CA1: a strange 1983 statute of limitations problem

Cao v. Commonwealth of PR, No. 07-1394.  This is a 1983 case brought by a an “an elderly resident [who was] was removed from her home, made to undergo a psychological evaluation, and placed in a substitute home and, later, a state institution for the elderly.”  This comes down to a statue of limitations issue (analogizing to Puerto Rico’s statute of limitations).  “ The Commonwealth identifies this as occurring on March 16, 2004, the day Cao was first removed from her home, while Cao instead puts forth August 2, 2005, the day she was notified that the state court had dismissed all custody proceedings against her.”  The First says that the commonwealth won, because this is when she knew of the injuries, and equitable tolling doesn’t apply.    But, is the First really saying that she should have brought a 1983 action while the state court custody proceedings were proceeding?  Wouldn’t that be considered some kind of impermissible collateral attack.

Comments

[Mike]

There's the estoppel issue, too.

Can the state say in one proceeding that one is incompetent to make her own decisions; and then say in a later proceeding that one is competent to make her own decisions?

By institutionalizing the plaintiff, the state claimed that she could not make her own decisions. By the state's logic, she was "disabled," thus tolling the statute of limitations. So the state can not later say, "Sike!"

Also, is it really the case that since a lawyer didn't make an argument below regarding the SOL, that the court just ignores it? Slip op. at 7. Statute of limitations is an affirmative defense. It's not up to the plaintiff to show that the limitations period has not run. Rather, it's up to the defendant to show that the limitations period has run. How could the defendant establish that in light of the plaintiff's disability?

That's a basic burden of proof issue. You can't say, "The defendant met his burden of proof because the other guy didn't make an argument." How silly is that? What sort of misunderstanding of the burden of proof would that reveal?

I imagine her lawyer didn't make the estoppel argument. The First would have ignored it, anyway. The opinion read like something written by a non-too-intelligent recent law school graduate. As you know, law grads don't really know about statutes of limitations, anyway. That's practical stuff that dirty lawyers worry about. (Clerks don't even get the theory of Section 1983; but that's a subject for a different day.)