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Gonzalez v. Hasty

United States Court of Appeals, Second Circuit

September 3, 2015

Esteban Gonzalez, Plaintiff--Appellant,
v.
Dennis W. Hasty, James Sherman, Salvatore LoPresti, Ortiz, Inspector Barrere, C.O. White, #8413, Defendants--Appellees. [*]

Argued May 28, 2015

Page 213

[Copyrighted Material Omitted]

Page 214

The plaintiff, Esteban Gonzalez, appeals from a July 22, 2013, judgment of the United States District Court for the Eastern District of New York (Brian M.Cogan, Judge) dismissing his 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), on the ground that he failed to institute his action within the time limit set by the applicable three-year statute of limitations. His claims arose in connection with his confinement in the Special Housing Unit of the Metropolitan Correctional Center in Manhattan, and then the Special Housing Unit of the Metropolitan Detention Center in Brooklyn, for an extended period of time, allegedly without procedural protections, and in retaliation for protected speech. We conclude that the district court correctly applied the three-year statute of limitations to Gonzalez's First Amendment claim, but that it erred in holding that his Fifth and Eighth Amendment claims are time-barred in their entirety.

AMEER BENNO, Benno & Associates, P.C., New York, NY, (Michael A. Young, New York, NY, on the brief), for Plaintiff--Appellant.

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, NY, for Defendants--Appellees Dennis W. Hasty, James Sherman, Ortiz, Inspector Barrere, C.O. White, # 8413.

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

OPINION

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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 dismiss[1] 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

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apply to his First or Fifth Amendment claims. Certain aspects of his Fifth Amendment claim may nevertheless be timely.

BACKGROUND

Facts

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

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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, 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 SHU related

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


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