Neelley v. Walker, et al.

Filing 64

MEMORANDUM OPINION AND ORDER GRANTING defs' 41 MOTION for Summary Judgment, as further set out in order. Signed by Chief Judge William Keith Watkins on 3/25/16. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JUDITH A. NEELLEY,
Plaintiff,
v.
CLIFFORD WALKER, et al.,
Defendants.

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CASE NO. 2:14-CV-269-WKW
[WO]

MEMORANDUM OPINION AND ORDER
This case challenges the constitutionality of an Alabama law affecting parole
eligibility for certain inmates. No State shall, under Article I, Section Ten of the
United States Constitution, pass any bill of attainder or ex post facto law. U.S.
Const. art. I, § 10, cl. 1. To attack a state statute on these grounds, a challenger
must bring suit within the temporal limitations period ascribed to her cause of
action. And time, like the tide, waits for no one.1
Before the court is Defendants’ Motion for Summary Judgment (Doc. # 41),
which has been fully briefed. Upon consideration of the evidence, the arguments
of counsel, and the relevant law, the motion is due to be granted.

See CHARLES DICKENS, LITTLE DORRIT 674 (Oxford Univ. Press 1987) (1857) (“‘And
now,’ said Daniel, looking at his watch, ‘as time and tide wait for no one, my trusty partner, and
as I am ready for starting, bag and baggage, at the gate below, let me say a last word.’”).
1

I. JURISDICTION AND VENUE
Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331 and
1343(a)(3). The parties do not contest personal jurisdiction or venue.
II. STANDARD OF REVIEW
To succeed on a motion for summary judgment, the moving party must
demonstrate “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
evidence and the inferences from that evidence must be viewed in the light most
favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820
(11th Cir. 2010).
On a motion for summary judgment, the moving party “always bears the
initial responsibility of informing the district court of the basis for its motion.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes
identifying the portions of the record illustrating the absence of a genuine dispute
of material fact.

Id.

If the moving party does not bear the trial burden of

production, it may assert, without citing the record, that the nonmoving party
“cannot produce admissible evidence to support” a material fact. Fed. R. Civ. P.
56(c)(1)(B); see also Fed. R. Civ. P. 56 advisory committee’s note (“Subdivision
(c)(1)(B) recognizes that a party need not always point to specific record materials.
. . . [A] party who does not have the trial burden of production may rely on a
2

showing that a party who does have the trial burden cannot produce admissible
evidence to carry its burden as to the fact.”). If the moving party meets its burden,
the burden shifts to the nonmoving party to establish—with evidence beyond the
pleadings—that a genuine dispute of material fact exists as to each of its claims for
relief. Celotex, 477 U.S. at 324. A genuine dispute of material fact exists when
the nonmoving party produces evidence allowing a reasonable fact finder to return
a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279
(11th Cir. 2001).
III. BACKGROUND
The events giving rise to this case have been in motion since 1982. The
facts will be recounted as they relate to Plaintiff’s conviction, the commutation of
her sentence, the state legislature’s response to the commutation, and other events
leading up to the filing of the instant lawsuit. The procedural history will also be
briefly discussed.
A.

Facts
In September of 1982, Judith Neelley (“Neelley”) abducted and murdered a

teenage girl.2 The State of Alabama charged Neelley with capital murder, and a
jury found her guilty of the offense. Neelley v. State, 494 So. 2d 669, 670 (Ala.
The details of Neelley’s criminal act have been exhaustively recounted in other fora.
See, e.g., Neelley v. Nagle, 138 F.3d 917, 920 (11th Cir. 1998); Neelley v. State, 494 So. 2d 669,
690–91 (Ala. Crim. App. 1985). Suffice it say that Neelley’s actions were, in the words of her
counsel, “heinous and terrible.” (Doc. # 20, at 1.)
2

3

Crim. App. 1985). The jury recommended life imprisonment without parole, but
the court sentenced Neelley to death. Id. Neelley exhausted all state and federal
remedies for challenging her conviction and sentence. See Neelley v. Nagle, 183
F.3d 917, 920–21 (11th Cir. 1998) (explaining the results of Neelley’s direct and
collateral attacks). She is currently in custody at Tutwiler Prison for Women
(“Tutwiler”) in Wetumpka, Alabama. (Doc. # 13, at 3.)
In January of 1999, Governor Fob James (“James”) commuted Neelley’s
death sentence to a sentence of life imprisonment.3 (Commutation Letter, Doc. #
42-1, at 1.) In the commutation letter, James did not indicate whether this life
sentence would be with or without the possibility of parole. (See Commutation
Letter, Doc. # 42-1, at 1.)

James later explained that, when he issued the

commutation letter, he assumed Neelley would be ineligible for parole. (Post
Article, Doc. # 42-4, at 5.) An Alabama statute in effect at that time provided that
any person whose sentence was commuted to life imprisonment would not be
eligible for parole until he or she served at least fifteen years of the life sentence.
Ala. Code § 15-22-27(b) (1975) (amended by Act 2003-300). Alabama law also
provided, however, that any person convicted of a capital offense shall be
sentenced either to “life imprisonment without parole or to death.” Ala. Code §
13A-5-39 (1975).
Neelley’s is the only death sentence to be commuted since 1962. (Factual Stip., Doc. #
42-2, at 1.)
3

4

In the wake of James’s vague commutation letter, the Alabama Board of
Pardons and Paroles (the “Parole Board”) sought the opinion of the Alabama
Attorney General as to the commutation’s effect. (See Atty. Gen. Op., Doc. # 591, at 2.) The Parole Board wanted to know generally, in light of the statute
providing that a person convicted of a capital offense can only be sentenced to life
imprisonment without parole or death, Ala. Code § 13A-5-39 (1975), whether the
Governor’s commutation of a death sentence results in (1) a sentence of life
imprisonment with the possibility of parole or (2) life imprisonment without the
possibility of parole. (Atty. Gen. Op., Doc. # 59-1, at 2.)
In response to this request, the Attorney General opined that the Governor’s
authority to commute a sentence to life with or without parole was not constrained
by that particular statutory provision. (Atty. Gen. Op., Doc. # 59-1, at 8.) Because
the Governor’s authority to commute a sentence derives from the state constitution,
the Attorney General reasoned, the Governor is free to commute a death sentence
to either life imprisonment with the possibility of parole or life imprisonment
without the possibility of parole. (Atty. Gen. Op., Doc. # 59-1, at 9.) The Opinion
further provided that, when the Governor exercises his constitutional authority to
commute a death sentence, whether the sentence of imprisonment is to be served
with or without the possibility of parole “depends directly upon the specific order
of the Governor.” (Atty. Gen. Op., Doc. # 59-1, at 2.)
5

Though this Opinion clarified that the Governor was authorized to commute
a death sentence to life imprisonment with or without parole, it did not directly
address the effect of James’s commutation letter on Neelley’s parole eligibility.
(See generally Atty. Gen. Op., Doc. # 59-1.) It merely determined that the effect
of the commutation depends on the specific order of the Governor, and James’s
commutation order did not specify whether Neelley was to serve her life sentence
with or without the possibility of parole. (See Commutation Letter, Doc. # 42-1.)
On March 8, 1999, the Parole Board sent a notice to Neelley indicating that
it had reviewed her case and scheduled her for an initial parole consideration in
January of 2014. (1999 Notice, Doc. # 59-2, at 17.) In October of 2001, Neelley’s
counsel wrote a letter to the Parole Board requesting that Neelley be scheduled
immediately for an initial parole consideration. (2001 Ragsdale Letter, Doc. # 592, at 19.) The Parole Board, relying on Ala. Code § 15-22-27(b) (1975), responded
that Neelley could not be considered for parole until fifteen years after the date of
her commutation. (2001 Parole Bd. Letter, Doc. # 59-2, at 20.) The Parole Board
maintained its position that Neelley could not be scheduled for an initial parole
consideration until January of 2014. (2001 Parole Bd. Letter, Doc. # 59-2, at 22.)
Neelley later filed an action in the Montgomery County Circuit Court
seeking a declaration of her rights with respect to parole eligibility under thenexisting law. (Cir. Ct. Order, Doc. # 42-3, at 1.) The Parole Board took the
6

position, as it had in its 2001 letter, that Ala. Code § 15-22-27(b) (1975) required
that Neelley could only be eligible for parole consideration fifteen years after
James commuted her sentence. (Cir. Ct. Order, Doc. # 42-3, at 2.) The court
confirmed the Parole Board’s interpretation in an order dated July 22, 2002,
finding that Neelley “shall not become eligible for parole until at least [fifteen]
years from January 15, 1999.” (Cir. Ct. Order, Doc. # 42-3, at 3.)
In 2003, the Alabama Legislature took a course of action that now forms the
basis of Neelley’s suit. It passed Act 2003-300 (the “Act”), which amended Ala.
Code § 15-22-27(b). (Act 2003-300, Doc. # 42-6.) The Act provides, among other
things, that “[a]ny person whose sentence to death has been commuted by the
Governor shall not be eligible for parole.” (Act 2003-300, Doc. # 42-6, at 2); Ala.
Code § 15-22-27(b) (2016). The Act took effect on September 1, 2003, but its
terms were made retroactive to September 1, 1998. (Act 2003-300, Doc. # 42-6, at
3.) It further provides that “[t]he Board of Pardons and Paroles shall not grant a
parole or pardon to a person whose sentence of death has been commuted by the
Governor” unless certain conditions are met. (Act 2003-300, Doc. # 42-6, at 3);
Ala. Code § 15-22-27(d) (2016). Subsection (a) provides that a person is only
“eligible for a pardon” if there is sufficient evidence to show that he or she is
innocent of the crime for which she was convicted, the Parole Board votes
unanimously to grant a pardon, and the Governor agrees that a pardon is
7

appropriate. (Act 2003-300, Doc. # 42-6, at 2); Ala. Code § 15-22-27(a) (emphasis
added). Subsection (a) does not provide any circumstances under which a person
whose death sentence is commuted may be eligible for parole. (See Act 2003-300,
Doc. # 42-6, at 2); See Ala. Code § 15-22-27(a).
The Act garnered substantial attention from the press.
Montgomery Advertiser Art., Doc. # 42-5, at 3.)

(See, e.g.,

Neelley acknowledges that by

October 1, 2003, she had at least “heard and read about” the Act. (Neelley Disc.
Resp., Doc. # 42-8, at 7.) Though she was aware of the Act’s passage, she
“believed [the Act] could not be constitutionally applied to [her] case.” (Neelley
Disc. Resp., Doc. # 42-8, at 7.) At some point before September of 2004, Neelley
approached Gladys Deese (“Deese”), who was the Tutwiler Warden at the time,
and asked Deese about the Act’s applicability to her case.4 (Deese Decl., Doc. #
42-9, at 2.) Deese expressed her opinion that the Act barred Neelley from parole
consideration and encouraged Neelley to consult an attorney. (Deese Decl., Doc. #
42-9. at 2.)
In May of 2006, attorney Julian McPhillips (“McPhillips”) wrote Neelley a
letter urging her to contact an attorney to see whether she had a viable ex post facto
Neelley contends, in opposition to Defendants’ motion for summary judgment, that she
does not recall having this conversation with Deese. (Doc. # 59, at 3.) This contention comes by
way of argument of counsel in Neelley’s brief and is unsupported by citation to evidence in the
record. Without evidentiary citation, this factual position is not properly supported and thus does
not rebut Deese’s testimony concerning this conversation. See Fed. R. Civ. P. 56(c)(1).
4

8

case against the Act. (2006 McPhillips Letter, Doc. # 42-11.) Though McPhillips
did not represent Neelley at the time of the 2006 letter, he eventually would take
up her case. (Neelley Disc. Resp., Doc. # 42-8, at 3 (noting that McPhillips was
Neelley’s attorney as of March 19, 2009).) McPhillips again wrote Neelley in
2009,5 indicating that he believed the Act ran afoul of the ex post facto clause of
the Constitution. (2009 McPhillips Letter, Doc. # 42-10, at 5.)
McPhillips penned his 2009 letter the same day that a Montgomery
newspaper published a story about the Act and its effect on Neelley’s sentence.
The article, which appeared in the Montgomery Advertiser (the “Advertiser”) on
January 15, 2009,6 included quotations from Steve Sirmon (“Sirmon”), a Parole
Board attorney. (Advertiser Art., Doc. # 42-5, at 3.) Sirmon explained that the Act
made Neelley ineligible for parole, but that the Parole Board had not taken the time
to correct this error in its administrative records. (Advertiser Art., Doc. # 42-5, at
5

McPhillips transmitted this letter to Neelley via fax. (Doc. # 42-10, at 1–4.) Frank
Albright, who was the Tutwiler Warden in 2009, declared that he delivered the faxed letter to
Neelley when he received it from McPhillips. (Albright Decl., Doc. # 42-10, at 1–2.) He had
Neelley sign the fax to confirm that she received the letter. (Albright Decl., Doc. # 42-10, at 2.)
6

Defendants included a copy of this article in their evidentiary submissions along with
the declaration of Alvin Benn, who authored the article. (Doc. # 42-5, at 1.) Neelley does not
object to the consideration of the article or the statements contained therein in conjunction with
Defendants’ motion for summary judgment. She merely offers evidence showing that, despite
Sirmon’s promise to the contrary, no one ever changed Neelley’s records. (See Doc. # 59, at 4.)
Because Neelley does not object to the inclusion of this article as evidence, it will only be
referenced here to provide a full understanding of the circumstances surrounding Neelley’s case.
To the extent Defendants rely on the Advertiser article for the truth of the matter asserted
therein, the article is hearsay. See Fed. R. Evid. 801(c). Without the benefit of argument from
counsel regarding the limited purposes for which this evidence may properly be considered, it
will not be relied upon in resolving the instant motion.
9

3.) Despite Sirmon’s promise to correct Neelley’s prison record to reflect that she
was ineligible for parole, a 2014 search of Neelley’s record still showed that she
was serving a sentence of “Life with Parole Possible.” (Ala. Dep’t of Corr. R.
Search, Doc. # 59-2, at 31.) McPhillips responded to this article with a letter to the
editor, which the Advertiser published on January 24, 2009. (McPhillips Letter to
the Ed., Doc. # 42-8, at 27.) In his letter, McPhillips reiterated his position that the
Act was an unconstitutional ex post facto law. (McPhillips Letter to Ed., Doc. #
42-8, at 27.)
The Parole Board held a meeting on January 20, 2009. (Parole Bd. Mins.,
Doc. # 42-12, at 8.) The minutes from this meeting confirm the Parole Board’s
position that, under then-existing law, Neelley was “barred from parole.” (Parole
Bd. Mins., Doc. # 42-12, at 8.)

Despite its understanding that Neelley was

ineligible for parole, the Parole Board decided to maintain her 2014 parole
consideration date. (Parole Bd. Mins., Doc. # 42-12, at 8.) The 1986 version of
the Parole Board’s Operating Rules provides that a parole calendar date “is for
initial parole consideration and is not a presumptive parole date.” 7 (Bryant Decl.,

7

Under the 1986 Parole Board Operating Rules, when a case was ineligible for parole, no
parole calendar date was to be established. (1986 Op. Rules, Doc. # 42-12, at 23.) This
provision does not appear in the 2001 Operating Rules. (Doc. # 42-12, at 68.) At the time of
Neelley’s conviction, the Act did not bar her from parole because it was not yet in existence.
Accordingly, this provision would not have affected the scheduling of Neelley’s initial parole
consideration hearing. The 2001 version of the Operating Rules makes clear that the Parole
Board’s setting of a parole consideration date does not indicate that the Parole Board will grant
parole. (2001 Op. Rules, Doc. # 42-12, at 69.)
10

Doc. # 42-12, at 3; 1986 Op. Rules, Doc. # 42-12, at 20.)

The 2001 version of the

Parole Board’s Operating Rules also provides, however, that none of the rules
should be construed to conflict with Alabama law. (Bryant Decl., Doc. # 42-12, at
3; 2001 Op. Rules, Doc. # 42-12, at 68.)
Neelley’s counsel continued to seek clarification of her eligibility for parole.
In November of 2010, McPhillips wrote a letter to the Parole Board requesting an
earlier parole consideration date. (2010 McPhillips Letter, Doc. # 59-3, at 2.) The
Parole Board responded that Neelley could not be “eligible for parole
consideration” until January of 2014. (2010 Parole Bd. Letter, Doc. # 59-4, at 2.)
McPhillips wrote a similar letter in July of 2012, again requesting that the Parole
Board schedule Neelley for parole consideration earlier than 2014.8

(2012

8

In her brief in opposition to the motion for summary judgment, Neelley quotes, at
length, the language of McPhillips’s 2010 and 2012 letters, focusing on certain confirmatory
language included therein. (Doc. # 59, at 9.) In the 2010 letter, for example, McPhillips wrote:
Thank you for informing me today that you have determined that Judith Ann
Neelley will be eligible for parole by no later than October, 2014. You also
informed me that, although the legislature passed a law in 2003, attempting to
nullify the effect of Gov. James’ commutation of Ms. Neelley’s death penalty to a
plain “life sentence” (as opposed to “life without parole”), said law was never
codified. You indicated that this was probably due to the law’s ex poste [sic]
facto effect. Therefore, I understand the Alabama Board of Pardons and Parole
[sic] is not being influenced by that law.
(2010 McPhillips Letter, Doc. # 59-3, at 2.) McPhillips included similar language in his 2012
letter, purportedly confirming certain statements Parole Board representatives made to him in a
separate conversation. (See Doc. # 59-5, at 2.)
Defendants contend that these statements are hearsay and cannot be relied upon to
establish that the Parole Board represented to McPhillips that the Act would not apply to
Neelley. (Doc. # 60, at 14.) It is worth noting that in neither response letter did the Parole Board
11

McPhillips Letter, Doc. # 59-5, at 2.) The Parole Board responded again that it
would not change her 2014 parole consideration date. (2012 Pittman Letter, Doc.
# 59-2, at 27.)
When January of 2014 arrived, the Parole Board sought the opinion of the
Alabama Attorney General regarding the Act’s effect on Neelley’s parole
eligibility. (Op. Request, Doc. # 59-6, at 34.) In its request for an opinion, the
Parole Board noted that, for scheduling purposes, it generally looks to the
commission date of the underlying offense to determine the applicability of laws
affecting parole eligibility. (Op. Request, Doc. # 59-6, at 35.) Because Neelley’s
offense occurred in 1982, and because the Act’s retroactivity clause only reached
back as far as 1998, the Parole Board was unsure of how to docket Neelley’s
parole consideration case. (Op. Request, Doc. # 59-6, at 35.) The Parole Board
ultimately asked whether the Act barred it from considering Neelley for parole.
(Op. Request, Doc. # 59-6, at 35.)
In Opinion 2014-051, the Alabama Attorney General concluded that, under
the Act, an inmate whose death sentence was commuted to life after September 1,
1998, is not eligible for parole. (Doc. # 20, at 27.) In the opinion, the Attorney
General noted that the Act plainly rendered ineligible for parole any inmate whose
ratify these statements about the Act’s applicability to Neelley. (See Docs. # 59-4, at 2 and 59-2,
at 27.) The Parole Board merely reiterated its position that Neelley could not be scheduled for an
initial parole consideration date until 2014. (Docs. # 59-4, at 2 at 59-2, at 27.) Defendants’
arguments are well taken, and these hearsay statements in McPhillips’s letters will not be relied
upon for the resolution of the instant motion.
12

death sentence was commuted to life imprisonment. (Doc. # 20, at 29.) On April
1, 2014, the Parole Board notified Neelley that she was “barred from parole.”
(2014 Notice, Doc. # 59-2, at 29.)
B.

Procedural History
Neelley initiated this action on April 10, 2014. (Doc. # 1.) Her original

complaint named the Parole Board, instead of its individual members, as the
defendant. The Parole Board moved to dismiss the original complaint (Doc. # 11),
and Neelley filed an amended complaint (Doc. # 13) in which she named current
members of the Parole Board as defendants. The Parole Board’s initial motion to
dismiss was accordingly denied as moot. (Doc. # 16.)
The current Defendants, Robert P. Longshore, Clifford Walker, and William
W. Wynne Jr., moved to dismiss Neelley’s amended complaint. (Doc. # 18.) This
motion was granted in part and denied in part. (Doc. # 22.) The motion was
granted with respect to Neelley’s state-law claims, but denied with respect to her
federal-law claims. (See Docs. # 13 and 22.)
Defendants then filed the instant motion for summary judgment (Doc. # 41),
submitting evidence (Doc. # 42) and a brief (Doc. # 43) in support of the motion.
Neelley filed a brief in response contemporaneously with exhibits (Doc. # 59), and
Defendants filed a reply (Doc. # 60.)

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IV. DISCUSSION
Before wrestling with the merits of Neelley’s claims, Defendants argue that
they are entitled to summary judgment because this action is untimely under the
relevant statute of limitations.

Addressing the substance of Neelley’s claims,

Defendants also contend that the Act constitutes neither an ex post facto law nor a
bill of attainder. Because summary judgment is due to be granted by operation of
the statute of limitations, the merits considerations will not be reached.
In general terms, a statute of limitations creates a temporal limit within
which a claimant must initiate her claim for relief. CTS Corp. v. Waldburger, 134
S. Ct. 2175, 2182 (2014). These limitations periods are designed to promote
justice by encouraging claimants to bring their actions before the claim goes stale.
Order of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348–49 (1944).
The limitation period, which varies based on the nature of the cause of action,
begins to run at the time the claim accrues. Waldburger, 134 S. Ct. at 2182.
The law governing statute of limitations issues will be applied to the
circumstances of Neelley’s case. First, the relevant limitations period will be
established. Second, the accrual of Neelley’s cause of action will be addressed.
Finally, Neelley’s plea for equitable tolling will be considered.

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A.

The Governing Limitations Period
The parties agree that the applicable limitations period is two years. Neelley

brought this action pursuant to 42 U.S.C. § 1983, for which there is no federal
statute of limitations. Federal courts must look to state law for the applicable
statute of limitations in a § 1983 action, applying the state limitations period
prescribed for general personal injury actions. Wilson v. Garcia. 471 U.S. 261,
276 (1985); see 42 U.S.C. § 1988(a). Alabama’s two-year statute of limitations for
general personal injury actions applies to Neelley’s § 1983 action. See Powell v.
Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011) (per curiam); Ala. Code § 6-2-38(l).
Because Neelley initiated this suit on April 10, 2014, her claim is barred if it
accrued prior to April 10, 2012.
B.

When the Cause of Action Accrued
The statute of limitations begins to run at the time the claim accrues. Rozar

v. Mullis, 85 F.3d 556, 561–62 (11th Cir. 1996). Federal law, which governs the
accrual inquiry, provides that a claim accrues when “the facts which would support
a cause of action are apparent or should be apparent to a person with reasonably
prudent regard for his rights.” Id. at 562 (quoting Drayden v. Needville Indep. Sch.
Dist., 642 F.2d 129, 132 (5th Cir. 1981)). A court tasked with resolving the
question of accrual must first determine what constitutes the alleged injury. Rozar,
85 F.3d at 562. It must then determine when the plaintiff knew she could bring an
15

action to redress that injury. Id. Applying these principles to the facts at bar, it is
clear that Neelley’s claim accrued before April 10, 2012.
1.

Neelley’s Injury

The passage of the Act constitutes Neelley’s injury for purposes of resolving
the statute of limitations issue. This conclusion follows from two legal principles,
each of which will be addressed in relation to Neelley’s claims. First, when
ascertaining the relevant injury, courts must focus on the moment of the adoption
of the unconstitutional act itself rather than the moment at which the claimant
experiences its effects. See, e.g., Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (per
curiam). Second, because Neelley’s challenge is premised on a constitutional
provision that proscribes the enactment of certain laws, it is the passage of the Act
that inflicted her alleged injury. See, e.g., Smith v. City of Enid, 149 F.3d 1151,
1154 (10th Cir. 1998) (holding that, based on the nature of the constitutional claim,
the injury occurred at the time of the challenged statute’s passage).
The focus of the accrual inquiry is the allegedly unconstitutional act rather
than the moment the claimant feels the painful consequences of the act. Chardon,
454 U.S. at 8. This principle has been applied across a variety of contexts. 9 In an
employment discrimination case, for example, the Supreme Court has held that a
9

See, e.g., Olsen v. Idaho State Bd. of Med., 363 F.3d 916 (9th Cir. 2004) (non-renewal
of professional license); Cathedral of Joy Baptist Church v. Village of Hazel Crest, 22 F.3d 713
(7th Cir. 1994) (denial of special use permit); Baker v. Bd. of Regents, 991 F.2d 628 (10th Cir.
1993) (denial of professional school admission).
16

former employee’s cause of action accrued on the date he received notice that he
would be terminated on some future date, not on the date that his employer
finalized the termination. Id. It was at the moment the employer made the
decision to terminate, a decision allegedly made for unlawful reasons, that the
injury occurred. Id.
The Eleventh Circuit has embraced a similar principle in the context of an
inmate’s challenge to changes in parole policies. See Brown v. Ga. Bd. of Pardons
& Paroles, 335 F.3d 1259 (11th Cir. 2003) (per curiam). In Brown, an inmate
challenged a change in Georgia’s parole board policy that decreased the frequency
of parole reconsiderations. Id. at 1260. Under the policy in effect at the time of
Brown’s conviction, the parole board was required to reconsider inmates for parole
every three years. Id. The parole board adopted a new policy in 1995, however,
that allowed it to reconsider inmates for parole up to eight years from the inmate’s
last parole denial. Id. This new policy applied retroactively such that it affected
prisoners who, like Brown, had already been convicted and denied parole prior to
1995. Id. The parole board denied Brown relief in 1995, and, pursuant to the new
policy, set his reconsideration date for September of 2000. Id. The parole board
again denied him relief in 2001, and set his reconsideration date for 2007. Id.
Brown brought a § 1983 action in 2002, alleging that the 1995 policy that allowed

17

the board to lengthen the interval between parole reconsiderations was an
unconstitutional ex post facto law. Id.
Holding that Brown’s § 1983 suit was untimely under the relevant statute of
limitations, the Eleventh Circuit recognized that the action accrued in 1995 when
the parole board adopted its new reconsideration policy and made it apply
retroactively. Id. at 1261. Brown argued that he suffered a new injury in 2001, the
time at which the parole board set his reconsideration date for 2007 instead of
within three years. Id. The Eleventh Circuit was unpersuaded by this argument.
See id. Importantly for purposes of the case at bar, the Brown court reasoned that
Brown’s only injury occurred in 1995, when the parole board applied the new
policy retroactively.10 Id. This reasoning comports with the principle relied upon
in Chardon: Where a claimant alleges that a policy or action is unconstitutional,

Neelley seizes upon the Eleventh Circuit’s use of the word “applied” in stating the
holding of Brown, arguing that this should be read to mean that her injury did not occur until
such time as the Parole Board applied the Act to deem her ineligible for parole. See Brown, 335
F.3d at 1261 (“Rather, Brown’s injury, to the extent it ever existed, was when the Georgia Parole
Board applied its new policy, eliminating the requirement of parole every three years for Brown,
retroactively.”) (emphasis added). The Eleventh Circuit’s ultimate resolution of Brown,
however, does not support this narrow reading of the word “applied.”
Brown stands for the proposition that an inmate affected by a retroactive parole policy
cannot be considered to have suffered multiple injuries each time the parole board makes a
decision based on that policy. See id. That is, the inmate suffers an injury on the date a parole
policy is applied retroactively, and not on any subsequent date on which the policy is followed in
relation to the inmate’s parole eligibility. Id. Applying this reasoning to the circumstances at
bar, it is clear that Neelley suffered injury at the time the Act took effect. This is because the Act
applied retroactively, and thus affected Neelley’s rights pertaining to her 1999 commutation, on
the date it became effective. She did not suffer a new injury on the date that she received a
Parole Board notification indicating that she was ineligible for parole. She suffered injury on
September 1, 2003, when the retroactive Act became law.
10

18

his injury is deemed to have occurred at the time the policy was adopted or the
official action was taken. Chardon, 454 U.S. at 8. His injury does not occur, nor
can he be deemed to have suffered a separate injury, when he feels the painful
consequences of that policy or official action. Id.; Brown, 335 F.3d at 1261–62
(“It is the decision in 1995 that forms a potential basis for Brown’s claim.”).
In light of the reasoning of Chardon and Brown, it is evident that Neelley
suffered injury at the time of the Act’s adoption. Though the Parole Board would
not eliminate the administrative record of her parole consideration date for another
eleven years, it was in 2003 that the legislature took action affecting her
constitutional rights. The painful consequences of the Act took hold in 2014, but
this interval from the 2003 adoption to the 2014 parole denial is immaterial for
purposes of determining when Neelley suffered an alleged injury. On this record,
there is no genuine dispute of material fact regarding the Act’s 2003 effective date.
Accordingly, for purposes of resolving the timeliness issue, Neelley’s injury
occurred on September 1, 2003.
This conclusion is bolstered by the nature of the constitutional provision at
issue. The relevant portion of Article I provides that “[n]o State shall . . . pass any
Bill of Attainder[] [or] ex post facto Law.” U.S. Const. art. I, § 10, cl. 1 (emphasis
added). It is the passage of the alleged bill of attainder or ex post facto law that
forms the basis of Neelley’s challenge. See Smith, 149 F.3d at 1154. The claimant
19

in Smith challenged a statute on the basis of the contracts clause, which also
prevents the passage of certain laws. Id. The Smith court focused on the nature of
that constitutional provision, holding that the claimant’s injury, for accrual
purposes, arose at the time the challenged statute took effect—not at the time the
claimant suffered from the act’s negative consequences. Id. (“[T]he very essence
of [a contracts clause claim] is a substantial impairment of plaintiff’s contractual
relationship with the state by a change in law.”) (emphasis in original). See also
Lawshe v. Simpson, 16 F.3d 1475, 1479 (7th Cir. 1994) (emphasizing the
importance of measuring the statute of limitations injury analysis against the
relevant constitutional provision).

Focusing on the “essence” of her bill of

attainder and ex post facto claims, as evidenced by the relevant constitutional
language, it is clear that Neelley’s injury occurred at the time the Act took effect.
Smith, 149 F.3d at 1154; Lawshe, 16 F.3d at 1479.
Neelley also cites Hope for Families & Comm. Serv., Inc. v. Warren in
support of her argument that she did not suffer injury, and thus her action did not
accrue, until she received final notice on 2014 that she was barred from parole.
See No. 3:06-cv-1113, 2008 WL 630469, at *5–6 (M.D. Ala. Mar. 5, 2008). In
that case, the court found that the plaintiffs’ § 1983 claim did not accrue at the time
the state promulgated the challenged regulations. Id. at 6. Rather, the court found
that the plaintiffs’ cause of action accrued when the plaintiffs learned of an alleged
20

unlawful conspiracy that resulted in the promulgation of the challenged
regulations. Id. Hope for Families is distinguishable in three respects.
First, Hope for Families was before the court on a motion to dismiss, at
which time the court was not considering evidence in the record regarding when
the plaintiffs actually learned of the allegedly unconstitutional scheme being
challenged. Id. Rather, on the occasion of that motion to dismiss, the court was
merely reviewing the plaintiffs’ allegations to determine their sufficiency under
Rule 8 of the Federal Rules of Civil Procedure. Id. The plaintiffs in Hope for
Families alleged that they were unaware of the defendants’ unlawful activities until
long after the promulgations of the regulations. Id. Here, in contrast, the record is
replete with evidence suggesting that Neelley was aware of the Act’s effect on her
parole eligibility long before the Parole Board took action pursuant to the Act. See
Part IV.B.2, infra.
Second, the constitutional provision at issue in Hope for Families was the
equal protection clause of the Fourteenth Amendment. 2008 WL 630469, at *5–6.
The language of that constitutional provision differs in significant respects from
the language of the bill of attainder and ex post facto clauses forming the basis of
Neelley’s § 1983 claims. Compare U.S. Const. amend. XIV, § 1 with U.S. Const.
art. I, § 10, cl. 1. Whereas the equal protection clause provides that no state shall
deny any person equal protection of the laws, the bill of attainder and ex post facto
21

clauses proscribe the passage of certain legislative acts. U.S. Const. amend. XIV,
§ 1; U.S. Const. art. I, § 10, cl. 1. Under the reasoning of Smith, the constitutional
provision at issue informs the injury prong of the accrual analysis. 149 F.3d at
1154. The constitutional injury, for purposes of accrual of an equal protection
claim, occurs at the time the governmental entity denies an application for a license
pursuant to an unconstitutional law. See id.; U.S. Const. amend. XIV, § 1; Hope
for Families, 2008 WL 630469, at *5–6. In the context of bill of attainder and ex
post facto challenges, however, the constitutional injury coincides with the passage
of the challenged act. See Smith, 149 F.3d at 1154; U.S. Const., art. I, § 10, cl. 1.
Third, the factual circumstances under which the Hope for Families
plaintiffs brought suit are materially different from those giving rise Neelley’s
claims. In Hope for Families, some of the claimant entities were not even in
existence at the time the state promulgated the challenged regulations. In addition
to the existential distinction, Hope for Families differs in that the plaintiffs in that
matter had no means of discovering the alleged unlawful conduct until long after
the promulgation of the challenged regulations. See 2008 WL 630469, at *6.
Neelley, on the other hand, admits that she was aware of the Act and its allegedly
unconstitutional effect on her parole eligibility not long after its passage. Neelley
had already been convicted and was incarcerated at the time the Act became law.

22

She acknowledges that she was aware of the alleged unlawful conduct—the
passage of the Act—well before the Parole Board’s 2014 notice.
Based on the foregoing, for purposes of resolving the accrual inquiry,
Neelley’s injury occurred at the time the Act became effective. Attention turns
now to the time at which Neelley discovered her injury.
2.

When Neelley Could Have Initiated her Action

That Neelley’s injury occurred with the passage of the Act is not dispositive
of the accrual inquiry. After determining what constitutes injury, courts must
ascertain the time at which the plaintiff was aware that she could bring an action to
rectify that injury. Rozar, 85 F.3d at 562. The parties have offered substantial
evidence pertaining to this aspect of the accrual analysis. As discussed in more
detail below, there is no genuine dispute of material fact regarding Neelley’s
awareness of her cause of action. Defendants are ultimately entitled to judgment
as a matter of law.
Several aspects of the record demonstrate that Neelley was aware of the
facts supporting her cause of action prior to April 10, 2012. First, Neelley admits
that she had heard and read about the Act shortly after its passage in 2003. She
also acknowledges that, at the time she heard and read about the Act, she believed
that it could not be constitutionally applied to her.

Second, Deese informed

Neelley in 2004 that the Act might affect her parole. Deese also encouraged
23

Neelley to seek the advice of legal counsel regarding the Act’s potential effect.
Third, McPhillips informed Neelley of her potential constitutional claim by letter
in both 2006 and 2009.11 Indeed, McPhillips urged Neelley in 2006 to get counsel
“as soon as possible.”

(2006 McPhillips Letter, Doc. # 42-11, at 1.)

This

evidence, which is undisputed, is sufficient to demonstrate, as a matter of law, that
Neelley’s § 1983 claim accrued prior to April 10, 2012.

See Mullinax v.

McElhenney, 817 F.2d 711, 716 (11th Cir. 1987) (“[W]hen a Section 1983 action
accrues is a question of federal law.”). She knew of the facts supporting her
potential cause of action, and thus her claim accrued, no later than 2009. See id.
In response to this evidence, Neelley maintains that the notice she received
was inadequate to trigger the running of the limitations period. More specifically,
she argues that the limitations period did not begin to run until 2014, at which time
the Parole Board sent her official notice that she was barred from parole. (See
Doc. # 59, at 20–22.) This position, however, is unsupported by the relevant
authority. It is true, as Neelley contends, that the action does not accrue until the
plaintiff has some notice of her injury. See Brown, 335 F.3d at 1261; Smith, 149
11

In his letters, McPhillips mentioned the potential for an ex post facto claim, but not the
potential for a bill of attainder claim. The fact that he mentioned the potential generally for a
constitutional claim is sufficient to put Neelley on notice of her cause of action. She need not
have been aware of all her potential theories of relief—it is enough that she was aware that she
had been injured in a way that could be rectified by legal process. See United States v. Kubrick,
444 U.S. 111, 122 (1979) (“We are unconvinced that for statute of limitations purposes a
plaintiff’s ignorance of his legal rights and his ignorance of the fact of his injury or its cause
should receive identical treatment.”).
24

F.3d at 1154. But none of the authority on which Neelley relies holds that the
plaintiff must receive official government notice before she can be deemed aware
of the facts supporting her cause of action.12 Though the plaintiffs in Brown and
Smith received official government notice that the challenged policy applied to
them in a negative manner, neither of these cases turned on the official nature of
the notice they received. Instead, the outcomes of those cases emanated from the
general accrual principle that the statute of limitations begins to run at the time that
“the facts which would support a cause of action are apparent or should be
apparent to a person with reasonably prudent regard for his rights.” Rozar, 85 F.3d
at 561–62.
Neelley brought forth some evidence in response to Defendants’ motion for
summary judgment, but none of it is sufficient to indicate the existence of any
genuine dispute of material fact. She principally relies on the notices she received
from the Parole Board,13 which indicated that her initial parole consideration date
12

Neelley cited two other Tenth Circuit cases in support of her argument that her cause of
action did not accrue until she received official notice that she was barred from parole. See
Jackson v. Standifird, 463 F. App’x 736, 738 (10th Cir. 2012); Wood v. Utah Bd. of Pardons &
Paroles, 375 F. App’x 871, 873–74 (10th Cir. 2010). Leaving aside the issue that neither of
these cases is controlling, a brief review of the reasoning in each reveals that neither decision
turned on the official nature of the notice the plaintiffs received. See Jackson, 463 F. App’x at
738; Wood, 375 F. App’x at 873–74. Instead, both of these cases relied on the more general
principle that the action accrues at the time the plaintiff knows or should know of the facts
supporting a cause of action. See Jackson, 463 F. App’x at 738; Wood, 375 F. App’x at 873–74.
13

Some of these notices came by way of what appears to be a computer-generated
mailing. Others came to Neelley by way of letters addressed specifically to her counsel. For the
sake of convenience, all of this correspondence will be referred to generally as “the notices.”
25

remained scheduled for January of 2014. Neelley received these notices in 1999,
2001, 2010, and 2012. Importantly, none of these notices indicated that Neelley
was in fact eligible for parole in 2014. They merely indicated, for Parole Board
docketing purposes, the earliest date upon which she could be considered for
parole eligibility. The Parole Board’s Operating Rules clarified that the scheduling
of an initial consideration date was not a presumptive parole date. The Parole
Board also determined at a 2009 meeting that, although it understood that Neelley
was not legally eligible for parole, it would not take official action to adjust her
initial parole consideration date.

The notices Neelley received regarding the

docketing of her initial parole consideration date do not rebut the evidence
showing that she was aware of the facts supporting her § 1983 claim. They merely
show that the Parole Board maintained a 2014 initial consideration date for
scheduling purposes.

There is no genuine dispute of material fact regarding

Neelley’s knowledge of the facts supporting her claim prior to April 20, 2012.
Based on foregoing analysis, Neelley’s action is barred by the statute of
limitations. There is no genuine dispute of material fact regarding the nature of
Neelley’s injury or the time at which she was aware of the facts giving rise to her
cause of action. Defendants have submitted evidence indicating that Neelley was
aware of the facts supporting her § 1983 claims prior to April 10, 2012. Neelley
has not come forward with evidence rebutting Defendants’ evidence on this point.
26

In light of the evidentiary submissions and the controlling law, it is evident that
Neelley’s action accrued more than two years before she brought the instant action.
C.

Whether Equitable Tolling Is Appropriate
In a final effort to revive her untimely suit, Neelley contends that the statute

of limitations is subject to equitable tolling. This equitable remedy, which allows
the court to toll the running of the statute of limitations to avoid unjust
consequences, should only be employed in extraordinary circumstances. Arce v.
Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006). To be entitled to this unusual
benefit, Neelley must show (1) that she has diligently pursued her rights and (2)
that some extraordinary circumstance prevented her from pursuing this claim. See
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

For the following reasons,

Neelley fails to show that she is entitled to equitable tolling.
First, Neelley has not shown that she diligently pursued her rights with
respect to this claim. She has been aware of the Act since 2003, admitting that she
assumed it was unconstitutional. An attorney notified her as early as 2006 that she
may have an ex post facto claim, but she did not bring this action until 2014. One
who diligently pursues her rights would, at the very least, make an effort to consult
legal counsel regarding the viability of such a claim. Had she been diligently
pursuing her rights, she would have taken a course of action similar to the one she
took in Montgomery County Circuit Court regarding the applicability of Ala. Code
27

§ 15-22-27(b) (1975).

Immediately upon learning of the Act’s potential

constitutional infirmities, she should have initiated an action seeking a declaration
of her rights. Instead of taking action, she slumbered on her rights. And equity
aids only the vigilant.
Second, Neelley has not established that any extraordinary circumstances
prevented her from initiating this action in the intervening years between 2003 and
2014. The fact that she received pro forma notices regarding her 2014 initial
parole consideration date does not indicate that she faced some insurmountable
hurdle in taking action to protect her constitutional rights. If anything, these
notices should have spurred Neelley to action. Though the notices may have
indicated that she was scheduled for “parole consideration,” she also was aware
that, at the time she came due for such parole consideration, the Act likely
foreclosed the relief for which she was to be considered. The notices, regardless of
the information they transmitted, did not prevent Neelley from filing a § 1983
complaint seeking a declaration of rights.
Because Neelley has failed to show that she is entitled to equitable relief
under these circumstances, the statute of limitations will not abate under the
doctrine of equitable tolling. As a result, Neelley’s action is procedurally barred.
The undisputed evidence establishes that Neelley was aware of the facts supporting
her cause of action in 2009, if not earlier. Because she waited until 2014 to initiate
28

this case, she may not go forward with her claims. There is no genuine dispute of
material fact with respect to the accrual of Neelley’s action, and Defendants are
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56.
V. CONCLUSION
Accordingly, it is ORDERED that Defendants’ Motion for Summary
Judgment (Doc. # 42) is granted.
A separate final judgment will be entered.
DONE this 25th day of March, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

29