W. Keith Watkins, CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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
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.
In September of 1982, Judith Neelley ("Neelley") abducted and murdered a teenage girl.
In January of 1999, Governor Fob James ("James") commuted Neelley's death sentence to a sentence of life imprisonment.
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. # 59-1, 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
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.)
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. # 59-2, 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 then-existing law. (Cir. Ct. Order, Doc. # 42-3, at 1.) The Parole Board took the 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,
The Act garnered substantial attention from the press. (See, e.g., Montgomery Advertiser Art., Doc. # 42-5, at 3.) 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.
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 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,
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,
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."
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.
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 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.)
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.)
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
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, ___ U.S. ___, 134 S.Ct. 2175, 2182, 189 L.Ed.2d 62 (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, 64 S.Ct. 582, 88 L.Ed. 788 (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.
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, 105 S.Ct. 1938, 85 L.Ed.2d 254 (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.
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 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.
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, 102 S.Ct. 28, 70 L.Ed.2d 6 (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 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, 102 S.Ct. 28. This principle has been applied across a variety of contexts.
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 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.
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 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 unlawful conspiracy that resulted in the promulgation of the challenged regulations. Id.
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 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. 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.
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
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 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.
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 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.
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,
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. 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.
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, 125 S.Ct. 1807, 161 L.Ed.2d 669 (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
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 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.
Accordingly, it is ORDERED that Defendants' Motion for Summary Judgment (Doc. # 42) is granted.
A separate final judgment will be entered.
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.
(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 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.
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.
