Florez v. McCormac et al

Filing 73

OPINION AND ORDER granting 33 Motion to Dismiss. The 33 Defendants' Motion to Dismiss is GRANTED. Mr. Florez's remaining claim is DISMISSED, and the Clerk of the Court shall close this case, by Judge Marcia S. Krieger on 08/03/2011.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 10-cv-01628-MSK-MJW
JOSEPH M. FLOREZ, IV,
Plaintiff,
v.
LT. MICK McCORMAC, Intel Investigator, Buena Vista correctional Facility, and
C.O. TIMOTHY EDMONDS, Corrections Officer, Buena Vista correctional Facility,
Defendants.
______________________________________________________________________________
OPINION AND ORDER GRANTING MOTION TO DISMISS
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Defendants’ Motion to Dismiss
(# 33), Mr. Florez’s response1 (# 38), and the Defendants’ reply (# 42). Without leave of the
Court, Mr. Florez filed a surreply (# 58, 59). The Defendants have not lodged any objection to
Mr. Florez’s filing of a surreply and, in the interests of ensuring that Mr. Florez is fully heard,
the Court considers it.
FACTS
The facts of the case as it currently stands are simple. Mr. Florez is an inmate in the
custody of the Colorado Department of Corrections (“CDOC”). According to Mr. Florez’s
Amended Complaint (# 15), on or about February 28, 2008, Mr. Florez was transferred to
Administrative Segregation based on an alleged disciplinary violation. During that transfer,

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Mr. Florez also filed a “cover letter” (# 39) with his response, elaborating his argument.
The Court has considers both documents to jointly constitute Mr. Florez’s response.
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Defendant Edmonds was responsible for collecting and logging Mr. Florez’s personal property
in his cell. Defendant Edmonds confiscated Mr. Florez’s Bible, and sent it to Defendant
McCormac to be examined.2 On March 4, 2008, a disciplinary hearing was held and Mr.
Florez’s Bible was used as evidence against him. Mr. Florez was acquitted of the disciplinary
charges and inquired of Mr. McCormac about getting his Bible back. At some point in time, Mr.
McCormac returned two pages torn out of the back of the Bible to Mr. Florez, and Mr.
McCormac retained the rest. By May 3, 2008, Mr. Florez learned that his Bible had been
discarded in the trash by Mr. McCormac. Mr. Florez was unable to obtain a replacement Bible
for a period of 138 days.
Mr. Florez commenced this action on or about June 24, 2010.3 He asserted a variety of
claims pursuant to 42 U.S.C. § 1983, but Judge Arguello (acting on behalf of Senior Judge
Weinshienk) sua sponte dismissed as frivolous all but Mr. Florez’s claim that the confiscation
and disposal of his Bible deprived him of his First Amendment right to the Free Exercise of
religion for the 138-day period.
The Defendants move to dismiss (# 33) Mr. Florez’s remaining claim on statute of
limitations grounds. They note that claims under 42 U.S.C. § 1983 are subject to a two-year
statute of limitations, Braxton v. Zavaras, 614 F.3d 1156, 1160 (10th Cir. 2010). They contend

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Other filings in this case indicate that Mr. Edmonds believed the Bible may have
constituted contraband because Mr. Florez had written the names and addresses of unknown
persons on pages in it.
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Mr. Florez’s pro se Motion for Leave to Proceed In Forma Pauperis is signed and dated
on Jne 24, 2010. It was received and filed by the Clerk of the Court on July 1, 2010. The Court
assumes, without necessarily finding, that Mr. Florez can demonstrate compliance with the
“prison mailbox rule” described in Price v. Philpot, 420 F.3d 1158, 1165 (10th Cir. 2005), and
thus, the Court will treat his suit as commenced on June 24, 2010.
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that that statute began running, at the latest, by May 3, 2008, the date Mr. Florez learned that his
Bible had been discarded. Thus, the Defendants contend, Mr. Florez’s suit, commenced more
than two years later on June 24, 2010, is untimely.
Mr. Florez has offered several arguments in opposition. Initially, he appeared to contend
that the statute of limitations did not begin running or was otherwise tolled until he completed
CDOC’s mandatory Administrative Remedy program on June 26, 2008. After the Defendants’
reply brief that argued that prison grievance procedures do not toll statutes of limitations, Mr.
Florez filed a surreply presenting a different argument: that he was suffering a “continuous and
ongoing harm” from the deprivation of his Bible, such that his statute of limitations was
constantly accruing until he obtained the replacement Bible on or about July 17, 2008.
ANALYSIS
A. Standard of review
1. Pro se filings
In considering the Mr. Florez’s filings, the Court is mindful of his pro se status, and
accordingly, reads his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, such liberal construction is intended merely to overlook technical formatting errors
and other defects in his use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). Pro se status does not relieve Mr. Florez of the duty to comply
with the various rules and procedures governing litigants and counsel or the requirements of the
substantive law, and in these regards, the Court will treat Mr. Florez according to the same
standard as counsel licensed to practice law before the bar of this Court. See McNeil v. U.S., 508
U.S. 106, 113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).

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2. Motion to Dismiss
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all
well-plead allegations in the Complaint as true and view those allegations in the light most
favorable to the nonmoving party – Mr. Florez. Stidham v. Peace Officer Standards and
Training, 265 F.3d 1144, 1149 (10th Cir. 2001), quoting Sutton v. Utah State Sch. For the Deaf &
Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). The Complaint should not be dismissed for failure
“unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Benefield v.
McDowall, 241 F.3d 1267, 1270 (10th Cir. 2001); GFF Corp. v. Associated Wholesale Grocers,
Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). The Court must limit its review to the four corners of
the Complaint, but may also consider documents attached to the Complaint as exhibits, Oxendine
v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001), as well as unattached documents which are
referred to in the Complaint and central to the plaintiff’s claim, so long as the authenticity of
such documents is undisputed. Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.
2002); Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir. 2001).
B. Statute of limitations
The question presented here is when Mr. Florez’s statute of limitations accrued and, once
it began running, whether it was tolled.
A claim accrues, and the statute of limitations thus begins running, when the facts
necessary to support a claim are or should be apparent to a Plaintiff. Thorpe v. Ancell, 367
Fed.Appx. 914, 920 (10th Cir. 2010) (unpublished), citing Fratus v. DeLand, 49 F.3d 673, 675
(10th Cir. 1995). There can be little dispute that Mr. Florez knew of facts giving rise to his claim

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for deprivation of his Free Exercise results by, at the latest, May 3, 2008. He acknowledges that,
by that date, he knew that Mr. McCormac had thrown away the Bible, thus permanently
depriving Mr. Florez of it. Thus, Mr. Florez’s statute of limitations began running on May 3,
2008, and expired two years later, on May 3, 2010. Mr. Florez’s suit, filed on June 24, 2010, is
thus untimely by a period of approximately six weeks.
Mr. Florez has argued that his statute of limitations was tolled during the pendency of his
exhaustion of CDOC’s grievance procedure. The 10th Circuit has, in circumstances functionally
identical to those presented here, concluded that an inmate’s exhaustion of CDOC’s grievance
procedure does not toll the running of the statute of limitations. Braxton, 614 F.3d at 1162.
Precisely the same analysis would warrant the conclusion that Mr. Florez’s statute of limitations
ran unimpeded once it accrued.
Thus, the Court is left with Mr. Florez’s argument that, because he continued to be
deprived of the Bible for a period of 138 days, his statute of limitations repeatedly accrued each
day until July 2008, thus rendering his claim timely. In certain contexts, courts recognize a
“continuing violation” doctrine that treats otherwise untimely instances of conduct as timely if
they are part of a “continuing pattern” of unlawful acts. Fogle v. Slack, 2011 WL 1334394 (10th
Cir., April 8, 2011) (slip op.), citing Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994). In
Fogle, the 10th Circuit acknowledged that it “has yet to decide whether the continuing violation
doctrine applies in § 1983 cases.” Id. at *4. However, the court declined to specifically address
the applicability of the doctrine in that case, noting that “each claim involved discrete decisions
or discrete conduct making the continuing violation doctrine inapplicable.” Id.
A similar conclusion is warranted here. The “continuing violation” doctrine has its

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genesis in employment law, specifically where an employer promulgates “a continuing policy
and practice of discrimination that began before the statutory filing period, as long as the
employer continues to apply the discriminatory policy and practice to a point within the relevant
filing period.” Furr v. AT&T Technologies, Inc., 824 F.2d 1537, 1543 (10th Cir. 1987), cited in
Hunt, 17 F.3d at 1266. However, the Supreme Court has dramatically limited the scope of the
continuing violation doctrine in the field of employment discrimination, finding that the doctrine
does not apply to claims arising from “discrete acts” whose occurrence and consequences are
readily identifiable; it is available only in situations where the claim arises from a pattern of
connected acts, occurring over a period of time, each of which might not be separately actionable
on its own (e.g. hostile environment harassment claims). National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 115-16 (2002). Assuming that the continuing violation doctrine is
portable to the § 1983 context, the limitations imposed by Morgan would seem to apply as well.
Thus, a § 1983 plaintiff seeking to invoke the continuing violation doctrine to rescue an
otherwise untimely claim must demonstrate that the claim arises not out of any discrete,
identifiable act by a defendant, but rather, out of a lengthy pattern of interconnected acts that, of
their own, might not individually be actionable but which collectively give rise to a claim.
Here, Mr. Florez’s Free Exercise claim is readily traceable to a single, discrete act whose
occurrence and consequences were readily apparent: the disposal of his Bible. Although that
discrete act had ongoing consequences affecting Mr. Florez’s ability to practice his religion,
those consequences flowed directly from the discrete act itself, not from a pattern of
interconnected acts of indeterminate individual significance. In this sense, Mr. Florez’s
argument is similar to that rejected by the Supreme Court in Ledbetter v. Goodyear Tire &

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Rubber Co., 550 U.S. 618, 628 (2007), superseded by statute, P.L. 111-2. There, the plaintiff
employee contended that discriminatory compensation decisions made years earlier continued to
manifest its consequences in each of the employee’s current paychecks. The Supreme Court
rejected the notion that the reverberating consequences of discrete acts in the past – acts that fall
outside the limitations period – warranted application of the continuing violation doctrine. Id. at
625 (“In essence, she suggests that it is sufficient that discriminatory acts that occurred prior to
the charging period had continuing effects during that period. . . . This argument is squarely
foreclosed by our precedents”). Similarly, Mr. Florez argues that the untimely discrete act of
Mr. McCormac destroying his Bible has had timely consequences on Mr. Florez’s ability to
practice his religion. Ledbetter rejects this argument,4 and therefore, this Court must also.
Accordingly, the Court finds that Mr. Florez’s First Amendment claim arises from a
discrete act by Mr. McCormac, an act whose occurrence and consequences are readily
ascertainable. Under these circumstances, the continuing violation doctrine does not apply to
toll the accrual or running of the statute of limitations, nor otherwise extend the limitations
period beyond two years from Mr. McCormac’s act (or, at the latest, Mr. Florez’s discovery
thereof). According to the facts alleged by Mr. Florez, the statute of limitations began running in

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The fact that Congress subsequently acted to reverse the Supreme Court’s decision as it
related to claims of discriminatory compensation does not suggest that Congress similarly
repudiated Ledbetter’s analysis of the operation of the continuing violation doctrine. The
Congressional fix of P.L. 111-2 specifically defines when “an unlawful employment practice
occurs, with respect to discrimination in compensation” to include “when an individual is
affected by application of a discriminatory compensation decision or other practice, including
each time wages, benefits, or other compensation is paid.” If Congress disagreed more broadly
with the route the Supreme Court regarding the continuing violation doctrine, beginning in
Morgan and continuing in Ledbetter, it was free to pass a statute that specifically addressed the
application of the doctrine.
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early May 2008, and expired well before Mr. Florez commenced this action in late June 2010.
Thus, Mr. Florez’s claim is untimely and is dismissed.
CONCLUSION
For the foregoing reasons, the Defendants’ Motion to Dismiss (# 33) is GRANTED. Mr.
Florez’s remaining claim is DISMISSED, and the Clerk of the Court shall close this case.
Dated this 3rd day of August, 2011
BY THE COURT:

Marcia S. Krieger
United States District Judge

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