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Ninth Circuit Affirms Finding that Claim Accrues Each Time a Request for Conjugal Visits is Denied

On November 21, 2012, the Ninth Circuit Court of Appeals affirmed a district court’s finding that a prisoner’s challenge to the denial of his request for conjugal visits was not barred by the statute of limitations, notwithstanding the fact that 1) the prisoner had been denied a similar request six years earlier and 2) the denial was based on the same regulation in effect at the time his previous request was denied.

Madero L. Pouncil, a California state prisoner serving a sentence of life without parole, submitted a request for conjugal visits with his wife in 2002. His request was denied pursuant to a regulation (currently codified as CCR 3177(b)(2)) that prohibits certain prisoners, including those serving life without parole, from participation in the California prison system’s family visiting program.

Pouncil later divorced and remarried, and again applied for conjugal visits in 2008. That request also was denied.

Pouncil grieved the denial, then filed suit in 2009 alleging violations of his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment, because a tenet of his Islamic faith requires him to marry, consummate his marriage and father children.

The defendant prison officials filed a motion to dismiss on statute of limitations grounds, arguing that Pouncil’s claims had accrued when he was notified in 2002 that, pursuant to regulation, he could not participate in the family visiting program due to his sentence.

The magistrate judge agreed with this argument and recommended that the motion to dismiss be granted.

After Pouncil filed objections, the district judge rejected the magistrate’s recommendation, concluding that the 2002 and 2008 denials of Pouncil’s requests for conjugal visits constituted separate incidents. The latter was actionable, in the district court’s view, because the claim only accrued when Pouncil’s request was denied in 2008 – roughly one year before he filed his § 1983 complaint, which was well within the statute of limitations for such claims in California.

The case was then stayed in 2010 as the defendants pursued an interlocutory appeal on the question of whether Pouncil’s claims were barred by the statute of limitations.

In a thoughtful opinion, the Ninth Circuit noted that “two different lines of authority appear to lead to different conclusions.” Relying on one line of precedential authority, the defendants argued that the 2008 denial of Pouncil’s request for conjugal visits was simply the inevitable consequence of the denial of his initial 2002 request, as it was based on the same regulation. Relying on a different line of authority, Pouncil, represented on appeal by pro bono counsel, contended that the 2008 denial was an independent, discrete act that reset the clock on the statute of limitations.

The Court of Appeals held that whether the circumstances in Pouncil’s case were properly treated as falling under one or the other of the two lines of authority was a question of fact, to which the district court’s decision was entitled to deferential review.

The appellate court found that the record supported the district court’s determination that the denial of Pouncil’s request for conjugal visits in 2008 was “a separate, discrete act” rather than a consequential effect of the 2002 denial. The fact that both denials resulted from the same regulation was not determinative.

The defendants petitioned the U.S. Supreme Court for a writ of certiorari, which was denied in October 2013. This case remains pending with the district court appointing counsel to represent Pouncil following remand. See: Pouncil v. Tilton, 704 F.3d 568 (9th Cir. 2012), cert. denied.