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Second Circuit Reverses Dismissal of Bivens Suit Due to Continuing Violation Doctrine

Esteban Gonzalez, while incarcerated at the Metropolitan Correctional Center (MCC) in Manhattan and the Metropolitan Detention Center (MDC) in Brooklyn, was confined to the Special Housing Unit (SHU) for stabbing another prisoner “with a knife-like object.” After being held in the SHU at both facilities for “an extended period of time,” and after exhausting his administrative remedies, Gonzalez sued alleging violations of his First, Fifth and Eighth Amendment rights.

Gonzalez filed his lawsuit pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), arguing that he was placed in segregation “without procedural protections, and in retaliation for protected speech.” His complaint was dismissed because the claims had occurred outside the applicable statute of limitations.

On appeal, the Second Circuit concluded “that the district court correctly applied the three-year statute of limitations to Gonzalez’s First Amendment claim, but that it erred in holding that his Fifth and Eighth Amendment claims are time-barred in their entirety.”

Gonzalez was confined in the MCC’s SHU for more than two years, from February 28, 1999 to July 24, 2001. At that time, the warden in charge was Dennis Hasty. Gonzalez was then transferred to the MDC and immediately placed in the SHU at that facility. After he arrived at the MDC, he discovered that Hasty had been named warden at that prison, where he was held in the SHU for another nine months. He was released from segregation shortly after Hasty retired.

The Bivens action alleged that Warden Hasty had “a personal vendetta against Gonzalez [and] that [Hasty] would not release Gonzalez from [the] SHU under any circumstances” due to “racial animus, as evidenced by the fact that the Federal Bureau of Prisons (‘BOP’) previously had ordered Hasty to remove a Confederate flag from his office.”

Gonzalez also claimed that he had been denied the procedural protections of 28 C.F.R. § 541.22(c)(1), which require “that within three work days of an inmate’s confinement in the SHU, a Segregation Review Officer (“SRO”) was to review the administrative detention.” He contended that the SRO had failed to properly review his case and never held a formal hearing. Further, “[T]he defendants falsified forms to make it appear as though they were in compliance, ‘held unauthorized weekly meetings to determine which inmates were to be released from [the] SHU and returned to general population,’ ... and ignored psychological assessments suggesting that Gonzalez ‘was not in need of further SHU confinement.’”

On September 3, 2015, the Second Circuit found that Gonzalez had failed to file the Bivens suit on his First Amendment and some of his Fifth Amendment claims before the three-year statute of limitations had expired. His Eighth Amendment claim was reinstated, however, because he alleged the cruel and unusual punishment he suffered due to his lengthy SHU confinement had been a continuing violation.

Since his Eighth Amendment claim fell within the three-year limitations period, the Court of Appeals reversed and remanded that part of the complaint following an extensive discussion of the continuing violation doctrine. See: Gonzalez v. Hasty, 802 F.3d 212 (2d Cir. 2015).  

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Related legal case

Gonzalez v. Hasty