1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 William HEARN, Case No.: 22-cv-0255-AGS-DDL 4 Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION (ECF 30) AND 5 v. DENYING MOTION TO DISMISS AS 6 RJD WARDEN, et al., MOOT (ECF 15) 7 Defendants. 8 9 Defendants’ motion to dismiss the complaint turns, in part, on the “prison mailbox” 10 rule. The issue is whether the plaintiff-inmate timely delivered an amended complaint to 11 prison staff. If so, the original complaint becomes a nullity, and the defense’s motion to 12 dismiss it must be denied as moot. If not, the original complaint is still operative, and the 13 Court may proceed to the merits. 14 BACKGROUND 15 Plaintiff-inmate William Hearn sued prison officials for various civil-rights claims. 16 On September 29, 2022, defendants moved to dismiss the complaint. (ECF 15.) The parties 17 dispute whether Hearn filed an amended complaint within the 21-day deadline for 18 amending “as a matter of course.” See Fed. R. Civ. P. 15(a)(1), 15(a)(1)(B). The magistrate 19 judge found that the amended complaint was “timely filed” and so recommended denying 20 the motion to dismiss “as moot.” (ECF 30, at 4, 6.) The defense objected, and both sides 21 submitted supplemental evidence on the disputed timing. (See ECF 31 & 32.) 22 According to Hearn, another inmate timely delivered Hearn’s amended complaint at 23 the correctional institution on October 10, 2022. (See ECF 26, at 9; ECF 32, at 1, 3.) 24 Although the document was properly delivered, the “officer on duty” “forgot to write his 25 badge number,” and so the “envelope was return[ed] the next day” to the mailing inmate. 26 (See ECF 32, at 1, 3.) It is unclear when Hearn learned of this. Because Hearn “had not 27 received his endorse[d] copy request back,” he feared “that the October 10, 2022 filing was 28 not received by the court.” (Id. at 1, 4.) So, on October 30, 2022—after the deadline 1 passed —he “resubmitted a second copy” of the amended complaint. (Id. at 2.) The Court 2 docketed it November 17, 2022. (ECF 26.) 3 The defendant prison officials take a different view of the evidence. By policy, when 4 prison mail is delivered to the officer on duty, that officer must “write, on the back of the 5 envelope, the date that they received the piece of mail.” (ECF 31, at 6.) The docketed 6 amended complaint here included the notation “10-30-22” on the back of its mailing 7 envelope. (ECF 26, at 13.) Thus, the defense contends that the amended complaint was first 8 handed to the duty officer on October 30, not October 10. (ECF 31, at 2, 6.) 9 STANDARD OF REVIEW 10 When a party objects to a magistrate judge’s recommendation on a dispositive 11 pretrial motion, the district judge “shall make a de novo determination of those portions of 12 the report . . . to which objection is made.” 28 U.S.C. § 636(b)(1)(C). The court “may 13 accept, reject, or modify, in whole or in part, the findings or recommendations.” Id.; see 14 also Fed. R. Civ. P. 72(b)(3). And the court “has discretion, but is not required, to consider 15 evidence presented for the first time in a party’s objection to a magistrate judge’s 16 recommendation.” United States v. Howell, 231 F.3d, 615, 621 (9th Cir. 2000). 17 DISCUSSION 18 Within 21 days of service of a defendant’s motion to dismiss, a plaintiff may amend 19 the complaint “once as a matter of course.” Fed. R. Civ. P. 15(a)(1), 15(a)(1)(B). A timely 20 amended complaint “supersedes the original complaint” and moots any motions regarding 21 that obsolete pleading. See CDK Global LLC v. Brnovich, 16 F.4th 1266, 1274 (9th Cir. 22 2021). The critical question here is whether plaintiff Hearn filed his amended complaint 23 within this 21-day deadline. 24 25
26 27 1 Hearn asserts that the motion to dismiss was served on October 5, 2022, which would make his 21-day deadline for amendment October 26. See Fed. R. Civ. 28 1 Under the “prison mailbox” rule, self-represented prisoners like Hearn “file” a 2 pleading when they “deliver[] it to the prison authorities for forwarding to the court clerk.” 3 See Douglas v. Noelle, 567 F.3d 1103, 1106–07 (9th Cir. 2009). The rule also applies when 4 one inmate delivers the pleading “on behalf of another prisoner to prison authorities for 5 forwarding to the clerk of court.” See Hernandez v. Spearman, 764 F.3d 1071, 1076 6 (9th Cir. 2014). 7 In this case, another inmate has twice sworn under penalty of perjury that she placed 8 Hearn’s amended complaint in the prison mail system on October 10, 2022—well before 9 the 21-day deadline. (See ECF 26, at 9; ECF 32, at 3.) These declarations shift “to the 10 opposing party the burden of producing evidence in support of a contrary factual finding” 11 as to the mailing date. See Caldwell v. Amend, 30 F.3d 1199, 1202–03 (9th Cir. 1994). 12 To meet that burden, the defense offers the declaration of a prison litigation 13 coordinator, who reviewed the evidence and concluded that Hearn’s amended complaint 14 was delivered to prison staff on October 30, 2022—after the deadline. (See ECF 31, at 6.) 15 The coordinator explained that inmates “must hand their mail to the officer on duty,” and 16 then the officer “write[s], on the back of the envelope, the date that they received the piece 17 of mail.” (Id.) Because the back of Hearn’s mailing envelope bears a handwritten date of 18 “October 30, 2022,” the coordinator deduced that it was “handed to a correctional officer” 19 on that date and not earlier. (Id.; see also ECF 26, at 13 (“10-30-22” notation).) 20 It is unclear whether this sort of circumstantial evidence trumps the mailing inmate’s 21 sworn declarations. Compare Robiatti v. Martinez, No. SACV 15–02149–MWF (KK), 22 2016 WL 10835983, at *2 n.4 (C.D. Cal. May 11, 2016) (finding “the constructive filing 23 date” to be the date from the petitioner’s declaration and third party’s proof of service over 24 the later date a prison official initialed on the envelope), adopted, 2018 WL 626223 (C.D. 25 Cal. Jan. 29, 2018) with Gleason v. Franklin, No. CV 15-08380-CBM (DFM), 2020 WL 26 13664943, at *1 (C.D. Cal. Jun. 16, 2020) (finding the “legal filing date” to be the date on 27 the envelope with the officer’s initials, when accompanied by declarations that “the 28 collecting officer initials and dates the back of the envelope” and that the rest of the 1 || “outgoing mail log” was “consistent” with the initialed date, over the earlier date from the 2 || plaintiff's declaration and proof of service). 3 But this Court need not reach that issue, as Hearn provides additional evidence that 4 |/undercuts the defense’s circumstantial case.
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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 William HEARN, Case No.: 22-cv-0255-AGS-DDL 4 Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION (ECF 30) AND 5 v. DENYING MOTION TO DISMISS AS 6 RJD WARDEN, et al., MOOT (ECF 15) 7 Defendants. 8 9 Defendants’ motion to dismiss the complaint turns, in part, on the “prison mailbox” 10 rule. The issue is whether the plaintiff-inmate timely delivered an amended complaint to 11 prison staff. If so, the original complaint becomes a nullity, and the defense’s motion to 12 dismiss it must be denied as moot. If not, the original complaint is still operative, and the 13 Court may proceed to the merits. 14 BACKGROUND 15 Plaintiff-inmate William Hearn sued prison officials for various civil-rights claims. 16 On September 29, 2022, defendants moved to dismiss the complaint. (ECF 15.) The parties 17 dispute whether Hearn filed an amended complaint within the 21-day deadline for 18 amending “as a matter of course.” See Fed. R. Civ. P. 15(a)(1), 15(a)(1)(B). The magistrate 19 judge found that the amended complaint was “timely filed” and so recommended denying 20 the motion to dismiss “as moot.” (ECF 30, at 4, 6.) The defense objected, and both sides 21 submitted supplemental evidence on the disputed timing. (See ECF 31 & 32.) 22 According to Hearn, another inmate timely delivered Hearn’s amended complaint at 23 the correctional institution on October 10, 2022. (See ECF 26, at 9; ECF 32, at 1, 3.) 24 Although the document was properly delivered, the “officer on duty” “forgot to write his 25 badge number,” and so the “envelope was return[ed] the next day” to the mailing inmate. 26 (See ECF 32, at 1, 3.) It is unclear when Hearn learned of this. Because Hearn “had not 27 received his endorse[d] copy request back,” he feared “that the October 10, 2022 filing was 28 not received by the court.” (Id. at 1, 4.) So, on October 30, 2022—after the deadline 1 passed —he “resubmitted a second copy” of the amended complaint. (Id. at 2.) The Court 2 docketed it November 17, 2022. (ECF 26.) 3 The defendant prison officials take a different view of the evidence. By policy, when 4 prison mail is delivered to the officer on duty, that officer must “write, on the back of the 5 envelope, the date that they received the piece of mail.” (ECF 31, at 6.) The docketed 6 amended complaint here included the notation “10-30-22” on the back of its mailing 7 envelope. (ECF 26, at 13.) Thus, the defense contends that the amended complaint was first 8 handed to the duty officer on October 30, not October 10. (ECF 31, at 2, 6.) 9 STANDARD OF REVIEW 10 When a party objects to a magistrate judge’s recommendation on a dispositive 11 pretrial motion, the district judge “shall make a de novo determination of those portions of 12 the report . . . to which objection is made.” 28 U.S.C. § 636(b)(1)(C). The court “may 13 accept, reject, or modify, in whole or in part, the findings or recommendations.” Id.; see 14 also Fed. R. Civ. P. 72(b)(3). And the court “has discretion, but is not required, to consider 15 evidence presented for the first time in a party’s objection to a magistrate judge’s 16 recommendation.” United States v. Howell, 231 F.3d, 615, 621 (9th Cir. 2000). 17 DISCUSSION 18 Within 21 days of service of a defendant’s motion to dismiss, a plaintiff may amend 19 the complaint “once as a matter of course.” Fed. R. Civ. P. 15(a)(1), 15(a)(1)(B). A timely 20 amended complaint “supersedes the original complaint” and moots any motions regarding 21 that obsolete pleading. See CDK Global LLC v. Brnovich, 16 F.4th 1266, 1274 (9th Cir. 22 2021). The critical question here is whether plaintiff Hearn filed his amended complaint 23 within this 21-day deadline. 24 25
26 27 1 Hearn asserts that the motion to dismiss was served on October 5, 2022, which would make his 21-day deadline for amendment October 26. See Fed. R. Civ. 28 1 Under the “prison mailbox” rule, self-represented prisoners like Hearn “file” a 2 pleading when they “deliver[] it to the prison authorities for forwarding to the court clerk.” 3 See Douglas v. Noelle, 567 F.3d 1103, 1106–07 (9th Cir. 2009). The rule also applies when 4 one inmate delivers the pleading “on behalf of another prisoner to prison authorities for 5 forwarding to the clerk of court.” See Hernandez v. Spearman, 764 F.3d 1071, 1076 6 (9th Cir. 2014). 7 In this case, another inmate has twice sworn under penalty of perjury that she placed 8 Hearn’s amended complaint in the prison mail system on October 10, 2022—well before 9 the 21-day deadline. (See ECF 26, at 9; ECF 32, at 3.) These declarations shift “to the 10 opposing party the burden of producing evidence in support of a contrary factual finding” 11 as to the mailing date. See Caldwell v. Amend, 30 F.3d 1199, 1202–03 (9th Cir. 1994). 12 To meet that burden, the defense offers the declaration of a prison litigation 13 coordinator, who reviewed the evidence and concluded that Hearn’s amended complaint 14 was delivered to prison staff on October 30, 2022—after the deadline. (See ECF 31, at 6.) 15 The coordinator explained that inmates “must hand their mail to the officer on duty,” and 16 then the officer “write[s], on the back of the envelope, the date that they received the piece 17 of mail.” (Id.) Because the back of Hearn’s mailing envelope bears a handwritten date of 18 “October 30, 2022,” the coordinator deduced that it was “handed to a correctional officer” 19 on that date and not earlier. (Id.; see also ECF 26, at 13 (“10-30-22” notation).) 20 It is unclear whether this sort of circumstantial evidence trumps the mailing inmate’s 21 sworn declarations. Compare Robiatti v. Martinez, No. SACV 15–02149–MWF (KK), 22 2016 WL 10835983, at *2 n.4 (C.D. Cal. May 11, 2016) (finding “the constructive filing 23 date” to be the date from the petitioner’s declaration and third party’s proof of service over 24 the later date a prison official initialed on the envelope), adopted, 2018 WL 626223 (C.D. 25 Cal. Jan. 29, 2018) with Gleason v. Franklin, No. CV 15-08380-CBM (DFM), 2020 WL 26 13664943, at *1 (C.D. Cal. Jun. 16, 2020) (finding the “legal filing date” to be the date on 27 the envelope with the officer’s initials, when accompanied by declarations that “the 28 collecting officer initials and dates the back of the envelope” and that the rest of the 1 || “outgoing mail log” was “consistent” with the initialed date, over the earlier date from the 2 || plaintiff's declaration and proof of service). 3 But this Court need not reach that issue, as Hearn provides additional evidence that 4 |/undercuts the defense’s circumstantial case. According to both Hearn and the mailing 5 ||inmate, on October 30, 2022, Hearn “resent” the amended complaint because he feared 6 || “that the October 10, 2022 filing was not received by the court,” especially “since he had 7 ||not received his endorse[d] copy request back.” (ECF 32, at 1, 3-4.) When an inmate 8 || “delivers a document to prison authorities” but it “is never filed by the court,” the prisoner 9 || still “gets the benefit of the prison mailbox rule, so long as he diligently follows up once 10 || he has failed to receive a disposition from the court after a reasonable period of time.” 11 || Huizar v. Carey, 273 F.3d 1220, 1223 (9th Cir. 2001). In Huizar, the inmate averred that 12 had delivered a petition to prison officials for mailing, waited “two months” without a 13 ||response before following up, and ultimately “sent another copy” of the filing to the court. 14 || /d. at 1223-24. The Ninth Circuit ruled that these facts, “if proven, would show reasonable 15 || diligence” and require backdating the filing to the original mailing date. /d. at 1224. Hearn 16 || followed up even more promptly than the Huizar inmate and thus is entitled to the prison 17 || mailbox rule’s benefits. 18 CONCLUSION 19 Hearn’s amendment as a matter of course was timely, superseding the original 20 ||complaint. Thus, the magistrate judge’s recommendation is adopted, and the motion to 21 dismiss is DENIED AS MOOT. Within 21 days of the Court’s ruling on Hearn’s motion 22 file a second amended complaint (ECF 35), defendants must respond to the then- 23 || operative complaint. 24 || Dated: September 6, 2023 25 A i f 6 Hon. Andfew G. Schopler United States District Judge 27 28