Clark v. Hanley
Citation89 F.4th 78
Date Filed2023-12-20
Docket22-302
Cited92 times
StatusPublished
Full Opinion (html_with_citations)
22-302
Clark v. Hanley
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2022
(Argued: June 7, 2023 Decided: December 20, 2023)
No. 22-302
āāāāāāāāāāāāāāāāāāāāāāāāāāāāāāāāāāāā
VERONICA-MAY CLARK,
Plaintiff-Appellant,
-v.-
THOMAS HANLEY, KEVIN MANLEY, PETER MURPHY, KIMBERLY WEIR, ROBERTO
QUIROS, AND JANE AND JOHN DOES 1-9,
Defendants-Appellees. *
āāāāāāāāāāāāāāāāāāāāāāāāāāāāāāāāāāāā
Before: LIVINGSTON, Chief Judge, CHIN and KAHN, Circuit Judges.
Plaintiff-Appellant Veronica-May Clark, an incarcerated transgender
woman, was serially sexually assaulted by Defendant-Appellee Thomas Hanley,
a corrections officer at the prison facility in which she was housed. More than
seven years after this abuse, Clark brought a civil rights action against Hanley and
The Clerk of Court is respectfully directed to amend the caption to conform to
*
the above.
1
other corrections officers, seeking equitable tolling of the applicable statute of
limitations due to the paralyzing effects of the abuse. After convening an
evidentiary hearing on the issue of equitable tolling, the United States District
Court for the District of Connecticut (Meyer, J.) denied Clarkās claim for equitable
tolling and dismissed her case as untimely. Clark appeals from the district
courtās judgment of dismissal, asserting that the court embarked on an
impermissible factfinding expedition at the pleading stage of the case by eliciting
her testimony at the evidentiary hearing and violated her Seventh Amendment
rights by making factual determinations properly reserved for the jury. Because
the district court employed proper procedures to resolve Clarkās equitable tolling
claim and did not make any factual findings that infringe the Seventh
Amendment, we AFFIRM.
Judge Chin dissents in a separate opinion.
FOR PLAINTIFF-APPELLANT: ALEXANDRA BURSAK (Andrew D. Silverman,
Jennifer M. Keighley, on the brief), Orrick,
Herrington & Sutcliffe LLP, New York, NY.
(Sasha Buchert and Richard Saenz, Lambda
Legal, Washington D.C. and New York, NY,
for Lambda Legal Defense and Education
Fund, Inc., The Amicus Project at UConn
Law, Just Detention International, and
Center for Constitutional Rights, as amici
curiae)
(Richard Luedeman, Assistant Clinical
Professor of Law, UConn School of Law,
Hartford, CT, for Amicus Project at UConn
Law, as amicus curiae)
FOR DEFENDANTS-APPELLEES: STUART M. KATZ (Wilson T. Carroll, on the
brief), Cohen and Wolf, P.C., Bridgeport, CT,
on behalf of Defendant-Appellee Thomas
Hanley.
2
ZENOBIA G. GRAHAM-DAYS, Assistant
Attorney General, for William Tong,
Attorney General, Connecticut Office of the
Attorney General, Hartford, CT, on behalf of
Defendants-Appellees Kevin Manley, Peter
Murphy, Kimberly Weir, Roberto Quiros,
Jane and John Does 1-9.
DEBRA ANN LIVINGSTON, Chief Judge:
During the summer of 2011, Plaintiff-Appellant Veronica-May Clark
(āClarkā), an incarcerated transgender woman serving a 75-year term of
imprisonment for murder, assault, and burglary, was repeatedly sexually
assaulted by Defendant-Appellee Thomas Hanley (āHanleyā), a corrections officer
at the Connecticut prison facility where Clark was then housed. 1 Clark initiated
the present action in the fall of 2018āmore than seven years after Hanleyās
abuseāasserting federal civil rights claims under 42 U.S.C. Ā§ 1983 for violation of
her Eighth Amendment rights, along with tort claims under Connecticut law.
Conceding that she filed this action more than four years beyond the applicable
statute of limitations, Clark asserts that the trauma she suffered in 2011 and her
1 At the time this action was filed, the plaintiffās name was Nicholas Clark. The
district court granted Clarkās motion to amend the case caption to reflect her name change
in December 2021.
3
fear of retaliation from corrections staff, aggravated by her then-undisclosed
gender dysphoria, constitute extraordinary circumstances that prevented her from
taking timely steps to file this action against Hanley and other allegedly
acquiescent corrections officers (together, the āDefendantsā). Clark seeks
equitable tolling of the statute of limitations.
Based primarily on its assessment of Clarkās testimony at an evidentiary
hearing, the United States District Court for the District of Connecticut (Meyer, J.)
denied Clarkās equitable tolling claim and dismissed her suit as untimely. 2 The
court concluded that portions of Clarkās testimony, which focused on the
circumstances that allegedly hampered her from timely filing, were not credible,
and that Clarkās asserted bases for equitable tolling were, in large part, a post hoc
rationalization to buttress her equitable tolling claim. 3
2The district court initially dismissed Clarkās pro se complaint sua sponte under the
three-year statute of limitations applicable to Ā§ 1983 claims. Clark, still proceeding pro
se, appealed, moving āto extend the statute of limitations.ā Appāx 104. A motions
panel of this Court, construing Clarkās motion as a request for an extension of time to
move for reconsideration in the district court, remanded, suggesting that the district court
consider appointing counsel in reassessing the timeliness question. Pro bono counsel
was then appointed and has represented Clark since, both at the evidentiary hearing and
on appeal.
3Clark does not challenge on this appeal the dismissal of her state law claims and
has thus abandoned them. See Town of Southold v. Wheeler, 48 F.4th 67, 71 n.2 (2d Cir.
4
On appeal, Clark contends that the district court engaged in impermissible
factfinding at the pleading stage and resolved contested issues of fact bearing on
the merits of her legal claims in violation of the Seventh Amendment. Clark
further argues that the record adduced at the evidentiary hearing entitles her to
equitable tolling as a matter of law. These arguments lack merit.
As set forth below, we have repeatedly approvedāsometimes even
requiredāevidentiary hearings to resolve equitable tolling claims. Relatedly,
equitable tolling is an issue that is generally appropriate for a court, rather than a
jury, to resolve, so long as the courtās factual findings do not deprive plaintiffs of
their Seventh Amendment right to a jury trial on any legal claims.
Here, the district court did not err by holding an evidentiary hearing and
gauging the credibility of Clarkās testimony in concluding that she was not entitled
to equitable tolling. And because the courtās factual findings relate squarely to
her equitable tolling claim, without intruding upon the merits of her legal claims,
the court did not flout Clarkās Seventh Amendment rights. Nor was it an abuse
2022). In any event, Connecticut law provides that the three-year limitations period
applicable to her state-law claims is a statute of repose that is not susceptible to equitable
tolling. See Gerena v. Korb, 617 F.3d 197, 206 (2d Cir. 2010).
5
of discretion for the district court to hold on the record before it that Clark failed
to carry her burden to show circumstances that warrant equitable tolling.
Accordingly, we affirm the district courtās judgment of dismissal.
BACKGROUND
I. Factual Background 4
A. Hanleyās Sexual Assault of Clark
In November 2007, Clark was incarcerated at the MacDougall-Walker
Correctional Institution (āMacDougall-Walkerā) in Suffield, Connecticut, where
she was serving a 75-year term of imprisonment based on her conviction earlier
that year, pursuant to a guilty plea, on charges of murder, assault, and burglary.
Based on her prior experience as an electrician, the facility assigned Clark to assist
with various electrical projects in the facilityās general maintenance department,
placing her under the supervision of Hanley, MacDougall-Walkerās General
Maintenance Officer.
4 The facts concerning the events that form the basis of Clarkās legal claims are
drawn from the allegations in the Second Amended Complaint and are accepted as true
at this stage of the proceedings. See Kane v. Mount Pleasant Cent. Sch. Dist., 80 F.4th 101,
104 n.1 (2d Cir. 2023). Additional facts concerning the circumstances surrounding
Clarkās commencement of this action are sourced from materials extraneous to the
pleadings, which, as explained infra Discussion Section I.A, we consider only as pertinent
to the issue of equitable tolling.
6
As set forth in the Second Amended Complaint, Hanley was running a
smuggling ring at MacDougall-Walker at the time, supplying inmates with
contraband, such as illegal narcotics and alcohol, in exchange for payment.
Tipped off to Hanleyās illicit scheme, the Connecticut Department of Correction
(āDOCā) initiated a formal investigation into Hanley in 2010 that uncovered not
only his smuggling activities, but also his pattern of propositioning inmates with
sexual behavior. Clark alleges that several high-ranking officials at MacDougall-
Walkerāincluding Defendants-Appellees Warden Peter Murphy, Director of
Security Kimberly Weir, and Intelligence and Security Unit Captains Kevin
Manley (āManleyā), and Roberto Quiros (collectively, the āMacDougall-Walker
Defendantsā)āknew of Hanleyās abusive tendencies yet did nothing to address
them. Clark further contends that MacDougall-Walker maintained policies that
facilitated her abuse by allowing Hanley and other staff to isolate inmates from
the general prison population free from oversight and outside the purview of any
video surveillance or inmate tracking systems.
On at least five occasions spanning the spring and summer of 2011, Hanley
sexually assaulted Clark, leveraging his authority to coerce her into performing
sexual acts. Hanleyās initial physical encounter with Clark occurred in April
7
2011 and escalated over the ensuing days and weeks to include oral sex on one
occasion and mutual masturbation on four occasions. Typically, Hanley would
isolate Clark from other inmates under the pretext of needing assistance on a
maintenance project. According to Clark, none of the incidents involved the use
of physical force or threats of force: āHanley did not threaten me to perform any
sexual acts but said he would take [care] of me by feeding me well. I kind of felt
obligated into engaging in the sexual acts with Hanley.ā Appāx 139. The
assaults occurred outside the view of security cameras.
Apprised of his conduct, the DOC placed Hanley on leave in August 2011,
and he resigned shortly thereafter. Hanley was arrested in connection with his
assaults on Clark in December 2011 and eventually pleaded guilty to three counts
of sexual assault in the fourth degree.
B. The Aftermath of the Assaults
The Second Amended Complaint sets forth Clarkās claims regarding the
aftermath of the assaults in fourteen paragraphs. Clark alleges that the string of
sexual assaults ādeeply and profoundly scarredā her, making it ādifficult for her
to carry out ordinary functions, let alone process her assaults and attempt to secure
justice while incarcerated.ā Appāx 123. She was initially reluctant to participate
8
in the DOCās investigation of Hanley but in August 2011 provided Connecticut
state police with a statement detailing Hanleyās sexual assaults. 5 Clark requested
transfer to another facility.
The DOC first transferred Clark from MacDougall-Walker to Corrigan
Correctional Center (āCorriganā) around September 2011. Clark alleges that she
suffered physical and mental abuse at the hands of a cellmate at Corrigan, causing
her to initiate a hunger strike to bring about transfer to another facility. The DOC
transferred Clark in early 2012, but back to MacDougall-Walker, further stoking
her trauma. Clark alleges that on her return to MacDougall-Walker, corrections
officers taunted her for being the victim of Hanleyās sex crimes and told her she
was āgross,ā ānasty,ā and ādisgusting.ā Clark again went on hunger strike and
told one of her physicians that she would kill herself if she were not transferred
out of MacDougall-Walker. She was then transferred to the Garner Correctional
Facility (āGarnerā), an inpatient psychiatric facility, where she āwas placed on
suicide watch and carefully evaluated.ā Appāx 124. About two weeks later, still
5 Appended to the Second Amended Complaint is an affidavit of Connecticut
State Police Trooper Paul DaCruz (āDaCruzā), in support of an application for an arrest
warrant of Hanley, which describes Hanleyās assaults of Clark in detail.
9
in early 2012, she was discharged from the inpatient facility and transferred to the
Cheshire Correctional Institution (āCheshireā), where she remained for the next
four and a half years, until mid-2016.
The Second Amended Complaint alleges, without specification as to the
dates or frequency of such events, that Clark encountered corrections officers at
Cheshire who were at MacDougall-Walker around the time of the assaults in 2011,
and that inmates at Cheshire openly mocked and diminished the abuse she
suffered at the hands of Hanley as āgay stuff.ā Appāx 124. Clark also alleges
that Cheshire officials repeatedly denied her treatment for gender dysphoria,
resulting in a crisis in July 2016 when she attempted to castrate herself with a pair
of nail clippers. 6 Clark alleges that she received outpatient treatment at a medical
facility in the aftermath of this incident and was then sent briefly to the infirmary
at MacDougall-Walker, where she was hospitalized and declared to be an ongoing
self-harm risk. Later in 2016, she was transferred back to Garner, where she
6 Clark has a pending Eighth Amendment action against the DOC related to its
alleged failure to provide her transitional medical care. See Clark v. Quiros, No. 19 Civ.
575 (VLB) (D. Conn.).
10
remained at the time she filed suit in 2018. In 2020, Clarke returned first to
MacDougall-Walker and then to Cheshire, where she is currently housed.
II. Procedural Background
A. Filing the Instant Suit and Clarkās First Appeal
Clark commenced this lawsuit by filing a pro se complaint in October 2018,
over seven years after Hanleyās abuse. In January 2019, before the Defendants
appeared in the case, the district court sua sponte dismissed Clarkās suit as untimely
under the three-year statute of limitations applicable to her Ā§ 1983 claims. See
Clark v. Hanley, No. 18 Civ. 1765 (JAM), 2019 WL 319398 (D. Conn. Jan. 23, 2019).
Clark, still proceeding pro se, appealed the district courtās dismissal and filed a
motion to extend the statute of limitations. See Clark v. Hanley, No. 19-502, Dkt.
No. 14 (2d Cir. 2019). She argued in her motion that the statute of limitations
should be tolled because she ālived in absolute terror of filing this lawsuitā after
what happened with Hanley. Appāx 22.
A motions panel of this Court concluded that Clark should have the
opportunity to present her equitable tolling arguments, on the general principle
that āa district court should not sua sponte dismiss a complaint as untimely
without first granting a litigant notice and an opportunity to be heard.ā Appāx
11
104 (citing Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007)). We thus remanded
the case to allow Clark to move before the district court for reconsideration of the
dismissal of her complaint, at the same time suggesting that the district court
consider the appointment of pro bono counsel.
B. The Proceedings on Remand
On remand, now with the assistance of pro bono counsel, Clark filed an
amended complaint to detail Hanleyās pattern of sexual assault, the institutional
failures that allegedly enabled the abuse, and the abuse-related trauma she
suffered. The Second Amended Complaint, which is the operative pleading,
asserts two claims under 42 U.S.C. Ā§ 1983 for violation of Clarkās Eighth
Amendment rightsāone against Hanley for sexually assaulting her and the other
against the MacDougall-Walker Defendants for being deliberately indifferent to
abusive conditions of confinementāand three claims under Connecticut state law
for intentional infliction of emotional distress, recklessness, and intentional sexual
assault. 7 As relevant to her equitable tolling argument, the Second Amended
7 Soon after filing the First Amended Complaint, Clark sought leave to amend her
pleadings to replace defendant Angel Quiros, who had been erroneously identified as
working at MacDougall-Walker, with Roberto Quiros, a Captain in MacDougall-Walkerās
Intelligence Security Unit. See Clark v. Hanley, No. 18 Civ. 1765 (JAM) (D. Conn.)
12
Complaint alleges that Clark was ānot in a position to seek justice any earlier than
when she didā due to the impact of the sexual assaults, her fragile mental state,
and mistreatment by prison officials and inmates during the years after the assault.
Appāx 123ā25.
Hanley and the MacDougall-Walker Defendants each filed motions to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Clarkās
claims were time-barred. The Defendants argued that, even as supplemented by
her amended pleadings, Clark failed to show extraordinary circumstances and
appropriate diligence so as to warrant equitable tolling. The Defendants
emphasized that the Second Amended Complaint does not allege any attempt by
Clark to file this action between 2011 and 2018, despite her demonstrated capacity
to commence legal proceedings during this period, as evidenced by a habeas
petition she prepared in November 2011. 8 Clark argued in opposition that her
(āDistrict Court Docketā), Dkt. No. 45. The First and Second Amended Complaints are
otherwise identical. See District Court Docket No. 45-11.
8 Clark alleged in her habeas petition that her attorney in the criminal case āfailed
to engage meaningfully in plea bargaining and to adequately inform the petitioner of the
terms of the plea offer in a timely manner.ā Appāx 278. As a result, she claimed she
was āunjustly coerced into entering a guilty plea without [her] counsel having
meaningfully explained the terms of any sentence that would be imposedā after pleading
guilty. Id. Clark withdrew the petition on February 10, 2023. See Nicholas Clark NKA
Veronica-May Elizabeth Clark #355139 v. Warden, TSR-CV12-4004677 (Conn. Super. Ct.).
13
circumstances warranted equitable tolling and that resolution of this fact-laden
issue was premature at the pleading stage.
The court heard oral argument on the Defendantsā motions to dismiss and
proposed holding a hearing to assess Clarkās claim for equitable tolling. Clarkās
counsel noted that he had an āissueā with the proposal because equitable tolling
is āa factually intense question,ā A557-58, and he had not yet received sought-after
discovery relating to Clarkās prison medical records, the assault circumstances,
and retaliation by other prison officials. A560. Clarkās counsel did not object to
the idea of a limited evidentiary hearing but stated āI would just be a little bit
concerned, Your Honor, if there were an evidentiary hearing . . . that cabined the
inquiry on the exceptional circumstances to just sort of a very narrow aspect of it
without giving us the benefit of fully exploring those issues.ā Appāx 566.
Counsel requested that ā[i]f the Court is inclined to consider an evidentiary
hearing,ā the Defendants should be ordered to provide the requested discovery.
Appāx 570-71.
Ultimately, the court decided āto conduct an evidentiary hearing to decide
if Clark can sustain her burden to establish grounds for equitable tolling.ā SPA1.
The district court provided that Clarkās full medical file should be provided to the
14
plaintiff, along with the āalready requested discovery,ā and that āthe hearing
should be limited to the testimony of Clark and to . . . any exhibits or documents
that are not presently in the record and that any party wishes the Court to consider
that bear on the issue of equitable tolling.ā Appāx 578, SPA2. In accordance
with this instruction, the parties submitted a list of exhibits, which included,
among other things, a selection of Clarkās medical records and filings made in
Clarkās habeas case.
C. The Evidentiary Hearing
The district court held the evidentiary hearing on September 20, 2021, which
consisted of direct and cross examinations of Clark, questioning by the court, and
oral argument from counsel. Clark admitted that she failed to take even
preliminary steps to commence suit until 2016, notwithstanding that she both
provided a detailed account of the crimes to Connecticut police in November 2011
and, during the same month, pursued habeas relief based on the claim that her
attorney rendered ineffective assistance of counsel in her criminal case. In broad
strokes, Clark described two, interrelated reasons for her inability to file this civil
case within the limitations period: (1) her fear that bringing suit against Hanley
and other high-level DOC officials would invite retaliation from corrections staff,
15
as evidenced by their ridiculing her as a victim of sexual assault; and (2) the severe
psychological trauma she suffered related to the abuse, which aggravated her
gender dysphoria and heightened her fear of coming out as transgender in prison.
She argued that the statute of limitations should be equitably tolled until at least
October 2015āthree years before she filed her complaint.
On her fear of retaliation, Clark repeatedly testified that she feared DOC
personnel would retaliate against her for filing this lawsuit. 9 See, e.g., Appāx 360
(āI was afraid of the COs and the staff and retaliation for filing the lawsuitā).
Clark could not point to any specific threat of retaliation by DOC personnel, but
she sourced her fear to the repeated name-calling and ridicule she testified to
having experienced in the aftermath of the assaults. See, e.g., Appāx 375 (ā[I]n the
unit they would call me disgusting. And fag[g]ot. And they would laugh at me
because of what happened.ā). She feared this derision would escalate if she filed
suit. See, e.g., Appāx 478 (āI thought . . . the abuse would become worse to the
point of physical violence, and also that they would come into my cell and just tear
9 Clark claimed she was reluctant even to provide her statement to the
Connecticut police, and that investigators pressured her to do so. In contrast, in his
affidavit in support of an application for an arrest warrant for Hanley, DaCruz affirmed
that Clark had requested to speak to a state trooper in order to file her complaint. Clark
denied this ever took place.
16
it up every chance they got and just make my life a nightmare[.]ā). Extensive
medical records introduced at the hearing, however, do not reflect that Clark ever
informed any prison mental health worker of these concerns, nor did she testify to
reporting the alleged insults to anyone else.
As to her mental health struggles, Clark explained that she suffered from
depression and suicidal ideation at various points during the relevant period,
which conditions were heightened when she re-encountered corrections officers
from MacDougall-Walker, whom she associated with the abuse. See, e.g., Appāx
387 (describing her encounters with such officers as āawful,ā āterrible,ā and
causing āreally high anxietyā). Clark testified that she was too traumatized to
file suit while incarcerated at Cheshire from early 2012 until the middle of 2016.
Clarkās extensive medical records, however, reflect that by December 2012 she was
reporting to medical personnel at Cheshire that she was ādoing fine,ā experiencing
no major distress, and was both writing poetry and looking forward to
participating in the facilityās writing group. 10 Appāx 604. Clark testified that the
10 In another notation dated April 2013, Clark is reported to have denied any
psychiatric distress and to be āfuture oriented.ā Appāx 604. Clark was again seen in
December 2013 when prison officials became concerned at her sudden unwillingness to
work in the facilityās sign shop. She did report being depressed at that time but was
17
only reason her mental health records suggest she was improving during this
period was because she had decided to stop being forthright with the DOC mental
health staff. She produced no medical records at all for 2014 and 2015 but
explained that she avoided seeking mental health treatment during this period
because she did not trust the mental health personnel.
Clark testified that there came a point in April 2016 when she first admitted
to and sought medical treatment for her gender dysphoria, while still at Cheshire.
She experienced āat least some mental health improvementā at that time but was
denied treatment, which was āhorrible,ā āreally stressful,ā and resulted in her
attempt at self-castration. 11 Appāx 391ā96. Clark testified that she was only
able to take steps to bring suit later that year, when she was transferred to Garner,
noted to be cooperative and future oriented, if āvery indignant about being found guilty
of murder and having been sentenced to 75 years.ā Appāx 606. Clark explained that
she was no longer willing to work in the sign shop because ā[i]tās immoral to make us
work for less than minimum wage and to sell our goods for money.ā Appāx 606. When
asked about this statement by the district court, Clark testified that she had been reading
Ayn Rand at the time.
11 Clark testified that she feared coming out as transgender earlier because she
thought it would leave her vulnerable to abuse. See, e.g., Appāx 453 (āOne of the huge
things about not filing the lawsuit was my gender issues. Like, I felt that it would come
out that I was trans, you know. And that was like really, really scary for me.ā); Appāx
481 (āI just thought . . . I would be raped all the time [if I came out as transgender in
prison]. And beat up. Or killed. You know, just terrible things would happen to me
. . . .ā).
18
began receiving treatment for her gender dysphoria, and āfelt safer.ā Appāx 401.
Yet, she also admitted requesting her most recent transfer back to Cheshire, where
she had allegedly suffered mistreatment, explaining, among other reasons, that
āthereās way more stuff at Cheshire like programs and so on and so forth.ā Appāx
402.
As to her state habeas petition, Clark initially claimed that her fear of
retaliation and mental health issues did not inhibit her from working on it in
November 2011, only a few months after the assaults, because it had ānothing to
do with the DOC at all.ā Appāx 403ā04. She added on direct examination that
after she filed the petition, counsel was assigned and she devoted no significant
amount of time to the matter. On questioning from the district court, however,
Clark claimed for the first time that her cellmate at Corrigan, where she was
incarcerated in November 2011, had in fact pressured her into preparing and filing
the petition: ā[H]e prided himself on being a legal scholar, in his words. . . . I was
terrified of this guy. . . . [H]e kind of like made me file this. I didnāt want to file
it.ā Appāx 469ā70. Despite claiming that her cellmate had forced her to bring
the habeas petition, however, Clark also testified that she is āhappyā it was filed.
Appāx 472.
19
D. The Dismissal Order
Following the evidentiary hearing, the district court dismissed Clarkās
Second Amended Complaint, deeming her claims barred by the applicable three-
year statute of limitations because she failed to demonstrate extraordinary
circumstances caused her tardy filing so as to warrant equitable tolling. See Clark
v. Hanley, No. 18 Civ. 1765 (JAM), 2022 WL 124298(D. Conn. Jan. 13, 2022). The district court concluded that neither of Clarkās stated reasons for failing timely to bring suitāher alleged fear of retaliation or the trauma from Hanleyās abuse, as aggravated by Clarkās gender dysphoriaācaused her years-long delay in bringing this action. Accordingly, the court concluded that Clark was not entitled to equitable tolling and that her suit was time-barred. Seeid.
at *4ā9.
The district court first rejected Clarkās argument that concerns about
retaliation prevented her from filing this action within the limitations period. See
id.at *4ā5. Clark was unable to recount any actual threat of retaliation from any prison official, but attributed her fears to the anguish she felt when officers allegedly insulted her or belittled the abuse she suffered.Id.
Clark, however, never filed any reports about such insults or mentioned them during her extensive interactions with prison mental health officials.Id. at *5
. The court found that
20
Clarkās testimony āthat she actually feared retaliation if she filed this lawsuit was
not credible.ā Id. at *6.
Turning to her second rationale, the district court recognized that Clark
suffered from serious depression and gender dysphoria during the period at issue,
at times to the point of self-harm. The court nevertheless concluded that the
evidence did not establish a causal link between Clarkās mental state and the delay
in filing this lawsuit nor show that she exercised reasonable diligence in pursuing
her rights. See id.The court saw reason to doubt Clarkās claim that the abuse āwas of such a nature that [she] could not bring herself to talk about the incidents or file a court action,ā because soon after the abuse she provided a detailed account of the events to a Connecticut state trooper. 12Id.
The court also considered Clarkās pro se habeas petition to āstrongly weigh[ ] againstā her contention that she āwas so psychologically immobilized that she lacked the ability . . . to file a federal civil rights complaint to seek relief for Hanleyās sexual abuse.ā 13Id. at *7
. The
The district court rejected as not credible Clarkās testimony denying that she
12
ever made a request to speak to a trooper in order to file a complaint.
13 The district court noted that Clark ātried to blame her filing of the habeas corpus
petition on an unnamed cellmate,ā but rejected this aspect of her testimony as āneither
plausible nor credible.ā Clark, 2022 WL 124298, at *7.
21
court found it significant that while Clarkās medical records reflect many concerns
about various issues in her lifeāthat she missed her children, was frustrated with
the legal system, her ex-wife, and the charges against herāconspicuously absent
is any mention of trauma preventing her from filing suit. Id.at *7ā8. āTo the contrary,ā the court noted, these records āshow Clarkās willingness to advocate for herself in prison by going on a hunger strike, writing a complaint to the warden, and protesting prison labor conditions . . . .āId. at *8
.
As to Clarkās claim that she was only able to file suit after her transfer to
Garner in July 2016 and her treatment there for gender dysphoria, the court noted
that ā[a]lthough Clarkās burden is to prove that the limitations period should be
tolled through October 2015, she has not introduced any medical records at all for
2014 or 2015.ā Id.The court rejected Clarkās reliance on medical records from dates long after the limitations period had expired, observing that even these later records undercut her case. āThere is one medical note from October 2017,ā the court observed, āstating that Clark is āfocused on habeas appeal at present, objective is to have a trial granted [in] hope of a [lower] sentence (currently doing 75 yrs. on a plea bargain).āāId.
The court observed that this note, far from
helping Clark carry her burden, āshows that she was able to focus at that time on
22
seeking relief . . . a full year before she got around to filing her federal civil rights
action in this case in October 2018.ā Id.
āAll in all,ā the court concluded, Clark āfailed to carry her burden to show
grounds for equitable tolling.ā Id. at *9. The court acknowledged Clarkās āsignificant mental health issues,ā but determined that āthe evidence does not show that these issues prevented her from timely filing a complaint.āId.
Her testimony on the critical points relevant to her equitable tolling claim āwas not generally credible or persuasive.āId.
Clark timely appealed.
STANDARD OF REVIEW
In the ordinary case, ā[w]e review a district courtās grant of a motion to
dismiss the complaint on the pleadings de novo and construe the complaint
liberally, accepting all factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiffās favor.ā Palin v. N.Y. Times Co., 940 F.3d
804, 809 (2d Cir. 2019) (internal quotation marks, alterations, and citation omitted).
This appeal, however, comes to us in an unusual posture in that the district
court held an evidentiary hearing focused on equitable tolling, an issue over which
trial courts possess a degree of factfinding authority. See Doe v. United States, 76
F.4th 64, 70 (2d Cir. 2023) (āIn general, district courts should āresolve the factual
23
questionsā relevant to the equitable tolling of a statute of limitations, such as those
āsurrounding a plaintiff's mental state.āā (quoting Montin v. Est. of Johnson, 636 F.3d
409, 414ā15 (8th Cir. 2011))); see also Upadhyay v. Sethi,848 F. Supp. 2d 439, 446
(S.D.N.Y. 2012) (āQuestions pertaining to matters of equity, including the applicability of equitable tolling to statutes of limitations, are well within the ambit of the Courtās authority to resolve.ā). On review of the record, the district court duly apprised the parties that it would resolve the issue of equitable tolling based on matters outside the pleadings. Indeed, the evidentiary hearing possessed the hallmarks of a bench trial limited to the issue of equitable tolling. Given the nature of these proceedings and the thoroughness of the record before the district court, we review the district courtās equitable tolling decision for abuse of discretion, as we ordinarily would from the denial of such a claim that has moved beyond the pleading stage. See Doe, 76 F.4th at 70 (āWhen a district court determines that equitable tolling is inappropriate, we review the legal premises for that conclusion de novo, the factual bases for clear error, and the ultimate decision for abuse of discretion.ā (quoting DeSuze v. Ammon,990 F.3d 264
, 268 (2d Cir. 2021))); accord Phillips v. Generations Fam. Health Ctr.,723 F.3d 144, 149
(2d Cir.
2013).
24
Likewise, we review the district courtās decision regarding the scope of
discovery for abuse of discretion. See Pippins v. KPMG, LLP, 759 F.3d 235, 251(2d Cir. 2014) (āA trial court enjoys wide discretion in its handling of pre-trial discovery, and we will reverse a district courtās discovery ruling only upon a clear showing of an abuse of discretion.ā (internal quotation marks and citation omitted)); accord Figueroa v. Mazza,825 F.3d 89, 99
(2d Cir. 2016). āA district court abuses its discretion only āwhen the discovery is so limited as to affect a partyās substantial rights.āā In re Agent Orange Prod. Liab. Litig.,517 F.3d 76, 103
(2d Cir. 2008) (quoting Long Island Lighting Co. v. Barbash,779 F.2d 793, 795
(2d Cir.1985)).
DISCUSSION
The parties agree that Connecticutās general three-year statute of limitations
for personal injury actions applies to Clarkās Ā§ 1983 claims asserting violations of
her Eighth Amendment rights. See Conn. Gen. Stat. Ā§ 52-577; see also Walker v. Jastremski,430 F.3d 560, 562
(2d Cir. 2005) (applyingConn. Gen. Stat. Ā§ 52-577
to a Ā§ 1983 claim). As Clark alleges no contact with Hanley following the date Hanley resigned from his post at MacDougall-Walker, the district court indicated, and we agree, that Clarkās claims accrued at the latest by August 2011. See Barnes v. City of New York,68 F.4th 123
, 127 (2d Cir. 2023) (explaining that āfederal law governs
25
the accrual of [Ā§ 1983] claims [which] typically accrue when the plaintiff knows or
has reason to know of the injury which is the basis of [her] actionā (internal
quotation marks and citation omitted)). Based on this accrual date, the statute of
limitations on Clarkās claims expired in August 2014. She did not commence this
action, however, until October 26, 2018, more than four years beyond the
limitations period.
In ārare and exceptional circumstances,ā Walker, 430 F.3d at 564(citation omitted), the statute of limitations governing a Ā§ 1983 claim may be subject to equitable tolling, āwhere necessary to prevent unfairness to a plaintiff who is not at fault for her lateness in filing.ā 14 Gonzalez v. Hasty,651 F.3d 318, 322
(2d Cir.
2011) (citation omitted). āGenerally, a litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that [s]he has been pursuing [her] rights
diligently, and (2) that some extraordinary circumstance stood in [her] way.ā
14 The MacDougall-Walker Defendants assert that Conn. Gen. Stat. Ā§ 52-577is a statute of repose (not limitations) to which equitable tolling does not apply. As already noted, this feature of Connecticut law forecloses any equitable tolling argument that might apply to Clarkās state claims. It is less clear, however, whether this vitiates the possibility of equitable tolling as to her federal claims. See Walker,430 F.3d at 564
(assuming equitable tolling could apply to Ā§ 52-577 when applied to a Ā§ 1983 claim). We
need not resolve this question because even assuming arguendo that her federal claims
are eligible for equitable tolling, we agree with the district court that Clark has not
demonstrated her entitlement to tolling of the limitations period.
26
Smalls v. Collins, 10 F.4th 117, 145 (2d Cir. 2021) (citation omitted). āThe law
prohibits a judge from exercising her discretion where these two elements are
missing[,]ā but ā[i]f they are found to be present . . . then a judge brings
discretionary considerations to bear in deciding whether to permit equitable
tolling.ā Doe, 76 F.4th at 71.
Clark seeks reversal or, in the alternative, vacatur of the district courtās
denial of her equitable tolling claim. At the outset, Clark contends it was
inappropriate for the district court to hold an evidentiary hearing on the
Defendantsā motions to dismiss pursuant to Rule 12(b)(6), in which posture a
district court may not rely on matters outside the pleadings or engage in
factfinding. And, while a district court may convert a Rule 12(b)(6) motion into
one for summary judgment under Rule 12(d), Clark emphasizes that the district
court did not purport to do so here. 15 Clark additionally argues that the district
court resolved contested factual issues bearing on the substance of her legal claims,
which the Seventh Amendment reserves for the jury. Beyond these procedural
15 In any event, Clark claims that summary judgment is inappropriate on this
truncated record, which was limited to her testimony at the evidentiary hearing and the
set of documents then available.
27
errors, Clark insists that the record compels equitable tolling as a matter of law
and the district courtās ruling to the contrary was infused with legal and factual
error.
None of these arguments has merit. The district court did not overstep by
holding an evidentiary hearing and resolving Clarkās equitable tolling claim based
on the evidence adduced therein. Neither did the court transgress the Seventh
Amendment by resolving factual issues that relate squarely to her equitable tolling
claim. Finally, the district court did not abuse its discretion in finding that Clark
was not entitled to equitable tolling based on the record before it. We address
each of these arguments in turn.
I. Claims of Procedural Error
The Federal Rules of Civil Procedure prescribe distinct judicial roles at the
pleading, summary judgment, and trial stages of a case. Clark acknowledges that
district courts sit in equity on the issue of equitable tolling, which affords them a
degree of factfinding authority over the issue. See Doe, 76 F.4th at 70. The
district court erred here, she argues, by holding an evidentiary hearing on the basis
of limited discovery and by resolving disputed issues of fact upon a motion to
dismiss. While the Defendants invoked Rule 12(b)(6) in moving to dismiss the
28
Second Amended Complaint, however, the record shows that the litigation had
progressed beyond the pleading stage on Clarkās equitable tolling claim. The
parties were on notice that the district court intended to resolve this claim based
on evidence adduced at the hearing and that the evidentiary hearing, as
conducted, was the functional equivalent of a bench trial on the equitable tolling
issue. 16 In these circumstances, as set forth herein, the district court did not
deviate from the applicable procedural rules by holding this evidentiary hearing
and using it to resolve contested issues of fact going to Clarkās equitable tolling
claim. 17
16 The dissent, but not Clark, contends that the 20 calendar days between the
August 2021 order announcing the hearing and the deadline to submit additional
materials was too short a time frame to provide Clark a meaningful opportunity to
establish the relevant facts. Dissent at 9. That Clark herself has not raised this issue
speaks for itself. At any rate, Clark received pro bono counsel in October, 2019 and
amended her complaint with equitable tolling in mind in November, 2020. We disagree
that she was shorted of the time needed to prepare on this issue.
17 The MacDougall-Walker Defendants argue that Clark failed to preserve any
objection to the evidentiary hearing because she sought the opportunity to offer evidence
prior to the district courtās ruling on the motions to dismiss and she did not object when
the court scheduled the hearing. We agree that Clark did not clearly state an objection
to proceeding as the district court proposed, but we decline, in this case, to find that she
forfeited her challenge, as Clark did apprise the district court of concerns regarding the
evidentiary hearing during the pre-motion conference.
29
A. The Procedural Framework for Equitable Tolling
On a motion to dismiss pursuant to Rule 12(b)(6), the district courtās task is
to assess the pleadings to determine whether they contain sufficient factual matter,
accepted as true, to state a claim for relief that is plausible on its face. See Intāl
Code Council, Inc. v. UpCodes Inc., 43 F.4th 46, 53 (2d Cir. 2022). In performing this exercise, district courts āmay review only a narrow universe of materials,ā which includes āfacts stated on the face of the complaint, documents appended to the complaint or incorporated in the complaint by reference, . . . matters of which judicial notice may be taken,ā as well as ādocument[s] not expressly incorporated by reference in the complaint [that are] nevertheless āintegralā to the complaint.ā 18 Goel v. Bunge, Ltd.,820 F.3d 554, 559
(2d Cir. 2016) (internal quotation marks,
alterations, and citations omitted).
18 Both Hanley and the MacDougall Walker Defendants argue that the district
court did not flout the Rule 12(b)(6) standard because the extra-pleading materials it
considered were āintegralā to her complaint. This is clearly incorrect. We have
explained that a matter may be deemed āintegralā to the complaint āwhen the complaint
relies heavily upon its terms and effect.ā Palin, 940 F.3d at 811 (internal quotation marks
and citation omitted). But ā[h]earing testimony elicited by the trial judge after litigation
has already begun is not the type of material that ordinarily has the potential to be a
matter āintegralā to a plaintiff's complaint.ā Id. The same logic applies to Clarkās
medical records, which, Clark represents, she did not have access to when drafting the
complaint.
30
Generally speaking, āthe lapse of a limitations period is an affirmative
defense that a defendant must plead and prove.ā Whiteside v. Hover-Davis, Inc., 995
F.3d 315, 319 (2d Cir. 2021) (emphasis added) (internal quotation marks, citation, and alteration omitted). The pleading requirements of the Federal Rules of Civil Procedure ādo not compel a litigant to anticipate potential affirmative defenses, such as the statute of limitations, and to affirmatively plead facts in avoidance of such defenses.ā Abbas,480 F.3d at 640
; see also Fed. R. Civ. P. 8(a)(2) (requiring āa short and plain statement of the claim showing that the pleader is entitled to reliefā). āNevertheless, a defendant may raise an affirmative defense in a pre- answer Rule 12(b)(6) motion if the defense appears on the face of the complaint.ā Whiteside, 995 F.3d at 319 (internal quotation marks and citation omitted). A court may dismiss a claim as untimely at the pleading stage āonly ifā from the face of the complaint āit appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.ā Harris v. City of New York,186 F.3d 243, 250
(2d Cir. 1999) (internal quotation marks and citation
omitted).
Related to the pleading rules for affirmative defenses, equitable tolling often
raises fact-specific issues premature for resolution on a Rule 12(b)(6) motion,
31
before a plaintiff can develop the factual record. See, e.g., Brown v. Parkchester S.
Condominiums, 287 F.3d 58, 60ā61 (2d Cir. 2002) (vacating dismissal and ordering evidentiary hearing because ā[b]ased on the limited record presented to the district court, it appears there may be substance to [the plaintiffās equitable tolling] claim.ā); Valverde v. Stinson,224 F.3d 129, 135
(2d Cir. 2000) (vacating dismissal and remanding āto develop further the factsā on equitable tolling claim); see also Lama v. Malik,58 F. Supp. 3d 226, 235
(E.D.N.Y. 2014) (collecting cases suggesting that
equitable tolling issues are generally not amenable to resolution on a motion to
dismiss). 19 We acknowledged as much in vacating the district courtās first
dismissal of Clarkās complaint, affirming the well-established rule that it is
generally improper to dismiss a complaint as untimely without first granting a
19 This principle is generally applicable across circuits. See, e.g., Bernstein v.
Maximus Fed. Servs., Inc., 63 F.4th 967, 969 (5th Cir. 2023) (āWhen equitable tolling is raised as a defense to a motion to dismiss, this court assume[s] the pleaded facts as true, and . . . will remand if the plaintiff has pleaded facts that justify equitable tolling.ā (internal quotation marks and citation omitted)); In re Cmty. Bank of N. Va.,622 F.3d 275
, 301-02 (3d Cir. 2010) (ā[O]ur Court (and our sister circuit courts) have reasoned that, because the question whether a particular party is eligible for equitable tolling generally requires consideration of evidence beyond the pleadings, such tolling is not generally amenable to resolution on a Rule 12(b)(6) motion.ā); Huynh v. Chase Manhattan Bank,465 F.3d 992
,
1003ā04 (9th Cir. 2006) (āGenerally, the applicability of equitable tolling depends on
matters outside the pleadings, so it is rarely appropriate to grant a Rule 12(b)(6) motion
to dismiss (where review is limited to the complaint) if equitable tolling is at issue.ā).
32
litigant notice and an opportunity to be heard. Appāx 104 (citing Abbas, 480 F.3d
at 640).
If āmatters outside the pleadings are presented to and not excluded by the
courtā on a motion to dismiss, Federal Rule of Civil Procedure 12(d) provides that
āthe motion must be treated as one for summary judgment under Rule 56.ā Fed.
R. Civ. P. 12(d). In advance of such a conversion, ā[a]ll parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.ā
Id.We have stressed a functional approach to conversion, emphasizing that ā[t]he district courtās conversion of a Rule 12(b)(6) motion into one for summary judgment is governed by principles of substance rather than form.ā In re G. & A. Books, Inc.,770 F.2d 288, 295
(2d Cir. 1985). As such, ā[t]he essential inquiry is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.ā Id.; see also Hernandez v. Coffey,582 F.3d 303, 307
(2d Cir. 2009)
(āOrdinarily, formal notice is not required where a party should reasonably have
recognized the possibility that the motion might be converted into one for
summary judgment [and] was [neither] taken by surprise [nor] deprived of a
33
reasonable opportunity to meet facts outside the pleadings.ā (internal quotation
marks and citation omitted)).
On summary judgment, courts are tasked with determining whether āthe
movant [has] show[n] that there is no genuine dispute as to any material fact and
. . . is entitled to judgment as a matter of law.ā Fed. R. Civ. P. 56(a). āThe
function of the district court in considering the motion for summary judgment is
not to resolve disputed questions of fact but only to determine whether, as to any
material issue, a genuine factual dispute exists.ā Kee v. City of New York, 12 F.4th
150, 166ā67 (2d Cir. 2021) (internal quotation marks and citation omitted). This limited judicial role stems from the precept that, at least as pertaining to a partyās legal claims, ā[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.ā S. Katzman Produce Inc. v. Yadid,999 F.3d 867
, 877 (2d Cir. 2021) (internal quotation marks and citation omitted); accord Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 255
(1986).
This logic is not altered because district courts may serve as the ultimate
factfinder on the issue of equitable tolling. In other words, when a district court
āapproache[s] the issue of equitable tolling in the prototypical summary judgment
34
postureāāthat is, purporting to ādraw[ ] legal conclusions based on purportedly
undisputed facts regarding the prerequisite elements to the exercise of equitable
tollingāāit is not acting in a factfinding capacity. Doe, 76 F.4th at 71.
Accordingly, in the equitable tolling context, courts routinely grant summary
judgment to defendants where deficiencies in the record establish that the
prerequisites of equitable tolling have not been met and deny summary judgment
where a reasonable factfinder could conclude otherwise. 20
When, however, a district court exercises its role as factfinder on an
equitable issue such as equitable tolling, we have stated that āa district court
generally should conduct an evidentiary hearing before making factual findings if
a plaintiffās āsworn averments of fact, though disputed, meet the legal standards
20 Compare, e.g., Perez v. Harbor Freight Tools, 698 F. Appāx 627, 629(2d Cir. 2017) (summary order) (affirming denial of equitable tolling where plaintiffās argument was ābelied by the recordā and āno reasonable factfinder could have concludedā that the plaintiff was incapacitated to the extent claimed); Boos v. Runyon,201 F.3d 178, 185
(2d Cir. 2000) (affirming summary judgment for a defendant where a plaintiff offered only a āconclusory and vague claim, without a particularized descriptionā of the circumstances purporting to justify equitable tolling), with Doe, 76 F.4th at 71-72 (vacating grant of summary judgment where a factfinder ācould reasonably conclude that an extraordinary circumstance stood in [the] way of commencing this case soonerā); Crosby v. United States, No. 20 Civ. 330 (SDA),2021 WL 4805465
, at *2 (S.D.N.Y. Oct. 13, 2021) (denying summary
judgment on equitable tolling where there existed āfactual issues [that] should not be
decided in the summary judgment contextā).
35
for equitable tolling.āā Id.at 70 (quoting Torres v. Barnhart,417 F.3d 276, 279
(2d Cir. 2005)). As such, evidentiary hearings exploring the merits of equitable tolling claims are routine in the district courts. 21 Indeed, at times, this Court has explicitly directed an evidentiary hearing when equitable tolling involves weighing competing inferences or resolving contested factual issues. See Brown, 287 F.3d at 60ā61 (finding an āevidentiary hearing [to be] appropriate to determineā whether āequitable tolling would be in orderā); Canales v. Sullivan,936 F.2d 755, 756
(2d Cir. 1991) (remanding āfor an evidentiary hearing to determine if [the plaintiffās] condition warrants equitable tolling.ā). Going a step further, we have held that a district court abused its discretion in not holding an evidentiary hearing to resolve a plausible equitable tolling claim. See Torres,417 F.3d at 276
(finding the district courtās failure to conduct an evidentiary hearing to
be an abuse).
21 See, e.g., Moore v. City of Norwalk, No. 17 Civ. 695 (JAM), 2020 WL 6275033, at *1 (D. Conn. Oct. 26, 2020); Montgomery v. Comm'r of Soc. Sec.,403 F. Supp. 3d 331
, 339 (S.D.N.Y. 2018); Moreno v. 194 E. Second St. LLC, No. 10 Civ. 7458 (JMF),2013 WL 55954
, at *3 (S.D.N.Y. Jan. 4, 2013); Vincent v. Wal-Mart Store 3420, No. 10 Civ. 5536 (JFB),2012 WL 3800833
, at *5 (E.D.N.Y. Sept. 4, 2012); Wen Liu v. Mt. Sinai Sch. of Med., No. 09 Civ. 9663 (RJS),2012 WL 4561003
, at *7 (S.D.N.Y. Sept. 24, 2012); Upadhyay, 848 F. Supp. 2d at
446ā47.
36
When a district court holds an evidentiary hearing on equitable tolling, the
hearing functions within the rubric of the federal rules as a bifurcated bench trial
on the issue of equitable tolling. 22 Because district judges sit in equity when
adjudicating equitable tolling, they are empowered at this hearing (qua bench
trial) to make credibility findings, weigh evidence, and resolve factual disputes
that bear on equitable tolling, so long as they stay within the bounds of the Seventh
Amendment. Sometimes, district courts convene an evidentiary hearing after
deciding on summary judgment that the issue cannot be resolved based on the
record compiled in discovery. 23 Other times, district courts hold a hearing earlier
22 It is well-established that district courts have discretion to structure the
sequence of issues to be adjudicated in a given case. See Fed. R. Civ. P. 42(b) (āFor
convenience, to avoid prejudice, or to expedite and economize, the court may order a
separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-
party claims.ā). This equally pertains to the sequencing of legal and equitable issues.
See 8 Mooreās Fed. Prac. Ā§ 39.14 (ā[W]here disposition of the equitable claim would make
consideration of the legal claim unnecessary, common sense dictates that the equitable
claim be determined first.ā); 9 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc.
Civ. Ā§ 2338 (4th ed.) (āIf legal and equitable issues are completely independent, so that
the resolution of one will not control the resolution of the other, the trial court has
discretion to decide the order of trial as a matter of administrative convenience.ā).
23 See, e.g., Crosby, 2021 WL 4805465, at *2 (denying defendantās motion for summary judgment and directing evidentiary hearing to resolve factual questions applicable to equitable tolling); Lama v. Malik, No. 13 Civ. 2846 (LDW),2015 WL 13758051
, at *2ā3 (E.D.N.Y. Sept. 9, 2015) (same); Moreno,2013 WL 55954
, at *3 (same); Wen Liu,2012 WL 4561003
, at *7 (same); Upadhyay,848 F. Supp. 2d at 446-47
(same).
37
in the case, with an eye toward facilitating the efficient adjudication of the possibly
controlling issue of equitable tolling. 24 District courts have discretion on how to
sequence the hearing, so long as they afford the parties a full and fair opportunity
to be heard on the issue. See In re Agent Orange, 517 F.3d at 103 (āA party must
be afforded a meaningful opportunity to establish the facts necessary to support
his claim.ā).
B. Application
Clark argues that in dismissing her claims, the district court ācontravened
the Federal Rules of Civil Procedure and this Courtās precedent at every step . . . .ā
Appellantās Br. 3. At base, she contends that the district court erred in holding
an evidentiary hearing for factfinding purposes at the pleading stage. But we
fundamentally disagree with Clarkās characterization of the proceedings below.
As the record shows, the parties had moved beyond the pleading stage to a bench
24 See, e.g., Moore, 2020 WL 6275033, at *2 (resolving equitable tolling based on testimony elicited at evidentiary hearing after defendant moved to dismiss); Montgomery, 403 F. Supp. 3d at 339, 343 (same); Alamo v. Berryhill, No. 18 Civ. 210 (JCH),2018 WL 3596751
, at *3 (D. Conn. July 26, 2018) (determining at the pleading stage that evidentiary hearing was required to adjudicate equitable tolling); F.B. by Galbato v. Berryhill, No. 15 Civ. 148 (BKS) (CFH),2018 WL 5777768
, at *1 (N.D.N.Y. Nov. 2, 2018) (same); Vincent,2012 WL 3800833
, at *5 (same); Rodriguez v. Barnhart, No. 01 Civ. 3411 (DAB) (MHD),2002 WL 31875406
, at *7 (S.D.N.Y. Dec. 24, 2002) (same).
38
trial on Clarkās equitable tolling claim, notwithstanding the Defendantsā
invocation of Rule 12(b)(6). The circumstances of this case thus call for treating
the evidentiary hearing for what it functionally wasāa bifurcated bench trial on
the issue of equitable tolling.
To begin, the judgment on appeal is the district courtās second dismissal of
Clarkās case on timeliness grounds, coming after we vacated the district courtās
first dismissal for failing to afford Clark notice and an opportunity to argue her
equitable tolling claim. The stage, therefore, was set on remand for the parties to
reach the substance of Clarkās contention that she had, in fact, exercised diligence
in pursuing her untimely claim, but that extraordinary circumstances prevented
her from timely filing.
On remand, once the Defendants renewed their motions to dismiss, the
district court held a pre-motion conference, at which it made clear to the parties
that it did not believe it could properly adjudicate Clarkās equitable tolling claim
based solely on the allegations in the Second Amended Complaint. See Appāx
540 (suggesting āit would not be appropriate for [the district court] to try to resolve
[equitable tolling] on just the basis of the allegations of the complaintā); Appāx 578
(āIām really not comfortable with trying to decide this equitable tolling issue solely
39
on the papers that I have in front of me.ā). The district court thus proposed, and
ultimately settled on, an evidentiary hearing, a procedural device we have time
and again endorsed (sometimes even required) in the equitable tolling context.
See Doe, 76 F.4th at 70; Torres, 417 F.3d at 279. The court made clear that the
hearing would be ālimited in terms of overall scopeā with a focus on ātrying to
understand the state of mind of Ms. Clark . . . and what it is that she felt that . . .
resulted in her waiting years beyond the statute of limitationsā to file this action.
Appāx 578. But the district court permitted the parties in advance of the hearing
to provide āany exhibits or documents that are not presently in the record and that
any party wishes the Court to consider that bear on the issue of equitable tolling,ā
which they did. SPA2; see also Appāx 256ā57 (exhibit list).
It is thus beyond dispute that Clark was aware going into the evidentiary
hearing that the district court intended to resolve her equitable tolling claim based
on the record that would be compiled at the hearing. The hearing, itself,
resembled a bench trial. It included direct, cross, re-direct, and re-cross
examinations of Clark, as well as oral argument from counsel on whether she had
met her burden on equitable tolling. See Appāx 356ā406 (direct examination),
406ā20 (cross examination), 420ā474 (courtās questioning), 474ā81 (redirect
40
examination), 481ā84 (recross examination), 484ā526 (oral argument). And the
hearing transcript reveals that Clark had a full opportunity to testify to the
circumstances she claims prevented her from timely filing this action.
Clark faults the district court for failing to convert (either explicitly or
implicitly) the Defendantsā motions to dismiss into ones for summary judgment.
But converting the Defendantsā motions would have served no practical purpose
in the context of this case. Cf. In re G. & A. Books, 770 F.2d at 295(noting that the conversion rules are āgoverned by principles of substance rather than formā). As already discussed, district courts scrupulously avoid resolving any factual disputes on summary judgment because ā[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . .ā Anderson,477 U.S. at 255
. When it
comes to equitable tolling, however, district judges are empowered to make
precisely the types of determinations that are disallowed on summary judgment.
Given the district courtās authority to find facts on equitable issues, the district
courtās decision to convene an evidentiary hearing on the issue of equitable tolling
obviated the purpose of the summary judgment exercise, i.e., determining whether
there are any triable issues of fact.
41
Clark disputes that she had a full opportunity to discover and present
evidence relevant to her equitable tolling claim, arguing that the district court
unduly curtailed the record by limiting what could be presented at the hearing.
We are unpersuaded. District courts are vested with āwide latitude to determine
the scope of discovery and we ordinarily defer to the discretion of district courts
regarding discovery matters.ā In re Agent Orange, 517 F.3d at 103(internal quotation marks, alteration, and citation omitted); see also EM Ltd. v. Republic of Argentina,695 F.3d 201, 207
(2d Cir. 2012) (āOf course, as in all matters relating to discovery, the district court has broad discretion to limit discovery in a prudential and proportionate way.ā), affād sub nom. Republic of Argentina v. NML Cap., Ltd.,573 U.S. 134
(2014). A district court abuses its discretion only āwhen the discovery is so limited as to affect a partyās substantial rights.ā In re Agent Orange,517 F.3d at 103
(citation omitted).
Here, in deciding Clarkās equitable tolling claim, the district court permitted
limited discovery to proceed during the pendency of the Defendantsā motions to
dismiss. 25 At the hearing, in addition to Clarkās testimony, the district court had
25 The district court twice denied Defendantsā request for a stay of discovery while
their motions to dismiss remained pending.
42
before it Hanleyās arrest warrant application, records of Clarkās transfer history
among DOC prison facilities, Clarkās medical records from the period she seeks to
have tolled, filings from her state habeas case, and an amicus brief filed by the
New Haven Pride Center. The district court additionally permitted the parties to
āfile . . . any documents that they intend to use as exhibits during the hearing or
that they wish the Court to consider with respect to the issue of equitable tolling
. . . .ā SPA3.
In setting the bounds of the available record, the district court sought to
focus on matters going to the heart of Clarkās theory for equitable tolling. Clark
claimed that tolling was appropriate due to the combination of her mental
condition and fear of retaliation at the hands of correctional officers. Fitting the
contours of this claim, the district court designed the evidentiary hearing āto
understand the state of mind of Ms. Clark . . . .ā Appāx 578. The district courtās
initial inclination was that it could make a determination as to the merits of her
equitable tolling claim on the basis of Clarkās testimony, her medical file, and the
record of her state habeas case, yet the court left open the possibility that
āsomething would surface in [Clarkās] testimony that has further bearing and
suggests that additional evidence would be needed . . . .ā Appāx 578ā79.
43
Clark nevertheless protests that the district court ruled on her equitable
tolling claim based on an incomplete record devoid of, for instance, āexpert
testimony . . . which could have illuminated the impact of sexual assault and
gender dysphoria on Ms. Clarkās ability to seek relief.ā 26 Appellantās Br. 41; see
also Reply Br. 12ā13 (suggesting additional discovery along the lines of āexpert
testimony about sexual assault or gender dysphoria, . . . corroboration from prison
staff, cross-examin[ations of] medical personnel about information not contained
in the medical records, or investigat[ion of] instances of retaliationā). But Clark
did not raise the possibility of introducing such testimony before the district court.
In addition, the court had more than an adequate basis to reject the
additional discovery Clark did request. Clarkās counsel sought additional
discovery relating to (1) the severity of Hanleyās assaults and (2) institutional
retaliation. Appāx 560. But as the district court observed, the record already
26 To the extent Clark contends that the district court lacked any information
regarding the unique difficulties confronting transgender survivors of sexual violence,
this is belied by the New Haven Pride Centerās amicus brief submitted in opposition to
the Defendantsā motions to dismiss. Dist. Ct. Dkt. No. 82-1. The brief cites multiple
studies to contextualize rates of violence perpetrated against transgender individuals
alongside reasons why such instances might go unreported, see id. at 5ā13, and the district
court expressly noted it had ātaken into account the arguments advanced in [this] amicus
brief . . . about how transgender prisoners in general may be particularly reluctant to
report abuse and vulnerable as well to retaliation,ā SPA19 n.67.
44
contained Hanleyās arrest warrant, which included āa very detailed verbatim
recitation of multiple assaults by Mr. Hanley.ā Appāx 561. And as to
institutional retaliation, Clark had not alleged that anyone at DOC ever threatened
to retaliate against her, as opposed to ridicule her with āinsulting comments.ā
Appāx 563. Concerned that Clark was āon a fishing expeditionā āfor merits
discovery,ā Appāx 563ā64, the district court thus declined to expand the record
beyond Clarkās expected testimony and the discovery that had already been
authorized. This was not an abuse of discretion. 27 In sum, Clark was unable to
show that the information she sought was not duplicative of what was already in
the record or based on speculation beyond the allegations in her complaint. We
27 The dissent suggests that the district court āprevented Clark from developing
and presentingā five categories of evidence that might have more fully informed its
decision. Dissent at 10-11. But Clark never sought evidence as to four of these five
categories (i.e., affidavits or deposition testimony from the medical providers who treated
her, from her fellow prisoners, from an independent psychologist, or from an expert on
the difficulties faced by transgender inmates). And as to the final categoryāevidence
concerning the assaults themselvesāthe district court, as we already noted, had the
benefit of the detailed affidavit about Hanleyās abuse that Clark included with her
complaint. Clark also had the opportunity to submit āany [additional] documentsā that
she āwish[ed] the Court to consider.ā SPA3. Accordingly, Clark was hardly unable
āto present the district court with a full[] picture of her circumstances.ā Dissent at 11.
45
thus conclude that Clark was afforded a meaningful opportunity to establish the
facts necessary to support her claim.
II. The Seventh Amendment
Clark next argues that the district court violated her Seventh Amendment
right to a jury trial by resolving contested factual issues bearing on the merits of
her legal claims. Recognizing the overarching principle that āclaims in equity,
including tolling, generally fall outside the Seventh Amendmentās scope,ā
Appellantās Br. 42, Clark contends that the district court āneglected the significant
overlap between [her] equitable tolling argument and her Section 1983 claims,ā id.
at 45, which both arise from the same set of operative factsāHanleyās sex crimes.
Clark asserts that it is impossible to disentangle the district courtās factual findings
on equitable tolling from those relating to her legal claims. But as set forth below,
the district courtās decision did not violate the Seventh Amendment.
āThe Seventh Amendment protects the right to a jury trial only for matters
at law, āin contradistinctionā to those in equity.ā In re CBI Holding Co., Inc., 529
F.3d 432, 465(2d Cir. 2008) (quoting Granfinanciera, S.A. v. Nordberg,492 U.S. 33, 41
(1989)); see also U.S. Const. amend. VII (āIn Suits at common law, where the
value in controversy shall exceed twenty dollars, the right of trial by jury shall be
46
preserved . . . .ā). Even then, āthe right to a jury trial exists . . . only with respect
to disputed issues of fact.ā Shore v. Parklane Hosiery Co., 565 F.2d 815, 819(2d Cir. 1977), affād,439 U.S. 322
(1979). āWhen legal and equitable claims are joined in the same action, āthe right to jury trial on the legal claim, including all issues common to both claims, remains intact.āā Lytle v. Household Mfg., Inc.,494 U.S. 545, 550
(1990) (quoting Curtis v. Loether,415 U.S. 189, 196, n. 11
(1974)). āTo safeguard this right,ā we have said that āthe general rule is that the jury must decide the legal claims prior to the courtās determination of the equitable claims, in order to prevent the courtās determination of a common factual issue from precluding, by collateral estoppel effect, a contrary determination by the jury.ā Wade v. Orange Cnty. Sheriffās Off.,844 F.2d 951
, 954 (2d Cir. 1988) (internal citations omitted) (citing Beacon Theatres, Inc. v. Westover,359 U.S. 500
, 510ā11 (1959); Dairy Queen, Inc. v. Wood,369 U.S. 469, 479
(1962)); see also Wright & Miller, Ā§ 2338 (āIf . . . issues of fact are common to both the legal and equitable claims and a jury has been demanded on the common issues that are material to the legal claim, a jury must be permitted to determine these issues prior to deciding the equitable aspects of the caseā). This is a prudential rule, see Parklane Hosiery Co. v. Shore,439 U.S. 322, 334
(1979), and one the district court acknowledged in explaining that it could
47
only ādetermine the issue of equitable tolling provided that it [did] not make
factual determinations reserved by the Seventh Amendment for a jury to resolve
as to a plaintiffās legal claims.ā SPA2.
This general rule was not dishonored here. āThe Courtās concern in these
cases has been the res judicata or collateral estoppel effect of a prior determination
of an equitable claim upon questions common to a legal claim.ā 28 Heyman v. Kline,
456 F.2d 123, 130(2d Cir. 1972). Consistent with the preclusion standard, when considering whether resolution of an equitable claim might infringe on the jury trial right, we have āconsider[ed] whether the elements of [the] claim[s] . . . are so similar that a finding in favor of [a party] on one claim necessitates a finding for [that party] on the other claimā as well. 29 Song v. Ives Laboratories, Inc.,957 F.2d 28
In order for a prior ruling to have collateral estoppel effect on a given issue, ā(1) the issues in both proceedings must be identical; (2) the issue in the prior proceeding must have been actually litigated and actually decided; (3) there must have been a full and fair opportunity for litigation in the prior proceeding; and (4) the issue previously litigated must have been necessary to support a valid and final judgment on the merits.ā S.E.C. v. Monarch Funding Corp.,192 F.3d 295, 304
(2d Cir. 1999); accord Seneca Nation v. Hochul,58 F.4th 664
, 668 (2d Cir. 2023).
29 The foundational Supreme Court cases enshrining the importance of preserving
a litigantās jury trial right when legal and equitable claims are presented together
involved drawing factual conclusions that would necessarily have decided both types of
claims. See Dairy Queen, 369 U.S. at 479ā80 (holding that jury trial was required where
legal claims seeking monetary relief and equitable claims seeking injunctive relief both
48
1041, 1048 (2d Cir. 1992) (concluding that a district court sitting in equity on a Title
VII claim must conform its findings to those a jury rendered in the same case
sitting at law on an employment discrimination claim under New York State
Human Rights Law). But that is simply not the case in the circumstances here.
At the start, the factual issues relevant to Clarkās equitable tolling claim and
her Ā§ 1983 claims are analytically and temporally distinct. Her deliberate
indifference claim, for instance, is fundamentally backward-looking, pertaining to
the conditions of Clarkās confinement and Defendantsā awareness and behavior
up to the time she was sexually assaulted. See Morgan v. Dzurenda, 956 F.3d 84, 89 (2d Cir. 2020) (outlining the elements of an Eighth Amendment deliberate indifference claim, which requires an inmate to prove ā(1) that [the plaintiff] is incarcerated under conditions posing a substantial risk of serious harm, and (2) āthat the prison official had a sufficiently culpable state of mind, which in prison- hinged on āthe question of whether there [had] been a breach of contractā); Beacon Theatres, 359 U.S. at 503ā04 (holding that jury trial was required where legal and equitable claims both turned on the reasonableness of certain exclusive rights afforded to a theater to show first-run movies, which involved gauging the level of competition between two theaters). And even then, there are circumstances in which courts may proceed to resolve an equitable claim first, āāeven though the results might be dispositive of the issues involved in the legal claim.āā Parklane Hosiery,439 U.S. at 335
(quoting Katchen v. Landy,382 U.S. 323, 339
(1966)).
49
conditions cases is one of deliberate indifference to inmate health or safetyā
(internal quotation marks omitted)). So, too, Clarkās constitutional claim against
Hanley for sexual abuse requires assessing his assaultive conduct at the time it
occurred. See Crawford v. Cuomo, 796 F.3d 252, 256ā58 (2d Cir. 2015) (explaining
that sexual abuse by a corrections officer is cognizable where (1) āthe defendant
acted with a subjectively sufficiently culpable state of mindā and (2) the conduct
was objectively harmful enough or sufficiently serious to reach constitutional
dimensionsā (internal quotation marks and citation omitted)). The equitable
tolling inquiry, by contrast, is trained solely on the circumstances that Clark faced
after the date her claims accrued. See Smalls, 10 F.4th at 145 (āGenerally, a litigant
seeking equitable tolling bears the burden of establishing two elements: (1) that
[s]he has been pursuing [her] rights diligently, and (2) that some extraordinary
circumstance stood in [her] way.ā (internal quotation marks and citation omitted)).
Should liability be established, the damages inquiry as to Clarkās claims
would require that the jury determine how much money would compensate Clark
for the harm that the Defendantsā misconduct caused her to suffer. But this is
distinct from the district courtās equitable tolling inquiry, which required assessing
whether the harm Clark suffered caused her to miss the filing deadline despite
50
reasonable diligence in pursuing the claim. To be sure, both inquiries touch upon
the consequences of Hanleyās sexual assault, but neither depends on the other; a
jury could assign any degree of monetary value to the harm notwithstanding
whether the district court found that harm to have been an extraordinary obstacle
that prevented Clark from timely filing suit. 30 Clark argues, to the contrary, that
several features of the decision below foreclose aspects of her legal claim. But
this is simply incorrect.
First, Clark takes issue with the district courtās āsweeping credibility
determinations,ā which she asserts usurped the juryās role to gauge her credibility
on the critical issue of the impact of Hanleyās abuse. Appellantās Br. 45. But the
district courtās credibility findings were limited to specific aspects of Clarkās
testimony that related squarely to whether she encountered circumstances that
caused her to delay in filing her complaint. These findings cannot be said to have
30 The dissent contends that the severity of Hanleyās abuse is an issue common to
Clarkās equitable tolling and Section 1983 claims. Dissent at 17. We disagree. True,
āClark bears the burden of demonstrating that Hanleyās abuse was of constitutional
magnitudeā in asserting her Section 1983 claims. Id. But the equitable tolling inquiry
is different. It focuses on a distinct question: whether the abuse and its effectsāsevere
or notācaused Clark to delay in filing suit.
51
resolved any issues āidenticalā or even ācommonā to those presented on her legal
claims. See Seneca Nation v. Hochul, 58 F.4th 664, 668 (2d Cir. 2023).
For instance, the district found that Clarkās ātestimony that she actually
feared retaliation if she filed this lawsuit was not credible.ā Clark, 2022 WL
124298, at *6. But whether Clark, in fact, suspected she would face retaliation for filing this lawsuit has no bearing on any element of her constitutional claims. Similarly, the court disbelieved Clarkās denial, contrary to the affirmation of DeCruz, that she affirmatively ārequested to speak to a state trooper to file a complaintā against Hanley. Clark,2022 WL 124298
, at *6 n.42. But, again, whether Clark solicited DaCruz to relate the circumstances of her abuse does not bear on the elements of her legal claims and is not a factual issue of relevanceālet alone identityāto the merits of these claims. Finally, the district court determined that āClark falsely testified that she lied [to Cheshire mental health staff about being psychologically stable] because she realized how damaging the notes of her statements to the mental health staff at Cheshire were to her claim for equitable tolling in this case.āId.
at *7 n.55. But this finding, too, is specifically
52
tied to her equitable tolling claim and does not purport to establish that she did
not, in fact, suffer from abuse-related harm during her incarceration. 31
Clark next contends that the district court determined that āāthe trauma
stemming from Hanleyās sexual abuseā was not meaningfully āsevere,āā
foreclosing her from seeking emotional damages from a jury. Appellantās Br. 46
(quoting Clark, 2022 WL 124298, at *6, *7). But Clark overreads the district courtās findings on the effect of Hanleyās abuse. Far from concluding that Clark suffered no harm or trauma stemming from Hanleyās abuse, the district court directly acknowledged Clarkās suffering in the aftermath of the abuse, which was aggravated by her gender dysphoria. See Clark,2022 WL 124298
, at *6 (āI do not
doubt the evidence that Hanley abused Clark and that Clark was also deeply
depressedāat times to the point of self-harmāas well as conflicted about her
genderā). Moreover, the district courtās factual findings as to the effects of
Hanleyās abuse were all expressly tied to whether they caused Clark to delay filing
31 The fact that Clarkās medical records, if she had succeeded in establishing a basis
for equitable tolling, might have been presented to the jury on the issue of damages does
not change this analysis. ā[C]onsideration of some aspects of the same relevant evidenceā
does not create a Seventh Amendment issue. Afga Corp. v. Creo Products Inc., 451 F.3d
1366, 1374 (Fed. Cir. 2006); see also Gardco Mfg., Inc. v. Herst Lighting Co.,820 F.2d 1209
,
1213 (Fed. Cir. 1987).
53
this lawsuit. See, e.g., Id. at *7 (āIf Hanleyās abuse of Clark was so traumatic that
it prevented Clark from filing a court action for seven years, one would reasonably
expect some sign of this trauma to surface in the extensive notes of conversations
between Clark and prison mental health counselorsā (emphasis added)); id. at *9
(āAlthough I credit Clarkās claim that she suffers from gender dysphoria, the
evidence does not show that her dysphoria or any other underlying mental
condition prevented her from filing this lawsuit within the three years of Hanleyās assaults
. . . .ā (emphasis added)). This is not an issue common to the damages inquiry a
jury would undertake.
Finally, Clark asserts that the district court ignored how her allegations of
retaliation relate to the merits of her deliberate indifference claim. She contends
that the district court preempted her ability to argue that āthe MacDougall-Walker
Defendantsā involvement in the Hanley investigation evidenced their knowledge
of the substantial risk that Hanley posed to inmates . . . .ā Appellantās Br. 47ā48.
Again, the district court did no such thing. Clark testified at the evidentiary
hearing that Manley, who investigated Hanleyās assaults on Clark, did āthe right
thingā in helping to hold Hanley to account after his assaultive conduct. Appāx
426ā27. The district court referenced this portion of Clarkās testimony to
54
highlight that Clark had no explanation, given this testimony, as to why she feared
retaliation from Manley in the aftermath of the investigation. Clark, 2022 WL
124298, at *5. Contrary to Clarkās contention, however, the district court made
no factual finding as to Manleyāsāor any other Defendantāsāawareness of
Hanleyās conduct before Clarkās claims accrued, as a result of the earlier
investigation. And in any event, whether Manley attempted to dissuade Clark
from filing suit is an issue entirely distinct from her legal claims.
Clark cites cases to support the proposition that her equitable tolling claim
should be submitted to the jury. But because these cases involve a much closer
identity of relevant facts bearing on the equitable and legal questions, they
undercut rather than support her position. In Robertson v. Seidman & Seidman, for
example, the plaintiff brought legal claims against an accounting firm alleging that
the firm fraudulently concealed its preparation of false and misleading financial
documents for a company of which the plaintiff was a shareholder. 609 F.2d 583,
585(2d Cir. 1979). The plaintiff sought equitable tolling āby reason of this alleged fraudulent concealment . . . .āId. at 593
. We determined that the jury should
decide āwhether there was fraudulent concealment sufficient to invoke the federal
equitable tolling doctrineā because both Robinsonās legal and equitable claims
55
required determining precisely the same issue: whether the accounting firm had
fraudulently concealed its misconduct. Id. But unlike in Robertson, Clarkās
equitable tolling and Ā§ 1983 claims are analytically and temporally distinct.
Clark also cites Ott v. Midland-Ross Corp., an employment discrimination
case in which the Sixth Circuit concluded that the issue of equitable tolling should
be heard by a jury alongside the plaintiffās legal claims. 600 F.2d 24, 28(6th Cir. 1979). But as in Robinson, the claims were not distinct: the Ott plaintiff alleged that he was wrongfully discharged because of his age by an employer who fraudulently induced him into a consulting arrangement to secure a waiver of the plaintiffās right to sue for age discrimination.Id.
at 26ā27. The plaintiff sought equitable tolling on the grounds that he was fraudulently induced to forego suit by entering into this agreement.Id.
at 30ā31. The Sixth Circuit found āsubmission of the entire case to the jury [to be] particularly appropriateā because the merits of the age discrimination claim necessitated an inquiry into the employerās āmotives for terminating [the plaintiff],ā while his equitable tolling claim similarly brought into question the āgood faith of [the employer] in offering the consultation agreement[.]āId. at 31
. More than just a degree of factual
overlap, both inquiries were āpieces of the larger mosaic of [the employerās]
56
treatment of [the plaintiff].ā Id. This stands in contrast to Clarkās case, where
her equitable tolling claim hinges on her own mental state and perception of the
risk of retaliation, while her constitutional claims turn entirely on the Defendantsā
conduct and knowledge at a time prior to the period she seeks to have tolled.
In sum, the district court did not intrude on Clarkās jury trial right by
determining whether she was entitled to relief from the statute of limitations
before proceeding further with her case. Clarkās argument for equitable tolling
is distinct from the merits of her legal claims and the decision below treated them
as such. Accordingly, the district court did not violate the Seventh Amendment
in determining that Clark failed to establish the ārare and exceptional
circumstancesā necessary to excuse an untimely filing. Walker, 430 F.3d at 564
(citation omitted).
III. Equitable Tolling Analysis
Clark maintains, finally, that the record assembled at the evidentiary
hearing compels the conclusion that she is entitled to equitable tolling as a matter
of law. From the premise that āmedical conditions, whether physical or
psychiatric, can manifest extraordinary circumstances depending on the facts
presented,ā Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011), Clark urges that the
57
record āleaves no doubtā that the combination of Hanleyās repeated sexual
assaults, her particular mental condition, and her fear of reprisal presented
extraordinarily severe obstacles to her filing this case as a matter of law. We do
not discount Clarkās traumatic experiences or that such circumstances could
warrant equitable tolling in the appropriate case. Here, however, we cannot
conclude that that district court abused its discretion in deciding that Clark failed
to establish a basis for equitable tolling.
As previously noted, we review equitable tolling determinations for abuse
of discretion, that is, with an eye toward whether the district courtās ruling is
āwithin the range of possible permissible decisions.ā See Phillips, 723 F.3d at 149(internal quotation marks and citation omitted). If an asserted error is legal in nature, our review is de novo; meanwhile, we review factual determinations for clear error.Id.
Clark posits both types of errors. But the record establishes no
basis for upsetting the district courtās determination.
Turning to the first of the district courtās supposed legal errors, Clark claims
that in analyzing her fear of retaliation, the district court focused its analysis only
on the Defendantsā efforts to threaten or retaliate against her, when the law is clear
that non-defendants can equally contribute to extraordinary circumstances for
58
equitable tolling purposes. But the district court did not ignore Clarkās concerns
about non-defendant corrections officials, let alone proceed under a rule that fear
of retaliation from a non-defendant cannot support equitable tolling. Rather, the
district court, relying on Davis v. Jackson, No. 15 Civ. 5359 (KMK), 2016 WL
5720811, at *11 (S.D.N.Y. Sept. 30, 2016), simply explained that āin the prison context, reasonable fear of retaliation may be sufficient to constitute extraordinary circumstances warranting equitable tolling, particularly if the person threatening retaliation is a defendant or another official who could be or was influenced by a defendant.ā Clark,2022 WL 124298
, at *4 (emphasis added). The court specifically considered the āother correctional officials,āid.,
who Clark claimed made her feel vulnerable, but ultimately found her allegations too vague to support a valid threat of retaliation. See alsoid. at *5
(noting that āClark never reported any of the alleged
insults made to her by any officers, much less any belief she purportedly had that
these officers were trying to intimidate her from filing a court action against any of
the named defendants in this actionā (emphases added)). This was not legal
error.
The district courtās other asserted legal error is for failing to factor Clarkās
gender dysphoria into its analysis. But Clark mischaracterizes the decision
59
below. The court stated that it did not doubt that Clark was āconflicted about her
genderā and that she was āsubject to depression and gender dysphoria,ā and the
court expressly ācredit[ed] Clarkās claim that she suffers from gender dysphoria.ā
Id. at *6, *9. Clark dismisses the courtās discussion of her mental condition as making āno reference to the clinical conditions that accompany gender dysphoria and giv[ing] no consideration to whether or how sexual assault might affect a transgender individual suffering from the condition.ā Appellantās Br. 62. Far from ignoring Clarkās medical condition, however, the court expressly took it into account but concluded that āthe evidence does not show that her dysphoria or any other underlying mental condition prevented [Clark] from filing this lawsuit within the three years of Hanleyās assaults from August 2011 to August 2014.ā Clark,2022 WL 124298
, at *9. As already noted, the court cast doubt on Clarkās
claim that she was unable to talk about Hanleyās abuse by pointing to the fact that
soon after the events in question, she provided a full statement to the Connecticut
police. Moreover, in late 2011 into 2012āwithin the period Clark seeks to have
tolledāClark filed the habeas petition in state court, which the district court
believed āstrongly weighs against a conclusion that Clark was so psychologically
immobilized that she lacked the ability at that time to file a federal civil rights
60
complaint to seek relief for Hanleyās sexual abuse.ā Id. at *7. Again, there was
no legal error.
On the factual side, Clark argues that āthe district courtās finding of no
extraordinary circumstances is clearly erroneousā because ā[t]he entire evidence
assembled here compels the conclusion that Ms. Clark faced extraordinary
circumstances that warrant equitable tolling.ā Appellantās Br. 68ā69. She
disputes, for instance, the district courtās conclusion that her fear of retaliation was
not credible. The district court discounted Clarkās testimony regarding her fear
of retaliation, however, because Clark did not attest to any overt threat of
retaliation by any relevant actor, did not report any of the alleged insults that
ostensibly generated her fear, and because her medical records make no mention
of any officer harassment. The courtās skepticism on this point, then, was
grounded in the record and is not based on any clearly erroneous finding of fact.
See Sulzer Mixpac AG v. A&N Trading Co., 988 F.3d 174, 181 (2d Cir. 2021) (āFactual
findings are clearly erroneous if they are without adequate support in the record,
are against the clear weight of the evidence, or are the product of an erroneous
view of the law.ā (internal quotation marks and citation omitted)). Clark, in
effect, urges us to adopt a more favorable view of her testimony than that taken
61
by the district court. But we are not free to reject a district courtās factual findings
absent clear error, which Clark has failed to show.
Finally, Clark points to the district courtās preliminary observation that:
As to the trauma stemming from Hanleyās sexual abuse,
the assaults on Clark were plainly unlawful, wrong, and
abusive. But these assaults were not physically
coercive or made under threat of harm or retaliation.
They were unlike a violent sexual assault or rape that
would likely result in the most severe type of
psychological trauma.
Clark, 2022 WL 124298, at *6. To be sure, we do not endorse the propositionāfor
which there is no record evidenceāthat certain types of assault are more or less
likely to cause severe psychological trauma across all victims in all settings. But
we need not endorse such a proposition to conclude, here, that the district court
did not clearly err in determining as to Clark that her trauma did not prevent her
from filing a timely suit. In other words, this remark does not obviate the district
courtās otherwise sound factfinding, nor constitute a basis for upsetting the courtās
work. 32
32 The dissent characterizes this remark as a conclusion, Dissent at 4, and as a
factual finding, Dissent at 22. We do not read the district courtās comment to hold such
weight. It is a characterization of the assaults, phrased in the abstract, unsupported by
any citation, and immediately followed with more case-specific reasoning that forms the
62
After conducting an evidentiary hearing at which the district court heard
from Clark firsthand, and after considering her testimony in light of the assembled
record, the district court determined that Clark failed to show that her
psychological state prevented her from complying with the statute of limitations.
The onus was on Clark to show both extraordinary circumstances and that she
exercised āreasonable diligence throughout the period [she seeks] to toll.ā
Walker, 430 F.3d at 564. Yet, Clark undertook no effort at filing this case for nearly
five years after her claims accruedāalready two years beyond the limitations
periodāand did not actually file it for another two years, even as she pursued her
habeas claim. Even accepting Clarkās testimony that coming out as transgender
in April 2016 was a watershed moment in her life that alleviated an immense
amount of pressure and anxiety, the district court did not clearly err in giving
weight to those portions of the record that undermined her claim to equitable
tolling. And absent legal error or a clearly erroneous factual finding, it is not for
an appellate court to substitute its judgment for that of the appropriate factfinder
in areas within its purview. We decline to do so here.
basis of the district courtās determination as to whether the harmful effects of Hanleyās
abuse caused Clark to delay in filing suit.
63
CONCLUSION
In sum, the district court employed proper procedures in adjudicating
Clarkās equitable tolling claim and did not intrude on Clarkās Seventh Amendment
right. We perceive no infirmity in the district courtās factfinding nor in its
decision to dismiss Clarkās claims as untimely. Accordingly, we AFFIRM the
judgment of the district court.
64
CHIN, Circuit Judge, dissenting:
In 2011, Thomas Hanley, a Connecticut corrections oļ¬cer,
repeatedly sexually assaulted Veronica-May (then known as Nicholas) Clark, a
transgender woman incarcerated at the MacDougall-Walker Correctional
Institute ("MacDougall-Walker"). Hanley eventually resigned, was arrested in
connection with his assaults on Clark, and pleaded guilty to three counts of
sexual assault in the fourth degree.
Clark ļ¬led this civil rights action pro se in the district court -- but she
did not do so until well after the applicable limitations period expired. The
district court sua sponte dismissed the case as untimely. This Court remanded,
concluding that Clark should be aļ¬orded an opportunity to present her claim
that the statute of limitations should be equitably tolled.
On remand, with the assistance of counsel, Clark ļ¬led a second
amended complaint. She alleged that she remained silent because she was
"deeply and profoundly scarred," App'x 123, a consequence of the trauma she
suļ¬ered from the sexual assaults, her fear of continued harassment and further
retaliation (exacerbated by her continued housing for periods of time at
MacDougal-Walker), and the denial of medical and mental health treatment for
her depression and gender dysphoria.
After defendants-appellees moved to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, the district court held an
evidentiary hearing. It concluded that Clark was not credible in material
respects, granted the motions, and dismissed the Complaint. The majority now
aļ¬rms.
I agree that the district court did not err in holding an evidentiary
hearing on the question of equitable tolling. See ante, at 5. We have routinely
approved of this practice and have even reversed district courts for failing to
conduct evidentiary hearings where plaintiļ¬s have put forward plausible claims
of equitable tolling. See, e.g., Brown v. Parkchester S. Condos., 287 F.3d 58, 60-61 (2d
Cir. 2002) (vacating and remanding, where "it appears there may be substance to
[a plaintiļ¬'s] claim[,]" because "an evidentiary hearing is appropriate to
determine [whether] . . . equitable tolling would be in order"). I also agree that
when a district court convenes an evidentiary hearing on equitable tolling, the
court's role is that of a factļ¬nder; the proceeding, as the majority puts it,
functions as a bench trial on facts related to tolling. See ante, at 37.
2
I disagree with the majority, however, in two principal respects.
First, although district courts have wide latitude in structuring discovery and
conducting evidentiary hearings, here the district court failed to aļ¬ord Clark a
"meaningful opportunity" to make the case that her circumstances warranted
tolling. In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103(2d Cir. 2008) (quoting Long Island Lighting Co. v. Barbash,779 F.2d 793, 795
(2d Cir. 1985)). The court convened an evidentiary hearing on only a few weeks' notice and before discovery could be completed, took testimony from no one besides Clark, and reviewed only a subset of Clark's medical records. Perhaps because the district court did not hear directly from the healthcare providers who worked with Clark, did not consider aļ¬davits or deposition testimony from the prisoners and corrections oļ¬cials who knew her, and did not have before it any expert testimony, the district court minimized the harm Hanley inļ¬icted on her and found that aspects of Clark's testimony were "neither plausible nor credible." Clark v. Hanley, No. 18 Civ. 1765,2022 WL 124298
, at *7 & n.55, *9 (D. Conn. Jan.
13, 2022). Perhaps it would have concluded otherwise if it had had a fuller
evidentiary record, including testimony from experts on the barriers transgender
prisoners face in reporting sexual assault.
3
Second, to the extent the judgment rests on factual ļ¬ndings about
the severity of Hanley's conduct and its eļ¬ect on Clark, those ļ¬ndings were not
the district court's to make. The Seventh Amendment to the U.S. Constitution
guarantees Clark the right to have matters that go to the heart of her legal claims
be decided by a jury. The district court's ļ¬ndings deprived Clark of her right to
present those issues to a jury. It concluded, for example, that Hanley's behavior
was "not physically coercive or made under threat of harm or retaliation" and
was "unlike a violent sexual assault or rape that would likely result in the most
severe type of psychological trauma." Clark, 2022 WL 124298, at *6. These were
issues that Clark was entitled to submit to the jury.
Because the district court failed to aļ¬ord Clark an adequate
opportunity to develop evidence in support of her equitable tolling claim and
intruded into the province of the jury, I would vacate and remand. Accordingly,
I dissent.
I.
I address ļ¬rst the issue of discovery. It is troubling that the district
court denied Clark's request for equitable tolling based on a factual record that
was underdeveloped, both procedurally and substantively. The district court
4
convened the evidentiary hearing on less than four weeks' notice and did not
give Clark an adequate opportunity to gather the information she needed -- and
that she told the district court she needed -- to make out her equitable tolling
claim.
As the majority emphasizes, "[d]istrict courts have 'wide latitude to
determine the scope of discovery'" and "a discovery ruling will warrant relief on
appeal only if it constitutes an 'abuse of discretion.'" Figueroa v. Mazza, 825 F.3d
89, 99(2d Cir. 2016) (quoting In re Agent Orange,517 F.3d at 103
). Our review in this posture is highly deferential: "A district court abuses its discretion only 'when the discovery is so limited as to aļ¬ect a party's substantial rights.'" In re Agent Orange,517 F.3d at 103
(emphasis added) (quoting Long Island Lighting,779 F.2d at 795
). One of those substantial rights "is that '[a] party must be aļ¬orded a meaningful opportunity to establish the facts necessary to support [her] claim.'" In re 650 Fifth Ave. & Related Props.,934 F.3d 147, 157
(2d Cir. 2019) (quoting In re Agent Orange,517 F.3d at 103
).
The record demonstrates that the district court gave short shrift to
Clark's eļ¬orts to show that Hanley's abuse created a "sever[e] . . . obstacle
impeding compliance with a limitations period." Harper v. Ercole, 648 F.3d 132,
5
137 (2d Cir. 2011). I would hold that the district court abused its discretion by
curtailing Clark's ability to obtain discovery on matters clearly relevant to
equitable tolling. This, in turn, limited Clark's ability to vindicate her Eighth
Amendment rights.
On August 26, 2021, at a hearing on defendants' motions to dismiss,
the district court, apparently sua sponte, proposed holding an evidentiary
hearing. The district court ļ¬rst asked Hanley's counsel whether it would be a
"problem if I decided to hold a hearing to hear from the plaintiļ¬ and make a
determination whether the plaintiļ¬'s stated grounds for equitable tolling have
merit." App'x 541. Both Hanley's counsel and counsel for the MacDougall-
Walker Defendants said they thought a hearing was unnecessary because the
district court could decide their motions to dismiss on the papers alone. See id. at
542-43. In contrast, Clark's counsel expressed concern with the district court's
proposal: "[H]ere's the issue I have with the hearing, Your Honor. I think courts
have been reluctant to decide equitable tolling without the beneļ¬t of discovery.
And I think the reason why is because equitable tolling is such a factually intense
question." Id. at 557. Clark's counsel represented that, as of the date of the
hearing, the defendants had produced no discovery at all. See id. at 558 (Clark's
6
counsel: "We haven't heard from the State or received any discovery."). In
response to the court's suggestion that a hearing at which Clark alone would
testify would be suļ¬cient for the court to "make a determination whether
equitable tolling is established," id. at 560, Clark's counsel explained that
additional discovery was necessary, see id. at 560-61. Clark's counsel indicated
that she wished to seek "discovery relating to the assault circumstances which
would show, I think, how severe those assaults were and . . . how long lasting the
impacts on her mental condition would be" as well as discovery "related to the
institution['s] retaliation and the impact on plaintiļ¬." Id. at 560. Clark's counsel
argued that "it would be unfair for this case to be dismissed when we don't have
the discovery that the State was ordered to provide." Id. at 558.
The district court insisted that between Clark's testimony, her
medical records, and other documents already available, Clark's counsel had
suļ¬cient information to argue her equitable tolling claim. See id. at 561-62. "I
have to say, what more do you want?" Id. at 561. The district court criticized
Clark's counsel for "looking for merits discovery" and noted that counsel already
had Clark's 2011 statements to the state troopers who were investigating
Hanley's misconduct. Id. at 563. "Why do you need to know more about what
7
happened," the court asked, "when your client knows very well what happened
and told them at the time?" Id. at 562.
As it became increasingly clear the district court was going to
schedule an evidentiary hearing at which Clark alone would testify, her counsel
reluctantly asked the court to order the MacDougall-Walker Defendants to
produce all discovery previously requested, particularly Clark's medical records.
See id. at 570-71. In the end, the district court concluded that "it's really
appropriate to have an evidentiary hearing, one that's limited in terms of overall
scope. . . . [T]o me the key issue is trying to understand the state of mind of Ms.
Clark." Id. at 578. In an order dated August 27, 2021, the court ordered the
production of discovery by September 3; scheduled an evidentiary hearing for
September 20; limited the hearing to "the testimony of Clark and to the Court's
additional consideration of any exhibits or documents that are not presently in
the record"; and set September 16 as the deadline for ļ¬ling any such materials.
Clark v. Hanley, No. 18 Civ. 1765, 2021 WL 4192108 (D. Conn. Aug. 27, 2021). The
hearing occurred as scheduled, see App'x 348, and the district court received into
evidence only Clark's testimony and eighteen exhibits from her prison medical
8
records, see id. at 352-53. 1 There is no indication the court invited the parties to
submit further evidence after the hearing concluded.
For three interrelated reasons, I would hold that the district court
abused its discretion by denying Clark a "meaningful opportunity," In re Agent
Orange, 517 F.3d at 103, to obtain and present evidentiary support for her
equitable tolling claim.
First, the district court scheduled the evidentiary hearing on short
notice. It did not aļ¬ord Clark time to meaningfully seek evidence in addition to
what she was already owed and the MacDougall-Walker Defendants were
already late in producing. Only twelve business days separated the district
court's order scheduling the evidentiary hearing and the deadline for Clark to
submit any documents not already part of the record. Only one further business
day separated that deadline and the day of the hearing itself. Such an
abbreviated timetable is perhaps not surprising in light of the district court's
repeated comments that Clark's counsel already had suļ¬cient information to
argue her equitable tolling claim. See, e.g., App'x 561, 563. Nevertheless, the
1 In addition, the district court granted permission for the New Haven Pride
Center to ļ¬le an amicus curiae brief in support of Clark. See Clark, 2022 WL 124298, at *9
n.67; App'x 354.
9
limited time frame allotted for discovery did not provide Clark with a suļ¬cient
opportunity to develop evidence in support of her claim. See In re Agent Orange,
517 F.3d at 103 ("A party must be aļ¬orded a meaningful opportunity to establish
the facts necessary to support his claim."); Benjamin v. Jacobson, 172 F.3d 144, 166
(2d Cir. 1999) (vacating and remanding where, inter alia, "plaintiļ¬s should have
been given an opportunity to present evidence" in support of their claim). 2
Second, the district court erroneously concluded that additional
discovery was not needed. The beneļ¬ts of such discovery would almost
certainly have been more than "hypothetical." App'x 578. The district court's
approach to the evidentiary hearing prevented Clark from developing and
presenting such evidence as (1) aļ¬davits or deposition testimony from the
medical and mental health providers who worked with Clark and made the
notes contained in her records; (2) additional documentary evidence or
deposition testimony concerning the circumstances and eļ¬ects of Hanley's
assaults; (3) aļ¬davits or deposition testimony from fellow prisoners about the
2 The majority contends that Clark has not argued that she had "too short a time
frame" to have "a meaningful opportunity to establish the relevant facts." Ante, at 29
n.16. In fact, in her brief on appeal, Clark argues that the district court "failed to aļ¬ord
[her] appropriate opportunity to take discovery and gather evidence." Brief for
Plaintiļ¬-Appellant at 3.
10
risk of retaliation Clark might have faced had she complained about Hanley's
assaults (or about other inmates' and corrections oļ¬cers' responses to them) or
had she ļ¬led suit earlier; (4) an independent psychological evaluation of Clark;
and (5) other expert testimony. 3
Such evidence would have enabled Clark to present the district
court with a fuller picture of her circumstances. Moreover, the evidence the
district court did permit Clark to oļ¬er was rife with shortcomings. The majority
of Clark's medical records consist of reports prepared in relation to speciļ¬c
events, often emergencies. See, e.g., App'x 585. Some are "inļ¬rmary admission
orders," which describe the circumstances leading a prisoner to present herself
for treatment. See, e.g., id. at 589, 595, 600, 610. Others are "transfer summar[ies],"
3 The majority contends that "Clark never sought evidence as to four of these ļ¬ve
categories." Ante, at 45 n.27. While it is true that at the hearing Clark's counsel did not
explicitly identify these discrete categories of discovery, counsel described broadly the
discovery that "would be helpful for equitable tolling." App'x 560. This included
"medical information" and "discovery relating to the assault circumstances which would
show . . . how severe those assaults were" and "how long lasting the impacts on her
mental condition would be." Id. Counsel also referred to "the other category of
discovery, painting in sort of broadbrush strokes, that we asked for with respect to
tolling related to the institutional[] retaliation and the impact on the plaintiļ¬." Id.
Counsel further identiļ¬ed "bases for justifying equitable tolling," including "[f]ear of
retaliation," "mental condition," "medical condition," and "[a]dministrative exhaustion,"
noting that there is "a full . . . spectrum" of factors relevant to equitable tolling. Id. at
565. Surely these descriptions would encompass the information in the ļ¬ve categories
above, which are only examples of the type of information that could shed light on
Clark's state of mind for purposes of equitable tolling.
11
documenting at a high level of generality a prisoner's medical and mental health
conditions when she is being moved from one DOC facility to another. See, e.g.,
id. at 591, 602. Reļ¬ecting the severity of mental distress Clark experienced, two
of her medical records contain "suicide risk assessments," one dated January 8,
2012, id. at 597-98, and the other dated July 15, 2016, the day Clark attempted to
castrate herself, id. at 612-13. Of the medical records before the district court,
only four pages contain narrative notes by Clark's healthcare providers. See id. at
587, 604, 606, 608. But no volume of medical records alone could have
compensated for the absence of testimony from Clark's healthcare providers, her
fellow prisoners, or an independent psychologist and other experts.
Third, the district court wrongly assumed that Clark -- a survivor of
sexual abuse with an extensive mental health history -- could adequately explain
the impact of what Hanley did to her, more than a decade after the fact. The
district court reached this conclusion notwithstanding amicus's admonition that
"transgender survivors of sexual assault face exceptional barriers to reporting
their assailants" and that such barriers include "justiļ¬able distrust of authorities,
the risk of further victimization as a response to reporting, history of past
trauma, the pervasive discrimination they face in their daily lives, and the
12
heightened discomfort they may feel as to intimate physical examinations." Clark
v. Hanley, No. 18 Civ. 1765, Dkt. 82-1 at 4 (D. Conn. July 12, 2021). Moreover,
amicus warned, "prison [is] an exceptionally challenging setting in which to
report abuse," especially for transgender prisoners. Id. at 8.
The district court likely overestimated both Clark's capacity to
disclose Hanley's conduct to prison healthcare providers and her ability to
describe the eļ¬ects of Hanley's assaults, particularly in the adversarial and
charged atmosphere of an evidentiary hearing. As a consequence, the court
issued a decision replete with adverse ļ¬ndings about Clark's credibility without
giving Clark a "meaningful opportunity" to contextualize her testimony via the
opinions of experts in sexual abuse, gender dysmorphia and gender transition,
the psychological dynamics associated with prisoners' fears of retaliation on the
part of corrections oļ¬cials, and other topics relevant to Clark's case. Expert
testimony, combined with further development of the factual record, could very
well have corroborated Clark's statements about her fear of retaliation and the
impact of Hanley's assaults. Such evidence could also have conļ¬rmed why, as
Clark's medical records appear to corroborate, she took steps to bring this
13
lawsuit only after she came out as transgender and began to receive consular
support and adequate medical care. 4
Instead of giving Clark the opportunity she deserved to "establish
the facts necessary to support [her] claim," In re Agent Orange, 517 F.3d at 103, the
district court scheduled an evidentiary hearing on less than a month's notice,
declined Clark's request for discovery beyond the limited discovery the court
allowed, and placed on Clark's shoulders the burden of recalling her mental state
over a period of some ļ¬ve years and explaining why she could not have come
forward sooner. I would hold that the combined eļ¬ect of these decisions
prejudiced Clark's substantial rights and that, therefore, the district court abused
its considerable discretion in limiting discovery on Clark's equitable tolling claim
and conducting an evidentiary hearing in the expedited and limited manner that
it did.
4 The majority notes that Clark did not raise in the district court the issue of calling
expert witnesses. See ante, at 44. But the district court aļ¬orded Clark's counsel less
than four weeks to prepare for the evidentiary hearing, and the district court made clear
at the hearing on defendants' motion to dismiss that it would only permit Clark to
testify. See id. at 580 (court conļ¬rming that its intention was that the hearing would be
"conļ¬ned to testimony from the plaintiļ¬"). Thus, any request for expert testimony
would have been futile.
14
II.
In my view, the district court denied Clark the protections of the
Seventh Amendment because, in its opinion denying her request for equitable
tolling, the district court found facts that are common to Clark's equitable tolling
and Section 1983 claims.
The Seventh Amendment limits the facts that a district court, sitting
in this posture, is empowered to ļ¬nd. In pertinent part, the amendment provides
that "[i]n suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved." U.S. Const., amend.
VII. The guarantee of a jury trial "was held in such esteem by the colonists that
its deprivation at the hands of the English was one of the important grievances
leading to the break with England." Parklane Hosiery Co. v. Shore, 439 U.S. 322,
340(1979) (Rehnquist, J., dissenting). Some scholars have argued that the omission of the right to a jury trial from the original Constitution was the reason "the entire issue of the absence of a bill of rights was precipitated at the Philadelphia Convention." Charles W. Wolfram, The Constitutional History of the Seventh Amendment,57 Minn. L. Rev. 639
, 657 (1973).
15
For this reason, both the Supreme Court and our Court have
ensured that questions the Constitution reserves to juries are actually decided by
them. In a long line of cases, the Supreme Court has taught that where a case
presents both legal and equitable issues, the legal issues should generally be tried
ļ¬rst, before a jury. See, e.g., Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-11(1959); Dairy Queen, Inc. v. Wood,369 U.S. 469, 478
(1962); Ross v. Bernhard,396 U.S. 531, 540
(1970). These holdings guarantee that in mixed cases, "the jury's ļ¬ndings on the issues of fact common to both the equitable and legal claims . . . bind the judge in the equitable action," rather than the reverse. Margaret L. Moses, What the Jury Must Hear: The Supreme Court's Evolving Seventh Amendment Jurisprudence,68 Geo. Wash. L. Rev. 183
, 208 (2000). For our part, we have conļ¬rmed that "[w]hen an action involves both legal and equitable claims that have common issues of fact, and a jury trial has been properly demanded with regard to the legal claims, the parties have a right under the Seventh Amendment to have the legal claims tried to a jury." Wade v. Orange Cnty. Sheriļ¬'s Oļ¬.,844 F.2d 951
, 954 (2d Cir. 1988) (citing Dairy Queen, Beacon Theatres, and Ross).
The majority holds that the district court did not violate Clark's
Seventh Amendment right to a jury trial because "the factual issues relevant to
16
Clark's equitable tolling claim and her Ā§ 1983 claims are analytically and
temporally distinct." Ante, at 49. I disagree because the district court made
factual ļ¬ndings about at least one issue -- the severity of Hanley's abuse -- that is
common to Clark's equitable tolling and Section 1983 claims.
The Complaint asserts two Section 1983 claims for violations of her
Eighth Amendment right to be free of "cruel and unusual punishments." U.S.
Const., amend. VIII. Clark brings the ļ¬rst of her claims against Hanley alone,
alleging he assaulted her on at least four occasions and the assaults "served no
cognizable or conceivable penological purpose." App'x 125. She brings her
second claim against the MacDougall-Walker Defendants, alleging they were
deliberately indiļ¬erent to the risk Hanley posed to her safety. Id. at 126-27. To
maintain each of her claims, Clark bears the burden of demonstrating that
Hanley's abuse was of constitutional magnitude.
I begin with Clark's claim against Hanley. In Boddie v. Schnieder, 105
F.3d 857, 860-61 (2d Cir. 1997), we held that "sexual abuse of a prisoner by a
corrections oļ¬cer may in some circumstances violate the prisoner's right to be
free from cruel and unusual punishment." A prisoner may maintain a Section
1983 claim for sexual abuse suļ¬ered while incarcerated "when two requirements
17
are met. First, the alleged 'punishment' must be, 'objectively, suļ¬ciently serious.'
Under the objective standard, 'conditions that cannot be said to be cruel and
unusual under contemporary standards are not unconstitutional.'" Id. at 861(ļ¬rst quoting Farmer v. Brennan,511 U.S. 825, 834
(1994), then quoting Rhodes v. Chapman,452 U.S. 337, 347
(1981)). Sexual abuse of a prisoner by a corrections oļ¬cer can rise to the level of a constitutional violation if it is "severe," "repetitive," or "cumulatively egregious."Id.
But "isolated episodes of harassment and touching," even if "despicable" or actionable under state tort law, "do not involve a harm of federal constitutional proportions."Id.
at 861-62 (citing Farmer,511 U.S. at 833-34
; Rhodes,452 U.S. at 348-49
).
As with other Eighth Amendment claims, "contemporary standards
of decency" evolve over time and, thereby, "mark the progress of a maturing
society." Crawford v. Cuomo, 796 F.3d 252, 259(2d Cir. 2015); see also Roper v. Simmons,543 U.S. 551, 564
(2005) (noting that contemporary standards emerge
out of "objective indicia of consensus, as expressed in particular by the
enactments of legislatures that have addressed the question"). In the past
quarter-century, Congress, state legislatures, and courts have all acknowledged
that "deep moral indignation . . . has replaced what had been society's passive
18
acceptance of the problem of sexual abuse in prison." Crawford, 796 F.3d at 259-
60 (cataloguing federal and state statutes). Connecticut recognized the severity
of the issue earlier than many other States, enacting in 1975 a statute
criminalizing "sexual contact" between a person "in custody of law or detained in
a hospital or other institution" and a perpetrator who "has supervisory or
disciplinary authority over such other person." 1975 Conn. Acts 983 (Reg. Sess.).
This is the crime to which Hanley pleaded guilty and for which he served a term
of imprisonment and was required to register as a sex oļ¬ender.
In addition to making this objective showing, a plaintiļ¬ must also
satisfy a subjective standard: She must demonstrate that "the prison oļ¬cial
involved must have a 'suļ¬ciently culpable state of mind.'" Boddie, 105 F.3d at 861(quoting Farmer,511 U.S. at 834
).
Like her claim against Hanley, Clark's claim against the
MacDougall-Walker Defendants includes both objective and subjective elements.
Where a prisoner's Section 1983 claim is for prison oļ¬cials' deliberate
indiļ¬erence to a corrections oļ¬cer's sexual misconduct, the objective standard is
whether the prisoner "is incarcerated under conditions posing a substantial risk
of serious harm," Morgan v. Dzurenda, 956 F.3d 84, 89 (2d Cir. 2020) (quoting
19
Farmer, 511 U.S. at 834). The subjective test is the same as above, that is, the defendant oļ¬cials "must have a 'suļ¬ciently culpable state of mind.'" Farmer,511 U.S. at 834
(quoting Wilson v. Seiter,501 U.S. 294, 297
(1991)).
Both of Clark's claims, therefore, require her to show that Hanley's
abuse -- or, as to the MacDougall-Walker Defendants, the risk of abuse Hanley
presented -- was, objectively and subjectively, serious enough as to violate the
Eighth Amendment. Our cases make clear that these are questions of fact that do
not always have self-evident answers and depend on value judgments about the
moral standards of the community. For instance, in Crawford we observed that
"as the basic mores of society change[,] . . . conduct that might not have been seen
to rise to the severity of an Eighth Amendment violation 18 years ago may now
violate community standards of decency." 796 F.3d at 260. 5
These are, quintessentially, questions for a jury -- even more so
because the plight of transgender prisoners is an issue as to which social mores
are changing quickly and dramatically. Courts both in this Circuit and elsewhere
have recently permitted transgender prisoners' Section 1983 claims to survive
5 Indeed, in Crawford we speciļ¬cally held that "the oļ¬cer's conduct in Boddie,"
which we had decided was not of constitutional magnitude, "would ļ¬unk its own test
today." Id.
20
motions to dismiss, sometimes even where prison oļ¬cials' sexually harassing
conduct was purely verbal. In Johnson v. Cook, No. 19 Civ. 1464, 2021 WL
2741723, at *10 (D. Conn. July 1, 2021), the plaintiļ¬ alleged that oļ¬cers at a facility where Clark was temporarily housed "made demeaning and derogatory comments about [the plaintiļ¬'s] gender transition and voiced transgender-phobic slurs about her in front of the other inmates at her dining table." Because the plaintiļ¬ alleged she had "experienced an 'appreciable injury'" as a result of the harassment, the court declined to dismiss her Eighth Amendment claim.Id.
(quoting Willey v. Kirkpatrick,801 F.3d 51, 70
(2d Cir. 2015)); see also B. Braxton/Obed-Edom v. City of New York,368 F. Supp. 3d 729, 737-38
(S.D.N.Y. 2019) (denying motion to dismiss transgender prisoner's failure-to-protect claim); Stroud v. Pruitt, No. 17 Civ. 1659,2019 WL 2077028
, at *5 (E.D. Cal. May 10, 2019) (recommending dismissal of transgender prisoner's claims of verbal harassment but not her claims of physical abuse). But see Fisher v. Worth, No. 18 Civ. 16793,2022 WL 3500432
(D.N.J. Aug. 18, 2022); Outman v. Superintendent, Five Points Corr. Facility, No. 16 Civ. 788,2017 WL 318852
(N.D.N.Y. Jan. 23, 2017) (both
declining to equitably toll statutes of limitations for transgender inmates).
21
Whether Hanley's abuse was of constitutional magnitude overlaps
with whether Clark is entitled to equitable tolling. As no party contests, the
severity and sequelae of Hanley's abuse are central to Clark's claim for equitable
tolling. The ļ¬rst element of that claim is that "a petitioner must demonstrate
'extraordinary circumstances beyond [her] control' that prevented [her] from
timely ļ¬ling [her] petition." Harper v. Ercole, 648 F.3d at 137(quoting Baldayaque v. United States,338 F.3d 145, 151
(2d Cir. 2003)). Whether a circumstance is "extraordinary" does not have to do with "the uniqueness of a party's circumstances" but, rather, "the severity of the obstacle impeding compliance with a limitations period."Id.
The second element of a claim for equitable tolling is that the petitioner "must demonstrate that '[s]he acted with reasonable diligence throughout the period [s]he seeks to toll.'"Id.
at 138 (quoting Belot v. Burge,490 F.3d 201, 205
(2d Cir. 2007)). The standard is whether the petitioner "acted as diligently as reasonably could have been expected under the circumstances," not whether she demonstrated "maximum feasible diligence."Id.
(alteration adopted and internal quotation marks omitted).
Thus, when the district court concluded that Hanley's assaults "were
not physically coercive or made under threat of harm or retaliation" and that
22
"[t]hey were unlike a violent sexual assault or rape that would likely result in the
most severe type of psychological trauma," Clark, 2022 WL 124298, at *6, the
district court found facts that were common to Clark's claim for equitable tolling
and Clark's underlying Section 1983 claims. The district court ventured
improperly into the province of the jury because its characterization of the abuse
Clark experienced could, under principles of collateral estoppel, have precluded
the jury from determining that Clark's injuries -- and the risk Hanley posed to
her -- were of constitutional magnitude or that they could have prevented her
from bringing suit for four years. That the district court did not ļ¬nd Clark
suļ¬ered no harm is not relevant to this analysis. First, no party denies that
Hanley repeatedly assaulted Clark. Second, the overlap between the elements of
Clark's Eighth Amendment claims and her claim for equitable tolling has to do
with the magnitude of the harm she suļ¬ered, not the fact that she suļ¬ered any
harm at all. 6
6 The majority writes that a jury would determine "how much money would
compensate Clark" for the harm she suļ¬ered, an inquiry "distinct" from the equitable
tolling inquiry, which requires assessing "whether the harm caused her to miss the ļ¬ling
deadline." Ante, at 50-51. But part of the inquiry into whether the harm caused Clark to
miss the deadline turns on the severity of the harm, which would be an obvious factor in
the jury's determination of the amount of compensatory damages. Both inquiries
implicate the Eighth Amendment. By concluding that Clark's harm was not so severe as
to warrant equitable tolling, the district court intruded into the province of the jury.
23
The district court's error in making factual ļ¬ndings that the Seventh
Amendment reserves to the jury is, in my view, suļ¬cient reason for this Court to
vacate and remand the judgment of the district court. The district court's
discussion of the severity of Clark's harm ignores the extent to which a sexual
assault survivor may suļ¬er and supports that testimony from a qualiļ¬ed
individual would have been proper in making such a determination. It also
underpins the district court's assessment that the fact Clark ļ¬led a state habeas
petition -- which had nothing to do with Hanley's assaults, the conditions of
Clark's conļ¬nement, or her transgender status -- shows she could have also
brought this claim earlier, see id.
It is noteworthy that the district court's opinion contains no
reference to the Seventh Amendment. The MacDougall-Walker Defendants
argue that the guarantee of a jury trial is inapplicable to Clark's case because the
"Seventh Amendment does not extend" to "threshold issues that courts must
address to determine whether litigation is being conducted in the right forum at
the right time." Appellees' Br. at 34 (alteration adopted) (internal quotation
marks omitted). For this proposition, the MacDougall-Walker Defendants cite --
but misapprehend -- our decision in Messa v. Goord, 652 F.3d 305, 309 (2d Cir.
24
2011). In Messa, we held that statutes of limitations are not "threshold issues" like
the exhaustion of administrative remedies. Id. (noting that while "the two are
similar in some ways -- e.g., both are non-jurisdictional aļ¬rmative defenses --
they serve very diļ¬erent functions in our civil justice system").
In sum, the district court made factual ļ¬ndings that, under the
Constitution, were not for it to make -- and, then, to Clark's disadvantage,
allowed those ļ¬ndings to pervade its legal reasoning.
III.
Clark's allegations as to her diļ¬culties in bringing this case are not
unique. The amicus briefs ļ¬led in the district court as well as this Court depict
the grim realities that are the daily fare of transgender prisoners. An empirical
study published in 2011 reported that nearly two in ļ¬ve transgender people who
are incarcerated report being sexually victimized; close to half of those prisoners
identify police or corrections oļ¬cers as their perpetrators. Brief of Amici Curiae
Lambda Legal Defense and Education Fund, Inc., Amicus Project at UConn Law,
Just Detention International, and Center for Constitutional Rights ("Amicus Br."),
at 5. And "[o]nce targeted for abuse, the majority of transgender survivors are
subjected to repeated sexual assaults," as Clark was. Id. at 6 n.9 (quoting Just
25
Detention International, Targets for Abuse: Transgender Inmates and Prison Rape 2
(2013)). Like Clark, many transgender inmates do not disclose their gender
identity, "fearing [they] will be at greater risk of sexual assault" if they do. Stroud
v Pruitt, 2019 WL 2077028, at *2.
As a general matter, it is well-established that victims of sexual
misconduct often delay reporting. See, e.g., United States v. Weisinger, 586 F.
App'x 733, 737-38(2d Cir. 2014) (summary order) (noting that expert testimony "that delayed reporting was not inconsistent with abuse" was "supported by empirical, peer-reviewed research, well accepted in the courts"); see also Fuentes v. T. Griļ¬n,829 F.3d 233, 239
(2d Cir. 2016) (recounting expert testimony that "a recognizable pattern of behavior that is exhibited by victims of sexual assault . . . may include delayed reporting" (citations and internal quotation marks omitted)). In this respect, prisons in particular present a "unique psychological environment," Stone #1 v. Annucci, No. 20 Civ. 1326,2021 WL 4463033
, at *12 (S.D.N.Y. Sept. 28, 2021), in which "the specter of retaliation [is] a real and ever- present force in an inmate's life," Davis v. Jackson, No. 15 Civ. 5359,2016 WL 5720811
, at *11 (S.D.N.Y. Sept. 30, 2016). See also, e.g., James E. Robertson, "One of
the Dirty Secrets of American Corrections": Retaliation, Surplus Power, and
26
Whistleblowing Inmates, 42 U. Mich. J.L. Reform 611, 614 (2009) (noting that
"[i]nmates' fear of retaliation deters them from ļ¬ling grievances," yet the failure
to ļ¬le timely often limits a prisoner's capacity to seek redress).
Because the prison environment is more threatening for those who
are transgender, when transgender prisoners report mistreatment, more than
half of them report facing "retaliation in the form of punitive transfer, isolation,
neglect, or further abuse." Amicus Br. at 16. Moreover, "transgender prisoners
experience secondary victimization when their reports of abuse are ignored or
disbelieved." Id. (quoting Julia C. Oparah, Feminism and the (Trans)gender
Entrapment of Gender Nonconforming Prisoners, 18 U.C.L.A. Women's L.J. 239, 263
(2012)).
Clark's allegations and her testimony at the evidentiary hearing
track these ļ¬ndings closely: She was repeatedly abused by a corrections oļ¬cial
who took advantage of prison policies to isolate and assault her. She was
mocked by oļ¬cials -- including some who were friendly with her assailant --
who called her "gross," "nasty," "disgusting," and a "fag[g]ot" for being another
man's victim. App'x 123, 375. Her fellow prisoners ridiculed the assaults as "gay
stuļ¬" -- a phrase that very likely heightened Clark's already intense shame about
27
her gender dysphoria. Between 2011 and early 2016, she reported Hanley's abuse
only once, and even then reluctantly: She told the district court "I didn't want to
go" to the interview at which she disclosed what Hanley did to her because "I
was afraid of what would happen with the staļ¬." Id. at 366. Although
authorities believed Clark's report and took appropriate action, in the ensuing
years Clark's fear prevented her from speaking up further. She lacked access to
medical and mental health care for her gender dysphoria, to the point that she
partially castrated herself and was repeatedly hospitalized out of concern she
would die by suicide.
Whether Clark can prove her allegations, whether Hanley's abuse
was "suļ¬ciently serious," Farmer, 511 U.S. at 834, and whether the danger to which the MacDougall-Walker Defendants exposed Clark constituted a "substantial risk of serious harm,"id.,
are all questions for a jury. For the reasons
discussed above, I would hold that the Seventh Amendment guarantees Clark
the right to have these questions answered by a jury -- not by a judge presiding
over a highly circumscribed evidentiary hearing scheduled on short notice. And
I would hold that the district court further abused its discretion by evaluating
Clark's testimony based on a limited record, without permitting Clark's counsel
28
to conduct discovery into other categories of evidence bearing on Clark's claim
for equitable tolling.
"Statutes of limitations are generally subject to equitable tolling
where necessary to prevent unfairness to a plaintiļ¬ who is not at fault for her
lateness in ļ¬ling." Gonzalez v. Hasty, 651 F.3d 318, 322(2d Cir. 2011) (quoting Veltri v. Bldg. Serv. 32B-J Pension Fund,393 F.3d 318, 322
(2d Cir. 2004)). Because
Clark was not provided with a full and fair opportunity to show that she was
"not at fault for her lateness in ļ¬ling," and because the district court decided
questions that should have been put to a jury, I would vacate the judgment and
remand for further proceedings. Accordingly, I respectfully dissent.
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