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John Maxwell Montin v. the Estate of Dale Johnson; Bill Zinn; Jessie Rassmensen

April 11, 2011


Appeal from the United States District Court for the District of Nebraska.

The opinion of the court was delivered by: Melloy, Circuit Judge.

Submitted: November 17, 2010

Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.

In late 1993, John Maxwell Montin was adjudicated not guilty by reason of insanity on charges of false imprisonment and use of a weapon to commit a felony. Since early 1994, he has been involuntarily committed at a secure psychiatric facility, the Lincoln Regional Center ("Center"). In 1996 and 1998, the Center altered its policies regarding hierarchical categories of liberty afforded its residents, allegedly restricting residents' ability to move about the grounds at the Center or, in limited situations, travel offsite.

In 2007, Montin filed the present action asserting the Center's amendment of its policies in 1996 and 1998 resulted in ongoing operation of the facility in a manner that deprives him of liberty in violation of due process and equal protection rights guaranteed by the United States and Nebraska constitutions. Montin seeks monetary and declaratory relief. He also seeks injunctive relief in order to restore a degree of liberty equivalent to or greater than that which he enjoyed prior to the 1996 and 1998 amendments. The district court dismissed his complaint as untimely, finding the cause of action accrued no later than 1998 and finding Montin's insanity did not provide a basis for tolling the applicable statute of limitations.

We vacate the district court's order and remand for further proceedings.


In 1996, a sex offender escaped from the Center. In response, the Center temporarily suspended certain privileges related to all residents' freedom of movement. Prior to the escape, the Center had a policy regarding residents' liberty that provided five categories of freedom of movement labeled "Codes," with Code-1 providing the least liberty and most security and Code-5 providing the most liberty. The differences in the degree of liberty afforded residents pursuant to these categories appears to have been meaningful. Code-1 provided very little freedom of movement, and Code-2 permitted movement about Center grounds with one-to-one staff supervision. Other Code levels permitted increasing freedom of movement and decreasing supervision up to Code-5 which permitted unsupervised off-site liberty for certain purposes such as work or school. Before the sex offender escaped in 1996, Montin enjoyed Code-4 privileges.

Immediately after the escape, the Center suspended Code-4 privileges, apparently as a general policy applicable to all residents. Montin alleges that, in 1998, during an annual review by a state trial court, the court along with his "treatment team" approved an overall plan that should have permitted him to enjoy Code-5 privileges. The Center, however, permanently eliminated Code-4 and Code-5 categories as a Center-wide policy in 1998. Accordingly, the Center granted Montin only Code-3 status.

In December 2007, acting pro se, Montin filed the present suit pursuant to 42 U.S.C. § 1983 alleging violations of his equal protection and due process rights and seeking counsel. The district court denied counsel, and Montin continued on a pro se basis. In the complaint and in an amended complaint, Montin named as defendants several Center officials in their individual capacities. In addition, he named two defendants in their official capacities, Center CEO Bill Gibson and Nebraska Department of Health and Human Services Director Christine Peterson. In 2009, the district court dismissed all claims against the defendants in their individual capacities because Montin failed to properly serve the individual defendants.

Peterson and Gibson moved for summary judgment alleging the complaint was untimely pursuant to the applicable statute of limitations. In their brief in support of the motion, defendants conceded that Montin had asserted equitable tolling due to his mental status as an argument against the application of a statute of limitations. Montin filed a resistance in which he appears to have raised several arguments concerning the dismissed defendants. In the same resistance, he also argued that the statute of limitations does not apply to cut off his claims for injunctive relief concerning his ongoing conditions of confinement. In addition, Montin moved for an evidentiary hearing regarding his mental capacity as related to the issue of equitable tolling. In support of his motion for an evidentiary hearing, he filed an affidavit and a treating psychatrist's report in which the psychiatrist claimed Montin was "delusional" about legal matters and was "out of touch with reality."

The district court granted summary judgment based upon the statute of limitations without granting Montin's motion for an evidentiary hearing. The court determined that the applicable statute of limitations was four years and that Montin's cause of action accrued no later than the Center's 1998 permanent change in policy. The court did not address the issue of whether the statute of limitations precluded a present claim for injunctive relief concerning ongoing restrictions to Montin's liberty and his current conditions of confinement. The court did address the issue of equitable tolling. The court cited a psychiatrist's report provided by the defendants as supporting the view that Montin was of sufficiently sound mind to understand and assert his interests. The court also cited different lawsuits Montin had filed between 1998 and 2007 as evidence that he was capable of bringing grievances for adjudication. The court, ultimately, held Montin's mental condition did not justify equitable tolling of the limitations period.

In addressing the tolling issue, the court raised the evidence of other lawsuits sua sponte, and the parties did not have an opportunity to present arguments concerning the contents of the earlier lawsuits or the inferences that should be drawn from those lawsuits. Further, the court appears to have overlooked Montin's affidavit and the psychiatrist's report Montin submitted with his motion for an evidentiary hearing. The court stated in its written order of dismissal that Montin did "not submit any evidence in response to [Defendant's psychiatrist's] Affidavit."

Montin appealed to our court, and the defendants moved for summary affirmance. A panel of our court denied the motion for summary affirmance and specifically ordered briefing as to the issue of whether there existed a factual question surrounding Montin's mental condition as material to the issue of tolling. On appeal,*fn1 Montin renewed his argument that the statute of limitations cannot cut off his ability to seek injunctive relief for allegedly unconstitutional and continuing restrictions to his liberty. Defendants did not address this issue, asserting instead that our order as to briefing limited the issue on appeal solely to the issue of equitable tolling. To provide an opportunity to address both issues (equitable tolling and the applicability of the statute of ...

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