E-Alert Case Updates
West Virginia Federal Court Examines the Continuing Violation Doctrine
Carol J. Howard v. The City of Clarksburg
Carol J. Howard v. The City of Clarksburg involved a lawsuit filed by a resident against the City of Clarksburg, West Virginia, alleging a series of claims under 42 U.S.C. § 1983 stemming from the City’s issuance of a condemnation and demolition order for the resident’s home. The United States District Court for the Northern District of West Virginia concluded that the continuing violation doctrine did not apply under the facts of the case, and thus, that the resident’s lawsuit was time barred by West Virginia’s two (2) year statute of limitations for property damage, W. Va. Code § 55-2-12(a). Thus, Judge Irene M. Keeley granted the City’s motion to dismiss.
By way of factual background, Plaintiff Carol J. Howard (“Plaintiff” or “Howard”) was the longtime homeowner of 631 Drummond Street, a property in Clarksburg, West Virginia. On September 21, 2009, Keith Kesling, an employee of the Defendant, the City of Clarksburg’s (“City’s”), Code Enforcement Department, served Howard with a notice of violation and a condemnation and demolition order. These two (2) documents indicated that Howard’s home was unsafe and unfit for human occupancy. The notice of violation also informed Howard of her right to appeal the decision to the City’s Board of Building Code Appeals (“BOCA”).
Howard appealed the condemnation and demolition order to the BOCA on October 7, 2009. During its November 17, 2010, meeting, the BOCA voted unanimously to uphold the demolition of Howard’s property. Howard subsequently appealed the BOCA’s decision to the Circuit Court of Harrison County, West Virginia, alleging that the BOCA had failed to give her proper notice of the November 17, 2010, meeting (hereinafter, “Howard I”). On February 25, 2011, the Circuit Court dismissed Howard I and affirmed the City’s Condemnation and Demolition Order. On October 5, 2011, the Clarksburg Municipal Court entered a condemnation and demolition order authorizing city officials to enter the property and prepare for demolition.
On March 23, 2012, Howard filed a second lawsuit in the Circuit Court of Harrison County, again challenging the BOCA’s decision to condemn and demolish her property (hereinafter, “Howard II”). The Circuit Court dismissed Howard II on res judicata grounds, reaffirming the validity of the BOCA’s decision.
On July 18, 2013, the City Council adopted Resolution No. 13- R21, which declared certain areas of the City to be “slum or blighted” and allocated funding for demolition of properties in those areas. The resolution listed Howard’s home as one (1) of the “slum or blighted” properties to be demolished.
On July 17, 2015, prior to the scheduled demolition of her property, Howard filed a lawsuit against the City in the Circuit Court of Harrison County, West Virginia, alleging five (5) causes of action: (1) municipal liability pursuant to 42 U.S.C. § 1983; (2) general civil rights allegations pursuant to 42 U.S.C. § 1983; (3) failure to implement proper policies, customs, and practices, pursuant to 42 U.S.C. § 1983; (4) violation of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983; and, (5) negligent hiring, retention, training, and supervision. On August 11, 2015, the City removed the case to the United States District Court for the Northern District of West Virginia, invoking the Court’s federal question jurisdiction. On November 9, 2015, the City moved to dismiss the complaint on statute of limitations grounds.
The Court began its analysis by noting that a plaintiff who brings a § 1983 action must abide by the applicable state statute of limitations, and that in West Virginia, “every personal action for which no limitation is otherwise prescribed shall be brought (a) within two years after the right to bring the same shall have accrued, if it be for damage to property…” See W. Va. Code § 55-2-12(a); McCausland v. Mason City Bd. of Educ., 649 F.2d 278, 279 (4th Cir. 1981).
The Court explained that a federal civil rights claim accrues when “the plaintiff knows or has reason to know of the injury which is the basis of the action,” and that if harm results from a series of acts or omissions, “the continuing violation doctrine may apply, and the limitations period begins to run from the last violation.” See A Society Without A Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011); Green v. Rubenstein, 644 F. Supp. 2d 723, 747 (S.D.W. Va. 2009).
The Court further explained that for the continuing violation doctrine to apply, a plaintiff generally must establish that the unconstitutional or illegal act “was a fixed and continuing practice,” and that “allegations of entirely new violations do not implicate the continuing violation doctrine; rather, the same alleged violation must occur at the time of each act.” See Nat’l Advert. Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991). The Court also noted that “a continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation.” See City of Raleigh, 947 F.2d at 1166.
Turning to the facts of the case, the Court considered whether Howard’s complaint, filed on July 17, 2015, was subject to dismissal under the statute of limitations. The City contended that Howard’s complaint was premised entirely on the September 21, 2009 code enforcement action, thereby implicating the statute of limitations. Howard contended that the City had mischaracterized her claims, which she asserted stemmed from the July 18, 2013, resolution of the City Council declaring her property slum or blight.
The Court determined that a careful review of the factual allegations in Howard’s complaint refuted Howard’s contention, finding that all of her allegations stemmed from or predated the City’s September 21, 2009 code enforcement action. According to the Court, those allegations included the following: (1) that the City adopted and established building code enforcement policies in 2003 and 2009 that led to deprivations of Howard’s property rights; (2) that the City failed to properly train or certify its building inspectors, leading to the unlawful notice of violation and condemnation and demolition order; (3) that on April 16, 2009, the City amended its building code to impermissibly alter the makeup of the BOCA, leading to the deprivation of Howard’s Fifth and Fourteenth Amendment rights; (4) that the City conducted an unlawful inspection, assessment, and seizure of Howard’s property; (5) that the City allowed uncertified, unlicensed employees, working as building inspectors, to deem Howard’s property unfit and remove her from the property; and, (6) that building inspectors misrepresented their qualifications to obtain certification as building code officials, which led to illegal notices of violations, condemnations, and demolitions.
Although Howard alleged that the City relied upon all of these earlier violations when it declared her property slum or blight in the 2013 resolution, the Court found that the real injury of which Howard complained occurred when the BOCA, acting on behalf of the City, issued its condemnation and demolition order in 2009. The Court noted that the legal effect of the 2013 resolution was merely to declare Howard’s property “slum” or “blight” in order to obtain funding for demolition.
The Court explained that “every refusal to reconsider the decision does not revive the limitations period for the original decision” and “to do so would upset the balance struck by the limitations period between the reasonable needs of individual claimants and the public interest in finality.”
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