                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1265
                         ___________________________

                        James Humphrey; Ollie Humphrey

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

Eureka Gardens Public Facility Board; C. Ray Roberts; City of North Little Rock,
By and Through its Wastewater Department; Michael Marlar; Marlar Engineering
                                Company Inc.

                      lllllllllllllllllllll Defendants - Appellees

                             Department of Agriculture

                             lllllllllllllllllllll Defendant

Lawrence McCullough, Arkansas State Director for the U.S. Department of Agriculture

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                             Submitted: January 9, 2018
                                Filed: June 6, 2018
                                  ____________

Before LOKEN, BEAM, and KELLY, Circuit Judges.

                                    ____________
KELLY, Circuit Judge.

      Husband and wife James and Ollie Humphrey appeal after the district court1
dismissed their 42 U.S.C. § 1983 complaint as time-barred. We affirm.

                                  I. Background

       In 2009, the Eureka Gardens Public Facility Board (Board) decided that a new
sewer system would be constructed in the Eureka Gardens community, located near
the City of North Little Rock, Arkansas. An engineer’s report initially proposed that
gravity sewer systems be installed at all Eureka Gardens residences. The Board
submitted that report to the U.S. Department of Agriculture (USDA), and the USDA
approved funding to assist with construction of the system, subject to USDA approval
of any changes to the engineer’s initial design. The design was subsequently changed
such that five residences would receive grinder sewer systems instead. Unlike gravity
systems, grinder systems use electric-powered pumps, making them more expensive
to operate and maintain. African-American families lived at four of the five
residences that were to receive grinder systems under the modified plan.

       The Humphreys, who are African-American, own two of the Eureka Gardens
residences that were designated to receive grinder systems. In October 2011, they
signed a contract, which provided that grinder pumps would be installed at each of
their Eureka Gardens properties. In the contract, the Board agreed to install the
grinder pumps as well as lines connecting the pumps to the sewer system’s main
sewage lines, and to do so at no cost to the Humphreys. In return, the Humphreys
agreed to install electrical lines to power each pump and to maintain the pumps once
they were installed. Construction of the new sewer system was completed in

      1
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.

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November 2013. The City of North Little Rock Wastewater Department (NLRWD)
operates, maintains, and repairs the new sewer system, and it charges all residents of
Eureka Gardens—including the Humphreys and the other grinder pump recipients—a
uniform rate to do so. It does not operate, maintain, or repair the grinder pumps.

       In May 2016, the Humphreys filed this lawsuit against the Board; Board
Chairman C. Ray Roberts; the City of North Little Rock; Michael Marlar, the engineer
who designed the sewer system; Marlar Engineering Company; and the USDA
(collectively, Defendants). In their verified complaint, as amended, the Humphreys
assert that Defendants violated their constitutional rights to procedural due process,
substantive due process, and equal protection. Defendants filed a motion to dismiss
the complaint as time-barred under Federal Rule of Civil Procedure 12(b)(6), which
the district court granted.

                                    II. Discussion

       “A court may dismiss a claim under Rule 12(b)(6) as barred by the statute of
limitations if the complaint itself establishes that the claim is time-barred.” Illig v.
Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011). “[T]he court may consider the
pleadings themselves, materials embraced by the pleadings, exhibits attached to the
pleadings, and matters of public record.” Id. (quoting Mills v. City of Grand Forks,
614 F.3d 495, 498 (8th Cir. 2010)). “We review de novo whether a statute of
limitations bars a party’s claim.” Smithrud v. City of St. Paul, 746 F.3d 391, 395 (8th
Cir. 2014). Arkansas’s three-year statute of limitations for personal-injury actions
applies to the Humphreys’ § 1983 claims. See Ketchum v. City of West Memphis,
Ark., 974 F.2d 81, 82 (8th Cir. 1992) (Arkansas’s 3-year personal-injury statute of
limitations governs § 1983 actions brought in that state); see also Ark. Code Ann.
§ 16–56–105. Thus, the Humphreys were required to file their lawsuit within three
years of the date their claims accrued. Section 1983 claims accrue “when the plaintiff



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has a complete and present cause of action, that is, when the plaintiff can file suit and
obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (cleaned up).

        Our resolution of this dispute is guided by Delaware State College v. Ricks, 449
U.S. 250 (1980), and Chardon v. Fernandez, 454 U.S. 6 (1981) (per curiam). In
Ricks, a college professor filed a Title VII complaint alleging he was denied tenure
based on his national origin. 449 U.S. at 254. The college notified the professor that
the tenure committee had voted to deny him tenure, but did not terminate his
employment until a year later. Id. at 252–53. The Supreme Court held that the
professor’s complaint was time-barred under Title VII’s statute of limitations, as the
professor’s claim had accrued once he was notified of the allegedly discriminatory
decision to deny him tenure, not when he was actually terminated. Id. at 257–58.
According to the Court, “the only alleged discrimination occurred—and the filing
limitations period therefore commenced—at the time the tenure decision was made
and communicated to [the professor]. That is so even though one of the effects of the
denial of tenure—the eventual loss of a teaching position—did not occur until later.”
Id. at 258 (footnote omitted). The professor’s termination was not a “continuing
violation” of Title VII, but was instead “a delayed, but inevitable, consequence of the
denial of tenure.” Id. at 257–58. In Chardon, the Court extended the reasoning of
Ricks to determine the accrual date for a § 1983 claim of discriminatory termination.
454 U.S. at 7–8. More specifically, the Court held that the decision to terminate was
the allegedly discriminatory act, and that the employee’s claims accrued when he was
notified of that decision, even though he was not actually terminated until a later date.
Id. at 8.

      Applying the same principles here, the Humphreys’ claims accrued in October
2011, when they were notified of the allegedly discriminatory decision to install the
grinder systems instead of gravity systems at their residences. The installation of the
pumps and the Humphreys’ continuing responsibility for the additional expenses they



                                          -4-
entail, like the professor’s ultimate termination in Ricks, are delayed, but inevitable,
consequences of that decision.

      According to the Humphreys, their claims did not accrue in October 2011,
because they lacked standing to bring their claims at that time. We disagree. When
the Humphreys learned of the allegedly discriminatory decision in October 2011, they
could have sought declaratory or injunctive relief, and later added demands for
compensatory damages once they incurred actual financial harm. See Chardon, 454
U.S. at 8; id. at 9 (Brennan, J., dissenting) (“The thrust of the Court’s decision is to
require a potential civil rights plaintiff to measure the time for filing his claim from
the moment some form of injunctive relief first becomes available.”).

       In an effort to avoid the accrual rule established in Ricks and Chardon, the
Humphreys characterize their ongoing obligation to power and maintain their grinder
pumps as a continuing constitutional violation. In their view, the clock on the three-
year limitations period resets each time they are charged NLRWD’s uniform rate or
pay to power and maintain their grinder pumps. They point to Bazemore v. Friday,
an employment discrimination case in which African-American plaintiffs alleged they
were being paid less than their similarly-situated white peers pursuant to a
discriminatory compensation scheme. 478 U.S. 385, 395 (1986) (per curiam)
(Brennan, J., concurring in part). In Bazemore, the Supreme Court explained that
“[e]ach week’s paycheck that delivers less to a black [person] than to a similarly
situated white [person] is a wrong actionable under Title VII.” Id. The Humphreys
also cite to Montin v. Estate of Johnson, where this court explained:

      Not every plaintiff is deemed to have permanently sacrificed his or her
      right to obtain injunctive relief merely because the statute of limitations
      has run as measured from the onset of the objected-to condition or
      policy. . . . This is particularly true where it is appropriate to describe
      each new day under an objected-to policy as comprising a new or
      continuing violation of rights, as in the context of an Eighth Amendment

                                          -5-
      claim for cruel or unusual punishment or a discrimination claim alleging
      ongoing implementation of a discriminatory wage scheme.

636 F.3d 409, 415 (8th Cir. 2011). In Montin, we found a continuing violation where
a civilly-committed sex offender alleged he was “suffer[ing] daily and
unconstitutional restrictions on his liberty of movement.” Id. at 416. But we also
indicated we would have rejected the continuing violations theory had the detainee’s
complaint related solely to the creation of the security policy that called for the
restrictions on his movement. Particularly, we explained, “[t]his court has never
applied the continuing violations doctrine to a discrete act, such as failure to promote,
and we decline to do so now.” Id. at 415–16 (quoting High v. Univ. of Minn., 236
F.3d 909, 909 (8th Cir. 2000)). Unlike the plaintiffs in Bazemore and Montin, the
Humphreys have not identified any continuing unconstitutional policy or restraint.
Instead, they complain of the delayed, but inevitable, consequences of the allegedly
discriminatory decision to install the grinder systems, of which they had notice in
October 2011.

                                    III. Conclusion

       The Humphreys’ claims are time-barred because they accrued in October 2011,
the limitations period expired in October 2014, and the Humphreys did not file this
lawsuit until May 2016. Accordingly, the judgment is affirmed.
                        ______________________________




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