Foddrill v. Castro et al

Filing 36

ORDER DISMISSING CASE - GRANTING 29 Motion for Reconsideration. Signed by Judge Xavier Rodriguez. (rf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JOHN FODDRILL,
Plaintiff,
v.
WILLIAM MCMANUS, MICHAEL
BERNARD, AND THE CITY OF SAN
ANTONIO,

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Civil Action No. SA-13-CV-00051-XR

Defendants.
ORDER
On this day, the Court considered Defendants’ motion for reconsideration. Doc. No.
29. After careful consideration, the Court GRANTS the motion. Accordingly, Plaintiff’s
remaining claims are barred by the statute of limitations. The case is therefore DISMISSED.
I. BACKGROUND
On February 28, 2013, Plaintiff John Foddrill filed an original complaint in this Court.
Mr. Foddrill alleges that the City of San Antonio violated his constitutional rights by issuing a
Criminal Trespass Warning (“CTW”) banning him from various city properties.

It is

undisputed that this ban was in effect from July 1, 2009, until April 1, 2013. On May 22,
2013, Defendants filed a motion to dismiss contending that the statute of limitations had
expired. Doc No. 9. Specifically, Defendants argued that the Mr. Foddrill’s § 1983 claim
accrued when the CTW was issued on July 1, 2009. According to Defendants, by filing this
lawsuit in 2013, Mr. Foddrill had not complied with the applicable two-year limitations
period.1

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Defendants argue that the limitations period expired on July 1, 2011.

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In considering Defendants’ motion to dismiss, this Court was under an obligation to
construe a pro se Plaintiff’s complaint liberally. Accordingly, the Court found that Mr.
Foddrill had pled a continuing violation and declined to bar his First Amendment and
Procedural Due Process claims on limitations grounds.2 Doc. No. 27. On September 24,
2013, Defendants filed this motion for reconsideration with respect to the claims that were not
dismissed. Doc. No. 29. A hearing was held on this case on September 27, 2013, and Mr.
Foddrill has subsequently retained counsel.
DISCUSSION
The sole issue raised in Defendants’ motion for reconsideration is whether the case is
barred by the statute of limitations. Specifically, the timeliness of Mr. Foddrill’s lawsuit
depends entirely on the applicability of the continuing violation doctrine. In general, the
continuing violation doctrine provides that “where the last act alleged is part of an ongoing
pattern of discrimination and occurs within the filing period, allegations concerning earlier
acts are not time-barred.” McGregor v. Louisiana State Univ. Bd. of Sup'rs, 3 F.3d 850, 866
(5th Cir. 1993) (internal citations omitted).

In applying this equitable doctrine, courts

recognize a distinction between a continuing violation and an injury with continuous effects.
United States v. Evans, 431 U.S. 553, 558 (1977). Injuries with lingering effects generally do
not toll limitations. Berry v. Bd. of Sup'rs of L.S.U., 715 F.2d 971, 979 (5th Cir. 1983), citing
Delaware State College v. Ricks, 449 U.S. 250, 257 (1980) (“The plaintiff, however, may not
employ the continuing violation theory ‘to resurrect claims about discrimination concluded in
the past, even though its effects persist’”).

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The Court dismissed Mr. Foddrill’s First Amendment retaliation claim and his Substantive Due Process claim
on limitations grounds. Mr. Foddrill’s claim for injunctive relief was denied as moot. Doc. No. 27.

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In its prior order, this Court liberally construed Mr. Fodrrill’s complaint and found
that he had pled a continuing violation by alleging that each day that he was barred from City
Hall he was deprived of his right to free speech and assembly. Doc. No. 27. Defendants argue
that any such injury was the effect of the City’s issuance of the CTW. Doc. No. 29. As such,
Defendants contend that Mr. Foddrill has suffered an injury with continuing effects, not a
continuing violation, and that therefore limitations are not tolled.

After careful

reconsideration, the Court agrees with the Defendants.
In its prior order, this Court found that an individual who is banned from public
forums suffers repeated injury until the ban is lifted. However, with respect to the
applicability of the continuing violation doctrine, there is a sharp distinction between a
continuing violation and a violation with lingering effects. Ricks, 449 U.S. at 257. This
seemingly semantic distinction is of paramount importance in this case, because if Mr.
Foddrill’s continued injury is the effect of some prior act, then limitations are not tolled.
Previously, this Court found that the “CTW was the mechanism by which the City deprived
Plaintiff of this constitutionally guaranteed right.” Doc. No. 27. Thus, the harm that Mr.
Foddrill suffered necessarily derived from one event: the City’s act of issuing the CTW. Put
another way, without the City’s issuance of the CTW, there would be no legally cognizable
harm. Therefore, the issuance of the CTW itself was the violation and the subsequent chilling
effect was the impact or effect of that violation.
In the employment context, the continuing violation doctrine permits courts to hear
otherwise untimely claims where “it is the cumulative effect of the discriminatory practice,
rather than any discrete occurrence, that gives rise to the cause of action.” Huckabay v.

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Moore, 142 F.3d 233, 239 (5th Cir. 1998) (emphasis added). In addition, the Fifth Circuit has
held that the doctrine is available if “the violation does not occur at a single moment but in a
series of separate acts.” Perez v. Laredo Junior Coll., 706 F.2d 731, 733 (5th Cir. 1983);
Interamericas Investments, Ltd. v. Bd. of Governors of the Fed. Reserve Sys., 111 F.3d 376,
382 (5th Cir. 1997) (“A continuing violation applies where the conduct is ongoing, rather than
a single event.”). The Fifth Circuit has also found that:
The core idea of the continuing violations theory, however, is that
equitable considerations may very well require that the filing
periods not begin to run until facts supportive of a Title VII charge
or civil rights action are or should be apparent to a reasonably
prudent person similarly situated. The focus is on what event, in
fairness and logic, should have alerted the average lay person to act
to protect his rights

Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997). This case law suggests that the
continuing violation doctrine is inapplicable when there is a discrete occurrence that gives “an
average lay person” notice of his or her right to sue. In this case, the issuance of the CTW
was a single event that put Mr. Foddrill on notice to protect his rights. This is confirmed by
the pleadings, in which Mr. Foddrill avers that he repeatedly attempted to get the city to
revoke the CTW and therefore knew that his rights had been potentially violated. Doc. No. 5.
In this case, it is clear that Mr. Foddrill’s injury persisted for the entire duration that the ban
was in place. However, because there was a discrete event that gave Mr. Foddrill notice of his
right to sue, case law does not support application of the continuing violation doctrine.
Plaintiff, now with the aide of counsel, has been unable to find a case that directly
supports his understanding of the continuing violation doctrine. In Heard v. Sheahan, the
Seventh Circuit applied the continuing violation doctrine in an Eighth Amendment deliberate
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indifference case. 253 F. 3d 316 (7th Cir. 2001). The court reasoned that plaintiff suffered a
new harm each day that defendant failed to treat his medical condition. Id. at 318. However,
in Heard, there was no “discrete occurrence” that gave rise to plaintiff’s right to sue. A cause
of action for deliberate indifference necessarily requires some cumulative amount of inaction
on the part of the defendants.

In this case, however, the City’s issuance of the CTW

constituted a distinct event that gave Mr. Foddrill notice of his right to sue. Mr. Foddrill
could have brought his lawsuit the day the City issued the CTW. Unlike in a deliberate
indifference case, he did not need to wait for the harm to accrue in order for his cause of
action to become complete. Accordingly, Mr. Foddrill cannot rely on Heard to save his
claim.
As this Court previously noted in a footnote, the Supreme Court has not applied the
continuing violation doctrine in the § 1983 context. In Wallace v. Kato, the Court held that
plaintiff’s claim accrued when he was bound over for trial on the basis of unconstitutionally
obtained evidence. 549 U.S. 384 (2007). Plaintiff’s subsequent confinement, unconstitutional
as it may have been, was held to be the effect of a prior unconstitutional act, and did not toll
limitations under the continuing violation doctrine. Id. In response to Defendants’ motion for
reconsideration, Mr. Foddrill argues that the applicability of a statute of limitations defense
inherently reflects a value judgment. Doc. No. 34, citing Johnson v. Ry. Express Agency, Inc.,
421 U.S. 454 (1975). Perhaps as a tacit acknowledgement that the continuing violation does
not technically apply to his case, Mr. Foddrill seeks to shift away from the contours of the
doctrine and towards the important First Amendment values at stake in this case. However,
under Wallace, courts do not look at the underlying merits or values when applying the

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continuing violation doctrine. If being wrongfully confined to prison on the basis of an illegal
conviction is not a continuing violation, but the lingering effect of a prior unconstitutional act,
it is difficult to see how equitable considerations alone compel a different result in this case.
In its prior order, this Court was cognizant of the unique nature of the harm suffered
when an individual claims that his or her First Amendment rights have been violated. Doc.
No. 27. However, even in the context of First Amendment claims, courts have declined to
apply the continuing violation doctrine where there is some concrete event that gives the
plaintiff notice of their right to bring suit. In Knox v. Davis, the Ninth Circuit declined to
apply the continuing violation doctrine in a case where plaintiff alleged that the state had
continually violated her First Amendment rights. 260 F.3d 1009 (9th Cir. 2001). The plaintiff
in Knox was a public defender who married one of the prisoners that she represented.
Subsequently, the state banned plaintiff from visiting the prison and from sending mail
thereto. Plaintiff filed a § 1983 action more than one-year after she had received official
notification that she had been banned from the prison. Plaintiff conceded that her claim
accrued when she received this letter, but argued that the continuing violation doctrine
applied. The Ninth Circuit disagreed and held that the “continuing violation doctrine is
inapplicable because [plaintiff] has failed to establish that a new violation occurs each time
she is denied her visitation or mail privileges.” Id. at 1013.

In addition, the court held that

any constitutional injury that plaintiff had suffered in the case was the “continuing effect” of
the letter banning her from the prison that housed her husband and client. The court reasoned
that plaintiff “had notice of all the wrongful acts she wished to challenge at the time of the

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suspension letter.” Id. at 1014. Likewise, Mr. Foddrill had all of the knowledge he needed to
challenge the City’s policy when the CTW was issued.
In Herbert v. Reinstein, plaintiff law student was not only expelled but banned from
the campus of Temple Law School for dousing a homeless person with pepper spray. 976
F.Supp. 331 (E.D. Pa. 1997).

Plaintiff alleged that this ban violated his First Amendment

rights to free speech and assembly, and that he had suffered a continuing violation each day
that he was denied access to the law school. The court disagreed and held that even if
plaintiff’s initial suspension was “constitutionally infirm,” the resulting First Amendment
injuries were “merely the continuing effects” of that initial violation. Id. at 337. In this case,
the harm that Mr. Foddrill allegedly suffered is properly categorized as the lingering effect of
an earlier act.

Accordingly, the continuing violation doctrine does not apply and Mr.

Foddrill’s claims are barred by limitations.
In its prior order, the Court declined to reach this conclusion because it was unclear
whether Mr. Foddrill had attempted to visit City Hall and then been turned away on the basis
of the CTW. Had this occurred within the limitations period, a question would arise as to
whether this constituted an independent cause of action such that the continuing violation
doctrine would apply. However, at a hearing on this case, Mr. Foddrill clarified that he never
attempted to visit City Hall during the time period that the CTW was in effect. Therefore,
there is no reasonable allegation of related conduct on behalf of Defendants within the
limitations period that would give rise to an independent cause of action.

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IV. CONCLUSION
In light of the foregoing analysis, the continuing violation doctrine does not apply. Mr.
Foddrill’s First Amendment and Procedural Due Process claims are barred by limitations.
Accordingly, the City’s motion for reconsideration is GRANTED. Doc. No. 29. The case is
hereby DISMISSED.
SIGNED this 26th day of November, 2013.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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