United States Court of Appeals,
Fifth Circuit.
No. 92-4127.
Lawrence Edward THOMPSON, Plaintiff-Appellant,
v.
Kerry RASBERRY, et al., Defendants-Appellees.
June 23, 1993.
Appeal from the United States District Court for the Eastern District of Texas.
Before WISDOM and DAVIS, Circuit Judges, and SCHWARTZ*, District Judge.
PER CURIAM:
This is an appeal from a district court order adopting a
United States Magistrate Judge's Report and Recommendation
dismissing appellant's civil rights suit. The only issue raised on
appeal is whether the district court properly refused to consider
as untimely appellant's written objections to the magistrate's
proposed findings and recommendation.1 The appellant, proceeding
pro se and in forma pauperis, is a state prisoner incarcerated at
a correctional institution in Texas. Finding that the appellant
should be provided with an opportunity to show that his written
objections were delivered to prison officials for mailing prior to
expiration of the district court's deadline. We vacate the order
dismissing appellant's lawsuit and remand the case for a
determination of timeliness.
* Senior District Judge of the Eastern District of Louisiana, sitting by designation. 1 The appellees, in this matter, failed to file a brief in opposition to the appeal. I. BACKGROUND
Appellant-prisoner Lawrence Edward Thompson instituted this
civil rights lawsuit under 42 U.S.C. § 1983. The case was referred
to a magistrate judge in accordance with 28 U.S.C. § 636(b)(1) &
(3) and the local rules of the Eastern District of Texas. After an
evidentiary hearing, the magistrate judge issued findings and
recommended that the lawsuit be dismissed as frivolous pursuant to
28 U.S.C. § 1915(d). The magistrate's report further advised
Thompson that failure to file written objections within ten days
after being served with a copy of the report would bar de novo
review by the district court of the proposed findings and
recommendations as well as appellate review of factual findings
except in the case of plain error or manifest injustice.
Thompson acknowledged receipt of the magistrate's report on
October 24, 1991. Prior to the passage of the district court's
November 4, 1991 deadline for filing written objections, Thompson
filed a motion to extend the deadline. The district court granted
the extension and reset the deadline for filing written objections
to November 20, 1991. Thompson alleges that he attempted to mail
his written objections to the clerk of court on November 18, 1991
by placing the written objections in an envelope supplied by the
clerk and depositing the envelope in the mailbox assigned for
outgoing prisoner mail. He further alleges that prison authorities
attempted to return the envelope to him on December 4, 1991, citing
his failure to place his name and prisoner number on the envelope.
Thompson claims he refused to accept the envelope without a
written explanation from prison authorities concerning why the envelope had not been mailed. Prison officials apparently provided
the appellant with a signed statement on December 5, 1991 at which
time he took possession of the envelope. Appellant mailed the
written objections for a second time on December 9, 1991. They
were received by the clerk of court on December 12, 1991—twenty-two
days after the Court's deadline for receiving written objection had
passed.
On December 13, 1991, the district court adopted the
magistrate judge's report and recommendation and issued an order
dismissing plaintiff's complaint as frivolous. The district court
entered its final judgment on the same day. Although it did not
specifically acknowledge receipt of the written objections, the
district court found that no written objections had been timely
filed. The district court, subsequently, denied appellant's motion
for reconsideration without addressing the circumstances
surrounding the filing of his written objections.
II. DISCUSSION
Thompson argues on appeal that the district court's order
dismissing the lawsuit was improper because the court failed to
review his written objections. To support his contention, Thompson
cites Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d
245 (1988) and Logan v. Central Freight Lines, 858 F.2d 993 (5th
Cir.1988) (per curiam) for the proposition that a pro se prisoner
plaintiff's written objections to a magistrate's report and
recommendation are timely filed if they are handed to prison
officials prior to the expiration of the district court's deadline.
Although neither case stands squarely for the cited proposition, We believe Thompson's argument has merit.
In Houston, the Supreme Court "held that a prisoner's notice
of appeal in a civil case is deemed timely filed if it is delivered
to prison authorities, for forwarding to the district court, on or
before the thirtieth day following entry of judgment." Logan, 858
F.2d at 994. The Court's willingness to forego technical filing
requirements in lieu of a bright line mailbox rule for pro-se
prisoners was prompted by its concern that, in the absence of such
a rule, the rights of prisoners could be unfairly prejudiced due to
their status. The Supreme Court reasoned that, unlike other
litigants, prisoners are forced to rely exclusively on prison
authorities to mail documents in a timely manner and thus lack the
wherewithal to take the same precautions as other litigants for
ensuring that a particular document is received by the clerk of
court prior to the passage of a court appointed deadline.2
Houston, 407 U.S. at 270-76, 108 S.Ct. at 2382-85; see also
Thompson v. Montgomery, 853 F.2d 287 (5th Cir.1988) (per curiam);
Miller v. Sumner, 872 F.2d 287 (9th Cir.1989) (remanding case to
the district court for a determination of whether a notice of
appeal was delivered to prison authorities on time); cf. United
States v. Leonard, 937 F.2d 494, 495 (10th Cir.1991) (finding
Houston was inapplicable where prisoner did not rely on prison
officials for mail delivery).
2 For example, the Court noted the following distinctions: (1) prisoners are unable to personally travel to the court house to see that notice is stamped; (2) prisoners are unable to choose the type of mail carrier or form of service; and (3) prisoners are unable to follow up on the progress of their mail by contacting the court house or mail carrier.
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United States Court of Appeals,
Fifth Circuit.
No. 92-4127.
Lawrence Edward THOMPSON, Plaintiff-Appellant,
v.
Kerry RASBERRY, et al., Defendants-Appellees.
June 23, 1993.
Appeal from the United States District Court for the Eastern District of Texas.
Before WISDOM and DAVIS, Circuit Judges, and SCHWARTZ*, District Judge.
PER CURIAM:
This is an appeal from a district court order adopting a
United States Magistrate Judge's Report and Recommendation
dismissing appellant's civil rights suit. The only issue raised on
appeal is whether the district court properly refused to consider
as untimely appellant's written objections to the magistrate's
proposed findings and recommendation.1 The appellant, proceeding
pro se and in forma pauperis, is a state prisoner incarcerated at
a correctional institution in Texas. Finding that the appellant
should be provided with an opportunity to show that his written
objections were delivered to prison officials for mailing prior to
expiration of the district court's deadline. We vacate the order
dismissing appellant's lawsuit and remand the case for a
determination of timeliness.
* Senior District Judge of the Eastern District of Louisiana, sitting by designation. 1 The appellees, in this matter, failed to file a brief in opposition to the appeal. I. BACKGROUND
Appellant-prisoner Lawrence Edward Thompson instituted this
civil rights lawsuit under 42 U.S.C. § 1983. The case was referred
to a magistrate judge in accordance with 28 U.S.C. § 636(b)(1) &
(3) and the local rules of the Eastern District of Texas. After an
evidentiary hearing, the magistrate judge issued findings and
recommended that the lawsuit be dismissed as frivolous pursuant to
28 U.S.C. § 1915(d). The magistrate's report further advised
Thompson that failure to file written objections within ten days
after being served with a copy of the report would bar de novo
review by the district court of the proposed findings and
recommendations as well as appellate review of factual findings
except in the case of plain error or manifest injustice.
Thompson acknowledged receipt of the magistrate's report on
October 24, 1991. Prior to the passage of the district court's
November 4, 1991 deadline for filing written objections, Thompson
filed a motion to extend the deadline. The district court granted
the extension and reset the deadline for filing written objections
to November 20, 1991. Thompson alleges that he attempted to mail
his written objections to the clerk of court on November 18, 1991
by placing the written objections in an envelope supplied by the
clerk and depositing the envelope in the mailbox assigned for
outgoing prisoner mail. He further alleges that prison authorities
attempted to return the envelope to him on December 4, 1991, citing
his failure to place his name and prisoner number on the envelope.
Thompson claims he refused to accept the envelope without a
written explanation from prison authorities concerning why the envelope had not been mailed. Prison officials apparently provided
the appellant with a signed statement on December 5, 1991 at which
time he took possession of the envelope. Appellant mailed the
written objections for a second time on December 9, 1991. They
were received by the clerk of court on December 12, 1991—twenty-two
days after the Court's deadline for receiving written objection had
passed.
On December 13, 1991, the district court adopted the
magistrate judge's report and recommendation and issued an order
dismissing plaintiff's complaint as frivolous. The district court
entered its final judgment on the same day. Although it did not
specifically acknowledge receipt of the written objections, the
district court found that no written objections had been timely
filed. The district court, subsequently, denied appellant's motion
for reconsideration without addressing the circumstances
surrounding the filing of his written objections.
II. DISCUSSION
Thompson argues on appeal that the district court's order
dismissing the lawsuit was improper because the court failed to
review his written objections. To support his contention, Thompson
cites Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d
245 (1988) and Logan v. Central Freight Lines, 858 F.2d 993 (5th
Cir.1988) (per curiam) for the proposition that a pro se prisoner
plaintiff's written objections to a magistrate's report and
recommendation are timely filed if they are handed to prison
officials prior to the expiration of the district court's deadline.
Although neither case stands squarely for the cited proposition, We believe Thompson's argument has merit.
In Houston, the Supreme Court "held that a prisoner's notice
of appeal in a civil case is deemed timely filed if it is delivered
to prison authorities, for forwarding to the district court, on or
before the thirtieth day following entry of judgment." Logan, 858
F.2d at 994. The Court's willingness to forego technical filing
requirements in lieu of a bright line mailbox rule for pro-se
prisoners was prompted by its concern that, in the absence of such
a rule, the rights of prisoners could be unfairly prejudiced due to
their status. The Supreme Court reasoned that, unlike other
litigants, prisoners are forced to rely exclusively on prison
authorities to mail documents in a timely manner and thus lack the
wherewithal to take the same precautions as other litigants for
ensuring that a particular document is received by the clerk of
court prior to the passage of a court appointed deadline.2
Houston, 407 U.S. at 270-76, 108 S.Ct. at 2382-85; see also
Thompson v. Montgomery, 853 F.2d 287 (5th Cir.1988) (per curiam);
Miller v. Sumner, 872 F.2d 287 (9th Cir.1989) (remanding case to
the district court for a determination of whether a notice of
appeal was delivered to prison authorities on time); cf. United
States v. Leonard, 937 F.2d 494, 495 (10th Cir.1991) (finding
Houston was inapplicable where prisoner did not rely on prison
officials for mail delivery).
2 For example, the Court noted the following distinctions: (1) prisoners are unable to personally travel to the court house to see that notice is stamped; (2) prisoners are unable to choose the type of mail carrier or form of service; and (3) prisoners are unable to follow up on the progress of their mail by contacting the court house or mail carrier. Pro se prisoners filing written objections to a magistrate's
report and recommendation pursuant to F.R.C.P. Rule 72(b) are
subject to the same conditions and limitations of confinement as a
prisoner filing a notice of appeal. Moreover, the time within
which to file and serve written objections to a magistrate's report
and recommendation is substantially shorter in duration than the
time within which to file a notice an appeal. There is thus no
reasonable basis upon which to distinguish the ruling in Houston
from the facts of this case.3 We therefore hold that, for purposes
of F.R.C.P. 72(b), a pro se prisoner's written objections to a
magistrate's report and recommendations must be deemed filed and
served at the moment they are forwarded to prison officials for
delivery to the district court. This ruling, however, does not
relieve a prisoner of the responsibility of doing all that he or
she can reasonably do to ensure that documents are received by the
clerk of court in a timely manner. See Fallen v. United States,
378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Failure to
stamp or properly address outgoing mail or to follow reasonable
prison regulations governing prisoner mail does not constitute
3 Other courts have extended the bright line mailbox rule in Houston to contexts outside notices of appeal. See Ortiz v. Cornetta, 867 F.2d 146, 148-49 (2d Cir.1989) (extending the mailbox rule to the filing of complaints for statute of limitation purposes); Smith v. Evans, 853 F.2d 155 (3rd Cir.1988) (finding the reasoning in Houston to be indistinguishable in the context of F.R.C.P. Rule 59(e)); Moskovits v. Drug Enforcement Admin., 774 F.Supp. 649, 653 (D.D.C.1991) (extending the mailbox rule to the filing of an affidavit with the Drug Enforcement Administration for forfeiture purposes; cf. Allen v. Wood, 964 F.2d 745 (8th Cir.1992) (filing in habeas case does not occur until petitioner has either paid filing fee or been granted leave to proceed in forma pauperis even if petition delivered to prison official in timely fashion). compliance with this standard.
Since the district court did not provide the appellant with an
opportunity to prove that his written objections were filed in a
timely manner, We VACATE its order dismissing appellant's lawsuit
and REMAND the case to the district court for a determination of
timeliness. If Thompson delivered his written objections to prison
officials on or before November 20, 1991, the district court should
then consider his written objections in determining whether to
accept, reject, or modify the recommended decision, receive further
evidence, or recommit the matter to the magistrate with
instructions. If Thompson failed to file his objections in a
timely fashion, the district court may disregard those objections
and reinstate its prior judgment.