Madero Pouncil v. James Tilton

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MADERO L. POUNCIL, No. 10-16881

Plaintiff-Appellee,

D.C. No.

v. CIV S-09-1169-

LKK-CMK-P

JAMES E. TILTON , Director, CDC;

MATTHEW CATE , Secretary of the

CDC; D. FOSTON , Facility Captain; OPINION

and W. MARTEL, Warden/Acting

Warden, MCSP,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, District Judge, Presiding

Argued and Submitted

March 14, 2012—San Francisco, California

Filed November 21, 2012

Before: Consuelo M. Callahan and Carlos T. Bea, Circuit

Judges, and Mark W. Bennett, District Judge.*

Opinion by Judge Bennett

*

The Honorable Mark W. Bennett, District Judge for the U.S. District

Court for the Northern District of Iowa, sitting by designation.

2 POUNCIL V . TILTON

SUMMARY**

Prisoner Civil Rights

The panel affirmed the district court’s denial of prison

officials’ motion to dismiss a prisoner civil rights complaint

on statute of limitations grounds.

The prisoner asserted that the denials by prison officials

of his request for a conjugal visit with his wife violated the

Religious Land Use and Institutionalized Persons Act and the

First Amendment by interfering with his practice of a tenet of

his Islamic faith requiring him to marry, consummate his

marriage, and father children. The panel held that because

the prisoner’s claim was based on an independently wrongful,

discrete act in 2008, which was the denial of his request for

conjugal visits with his second wife, his claims were not

time-barred, notwithstanding the denial, pursuant to the same

regulation, of his prior request for conjugal visits with his

first wife in 2002.

COUNSEL

Tritia M. Murata of Morrison & Foerster, Los Angeles,

California, for the plaintiff-appellee.

Kamala D. Harris, Attorney General of California; Rochelle

C. East, Sr. Asst. Attorney General; Vickie P. Whitney,

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

POUNCIL V . TILTON 3

Supervising. Dep. Atty. General; Misha D. Igra, Dep. Atty.

General, Sacramento, California, for defendants-appellants.

OPINION

BENNETT, District Judge:

A state prisoner asserts that denials by prison officials of

his request for a conjugal visit with his wife violated the

Religious Land Use and Institutionalized Persons Act

(RLUIPA) and the First Amendment to the United States

Constitution by interfering with his practice of a tenet of his

Islamic faith requiring him to marry, consummate his

marriage, and father children. The immediate question,

however, is not the merits of his claims, but when the

limitations period began to run on them. Was it in 2008,

when the prisoner’s request for a conjugal visit with his

second wife was denied pursuant to a prison regulation that

had been in force, essentially unchanged, since 1996, or in

2002, when the prisoner’s request for a conjugal visit with his

first wife was denied pursuant to that regulation? The answer

turns not only on the precise nature of the prisoner’s claims,

but on which of two apparently conflicting lines of authority

is controlling on the accrual date of the prisoner’s claims.

Indeed, this appears to be the kind of case, forecast by the

United States Supreme Court, “where it will be difficult to

determine when the [limitations] time period should begin to

run.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

115 n.7 (2002). It is symptomatic of the difficulty of the

question that two district judges in the Eastern District of

California reached contrary results on it, in two very similar

cases, within the space of a few months. The appellant prison

official contends that one of the district judges, the one in this

4 POUNCIL V . TILTON

case, got it wrong, when he denied the prison official’s

motion to dismiss the prisoner’s claims as untimely. We

affirm.

1. BACKGROUND

a. Factual Background

Plaintiff-appellee Madero L. Pouncil is a California state

prisoner serving a sentence of life imprisonment without

parole (LWOP) at Mule Creek State Prison (MCSP). He

alleges in his pro se Complaint, pursuant to 42 U.S.C. § 1983,

that he is a Muslim, that marriage is one of the most

important institutions in Islam and is incumbent on every

Muslim, and that the main duties of a Muslim to his or her

spouse are to consummate their marriage to solidify the

validity of the marriage and to have sexual relations as a form

of worship.

Pouncil married his first wife in 1999 while Pouncil was

already in prison.1 In 2002, Pouncil requested a conjugal visit

with his wife, but that request was denied. On March 26,

2002, Pouncil filed a grievance stating, in part, “I’m told, ‘I

can’t apply for a Family visit, cause of the time I’m serving,

and nature of the crime committed,’” but that the denial of a

1

Although this matter is before the court on an appeal from the denial

of a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure, which ordinarily would limit this court to consideration

of allegations in the Complaint, see, e.g., Manzarek v. St. Paul Fire &

Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008), at the defendant’s

request, the magistrate judge to whom the defendant’s motion to dismiss

was referred took judicial notice of marriage certificates indicating that

Pouncil was married on September 16, 1999, and remarried on July 14,

2007.

POUNCIL V . TILTON 5

conjugal visit restricted him from complying with a duty of

his religion. His grievance was denied as was his “Second

Level” appeal, because a prison regulation, CAL. CODE REGS.

tit. 15, § 3174, did not permit LWOP prisoners to have

conjugal visits.

The parties agree that Pouncil was subsequently divorced

from his first wife. The parties also agree that Pouncil

remarried on July 14, 2007, and that, on or about July 21,

2008, Pouncil submitted another request for conjugal visits.

That request was denied on August 1, 2008, by a counselor,

who stated, “Per CCR 3177(b)(2) LWOP inmates are not

permitted family visits.” The regulation on which the

counselor relied is essentially the same one cited in the denial

of Pouncil’s request for a conjugal visit in 2002, which had

been recodified in 2006 as § 3177. Pouncil’s administrative

appeals were denied at the “Informal Level,” on August 7,

2008; in a “Second Level Appeal Response,” dated

September 3, 2008; and in a “Director’s Level Decision,”

dated December 9, 2008. The “Director’s Level Decision”

expressly stated that it “exhaust[ed] the administrative

remedy available to the appellant within CDCR.”

b. Procedural Background

On April 27, 2009, Pouncil signed, and on April 29, 2009,

the Clerk of Court for the United States District Court for the

Eastern District of California filed, Pouncil’s pro se

Complaint pursuant to the Civil Rights Act, 42 U.S.C.

§ 1983. The Complaint named as defendants James Tilton,

identified as the Director of the California Department of

Corrections and Rehabilitation (CDCR); D. Foston, identified

as Facility Captain; and M. Martel, identified as the Warden

or Acting Warden at MCSP. In his Complaint, Pouncil stated

6 POUNCIL V . TILTON

that he had brought the lawsuit against the CDCR “for

implementing a rule to the California Code of Regulation

(3177(b)(2)) that violates Petitioner[’s] Constitutional right

to practice his religion and be married as a Muslim under the

RLUIPA act. . . . Petitioner all so [sic] claims a violation of

his 14th. and 8th. amendment rights.” Complaint at 4.

Pouncil also alleged that “[t]his rule dose [sic] not provide

intimate time (family visiting) for Muslim Inmates serving a

life without parole term, wherefore making it impossible for

Petitioner to consummate his marriage/have sexual relations

with his wife and practice his religion and perform his duties

to his wife as commanded by (ALLAH) and affirmed in the

teaching of prophet Muhammad. [A]nd by denying Petitioner

the right to perform his religious duties to his wife or

potential wife is to deny him his right to be married as a

Muslim.” Complaint at 5. Pouncil sought the following

relief: “Reinstate Family Visits for Lifers, and Life without

the possibility of parole Inmate so I can fulfill my duties

religiously to my wife, and guide my children in my family

with direct understanding of my faith.” Complaint at 2.

Pouncil’s Complaint makes no express mention of his

applications for conjugal visits in either 2002 or 2008 or

denials of those applications. It does, however, aver that

Pouncil completed the administrative review process for his

claims, explaining what happened at each level of

administrative review. The administrative exhaustion that

Pouncil cites relates entirely to his 2008 application for a

conjugal visit.

The docket below reflects that Tilton and Foston filed

waivers of service of the Complaint, but that Martel was

never served with the Complaint. Tilton and Foston filed a

motion to dismiss arguing, among other things, that Pouncil’s

POUNCIL V . TILTON 7

Complaint is time-barred. The defendants argued that

Pouncil’s claims accrued in 2002 when he first filed an

inmate grievance concerning conjugal family visitation, so

that the statute of limitations had run by 2009, when Pouncil

filed suit. Pouncil argued that his claims accrued only after

he remarried in 2007, and that his action relates only to

matters addressed in his 2008 inmate grievance, so that his

lawsuit is timely.

On February 19, 2010, a magistrate judge filed Findings

and Recommendations concerning the defendants’ motion to

dismiss. The magistrate judge found that the applicable

statute of limitations for a § 1983 claim, using California’s

statute of limitations for personal injury actions, was two

years, and that the statute of limitations was tolled while the

prisoner exhausted administrative remedies. The magistrate

judge dismissed any contention that an amendment of the

pertinent prison regulation in 2007 affected the accrual

analysis, because the portion of the regulation preventing

Pouncil from having conjugal visits had been in place

unchanged since 1996. The magistrate judge construed

Pouncil’s claims as, in essence, a constitutional challenge to

the prison regulation prohibiting LWOP inmates from having

conjugal family visits and concluded that this regulation

remained the same and was applicable to Pouncil without

regard to whom he was married at the time. In other words,

the magistrate judge concluded, Pouncil’s claims were not

tied to a particular spouse. Thus, the magistrate judge

concluded that Pouncil knew from his experience in 2002 that

he would not be allowed conjugal visitation with any wife so

long as he remained an LWOP inmate. The magistrate judge

also dismissed application of a continuing violation theory,

because the denial of Pouncil’s request for a conjugal visit in

2008 was simply an effect of the regulation that Pouncil had

8 POUNCIL V . TILTON

originally challenged in 2002. Therefore, the magistrate

judge recommended that the defendants’ motion to dismiss be

granted.

Pouncil filed objections to the magistrate judge’s Findings

and Recommendations on March 12, 2010, and,

consequently, on March 31, 2010, a district judge2 conducted

a de novo review of the case. The district judge declined to

adopt the magistrate judge’s Findings and Recommendations.

In the district judge’s view, Pouncil’s complaint did not

allege an injury from the denial of his request for conjugal

visits with his ex-wife in 2002, but an injury from the denial

of his request for conjugal visits with his current wife on

August 1, 2008. The district judge also concluded that the

2008 denial constituted an individual, actionable injury upon

which Pouncil had standing to bring suit, so that his action

did not accrue until his request was denied on August 1,

2008.

The district judge found that the two-year statute of

limitations for a § 1983 claim would not run until August of

2010, and that the four-year statute of limitations for a

RLUIPA claim would not run until August of 2012. Thus, he

found that Pouncil’s claims, filed in 2009, were timely. The

district judge cited, without comment, Henderson v.

Hubbard, 2010 WL 599886 (E.D. Cal. Feb. 18, 2010), in

which another district judge in the same district adopted a

different magistrate judge’s findings and recommendation to

dismiss a similar claim on timeliness grounds. The district

court did, however, grant the motion to dismiss as to

defendant Foston, because defendant Foston was not in any

2

The Honorable Lawrence K. K arlton, District Judge for the U.S.

District Court for the Eastern District of California.

POUNCIL V . TILTON 9

position to implement the injunctive relief that Pouncil was

requesting, and substituted the current Secretary of the

CDCR, Matthew Cate, for defendant Tilton, who had retired.3

On June 10, 2010, on defendant Tilton’s motion, the

district judge certified for interlocutory appeal the question of

whether Pouncil’s claims are barred by the statute of

limitations.4 This case was stayed in the district court until a

mandate issues from this court. This court granted Tilton’s

subsequent petition for permission to appeal the certified

question of whether Pouncil’s claims are barred by the statute

of limitations and directed appointment of pro bono counsel

to represent Pouncil on appeal.

2. LEGAL ANALYSIS

a. Applicable Standards

Pouncil asserts claims pursuant to the RLUIPA and the

First Amendment to the United States Constitution.5 The

RLUIPA provides, in relevant part, that “[n]o government

shall impose a substantial burden on the religious exercise of

3

Like the parties, for the sake of simplicity, we will continue to identify

the defendant-appellant as Tilton, rather than Cate.

4

The district judge declined Tilton’s request that he also certify for

interlocutory appeal the scope of the lawsuit and who is a party.

5

Tilton argues that the only claim on which Pouncil was allowed to

proceed, after initial review, was his RLUIPA claim. However, the

district judge treated both Pouncil’s RLUIPA claim and his First

Amendment claim as viable for purposes of the statute of limitations

analysis, and we will do the same, taking no position on whether Pouncil’s

First Amendment claim is also properly before the court.

10 POUNCIL V . TILTON

a person residing in or confined to an institution . . . even if

the burden results from a rule of general applicability,” unless

the government demonstrates that the burden is “in

furtherance of a compelling governmental interest” and is

“the least restrictive means of furthering that . . . interest.”

42 U.S.C. § 2000cc-1(a). The First Amendment of the United

States Constitution prohibits government restrictions on the

fundamental right to freely exercise one’s religious beliefs.

See U.S. CONST . amend. I. Section 1983 of title 42 of the

United States Code provides a cause of action against any

person who, acting under the color of state law, abridges

rights created by the laws of the United States. “[F]ederal

courts must take cognizance of the valid constitutional claims

of prison inmates.” Turner v. Safley, 482 U.S. 78, 84 (1987).

The parties agree that, because there is no specified

statute of limitations for an action under 42 U.S.C. § 1983,

the federal courts look to the law of the state in which the

cause of action arose and apply the state law of limitations

governing an analogous cause of action. See Wallace v. Kato,

549 U.S. 384, 387 (2007). The parties also agree that the

analogous cause of action in this case is California’s personal

injury action, which has a two-year statute of limitations. See

Maldonado v. Harris, 370 F.3d 945, 954-955 (9th Cir. 2004).

Similarly, they agree that the RLUIPA does not contain its

own statute of limitations period, but that civil claims, such

as RLUIPA claims, “arising under an Act of Congress

enacted after [December 1, 1990],” have a four-year period

of limitations. See Jones v. R.R. Donnelley & Sons Co.,

541 U.S. 369, 382 (2004).

What the parties do dispute is when the statutes of

limitations on Pouncil’s claims began to run. A statute of

limitations begins to run on the date on which the plaintiff’s

POUNCIL V . TILTON 11

claim “accrues.” Lukovsky v. City and County of San

Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). Federal law

determines when a cause of action for a Section 1983 claim

accrues and, hence, when the statute of limitations begins to

run. See Wallace, 549 U.S. at 388. Under federal law,

accrual occurs when the plaintiff has a complete and present

cause of action and may file a suit to obtain relief. Id.; see

also Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996)

(“Under federal law, ‘the limitations period accrues when a

party knows or has reason to know of the injury’ which is the

basis of the cause of action.” (quoting Golden Gate Hotel

Ass’n v. San Francisco, 18 F.3d 1482, 1486 (9th Cir. 1994))).

An action ordinarily accrues on the date of the injury. Ward

v. Westinghouse Canada, Inc., 32 F.3d 1405, 1407 (9th Cir.

1994). A federal claim accrues when the plaintiff knows or

has reason to know of the injury that is the basis of the action.

Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th

Cir. 1991) (quoting Trotter v. Int’l Longshoreman’s and

Warehouseman’s Union, 704 F.2d 1141, 1143 (9th Cir.

1983)).

When the statute of limitations begins to run for an action

at law is reviewed de novo. See Oja v. U.S. Army Corps. of

Engineers, 440 F.3d 1122, 1127 (9th Cir. 2006); see also Orr

v. Bank of Am., NT & SA, 285 F.3d 764, 780 (9th Cir. 2002).

Whether a claim is barred by the statute of limitations is also

reviewed de novo. Orr, 285 F.3d at 780. However, “[t]he

question of when a claim accrues is a fact intensive inquiry,

and we have held that a district court’s factual finding

concerning when a claim accrues is entitled to deferential

review.” Hells Canyon Pres. Council v. U.S. Forest Serv.,

403 F.3d 683, 691 (9th Cir. 2005).

12 POUNCIL V . TILTON

b. Arguments Of The Parties

Tilton asserts that Pouncil is now challenging a regulation

that he originally challenged in 2002, when he was married

to his first wife, so that his claims accrued in May 2002, when

the warden of the MCSP notified him that, in accordance with

provisions of the California Code of Regulations, he would

not be permitted to have conjugal visitation with any spouse

because of his life sentence. Tilton relies on Knox v. Davis,

260 F.3d 1009, 1014 (9th Cir. 2001), for the proposition that

“[a]ll of the allegations in the complaint regarding Pouncil’s

inability to have sex with his second wife are merely the

delayed, but inevitable, consequence of the original decision

that he is subject to regulations preventing LWOP inmates

from participating in conjugal visits.” Appellant’s Brief at

16.

In contrast, Pouncil argues that he is challenging the

denial of his 2008 application for a conjugal visit with his

second wife. Pouncil relies on National Railroad Passenger

Corp. v. Morgan, 536 U.S. 101, 113 (2002), to contend that

the August 2008 denial of his request for a conjugal visit with

his second wife was a discrete act that started a new clock

running for the filing of his claims.

In reply, Tilton argues that Pouncil’s argument relies on

a transformation of his claims from challenges to the

regulation into challenges to the denial of a specific request

for a conjugal visit. Tilton points out that Pouncil’s

Complaint never even mentions that he had been denied a

conjugal visit in 2008. Instead, it challenges

“implementation” of a regulation preventing inmates serving

LWOP from participating in conjugal visits.

POUNCIL V . TILTON 13

We conclude that when Pouncil’s claims accrued

depends, in part, on what those claims are.

c. The Nature Of Pouncil’s Claims

Pouncil filed this action pro se. We have repeatedly

stated that “[w]e construe pro se complaints liberally.” Silva

v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hamilton

v. Brown, 630 F.3d 889, 893 (9th Cir. 2011). This rule

protects the rights of pro se litigants to self-representation and

meaningful access to the courts, Rand v. Rowland, 154 F.3d

952, 957 (9th Cir. 1998), and we have recognized that it is

“‘particularly important in civil rights cases.’” Johnson v.

State of California, 207 F.3d 650, 653 (9th Cir. 2000)

(quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.

1992)).

Tilton is correct that Pouncil nowhere mentions the 2008

denial of his application for a conjugal visit in his pro se

Complaint. On the other hand, neither does Pouncil mention

the 2002 denial of his application for a conjugal visit with his

first wife. The question is whether his failure to identify the

2008 denial as the specific basis for his claims is dispositive

of the nature of his claims. We think it is not, giving

Pouncil’s pro se Complaint the liberal construction to which

it is entitled. See Silva, 658 F.3d at 1101; Johnson, 207 F.3d

at 653.

First, Tilton is correct that Pouncil stated in his Complaint

that he had brought the lawsuit against the CDCR “for

implementing a rule to the California Code of Regulation

(3177(b)(2)) that violates Petitioner[’s] Constitutional right

to practice his religion and be married as a Muslim under the

RLUIPA act.” Complaint at 4 (emphasis added).

14 POUNCIL V . TILTON

Nevertheless, we do not agree with Tilton’s argument that

claims based on “implementing” a rule equate with claims

based on “enacting” or “adopting” the rule. Appellant’s

Reply at 2l-23. A liberal construction of Pouncil’s Complaint

would just as reasonably read “implementing” the rule to

mean “applying” the rule to him. See, e.g., MERRIAM

WEBSTER ’S COLLEGIATE DICTIONARY 583 (10th ed. 1995)

(defining “implement,” inter alia, as “CARRY OUT ,

ACCOMPLISH ; esp. to give practical effect to and ensure of

actual fulfillment by concrete measures”); ROGET ’S II: THE

N E W T H E S A U R U S , www.educat i o n . ya h o o . c o m /

reference/thesaurus/?=implement (last accessed May 15,

2012) (identifying “implement” and “apply” as synonyms of

“use” and identifying “implement” as a synonym of “apply”).

Second, in his Complaint, Pouncil explains that he has

exhausted administrative remedies by citing the levels of

review and summarizing the results of those reviews in a

manner that plainly matches the administrative steps of his

2008 grievance, the only grievance involving a third level of

administrative review. See Complaint at 2. Third, Pouncil

cites only the version of the rule as it was recodified in 2006

as § 3177, not as it existed in 2002, when it was codified as

§ 3174. Liberally construed, Pouncil’s Complaint suggests

that the focus of Pouncil’s challenges is the application of the

rule to him in 2008.

Tilton argues that, by suing the Secretary of the CDCR

for injunctive relief, Pouncil has also necessarily challenged

the regulation itself, not the denial of his request for a

conjugal visit in 2008. Tilton points out that he was not

personally involved in the specific denial of Pouncil’s

request. This argument is too clever by half, in the context of

pro se pleadings, because it relies on precisely the kind of

technical requirements that liberal construction of pro se

POUNCIL V . TILTON 15

pleadings is intended to mitigate. See Wyatt v. Terhune,

315 F.3d 1108, 1119 (9th Cir. 2003).

It also is not entirely clear whether the injunctive relief

that Pouncil seeks is limited to relief for him from the

challenged regulation, or relief for all LWOP prisoners. In

his Complaint, Pouncil sought the following relief:

“Reinstate Family Visits for Lifers, and Life without the

possibility of parole Inmate [sic] so I can fulfill my duties

religiously to my wife, and guide my children in my family

with direct understanding of my faith.” Complaint at 2

(emphasis added). This statement ambiguously refers to all

“Lifers,” but only to one LWOP “Inmate,” and to relief

allowing Pouncil to fulfill his religious duties. When read in

the context of Pouncil’s requests for relief in the

administrative proceedings, however, it appears that Pouncil

seeks relief from application of the regulation to him. In his

August 4, 2008, Appeal Form, Pouncil requested the

following action as relief: “I would like my family visiting

previlleges [sic] be reinstated and to stay as such, until I’m

set free where I can continue to practice my Religious beliefs,

and be an upstanding citizen.” In a “Second Level Appeal

Response,” the warden of the MCSP characterized Pouncil’s

request for relief to be “to have his right to Family Visiting

restored to him.” The “Director’s Level Response” also

characterized Pouncil’s request for relief to be “that his

family visiting privileges be reinstated and to stay as such

until the appellant is released.” Thus, the relief that Pouncil

requests does not necessarily demonstrate that he has asserted

challenges to the regulation itself, rather than claims based on

denial of his request for a conjugal visit in 2008.

Moreover, Tilton (or his successor), as Secretary of the

CDCR, is the proper defendant on a claim for prospective

16 POUNCIL V . TILTON

injunctive relief from a prison regulation, because he would

be responsible for ensuring that injunctive relief was carried

out, even if he was not personally involved in the decision

giving rise to Pouncil’s claims. See, e.g., Gonzalez v.

Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (the prison

warden was the proper defendant for a claim of injunctive

relief, notwithstanding his lack of personal involvement in the

challenged conduct, because he would be responsible for

ensuring that the injunctive relief was carried out). Tilton

cannot raise qualified immunity to such a claim. See Vance

v. Barrett, 345 F.3d 1083, 1091 n.10 (9th Cir. 2003) (noting,

“[A] defense of qualified immunity is not available for

prospective injunctive relief.” (citing Presbyterian Church

(U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989)).

Thus, Pouncil’s prayer for injunctive relief in no way

demonstrates conclusively that his claims are not premised on

denial of his application for a conjugal visit in 2008, nor does

it demonstrate that Pouncil’s appellate counsel has

reconfigured his claims to attempt to evade the time-bar that

Tilton asserts. Rather, liberally construed, we read Pouncil’s

claims to be challenges to the denial of his 2008 request for

a conjugal visit.

d. Discrete Act Versus Inevitable Consequence

Once Pouncil’s claims are understood as arising from the

2008 denial of his application for a conjugal visit, the

question is, when did such claims accrue? What makes this

question particularly daunting here is that two different lines

of authority appear to lead to different conclusions. Tilton

relies on one line of authority to argue that, even if Pouncil is

challenging the 2008 denial of his request for a conjugal visit,

that denial is simply the inevitable consequence of the 2002

denial of his first request for a conjugal visit pursuant to the

POUNCIL V . TILTON 17

same regulation. Relying on a different line of authority,

Pouncil contends that the 2008 denial was a discrete act,

notwithstanding a prior denial pursuant to the same

regulation.

i. The Ricks/Knox line

Appellants rely on Knox, 260 F.3d at 1014, for the

proposition that “all of the allegations in the complaint

regarding Pouncil’s inability to have sex with his second wife

are merely the delayed, but inevitable, consequence of the

original decision that he is subject to regulations preventing

LWOP inmates from participating in conjugal visits.”

Appellant’s Brief at 16. Tilton argues that Pouncil’s cause of

action, therefore, accrued on the date that he received the

denial of his first request for conjugal visits, in May of 2002.

Appellant’s Brief at 13.

Knox involved an attorney who, after receiving a letter on

January 20, 1996, revoking all of her legal mail and visitation

rights to all inmates at all penal institutions in California,

continued to receive denials of these rights between January

20, 1996, and July 21, 1997, when she filed suit. Knox,

260 F.3d at 1011-1012. The denials subsequent to the

January 20, 1996, letter, relied on the suspension

implemented in that letter as the basis for denying Knox

either legal visitation or correspondence privileges with

inmates. Id. at 1012. Knox conceded that her § 1983 claim

accrued on January 20, 1996. Id. at 1013. She argued,

however, “that each time that she was denied access to one of

her clients housed in a CDCR facility, a new cause of action

ar[ose] under the continuing violation theory.” Id.

18 POUNCIL V . TILTON

This court explained that, since Knox had not alleged a

system or practice of discrimination, the only way that she

could hope to show a continuing violation was to “‘state facts

sufficient . . . [to] support[ ] a determination that the alleged

discriminatory acts related closely enough to constitute a

continuing violation, and that one or more of the acts falls

within the limitations period.’” Id. (quoting DeGrassi v. City

of Glendora, 207 F.3d 636, 645 (9th Cir. 2000)). This court

rejected Knox’s continuing violation argument, however,

because this court had “repeatedly held that a mere

continuing impact from past violations is not actionable.” Id.

(internal quotation marks and citations omitted) (emphasis in

the original). This court held,

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 Knox has failed to establish that a

new violation occurs each time she is denied

her visitation or mail privileges. Rather, the

CDC’s subsequent and repeated denials of

Knox’s privileges with her clients is merely

the continuing effect of the original

suspension.

Knox, 260 F.3d at 1013.

This court concluded that the outcome in Knox was

compelled by the United States Supreme Court’s decision in

Delaware State College v. Ricks, 449 U.S. 250 (1980). See

Knox, 260 F.3d at 1013-14. In Ricks, the Supreme Court

considered whether a college professor had timely

complained under Title VII that he had been denied academic

POUNCIL V . TILTON 19

tenure because of his national origin. 449 U.S. at 252. Ricks

had received a letter on June 26, 1974, informing him of the

denial of tenure, but renewing his contract until the end of the

1974-75 school year. Id. at 253-54. The district court had

held that the statute of limitations began to run on Ricks’s

claim on the date he had been notified that he would be

offered a 1-year “terminal” contract, but the Third Circuit

Court of Appeals reversed, concluding that the statute of

limitations did not begin to run until Ricks’s “terminal”

contract expired on June 30, 1975. Id. at 255.

The Supreme Court found that Ricks had not alleged any

discriminatory acts that continued until, or that occurred at

the time of, the actual termination of his contract. Id. at 257.

To the contrary, the Court concluded, the “termination of

employment at Delaware State [wa]s a delayed, but

inevitable, consequence of the denial of tenure.” Id. at 257-

58. In short, “the only alleged discrimination occurred—and

the filing limitations period therefore commenced—at the

time the tenure decision was made and communicated to

Ricks.” Id. at 258. This was so, “even though one of the

effects of the denial of tenure—the eventual loss of a teaching

position—did not occur until later.” Id. (emphasis in the

original). The emphasis in the statute of limitations analysis,

the Court concluded, is not on effects, but “is [upon] whether

any present violation exists.’” Id. (quoting United Air Lines,

Inc. v. Evans, 431 U.S. 553, 558 (1977), with emphasis in the

original).

This court explained that the attorney plaintiff in Knox,

like the college professor plaintiff in Ricks, “had notice of all

the wrongful acts she wished to challenge at the time of the

suspension letter because the letter informed her that she was

permanently denied all visitation or mail privileges.” Knox,

20 POUNCIL V . TILTON

260 F.3d at 1014. Similarly, Tilton argues—not without

some appeal—that Pouncil also had notice of all the wrongful

acts that he wished to challenge at the time that he received

the 2002 notice of denial of his request for a conjugal visit

because that denial informed him that he was permanently

barred from conjugal visits as an inmate serving LWOP.

ii. The Morgan/Cherosky line

There is, however, another line of authority that appears

to lead to a conflicting result—i.e., to the conclusion that

Pouncil’s claims arising from the denial of his request for

conjugal visits in 2008 are timely, notwithstanding the prior

denial of a request for conjugal visits in 2002.

Subsequent to Knox, the United States Supreme Court

decided Morgan, 536 U.S. 101. In Morgan, which, like

Ricks, was an employment discrimination case, the plaintiff

filed a charge of discrimination and retaliation against his

employer. 536 U.S. at 105. Some of the allegedly

discriminatory acts about which Morgan complained occurred

within 300 days of the time that he filed his charge with the

EEOC—that is, within the 300-day limitations period for

filing such a charge—but many took place prior to that time

period. Id. at 106. Morgan argued that the various acts,

including those that occurred prior to the 300-day time

period, were part of “an unlawful employment practice” that

constituted an ongoing violation. Id. at 110. What is

instructive here, however, is not the Morgan Court’s analysis

of the continuing violation doctrine, but its explanation of

what constitutes a “discrete act” that starts the running of a

limitations period.

POUNCIL V . TILTON 21

The Court derived several principles from its prior cases,

including Ricks, Evans, Electrical Workers v. Robbins &

Myers, Inc., 429 U.S. 229 (1976), and Bazemore v. Friday,

478 U.S. 385 (1986) (per curiam):

First, discrete discriminatory acts are not

actionable if time barred, even when they are

related to acts alleged in timely filed charges.

Each discrete discriminatory act starts a new

clock for filing charges alleging that act. The

charge, therefore, must be filed within the

180- or 300-day time period after the discrete

discriminatory act occurred. The existence of

past acts and the employee’s prior knowledge

of their occurrence, however, does not bar

employees from filing charges about related

discrete acts so long as the acts are

independently discriminatory and charges

addressing those acts are themselves timely

filed. Nor does the statute bar an employee

from using the prior acts as background

evidence in support of a timely claim.

Morgan, 536 U.S. at 113. Thus, Morgan instructs that a court

must determine whether a claim is based on an independently

wrongful, discrete act, and if it is, then the claim accrues, and

the statute of limitations begins to run, from the date of that

discrete act, even if there was a prior, related past act.

In Cherosky v. Henderson, 330 F.3d 1243 (9th Cir. 2003),

this Court discussed the application of Morgan to claims by

employees of the United States Postal Service that the Postal

Service had violated their rights pursuant to the

Rehabilitation Act by denying their requests for respirators.

22 POUNCIL V . TILTON

In order to bring a claim under the Rehabilitation Act, a

federal employee was required to consult with an EEOC

counselor within 45 days of the effective date of the action.

See Cherosky, 330 F.3d at 1245. Failure to comply with the

45-day consultation requirement was fatal to a federal

employee’s claim. Id. The employees in Cherosky did not

initiate contact with an EEOC officer within 45 days of the

denial of their requests to wear respirators and could not point

to any discrete, discriminatory act that occurred within the

45-day period. Id. at 1245-46. The employees argued,

however, that their claims were timely under the continuing

violations doctrine. Id. at 1246.

In Cherosky, this court, relying on Morgan, determined

that discrete acts, such as the denials of the employees’

requests for respirators, are only timely where such acts

occurred within the limitations period, but that the postal

employees had not alleged that any discriminatory acts had

occurred after the initial denials, which were outside of the

limitations period. See id. This court quoted with approval

the district court’s observation that the “‘heart of plaintiffs’

complaint does not stem from the policy regarding the use of

respirators, but rather from the individualized decisions that

resulted from implementation of a policy originating from

OSHA.’” Id. at 1247. The court concluded that “these

individualized decisions are best characterized as discrete

acts, rather than as a pattern or practice of discrimination.”

Id.

The Cherosky court compared the “wrong” alleged by the

postal employees, the denial of each application for a

respirator, to the “wrong” in Bazemore, 478 U.S. at 395, the

receipt of a periodic paycheck pursuant to a discriminatory

salary policy. The Cherosky court explained, “Just as the

POUNCIL V . TILTON 23

wrong in Bazemore accrued each time the salary policy was

implemented, the alleged wrong here occurred and accrued

when the policy was invoked to deny an individual

employee’s request.” Cherosky, 330 F.3d at 1247.

Thus, Cherosky and Morgan suggest that each time a

policy is invoked to deny an individual plaintiff’s request, an

independently wrongful, discrete act occurs, a claim accrues,

and the limitations period begins to run. Pouncil argues that

this is precisely what occurred in 2008: The 2008 denial of

his individual request for a conjugal visit was independently

wrongful, and his claims accrued at that time, even though the

same regulation invoked to deny the 2008 request had been

invoked to deny his 2002 request for a conjugal visit.

iii. Reconciling the lines of authority

In Ledbetter v. Goodyear Tire & Rubber Co., Inc.,

550 U.S. 618 (2007), superseded by statute, Lilly Ledbetter

Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat 5., another

employment discrimination case, the Supreme Court clarified

how the “discrete acts” language of Morgan could be

reconciled with its prior case law, including Ricks and Evans.

The Court explained,

The instruction provided by Evans, Ricks,

Lorance [v. AT & T Tech., Inc., 490 U.S. 900

(1989)], and Morgan is clear. The EEOC

charging period is triggered when a discrete

unlawful practice takes place. A new

violation does not occur, and a new charging

period does not commence, upon the

occurrence of subsequent nondiscriminatory

acts that entail adverse effects resulting from

24 POUNCIL V . TILTON

the past discrimination. But of course, if an

employer engages in a series of acts each of

which is intentionally discriminatory, then a

fresh violation takes place when each act is

committed. See Morgan, supra, at 113, 122

S. Ct. 2061.

Ledbetter, 550 U.S. at 628. Although the Supreme Court’s

decision in Ledbetter was later superseded by statute, that

decision nevertheless clarified the distinction between

Ledbetter’s paycheck case and Bazemore’s paycheck case, on

the ground that, in order to state a “present violation,”

Ledbetter would have to allege a current intentionally

discriminatory decision that accompanied a current action,

which she had failed to do. See Ledbetter, 550 U.S. at 633-37

(citing Bazemore, 478 U.S. at 396-97).

This court has applied the “discrete act” language of

Morgan, as explained in Ledbetter, in a prisoner rights case

brought pursuant to § 1983. See Ngo v. Woodford, 539 F.3d

1108, 1109-10 (9th Cir. 2008). In Ngo, a prison inmate

serving a life sentence was informed, on December 22, 2000,

after an administrative hearing, that he would be released

from administrative segregation, but that he could not

participate in “special programs.” 539 F.3d at 1109. Three

months later, Ngo asked the deputy warden if he could play

on the prison’s baseball team and whether he “was entitled to

participate in any and all special programs.” Id. The deputy

warden informed Ngo that he could participate in “any

recreational programs” and that the prison’s community

resources manager was authorized “to review [Ngo’s] request

to participate in any other program.” Id. Pursuant to a prison

regulation, prisoners were required to “appeal within 15

working days of the event or decision being appealed.” Id.

POUNCIL V . TILTON 25

Ngo did not submit a formal appeal to the prison’s Appeal

Coordinator until approximately six months after the hearing

decision and approximately three months after he received the

response to his second request. See id.

This court rejected Ngo’s argument that the December 22,

2000, order resulted in a continuing denial of his

constitutional rights, so that the 15-day limitations period

restarted each day that he was unable to participate in prison

special programs:

We rejected this argument in Knox v. Davis,

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

a limitations period began running on the date

of a prison board’s initial determination, when

a prisoner “had notice of all of the wrongful

acts she wished to challenge at the time of the

[initial determination].” Id. at 1014.

Rejecting a continuing violation theory, we

explained that any continuing effects are

“nothing more than the delayed, but

inevitable, consequence of the [initial

determination].” Id. And in the context of

employment discrimination, the Supreme

Court recently emphasized that limitations

periods begin to run when the “discrete act”

adverse to the plaintiff occurs—“not from the

date when the effects of [that act] were felt.”

Ledbetter v. Goodyear Tire & Rubber Co.,

550 U.S. 618, 127 S. Ct. 2162, 2168, 167 L.

Ed. 2d 982 (2007). Here, the December 22

determination is the discrete act adverse to

Ngo, so the 15-working-day limitations period

began running against him on that date rather

26 POUNCIL V . TILTON

than on the date he actually felt the effects of

the order.

Ngo, 539 F.3d at 1109-10 (also concluding that the December

22 order gave the prisoner “ample notice” that he would be

barred from special programs and that the partial withdrawal

of that restriction by the deputy warden allowing the prisoner

to participate in recreation activities did not change that fact).

Thus, the apparent conflict between the Ricks/Knox line

of authority and the Morgan/Cherosky line of authority is not

a conflict at all; rather, the two lines of authority identify

different circumstances that lead to different accrual dates for

claims. The proper question, therefore, is whether, factually,

this is a Ricks/Knox case or a Morgan/Cherosky case. Put

another way, does this case involve the delayed, but

inevitable, consequence of the original 2002 decision, making

Pouncil’s claims arising from the 2008 decision time-barred,

or an independently wrongful, discrete act in 2008, which

began the running of the statute of limitations anew,

notwithstanding the prior denial pursuant to essentially the

same regulation in 2002? As this is a factual question, the

district court’s resolution is entitled to deferential review.

See Hells Canyon Pres. Council, 403 F.3d at 691.

e. Application

We affirm the district judge’s finding that the denial of

Pouncil’s request for a conjugal visit in 2008 is a separate,

discrete act, rather than a mere effect of the 2002 denial. This

is so, because Pouncil alleges, and the record supports, that

the second denial is a stand-alone violation of Pouncil’s First

Amendment and RLUIPA rights from which the statute of

limitations runs anew. See Morgan, 536 U.S. at 113. The

POUNCIL V . TILTON 27

2008 denial is an independently wrongful “present violation,”

because Pouncil’s claims do not rely on any acts that occurred

before the statute of limitations period to establish a violation

of his right to free exercise of religion or his rights under

RLUIPA. See Bazemore, 478 U.S. at 396-97, n.6 (Brennan,

concurring in part) (citing Evans, 431 U.S. at 558, for the

proposition that the “critical question” is whether any

“present violation” exists, and evaluating whether the

plaintiff’s claims of wrongfulness were “present violations”

by considering whether they relied on prior acts). Unlike

Ledbetter, who was unable to point to a later act that fully

established the alleged violation, Ledbetter, 550 U.S. at 629,

Pouncil does point to a later act, the 2008 denial, that fully

establishes a First Amendment and RLUIPA violation,

without reaching back to the 2002 denial to establish a

necessary element of his claims. To put it another way, the

2008 denial relied on a new application of the regulation to a

new request for a conjugal visit, it did not rely on the 2002

denial as barring all subsequent requests for conjugal visits.

In contrast, the cases on which Tilton relies each lacked

any allegation or showing of a subsequent and separately

wrongful act. For example, in Ricks, the college professor

failed to allege or show a subsequent and separately wrongful

act after notice of the denial of tenure. See Ricks, 449 U.S. at

257-58 (determining that the only wrongful decision alleged

was a wrongful denial of tenure and not an additional

wrongful discharge one year later). While the Supreme Court

in Ricks noted that 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,” it did so

based upon the finding that Ricks had pleaded only one

discrete wrongful act, the denial of tenure. See id. at 258

(citing Abramson v. University of Hawaii, 594 F.2d 202, 209

28 POUNCIL V . TILTON

(9th Cir. 1979)) (emphasis added). In contrast, Pouncil has

alleged a second, discrete wrongful act—the 2008 denial.

The failure to allege a subsequent, independently

wrongful act also explains the holdings in Knox, Cherosky,

and Ngo. In Knox, each of the denials subsequent to the

January 20, 1996, letter advising Knox that her legal mail and

visitation rights had been revoked relied on that letter as the

basis for denying Knox either legal visitation or

correspondence privileges with inmates. Knox, 260 F.3d at

1012. Moreover, Knox acknowledged that her claim had

accrued upon receipt of the letter suspending her visitation

and correspondence rights. See id. at 1013. Thus, the court

in Knox was simply never asked to consider whether each

subsequent denial was a separate violation of her rights, only

whether each subsequent denial was part of a continuing

violation. Id. Here, in contrast, Pouncil specifically asserts

that the 2008 denial of his request for a conjugal visit was a

discrete act, and the 2008 denial relied on a new application

of the regulation to a new request for a conjugal visit, rather

than on the 2002 denial as barring all subsequent requests for

conjugal visits.

In Cherosky, the employees did not point to any discrete,

discriminatory act that occurred within the period of

limitations. See Cherosky, 330 F.3d at 1245. The court in

Cherosky concluded, however, that if an employee’s new

request for a respirator were denied pursuant to the same

policy, the time period would begin to run anew, despite an

earlier denial. See id. at 1248. The situation contemplated in

Cherosky is exactly the situation here: Pouncil’s request for

a conjugal visit with his wife in 2008 was denied pursuant to

the same policy as the denial in 2002, so that the time period

should be found to run anew from the later denial, despite an

POUNCIL V . TILTON 29

earlier denial. In other words, the “heart” of Pouncil’s

claims, like the “heart” of the plaintiffs’ complaint in

Cherosky, “does 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 CDCR].”

Cf. id. at 1247. As in Cherosky, “these individualized

decisions are best characterized as discrete acts, rather than as

a pattern or practice of discrimination.” Id. The difference

between Pouncil’s claim and the plaintiffs’ claims in

Cherosky is that his individualized decision in 2008 fell

within the limitations period.

Again, in Ngo, the plaintiff did not allege a second

adverse decision. Instead, Ngo alleged one decision

announced at the conclusion of a hearing, that he would be

unable to participate in “special programs.” That decision

was followed by Ngo’s request to participate in baseball,

which was granted. Ngo’s additional query about

participation in other “special programs” was deferred until

a further request was actually made. See Ngo, 539 F.3d at

1109. Thus, Ngo involved one adverse decision followed by

one positive decision and a statement that no decision would

be made regarding other matters until a specific request was

made. Id.

In contrast to the plaintiffs in Rick, Knox, Cherosky, and

Ngo, the district judge found that Pouncil has alleged a

second adverse decision that is independently wrongful

within the limitations period. In addition to showing proper

deference to the district court’s factual finding that Pouncil

had alleged a current violation and injury, see Hells Canyon

Pres. Council, 403 F.3d at 691, our determination that the

2008 denial of Pouncil’s request for conjugal visits was a

30 POUNCIL V . TILTON

separate, discrete, and independently wrongful act is

consistent with prior cases analyzing the application of

Morgan’s “discrete act” language. See, e.g., Cherosky, 330

F.3d at 1245-47; Ngo, 539 F.3d at 1109-1110. Those cases

lead to the conclusion that each wrongful act starts a new

clock for filing a claim alleging that act. Such a

determination also fits with Morgan’s rule that the existence

of past acts and the claimant’s prior knowledge of their

occurrence does not bar a claimant from filing claims about

related discrete acts, so long as the subsequent acts are

independently wrongful and claims alleging those acts are

themselves timely filed. Morgan, 536 U.S. at 113.6

While Knox may, at first blush, appear to support a

finding that the second denial was merely a consequence of

the first denial, upon a closer reading, it does not support or

require such a finding, because it is distinguishable for the

reasons stated above. Furthermore, Knox does not require the

conclusion that multiple denials of rights pursuant to the same

prison policy are necessarily just effects of the original

discriminatory act, because Knox was decided before the

Supreme Court’s development of the discrete act analysis in

Morgan, and also prior to this court’s application of the

discrete act analysis to a prisoner’s § 1983 case in Ngo.

Finally, the district court’s decision in the similar case of

Henderson v. Hubbard, 2010 WL 599886 (E.D. Cal. Feb. 18,

2010) (slip op.) (findings and recommendations of magistrate

judge), is neither binding nor persuasive. In Henderson, the

6

Further, although we need not decide the issue, in those cases where

the filing period is not jurisdictional, the doctrines of estoppel, waiver, and

laches may still operate to ameliorate the specter of any excesses that may

be raised by this opinion. See Morgan, 536 U.S. at 121.

POUNCIL V . TILTON 31

plaintiff was a prisoner who complained in 2006 about the

same regulation at issue here, which prohibited conjugal

visits for him, because he was serving life sentences on which

no parole date had been set by the Board of Prison Terms.

Henderson, 2010 WL 599886 at *1 n.2. The district court

concluded that the prisoner had been aware of the policy in

June of 1998, when he was denied overnight visits with his

wife, and that the statute of limitations began to run “when he

became aware of the reason his conjugal visits were denied.”

Id. at *2. However, unlike the district court in Pouncil’s case,

the district court in Henderson did not apply or discuss

Morgan, Cherosky, or Ngo, all of which, for reasons

discussed above, suggest a different outcome—that is, that a

later denial pursuant to the same policy is an independently

wrongful “discrete act” that starts the statute of limitations

running, notwithstanding a prior denial.7

3. CONCLUSION

Because Pouncil’s claims are based on an independently

wrongful, discrete act in 2008, the denial of his request for

conjugal visits with his second wife, Pouncil’s claims are not

time-barred, notwithstanding the denial, pursuant to the same

regulation, of his prior request for conjugal visits with his

first wife in 2002.

AFFIRMED.

7

Also, unlike Pouncil, the plaintiff in Henderson did not oppose the

defendants’ motion to dismiss. Henderson, 2010 W L 599886 at *1. Thus,

although Henderson presented the same issues as this case, those issues

were never considered in Henderson in a contested proceeding.