07-1787-pr
Gonzalez v. Hasty

                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                            _______________________

                               August Term, 2008

(Argued:            April 24, 2009            Decided: June 22, 2011)

                             Docket No. 07-1787-pr
                            _______________________

                               ESTEBAN GONZALEZ,

                                                   Plaintiff-Appellant,
                                     -v.-

    WARDEN DENNIS W. HASTY, WARDEN GREGORY PARKS, ASSOCIATE
  WARDEN PERKINS, ASSOCIATE WARDEN JAMES SHERMAN, ASSOCIATE
   WARDEN POWERS, AGENT JOHN FEENEY, SPECIAL INVESTIGATIVE,
        CAPTAIN NELSON APONTE, CAPTAIN SALVATORE LOPRESTI,
       LIEUTENANT BARRY, LIEUTENANT GURINO, DEPUTY CAPTAIN
VENERONI, STEVEN BARRERE, LIEUTENANT RODRIGUEZ, PSYCHOLOGIST
     DR. KAWERSKI, PSYCHOLOGIST DR. HESS, LIEUTENANT WHITE,
                     LINTON THOMAS KUCHARSKI,

                                                 Defendants-Appellees.
                            _______________________


        Before:        DENNIS JACOBS,
                                     Chief Judge,
                       ROSEMARY S. POOLER,
                       PETER W. HALL,
                                     Circuit Judges.


     Plaintiff-Appellant Esteban Gonzalez appeals from an
order of the United States District Court for the Southern
District of New York (Berman, J.) granting defendants’
motion to dismiss. We hold that an inmate is entitled to

                                      -1-
equitable tolling of the statute of limitations for a civil
action while he is exhausting administrative remedies as
prescribed by the Prison Litigation Reform Act. VACATED and
REMANDED.

    Judge Jacobs concurs in a separate opinion.
                  _______________________

          MICHAEL A. YOUNG, New York, New York, appearing for
          Plaintiff-Appellant.

          BRIAN M. FELDMAN (David S. Jones, on the brief), for
          Preet Bharara, United States Attorney for the
          Southern District of New York, New York, New York,
          appearing for Defendants-Appellees.
                     _______________________

HALL, Circuit Judge:

    Esteban Gonzalez appeals from the judgment of the

United States District Court for the Southern District of

New York (Berman, J.) granting defendants-appellees’ motion

to dismiss Gonzalez’s claims brought pursuant to 18 U.S.C. §

1983 and Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 

(1971).    Gonzalez claims

that the district court erred in finding that the statute of

limitations had run on the first of his two causes of action

and in dismissing his second cause of action for improper

venue.   We VACATE and REMAND on the grounds that claims

brought by an inmate under the Prison Litigation Reform Act

(“PLRA”), 42 U.S.C. § 1997e(a), are entitled to equitable

tolling during the time-period the inmate is exhausting his

                              -2-
administrative remedies, as required by the PLRA.     We also

VACATE the judgment insofar as it dismissed some of

Gonzalez’s claims for improper venue and REMAND with

instructions that the court transfer those claims to the

United States District Court for the Eastern District of New

York if the court deems it proper to do so upon

reexamination of all of Gonzalez’s claims.

                            BACKGROUND

    Beginning on February 28, 1999, Esteban Gonzalez, an

inmate in the Metropolitan Correction Center (“MCC”) in

lower Manhattan, was confined to the MCC’s special housing

unit (“SHU”).   Gonzalez maintains that he was confined in

the SHU for two and a half years, after which he was

transferred to the Metropolitan Detention Center (“MDC”), in

Brooklyn, New York, on July 24, 2001.     Upon arriving at the

MDC, Gonzalez alleges that he was immediately confined in

that facility’s SHU, and remained there until his transfer

out of the MDC nearly ten months later.     Gonzalez claims

that he was unlawfully confined in SHU for almost eleven

hundred consecutive days.

    A “special housing unit” separates inmates from the

general population either via “administrative detention” or


                               -3-
“disciplinary segregation.”   28 C.F.R. §§ 541.20, 541.22.

Gonzalez was placed in administrative detention, a “non-

punitive” form of separation, 28 C.F.R. § 541.21, whereby,

Gonzalez claims, inmates are confined to their cells for 23

hours per day, privileges are limited, and handcuffs are

mandatory whenever the SHU inmate is outside of his cell.

3] Administrative detention is used when “the inmate’s

continued presence within the general population would pose

a serious threat to life, property, self, staff or other

inmates, or to the security or orderly running of the

institution.”   28 C.F.R. § 541.22(a).

    In order to ensure inmates are placed in a SHU for

cause, and once there, only for a limited period of time,

federal regulations governing the Bureau of Prisons (“BOP”)

designate that a Segregation Review Officer (“SRO”) be

responsible for conducting a review of the administrative

detention within three work days of its commencement, hold a

hearing for each inmate confined for over seven continuous

days, and “thereafter review these cases on the record (in

the inmate’s absence) each week, and hold a hearing and

review these cases formally at least every 30 days.”     28

C.F.R. § 541.22(c)(1).   Whenever administrative detention



                              -4-
extends beyond 30 days a psychiatric or psychological

assessment is required in order to assess whether the inmate

poses a threat to himself or others.   

should only be imposed for short periods of time

except when it is for the inmate’s protection or there are

exceptional circumstances concerning security or complex

investigations, in which case a monthly report is required.

shall release an inmate from administrative

detention when reasons for placement cease to exist.”     

se, filed a Bivens complaint in the

United States District Court for the Southern District of

New York on May 31, 2005 against Dennis Hasty, warden of the

MCC during Gonzalez’s confinement, who then became the

warden of MDC shortly before Gonzalez was transferred to

that institution.   Gonzalez also named as defendants

correctional and mental health staff in both facilities.

The verified complaint alleged, inter alia, that the

defendants failed to conduct segregation review hearings

during Gonzalez’s SHU confinement in the MCC and the MDC,

falsely completed and furnished Gonzalez records of hearings

that never occurred, and at no point conducted meaningful

psychological assessments.   The complaint raised two


                             -5-
separate claims, the first addressing his treatment at the

MCC (in Manhattan), and the second focusing on the MDC (in

Brooklyn).   Gonzalez alleged that the reason for this

mistreatment by two separate penal facilities was a

conspiracy engineered by Hasty as retribution for Gonzalez’s

allegations that Hasty was a racist.     The consequence of the

defendants’ conspiratorial activities, Gonzalez pleaded,

were numerous violations of his First, Fifth and Eighth

Amendment rights.     Gonzalez alleged that he exhausted his

administrative remedies on August 8, 2002.

    Following a substantial delay arising from Gonzalez’s

failure to effect proper service, Defendants moved to

dismiss Gonzalez’s MCC claims as time-barred by a three-year

statute of limitations, and the MDC claims on the grounds of

improper venue.     They asserted that the last date upon which

Gonzalez could base any of his claims against the MCC

defendants was July 2001 when he was transferred to the MDC,

and that the statute of limitations, therefore, expired in

July of 2004.     Gonzalez, through counsel, argued in response

that his claims were timely under the continuing violation

doctrine, adding that he “was compelled to exhaust his




                               -6-
administrative remedies prior to filing his lawsuit.”1

Gonzalez pointed to the PLRA, which mandates that “[n]o

action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law,

by a prisoner . . . until such administrative remedies as

are available are exhausted.”   42 U.S.C. § 1997(e)(a).   And

relying on the Fifth Circuit’s decision in Harris v. Hegman,

, 157-59 (5th Cir. 1999) (reversing the

dismissal of a prisoner’s civil rights suit on grounds that

his exhaustion of administrative remedies tolled the

applicable statute of limitations), he argued that he had

complied with the PLRA and that this “had the effect of


    1
     Gonzalez asserted that because Warden Hasty was the
“thread that tie[d] all of the[] allegations together,” the
continuous violation began with his February 1999
incarceration at the MCC and continued until his transfer
out of the MDC in May 2002. See Nat’l R.R. Passenger Corp.
v. Morgan, 

, 118 (2002) (holding that in the
context of a hostile work environment claim filed under
Title VII of the Civil Rights Act of 1964 only one incident
comprising the hostile work environment need fall within the
relevant limitations period because the continuing violation
doctrine will render the entire claim timely); see also
Shomo v. City of New York, 

, (2d Cir. 2008)
(applying the continuing violation doctrine to deliberate
indifference claims brought under 42 U.S.C. § 1983). We
decline to decide on this record, however, whether the
continuing violation doctrine allows the two confinements to
be aggregated in order to preserve MCC claims that might
otherwise have been lost absent prolonged tolling, and to
lengthen the period of confinement in SHU.
                            -7-
tolling the limitations period.”     As for the defendants’

allegations of improper venue, Gonzalez argued that his

injuries suffered in the MDC were a continuation of those

begun in the MCC, and that dismissal would result in a

miscarriage of justice.

    In February 2007, Magistrate Judge Ellis issued a

report and recommendation stating that Gonzalez’s

“allegations of a conspiracy at the MCC . . . would be

barred by the three year statute of limitations,” and “any

conspiracy to deprive [Gonzalez] of his constitutional

rights at the MDC would constitute a new conspiracy, and the

Southern District would not be the proper venue.”     The

magistrate judge also found that Gonzalez “fail[ed] to

establish a provable claim.”    Gonzalez filed an objection to

the report, arguing that: (1) under the continuing violation

doctrine his claims were still timely, (2) venue was proper

because of a “sufficient connection between the offending

conduct and the district in which the action [had] been

filed,” and (3) he had made sufficient factual allegations

to support his causes of action.

    The district court found that, even assuming Gonzalez

had shown the “compelling circumstances” necessary to



                               -8-
prevail on a continuing violation theory, his MCC claim

nonetheless ripened when he was transferred out of the MCC

on July 24, 2001, and any constitutional violations that

allegedly occurred at the MDC would constitute a new

conspiracy.    Gonzalez, 

, at *8, 9

(S.D.N.Y. Mar. 27, 2007).   The court declined to reach

Gonzalez’s exhaustion of administrative remedies argument

“because, as noted . . . , the Southern District of New York

is not the proper venue for determination of the MDC Claim.”

n.5.   The district court failed to address,

however, whether tolling of the statute of limitations

should apply to Gonzalez’s MCC claims, which arose in

Manhattan and where venue was proper.    The district court

dismissed Gonzalez’s MDC’s claims for improper venue,

finding that none of the events or occurrences giving rise

to the claims occurred in the Southern District of New York.

 

                          DISCUSSION

    A.   Standard of Review

    We review de novo a district court’s grant of a motion

to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, accepting as true all allegations in the


                              -9-
complaint and drawing all reasonable inferences in favor of

the non-moving party.   Vietnam Ass’n for Victims of Agent

Orange v. Dow Chem. Co., 

, 115 (2d Cir. 2008).

When the district court makes a venue determination on the

basis of the pleadings and affidavits, we review de novo the

legal question of whether petitioner has established a prima

facia case that venue was proper.     Gulf Ins. Co. v.

Glasbrenner, 

, 355 (2d Cir. 2005).

    B.   Tolling the Statute of Limitations

    Gonzalez was transferred from the MCC to the MDC on

July 24, 2001, and his complaint was not received by the

court until May 31, 2005.     Absent tolling, therefore, his

claims against the MCC officials would be barred by the

three-year statute of limitations applied by federal courts

sitting in New York to Bivens claims.     See Kronisch v.

United States, 

, 123 (2d Cir. 1998) (“Federal

Courts in New York apply a three-year statute of limitations

period to Bivens claims.”).     Gonzalez asserts that the

statute of limitations should be tolled for the time period

during which he was actively exhausting his administrative

remedies, and that because he filed his complaint less than




                               -10-
three years after he had exhausted all of his administrative

remedies, all of his claims are timely.

       A statute of limitations provides an affirmative

defense, and the burden is on the defendant to establish

when a federal claim accrues.    See Fed. R. Civ. P. 8(c).

Notwithstanding that exhaustion is an affirmative defense

not required to be pleaded in an inmate’s complaint, Jones

v. Bock, 

, 216 (2007), Gonzalez did plead it.

See Complaint ¶ 30.    We thus accept as true that on the

stated date, August 8, 2002, Gonzalez exhausted his

administrative remedies.    See Dow Chem. 

.

       We have not previously determined whether the statute

of limitations in a civil action by an inmate should be

tolled during the time it takes the inmate to exhaust his

administrative remedies under the PLRA.    See Sims v. Goord,

151 F. App’x 12, 14 (2d Cir. 2005) (unpublished summary

order) (recognizing that is unsettled in this Circuit

whether a statute of limitations for a civil rights claim

should be tolled while an inmate exhausts his administrative

remedies).    “Statutes of limitations are generally subject

to equitable tolling where necessary to prevent unfairness


                              -11-
to a plaintiff who is not at fault for her lateness in

filing.”   Veltri v. Bldg. Serv. 32B-J Pension Fund, 

, 322 (2d Cir. 2004).     “Equitable tolling is an

extraordinary measure that applies only when plaintiff is

prevented from filing despite exercising that level of

diligence which could reasonably be expected in the

circumstances.”   

   Our sister circuits

that have squarely confronted the question presented here

have answered in the affirmative, holding that tolling is

applicable during the time period in which an inmate is

actively exhausting his administrative remedies.        See Brown

v. Valoff, 

, 942-43 (9th Cir. 2005); Clifford v.

Gibbs, 

, 332 (5th Cir. 2002); Johnson v. Rivera,

, 522 (7th Cir. 2001); Brown v. Morgan, 

, 596 (6th Cir. 2000).2

    2
      We note that as opposed to tolls that result in an
entirely “intact” statute of limitations, e.g., a minority
toll wherein once a claimant reaches the age of majority he
still retains the entire statute of limitations applicable
to the underlying claim, courts that toll PLRA claims apply
the toll only to the time period in which the inmate is
actively exhausting his administrative remedies, and not the
anterior time period in between the accrual of the claim and
when the prisoner initiated the administrative remedy
process. See, e.g., 

(“[T]he statute
of limitations which applied to Brown’s civil rights action
was tolled for the period during which his available state
remedies were being exhausted.” (emphasis added)). For
example, if an inmate’s claim accrues on January 1, 2010,
                               -12-
    Defendants assert that we need not decide whether to

adopt an exhaustion toll for claims filed under the PLRA.

Assuming arguendo equitable tolling is applicable,

defendants argue that Gonzalez’s claim still fails because

BOP regulations provide an administrative remedy period, “at

the long end of the spectrum,” of one hundred and forty days

from the filing of a remedy request, while Gonzalez’s claim

implicates an administrative remedy period in excess of

three hundred days.   The PLRA’s administrative remedy

program for inmate grievances, 28 C.F.R. §§ 542.11-542.18,

requires that an inmate first attempt resolution of his or

her grievance through informal channels before submitting a

Request for Administrative Remedy (“RAR”). 28 C.F.R. §

542.13(a).   Should informal remedies prove unsuccessful, the

inmate has twenty days from the occurrence of the incident

to submit an RAR, although an extension may be allowed where

the inmate demonstrates a valid reason for delay.    28 C.F.R.



and the inmate does not begin pursuing administrative
remedies until December 1, 2010, any subsequent tolling that
may be applicable would not include this eleven month
period. Cf. Smith v. McGinnis, 

, 17 (2d Cir.
2000) (explaining that for habeas petitioners filing under
28 U.S.C. § 2254 the “tolling provision excludes time during
which properly filed state relief applications are pending,
but does not reset the date from which the one-year statute
of limitations begins to run”).
                             -13-
§ 542.14.    The warden has 20 calendar days to respond to an

RAR and, if not satisfied with the warden’s response, the

inmate may appeal to the appropriate regional director

within 20 calendar days of the date the warden signs the

response.    28 C.F.R. §§ 542.15(a), 542.18.     If not satisfied

with the regional director’s response, the inmate may appeal

to the general counsel within 30 calendar days of the date

the regional director signs the response.       28 C.F.R. §

542.15(a).    Once an appeal is filed, the regional director

must respond within 30 calendar days and the general counsel

within 40 calendar days, and if the time to respond is

insufficient, it may be extended once by 20 days at the

institution level, 30 days at the regional level, and 20

days at the central office level.       28 C.F.R. § 542.18.

Upon the inmate’s showing of a valid reason for delay, all

the deadlines may be extended.       28 C.F.R. § 542.15(a).

    Under this latter provision, therefore, the time for

achieving a resolution under the PLRA could be considerably

longer than 140 days.    In some instances, it is certainly

possible that a full three years could pass while an inmate

exhausts his administrative remedies.       Cf. Abney v.

McGinnis, 

, 667 (2d Cir. 2004) (“[E]xhaustion


                              -14-
may be achieved in situations where prison officials fail to

timely advance the inmate’s grievance or otherwise prevent

him from seeking his administrative remedies . . . .”).

Defendants’ assertion that there is a statutory maximum

time-period beyond which equitable tolling will not save a

claim thus finds no support in the applicable regulations,

and certainly not in juxtaposition to the allegation in the

complaint that Gonzalez’s administrative remedies were not

exhausted until August 8, 2002.

        As noted, the Ninth, Fifth, Seventh, and Sixth Circuits

have all adopted the rule that equitable tolling is

applicable to the time period during which a prisoner-

plaintiff is exhausting his administrative remedies pursuant

to the PLRA.       See 

; 

; 

; 

.3       “The ‘catch-22’ . . . is self-evident: the prisoner

who files suit . . . prior to exhausting administrative

remedies risks dismissal based upon § 1997e; whereas the

prisoner who waits to exhaust his administrative remedies

risks dismissal based upon untimeliness.” Johnson, 

     The Tenth Circuit has also adopted this rule, although
not in a published opinion. See Roberts v. Barreras, 109 F.
App’x 224 (10th Cir. 2004).
                                 -15-
at 522.   Indeed, the exhaustion requirement in some

circumstances may be nothing other than a “legal cause which

prevent[s] the courts or their officers from taking

cognizance of or acting on [a] plaintiff's action.”     

(quoting Burge v. Parish of St. Tammany, 

, 788 (5th Cir. 1993) (internal quotations

omitted)).   Furthermore, any other interpretation of the

PLRA could “permit [prison officials] to exploit the

exhaustion requirement through indefinite delay in

responding to grievances.”   Lewis v. Washington, 

, 833 (7th Cir. 2002) (internal quotations omitted).     For

these reasons, we join our sister circuits and hold “that

the applicable statute of limitations must be tolled while a

prisoner completes the mandatory exhaustion process.”

.

    Applying this rule here raises a problem, however.

Although we accept as true Gonzalez’s allegation that he

exhausted all of his administrative remedies by August 8,

2002, the record is devoid of any facts indicating when

Gonzalez first raised his administrative claims, thus

initiating the exhaustion process.   And because the date on

which Gonzalez first raised his administrative claims


                             -16-
demarcates the commencement of the period of time during

which he was actively exhausting those claims, this

fact—which is absent from the record—controls whether

Gonzalez’s MCC claims are timely.    That is, under the rule

we articulate today, the applicable three-year statute of

limitations is tolled only during that exhaustion period and

not during the period in between the accrual of those claims

and when Gonzalez began the administrative remedy process.

See 

.

    We cannot resolve this issue on the existing record.

But because it is entirely possible that Gonzalez raised his

administrative claims sufficiently in advance of August 8,

2002, so as to render his MCC claims timely, we vacate the

district court’s dismissal of those claims and remand with

instructions that the court determine when Gonzalez

initiated his administrative proceedings and whether, based

on that date, his MCC claims are timely.4

    4
      Assuming that Gonzalez’s MCC claims accrued on July
24, 2001 (the date he was transferred out of the MCC), those
claims are timely only if the three-year statute of
limitations period was tolled for at least 312 days, since
Gonzalez filed his complaint on May 31, 2005 and, absent
tolling, the limitations period expired on July 24, 2004
(July 24, 2004 to May 31, 2005 = 312 days). Accordingly,
assuming that Gonzalez finished exhausting his
administrative remedies on August 8, 2002, the length of
that exhaustion period—i.e., the period of time between when
                              -17-
    C.      Venue

    Under 28 U.S.C. § 1406(a), district courts are

instructed to dismiss an action brought in the wrong venue

“or if it be in the interest of justice, transfer such case

to any district or division in which it could have been

brought.”    In a Bivens action, venue is governed by 28

U.S.C. § 1391(b), which provides that where jurisdiction is

not founded on diversity of citizenship, a civil action may

be brought only in “a judicial district in which a

substantial part of the events or omissions giving rise to

the claim occurred.”    We held in Daniel v. American Board of

Emergency Medicine, 

, 436 (2d Cir. 2005), that

while “[c]ourts enjoy considerable discretion in deciding

whether to transfer a case in the interest of justice . . .

[a] ‘compelling reason’ for transfer is generally

acknowledged when a plaintiff’s case, if dismissed, would be

time-barred on refiling in the proper forum.”    Nonetheless,

we should abstain from fashioning such a remedy when that




Gonzalez initiated his administrative claims and when he
exhausted those claims on August 8, 2002—must be at least
312 days so as to render his MCC claims timely; that would
be the length of time during which the three-year statute of
limitations would be tolled.
                              -18-
case is a “sure loser.”    Moreno-Bravo v. Gonzalez, 

, 263 (2d Cir. 2006).

    In dismissing Gonzalez’s MDC claims on the grounds of

improper venue, the district court found that “any

conspiracy to deprive Gonzalez of his constitutional rights

at the MDC would constitute a new conspiracy . . . involving

a different time period and a different group of

Defendants.”   Gonzalez, 2007 U.S. Dist. LEXIS, at *9.

Clearly, if the claims must be re-filed in the Eastern

District of New York, the only forum in which a substantial

part of Gonzalez’s MDC claims arose, the action would be

time-barred regardless of the time it has taken him to

exhaust administrative remedies.     Gonzalez alleges nearly

eleven hundred uninterrupted days of SHU confinement.     In

light of BOP regulations stipulating that “[a]dministrative

detention is to be used only for short periods of time

except where an inmate needs long-term protection . . ., or

where there are exceptional circumstances” we decline to

find that Gonzalez’s case is a “clear loser.”     28 C.F.R. §

541.22(c); 

.     We instruct the

district court on remand, therefore, that if on

reexamination of the entirety of plaintiff’s claims it


                              -19-
determines that venue for the MDC claims is still improper

in the Southern District of New York, then it shall transfer

Gonzalez’s MDC claims to the United States District Court

for the Eastern District of New York.

                         CONCLUSION

    For the foregoing reasons, we VACATE the District

Court’s grant of defendants-appellees motion to dismiss, and

REMAND for factual findings on the length of the

administrative exhaustion period, its effect on the

applicable statute of limitations, and for such further

action as may be appropriate.   In addition, the District

Court shall transfer Gonzalez’s MDC claim to the United

States District Court for the Eastern District of New York

if it deems it proper to do so upon reexamination of

Gonzalez’s claims.




                            -20-
DENNIS JACOBS, Chief Judge, concurring:

    I concur in the very thorough opinion of the Court, and

I write separately to register my view that, at this

juncture, it would not be premature to affirm the dismissal

as to all of the defendants other than Warden Hasty, on the

alternative ground that the allegations of conspiracy are

conclusory and perfunctory.

    It is sound craft to affirm on the alternative grounds,

just as it is likewise sound for my colleagues to limit

themselves to the grounds stated by the district court.     At

the same time, the conspiracy claims that link other

officials and employees of the prison to the warden are

wholly insufficient, and appear based on nothing but the

fact that all of these people worked for Warden Hasty at

some time or another.   See, e.g., Gallop v. Cheney, --- F.3d

----, 

, at *3 (2d Cir. Apr. 27, 2011) (“It is

well settled that claims of conspiracy ‘containing only

conclusory, vague, or general allegations of conspiracy to

deprive a person of constitutional rights cannot withstand a

motion to dismiss.’” (quoting Leon v. Murphy, 

,

311 (2d Cir. 1993))).   I do not consider the allegations

against Warden Hasty to be actually insufficient because



                              1
Gonzalez was confined in SHU at MCC and MDC, and Warden

Hasty was the warden at both prisons at the time the

Gonzalez was so confined.




                             2