Bird v. Hawaii

935 F.3d 738 (2019) United States Court of Appeals for the Ninth Circuit 2019-08-23

civil; mother listed on Hawai'i's child abuse registry in 2007 without notice sued the State, DHS and officials under § 1983 (due process) in July 2015; district court raised limitations sua sponte and granted summary judgment for defendants as untimely; CA9 affirmed (result: claimant-lost)

Facts

  1. 18 Borrowed state personal-injury statute of limitations (42 U.S.C. § 1988; Wilson v. Garcia; Owens v. Okure) satisfied law
    Bird did not file suit, however, until July 20, 2015-more than two years after her extensive communications with DHS and previous threat to sue.
  2. 18 Borrowed state personal-injury statute of limitations (42 U.S.C. § 1988; Wilson v. Garcia; Owens v. Okure) satisfied law
    Because Bird's complaint is not subject to any exception from the normal discovery rule of accrual, we agree that Bird's claim accrued no later than May 2013, when Bird threatened to sue DHS if she was not removed from the CCAR.
  3. 18 Borrowed state personal-injury statute of limitations (42 U.S.C. § 1988; Wilson v. Garcia; Owens v. Okure) satisfied law
    Nevertheless, because DHS did not conclude that its initial assessment was "frivolous or in bad faith," DHS took no action and Bird remained on the CCAR as a "confirmed" child abuser.
  4. 18 Borrowed state personal-injury statute of limitations (42 U.S.C. § 1988; Wilson v. Garcia; Owens v. Okure) satisfied law
    In a letter dated May 14, 2013, Bird's attorney indicated to DHS that Bird would "proceed with litigation" if she was not removed from the registry.
  5. 18 Borrowed state personal-injury statute of limitations (42 U.S.C. § 1988; Wilson v. Garcia; Owens v. Okure) satisfied law
    Although Bird's injuries resulting from the 2007 act of placing her on the CCAR continue to the present day, continuing effect is insufficient to constitute a continuing violation.
  6. 18 Borrowed state personal-injury statute of limitations (42 U.S.C. § 1988; Wilson v. Garcia; Owens v. Okure) satisfied law
    The only instance Bird has identified where she sought and was denied a post-deprivation hearing occurred prior to May 2013.
  7. 18 Borrowed state personal-injury statute of limitations (42 U.S.C. § 1988; Wilson v. Garcia; Owens v. Okure) satisfied law
    Accordingly, her suit, filed in July 2015, was outside the two-year statute of limitations.