIONS; ERNEST E. ROE, WARDEN, CALIFORNIA STATE PRISON, LANCASTER; MIKE PITOCCO, LITIGATION COORDINATOR AT
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1009

260 F.3d 1009 (9th Cir. 2001)

MONICA KNOX, PLAINTIFF-APPELLANT, v. GRAY DAVIS,^* GOVERNOR OF CALIFORNIA, DEFENDANT. AND T. A. TERHUNE, DIRECTOR OF CDC; DAVID TRISTAN, DEPUTY DIRECTOR, DEPARTMENT OF CORRECTIONS; ERNEST E. ROE, WARDEN, CALIFORNIA STATE PRISON, LANCASTER; MIKE PITOCCO, LITIGATION COORDINATOR AT CSP-LAC, DEFENDANTS-APPELLEES.

No. 98-55871

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 17, 2001

Filed August 8, 2001

Counsel Monica Knox, Esq., La Crescenta, California, in pro per.

Elizabeth S. Angres, Dag, Los Angeles, California, for appellees.

Appeal from the United States District Court for the Central District of California Dickran M. Tevrizian, District Judge, Presiding D.C. No. CV-97-05354-DT

Before: Melvin Brunetti and A. Wallace Tashima, Circuit Judges, and William W Schwarzer,^** District Judge.

Opinion by Judge Brunetti; Dissent by Judge Schwarzer

BRUNETTI, Circuit Judge:

Monica Knox ("Knox") appeals from the district court's dismissal of her §§ 1983 action on the basis that her claim was not brought within the applicable one-year limitation period. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, and we affirm.

I. Facts

Knox is an attorney who is licensed to practice law in the state of California. She has been a criminal defense attorney for over nineteen years and works in the Office of the Federal Public Defender for the Central District of California.

Knox began representing William Packer ("Packer"), an inmate in a California Department of Corrections ("CDC") facility, in January 1993. In July 1995, Knox married Packer, and since then has continued to serve as Packer's public defense attorney. Throughout the course of their professional and personal relationships, Knox and Packer have exchanged both confidential and general correspondence through the CDC prison system. In addition, Knox visited Packer in prison both as a general visitor and as a legal visitor on numerous occasions.

After Packer was placed in Administrative Segregation in CSP-LAC (the prison facility where Packer is housed), Knox made several unsuccessful attempts to visit Packer. On November 18, 1994, Knox received a letter from Warden Roe indicating that her visitation privileges were suspended "pending the completion of an investigation concerning violations of the attorney/client privilege." The suspension applied to both Knox's personal and legal visitation privileges and was premised upon the fact that a "preliminary investigation reveal[ed] that [Knox's] conduct and relationship with Inmate Packer deems [Knox] a risk to the safety and security of th[e] [CDC] institution." Knox was not permitted to visit Packer from November 18, 1994 through January 19, 1995. Meanwhile, Knox's personal attorney made repeated attempts with prison officials to ascertain the reason for Knox's suspension, but none of the correspondence was answered by the prison.

On November 22, 1994, Warden Roe sent a letter to Maria Stratton ("Stratton"), Knox's superior in the Federal Public Defender's office, advising her of Knox's suspension and the reasons underlying the suspension (i.e. violations of the attorney/client privilege, "unethical conduct, " and the risk posed by Knox "to the safety and security of[the] institution"). On December 22, 1994, Stratton spoke with Mike Pitocco ("Pitocco"), the Litigation Coordinator at CSP-LAC, who stated that the only reason for Knox's suspension was "the alleged misuse of legal mail or visitation for personal issues." Pitocco denied the allegation that Knox's suspension was due to any concern about potential security breaches or the passing of any inappropriate items. On December 5, 1995, Knox's personal attorney attempted to telephone Pitocco concerning the suspension, but Pitocco refused to discuss the matter.

Warden Roe sent a letter to Knox's personal attorney on January 18, 1995, reinstating Knox's regular visitation privileges. The letter also indicated, however, that Knox's legal visitation rights would not be reinstated because the investigation was undergoing administrative review. Warden Roe sent another letter to Knox's personal attorney on March 24, 1995, advising him that Knox's suspension would extend to legal mail and that no further legal mail between Packer and Knox would be processed by the prison. In accordance with Warden Roe's letter, CSP-LAC's staff stopped processing all of Packer's legal mail to or from Knox. On September 26, 1995, Warden Roe sent a letter to Knox's personal attorney stating that Knox's attorney rights, both her visiting and mail privileges, were "permanently suspended."

After receiving Warden Roe's letters setting forth the terms of Knox's suspension, Knox and her attorney began communicating with the CDC Institutions Division. On November 21, 1995, Knox spoke with an assistant from the Southern Regional Administrator's Office in the CDC Institutions Division, who advised Knox that it is was problematic for her to serve as both Packer's spouse and attorney. In response to a letter written by Knox, David Tristan ("Tristan"), the Deputy Director of the Institutions Division of the CDC, wrote a letter to Knox on January 20, 1996, stating that an internal investigation had revealed that Knox had misrepresented the type of mail she was sending to Packer. The letter also specifically stated that observations by CDC staff and her "indisputable personal relationship with Packer" led to the conclusion that Knox posed "a significant threat to the safe and secure operations of CDC facilities." Tristan's letter revoked all of Knox's legal mail and visitation rights at all CDC institutions and with all CDC inmates. Although Knox alleges that she was denied notice and a hearing several times, she provides no dates for these denials in her complaint in this action.

Knox's suspension was modified on July 30, 1996, allowing her limited and restricted attorney-client visitation and mail rights as an assistant public defender with Darnell Lucky ("Lucky"), Knox's client on death row. The ban, as modified with regards to Lucky, continues and has not been revoked or modified by the CDC in any way after July 30, 1996. Since then, there have been several instances in which the CDC, in reliance on the suspension, has denied Knox either legal visitation or correspondence privileges with CDC inmates.¹ Each referenced CDC action occurred within one year of the filing of Knox's civil complaint, which Knox brought in the Central District of California on July 21, 1997. The district court provided Knox with two opportunities to amend the complaint² before finally dismissing her claims on April 6, 1998. Knox timely appeals.

II. Standard of Review

We review de novo the district court's decision to dismiss a §§ 1983 action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). All factual allegations in the complaint are accepted as true and all reasonable inferences are drawn in favor of the non-moving party. Tworivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999).

III. Statute of Limitations

Actions brought pursuant to 42 U.S.C. §§ 1983 are governed by the forum state's statute of limitations for personal injury actions. See Wilson v. Garcia, 471 U.S. 261 276 (1985). In California, the statute of limitations is one year. See Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999); Cal. Civ. Proc. Code §§ 340(3) (West Supp. 1999). "Although state law determines the length of the limitations period, federal law determines when a civil rights claim accrues." Morales, 214 F.3d at 1153-54. 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." Tworivers, 174 F.3d at 992.

Knox concedes that her §§ 1983 claim accrued on January 20, 1996. On that date, she received a letter from Tristan, the Deputy Director of the Institutions Division of the CDC, formally withdrawing her legal mail and visitation privileges at all CDC facilities and with all CDC inmates. Knox did not file her §§ 1983 lawsuit challenging the suspension until July 21, 1997, more than one year after receiving Tristan's suspension letter. Thus, Knox's claim is time-barred unless she has pled a continuing violation of her rights.

Knox argues that each time she is denied access to one of her clients housed in a CDC facility, a new cause of action arises under the continuing violation theory. The continuing violation theory applies to §§ 1983 actions, see Gutowsky v. City of Placer, 108 F.3d 256, 259 (9th Cir. 1997), allowing a plaintiff to seek relief for events outside of the limitations period. See Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir. 1982). Since Knox does not allege a system or practice of discrimination, the only way she can hope to show a continuing violation is to "state facts sufficient . . . [to] support[ ] a determination that the alleged discriminatory acts are related closely enough to constitute a continuing violation, and that one or more of the acts falls within the limitations period." DeGrassi v. City of Glendora, 207 F.3d 636, 645 (9th Cir. 2000).

However, this court has repeatedly held that a "mere `continuing impact from past violations is not actionable.' " Grimes v. City and County of San Francisco, 951 F.2d 236, 238-39 (9th Cir. 1991); Williams, 665 F.2d at 924 (quoting Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 760 (9th Cir. 1980)); Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979) ("The proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful."). Knox's cause of action accrued when she received Tristan's permanent and complete suspension letter on January 20, 1996. The continuing violation doctrine is inapplicable because...