Thursday, August 9, 2001
Ninth Circuit Rules:
Lawyer Waited Too Long to Challenge Order Banning Prison Visits
By KENNETH OFGANG, Staff Writer/Appellate Courts
A local attorney who is married to a state prisoner waited too long to challenge the constitutionality of a California Department of Corrections order banning her from visiting or sending mail to clients in the system, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A divided panel rejected the assertion by Deputy Federal Public Defender Monica Knox that the ban is a “continuing violation” of her constitutional rights, and affirmed an order by U.S. District Judge Dickran Tevrizian of the Central District of California dismissing her suit against Gov. Gray Davis and prison officials.
Knox, a veteran defense attorney, has represented William Packer, a California State Prison-Lancaster inmate, since 1993 and married him in 1995. The Department of Corrections maintains that her marriage to a prisoner/client created a security risk, necessitating the ban.
The department had suspended her right to make attorney visits to Packer in 1994 after learning of their personal relationship, and had for a short time barred her from visiting him at all.
She filed her 42 U.S.C. Sec. 1983 suit in July 1997, more than one year after the department’s deputy director accused her of misrepresenting the type of mail she was sending her husband and notifying her that she was permanently banned from making attorney visits or sending legal mail to any inmate at any state facility.
The ban has been modified to allow limited visits with one client on death row, Darnell Lucky. Knox alleged in her complaint that on four specific occasions during the one-year period prior to her filing suit, she was specifically denied the right to visit or correspond with a client.
Senior Judge Melvin Brunetti, writing for the Ninth Circuit, rejected the argument that a new cause of action for interference with her substantive due process right to practice law arises each time Knox is denied the right to visit or write to a client.
The Ninth Circuit, Brunetti explained, recognizes the continuing-violation theory in Sec. 1983 actions, but distinguishes between a continuing violation and the “continuing impact” of a past violation.
“The continuing violation doctrine is inapplicable because Knox has failed to establish that a new violation occurs each time she is denied her visitation or mail privileges,” the jurist wrote. “Rather, the CDC’s subsequent and repeated denials of Knox’s privileges with her clients is merely the continuing effect of the original suspension.”
Brunetti cited Delaware State College v. Ricks, 449 U.S. 250 (1980).
The plaintiff in that case was a faculty member who was denied tenure, and eventually relieved of his teaching position, for what he claimed were racial reasons. The court held that because removal from the faculty was “a delayed but inevitable consequence” of being denied tenure, according to the college’s employment rules, the cause of action accrued when tenure was denied rather than when the plaintiff lost his job and the suit was untimely.
Brunetti also rejected Knox’s claim that she had a timely cause of action for violation of procedural due process, because the department had continued to refuse her request for a hearing on the ban. Knox, he said, had received final notice from the department, more than a year before she filed suit, that no hearing would be afforded.
Judge A. Wallace Tashima concurred in the opinion.
Senior U.S. District Judge William Schwarzer of the Northern District of California, sitting by designation, dissented. Ricks is distinguishable, he said.
“…CDC’s various denials of access, albeit referenced to the earlier letter, were not ‘a delayed but inevitable consequence’ of the earlier announcement,” the dissenting jurist wrote. “They were the result of contemporary decisions, i.e., to reject visitation requests or to return mail, and each constitutes a separate and independent violation of Knox’s right to practice her profession without regard to the continuing violation theory.”
Knox represented herself on appeal. Deputy Attorney General Elizabeth S. Angres represented the state officials.
The case is Knox v. Davis, 98-55871.
Copyright 2001, Metropolitan News Company