Revised October 23, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41074
RAUL GONZALES, JR.,
Plaintiff-Appellant,
versus
MORRIS WYATT, Sergeant,
Defendant-Appellee.
Appeal from the United States District Court for the
Southern District of Texas, Galveston
October 23, 1998
Before KING, GARWOOD and HIGGINBOTHAM, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Raul Gonzales, Jr. (Gonzales), a prisoner
in the Texas Department of Criminal Justice, appeals the
limitations-based dismissal of his 42 U.S.C. § 1983 in forma
pauperis (IFP) suit against defendant-appellee Morris Wyatt
(Wyatt), alleging that in an altercation on January 24, 1994,
Wyatt, a corrections officer at the Darrington Unit where Gonzales
was then confined, used excessive force against Gonzales.
Facts and Proceedings Below
On January 19, 1996, a typewritten but wholly unsigned
complaint in Gonzales’ name containing these allegations was
received in the mail by the district clerk. It was apparently
accompanied by a letter dated January 8, 1996, from one Willie
Milton, a nonlawyer prisoner who was then confined at the
Darrington Unit. The record does not contain a copy of the letter,
but it is referred to in affidavits subsequently filed by Milton
and Gonzales. The complaint was not accompanied by either a filing
fee or an application to proceed IFP. It appears that some time
well prior to January 1996, Gonzales was transferred from the
Darrington Unit, in Brazoria County, Texas, to the French Robertson
Unit of the Texas Department of Corrections in Abilene, Texas,
where he remained at all times thereafter.
On January 23, 1996, the magistrate judge issued and sent to
Gonzales——whether at Darrington or French Robertson is unclear——a
“notice of deficient pleading” advising Gonzales that he “must file
within thirty days of the date of this notice” (January 23, 1996)
an application to proceed IFP (or pay the filing fee) and “must
submit a signed copy of your complaint to the Clerk” and that if he
“fails to comply on time, the court may dismiss this case.”
Gonzales received this notice at French Robertson Unit on January
26 or 27, 1996. On February 29, 1996, nothing further having been
received from Gonzales, the magistrate judge issued a report and
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recommendation, a copy of which was served on Gonzales,
recommending that the case be dismissed for total failure to comply
with the January 23, 1996, order. On March 11, 1996, Gonzales
filed a signed complaint naming Wyatt as defendant (not verbatim
the same as that received January 19, 1996, but making the same
basic allegations) and a signed motion to proceed IFP, each dated
March 5, 1996. Also the same day he filed an objection, dated
March 4, 1996, to the magistrate judge’s February 29 report and
recommendation, in which, as supplemented by later affidavits, he
asserted that on January 30 or 31——some four days after he received
the magistrate judge’s January 23, 1996, notice——all his legal
papers were confiscated by the prison authorities and he was
confined to his cell and that he continued to be so confined and
without his papers until February 29, 1996, which accounted for his
failure to respond sooner to the January 23 notice.
On June 28, 1996, the district court entered an order
declining to adopt the magistrate judge’s February 29 report and
recommendation, observing that “Plaintiff now appears to be
prosecuting his case.” Gonzales was thereafter granted leave to
proceed IFP and Wyatt was served. Wyatt subsequently filed an
answer and a motion to dismiss, each raising, inter alia, the
statute of limitations. The magistrate judge thereafter issued a
report and recommendation recommending that Wyatt’s motion to
dismiss be granted because the suit was barred by limitations, as
3
the complained-of conduct occurred January 24, 1994, and Gonzales’
signed complaint was not filed until March 11, 1996, more than two
years later. Examining the affidavits filed by Gonzales and
Milton, the magistrate judge concluded:
“that it was not he [Gonzales], but another inmate, Mr.
Willie Milton, who filed the original complaint with the
Clerk.
. . . .
. . . Mr. Milton submitted an unsigned complaint on
Plaintiff’s behalf to the Clerk, with the expectation
that it would be accepted and then forwarded to Plaintiff
for signature. Facilitating the litigation process in
this particular manner is not the function of the Clerk’s
office.
. . . .
Defendant has now moved to dismiss the instant case
because Plaintiff’s signed complaint, which he appears to
have actually had a hand in preparing, was not submitted
to the Clerk until March 11, 1996, well after the
expiration of the period of limitations, which in the
instant case would have expired on or around January 24,
1996, given that the allegedly actionable incident took
place on January 24, 1994.
This Court is of the opinion that this action should
be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i) and
1915A(b)(1) since it is clearly time-barred, as adjudged
from the face of the signed complaint that was submitted
to the Clerk by Plaintiff himself. . . . Thus, it
appears to this Court that Plaintiff was rather dilatory
in his attempt to file a civil rights complaint. The
last-minute efforts by Mr. Milton could have been avoided
had Plaintiff simply acted earlier in order to get his
complaint on file.”
Gonzales filed objections to the magistrate judge’s report and
recommendation. The district court considered the objections and
reviewed the record de novo, and on August 13, 1997, issued an
4
opinion and order overruling the objections and adopting the report
and recommendations. The district court stated in relevant part:
“In his objections, Plaintiff offers a number of
reasons for not complying with the notice of deficient
pleading that was issued on January 23, 1996, which
Plaintiff avers he received on January 27, 1996.
Plaintiff explains the difficulties inherent in having an
inmate from another prison location prepare his civil
rights complaint, which he avers was necessary given his
lack of legal knowledge. However, it must be noted that
the individual who prepared the complaint is also a
layperson and that the forms provided for these matters
to the prison law libraries make preparation of civil
rights complaints a relatively simple matter. Plaintiff
then would rely on the alleged confiscation of his legal
materials on or around January 31, 1996, to explain his
failure to comply with the notice of deficient pleading.
This Court accepts the truth of all of Plaintiff’s
averments in this regard, however, what Plaintiff does
not explain is his delay in bringing suit in the first
instance, given that the actionable event took place on
January 24, 1994. As the magistrate judge remarked, the
last-minute and after-the-fact problems that arose could
have been avoided had Plaintiff brought suit in a more
timely fashion.”
On the same day, the district court entered a separate
judgment dismissing the action. Gonzales timely appeals.
Discussion
An IFP complaint may be dismissed under 28 U.S.C. §
1915(e)(2)(B)(i) as frivolous “if it lacks an arguable basis in law
or fact.” Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
We review such dismissals for abuse of discretion. Id. “Where it
is clear from the face of a complaint filed in forma pauperis that
the claims asserted are barred by the applicable statute of
limitations, those claims are properly dismissed pursuant to §
5
1915.” Gartrell v. Gaylor, 981 F.3d 254, 256 (5th Cir. 1993).
In this section 1983 action, the applicable limitations period
is the two-year period provided by Texas law. Ali v. Higgs, 892
F.2d 438 (5th Cir. 1990); Tex. Civ. Prac. and Rem. Code §
16.003(a). The cause of action accrues, so that the statutory
period begins to run, when the plaintiff knows or has reason to
know of the injury which is the basis of the action. Burrell v.
Newsome, 883 F.2d 416, 418 (5th Cir. 1989). The complaint alleges
that Wyatt used excessive force on Gonzales on January 24, 1994.
Gonzales does not argue that he did not on January 24, 1994, know
of the injury made the basis of the suit or that, if not tolled,
limitations did not begin to run January 24, 1994. He argues that
limitations was tolled because of his imprisonment. However, that
is a matter controlled by Texas law, and under Texas law
imprisonment does not toll limitations. Ali at 439; Burrell at
418-19; Tex. Civ. Prac. and Rem. Code § 16.001. Limitations, if
not tolled, generally continues to run until the suit is commenced
by the filing of the plaintiff’s complaint in the clerk’s office.
Martin v. Demma, 831 F.2d 69, 71 (5th Cir. 1987); Fed. R. Civ. P.
3. It is hence clear that unless Gonzales’ complaint can be said
to have been filed on or before January 25, 1996, the claims
asserted therein are barred by limitations.
When the plaintiff causes his complaint to be delivered to the
clerk’s office for filing, it is for these purposes deemed filed
6
when received. Id. Likewise, when a pro se prisoner delivers his
section 1983 complaint to the prison authorities for forwarding to
the clerk of court, the complaint is, for limitations purposes,
deemed filed at that time. Cooper v. Brookshire, 70 F.3d 377, 378
(5th Cir. 1995).
Here, the clerk’s office on January 19, 1996, received from
nonlawyer Milton, a prisoner at the Darrington Unit, a wholly
unsigned complaint listing Gonzales——then confined at the French
Robertson Unit——as the plaintiff and Wyatt as the defendant,
complaining of the latter’s use of excessive force on Gonzales on
January 24, 1994. Fed. R. Civ. Proc. 11(a) provides in relevant
part:
“(a) Signature. Every pleading, written motion, and
other paper shall be signed by at least one attorney of
record in the attorney’s individual name, or, if the
party is not represented by an attorney, shall be signed
by the party. Each paper shall state the signer’s
address and telephone number, if any. . . . An unsigned
paper shall be stricken unless omission of the signature
is corrected promptly after being called to the attention
of the attorney or party.”
Fed. R. Civ. Proc. 5(e) concludes by stating “The clerk shall not
refuse to accept for filing any paper presented for that purpose
solely because it is not presented in proper form as required by
these rules or any local rules or practices.”
Here, the district court in its June 1996 order expressly
declined to adopt the magistrate judge’s February 29, 1996,
recommendation that the suit be dismissed without prejudice for
7
failure to comply with the January 23, 1996, notice requiring,
inter alia, that a signed complaint be filed within thirty days.
And in its August 13, 1997, order the district court accepted as
adequate, at least arguendo, Gonzales’ proffered reasons for not
sooner complying with the January 23, 1996, notice. Consequently,
had Gonzales himself mailed to the clerk, or given to the prison
authorities for mailing to the clerk, the complaint received
January 19, 1996, a reasonable argument could be made that
Gonzales’ signed complaint dated March 5, 1996, and filed March 11,
1996, should for limitations purposes be considered as having been
filed January 19, 1996, or that, in the light of these events, the
clerk’s receipt of the complaint which was received January 19,
1996, stopped the running of limitations. See, e.g., Adams v.
Perloff, 784 F.Supp. 1195, 1198-1200 (E.D. Pa. 1992) (limitations
ran May 9; on April 30 plaintiff in person delivered his unsigned
complaint to the clerk’s office for filing; the clerk mailed it
back to plaintiff for signing; plaintiff signed it and before May
4 mailed it back to the clerk for filing, where it was received May
10; held, signing and returning the complaint to the clerk was
prompt for purposes of Rule 11(a) and thus “the complaint should be
treated as having been lodged with the Court on April 30, 1991,
when it was first given to the Clerk of Court”).1
1
We note one caveat. Under Texas law, “a plaintiff must not
only file suit but also use due diligence in procuring service on
the defendant in order to toll the statute of limitations” and
8
However, here the complaint which was received by the clerk
January 19, 1996, was not only not signed by Gonzales (or anyone
else), but it was not personally mailed or delivered in person by
Gonzales, nor did Gonzales give it to the prison authorities for
mailing or delivery to the clerk. Indeed, it appears that Gonzales
did not ever even see, or have read to him, the complaint received
by the clerk on January 19, 1996, until on January 26 or 27,
1996——after limitations had run——he for the first time received the
complaint or a copy thereof from the clerk’s office with the
“lack of due diligence may be found as a matter of law if the
plaintiff offers no excuse for his failure to procure service, or
if plaintiff’s excuse conclusively negates diligence.” Saenz v.
Keller Industries of Texas, Inc., 951 F.2d 665, 667 (5th Cir.
1992). This rule is applied to Texas law claims asserted in cases
filed in federal courts in Texas. See Walker v. Armco Steel Corp.,
100 S.Ct. 1978, 1986 (1980); Saenz; Jackson v. Duke, 259 F.2d 3, 6
(5th Cir. 1958). Any state law claims advanced by Gonzales might
well be barred under this rule as here the submittal of an unsigned
complaint plainly prevented issuance of citation within the
limitations period. However, we have held that this Texas rule
does not apply to section 1983 actions in Texas federal court.
Jackson at 6. On the other hand, we have also seemed to apply it
to such actions. See Curry v. Heard, 819 F.2d 130 (5th Cir. 1987).
While Board of Regents v. Tomanio, 100 S.Ct. 1790 (1980), and
Hardin v. Straub, 109 S.Ct. 1998 (1989), might be read as providing
support by analogy for applying this Texas rule to Texas federal
court section 1983 suits, language in West v. Convail, 107 S.Ct.
1538, 1541-42 & ns.4 & 6 (1987), written by Justice Stevens who
also authored Hardin, clearly points the other way, although in
West the borrowed limitations period was a federal one. In
reliance on West, we recently held that this Texas rule does not
apply to a Texas federal court suit so far as it asserts claims
under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 91 S.Ct. 1999 (1971). See McGuire v. Turnbo, 137 F.2d
321, 323-24 (5th Cir. 1998). McGuire indicates that its result
would apply to any cause of action based on federal law, presumably
including federal court section 1983 actions.
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January 23 notice. Gonzales was never represented by counsel.
“The purpose of requiring [in Rule 11a] unrepresented parties
to sign their pleadings . . . . was to make certain that those
named as parties in an action in which there was no lawyer actually
had assented to the filing of the action on their behalf.” 5A
Wright & Miller, Federal Practice and Procedure: Civil 2d § 1334 at
54-55 (footnote omitted); Scarrella v. Midwest Federal Savings and
Loan, 536 F.2d 1207, 1209 (8th Cir. 1976); Covington v. Cole, 528
F.2d 1365, 1370 n.7 (5th Cir. 1976); Huffman v. Nebraska Bureau of
Vital Statistics, 320 F.Supp. 154, 156 (D. Neb. 1970). When the
unsigned pleading or other paper is tendered to the clerk for
filing by the pro se party himself, that purpose of Rule 11a may be
sufficiently fulfilled to allow relation back if the party with
reasonable promptness thereafter signs and refiles the document.
See Adams. But, where the document is tendered and signed by a
nonlawyer on behalf of another, then there comes into play the
underlying principle itself, namely that in federal court a party
can represent himself or be represented by an attorney, but cannot
be represented by a nonlawyer. See, e.g., Eagle Associates v. Bank
of Montreal, 926 F.2d 1305, 1308-9 (2d Cir. 1991) (reviewing
authorities). As Judge Garza said in Turner v. American Bar Ass’n,
407 F.Supp. 451, 477 (N.D. Tex. 1975), aff’d sub nom. Pilla v.
American Bar Ass’n, 542 F.3d 56, 59 (8th Cir. 1976) (appeal from
multi-district litigation) (affirming in this respect on the basis
10
of the district court opinion), “28 U.S.C.A. § 1654 . . . only
allows for two types of representation: that by an attorney
admitted to the practice of law by a governmental regulatory body
and that by a person representing himself.” We have cited Turner
with approval in this respect, Southwest Express Co. v. Interstate
Commerce Commission, 670 F.2d 53, 55 (5th Cir. 1982), as has the
Second Circuit. Eagle at 1308. Thus, we have held that a notice
of appeal signed by a nonlawyer on his own behalf and on behalf of
another effects an appeal only as to the signer. Theriault v.
Silber, 579 F.2d 302, 302 n.1 (5th Cir. 1978), cert. denied 99
S.Ct. 1236 (1979); Smith v. White, 857 F.2d 1042, 1043 (5th Cir.
1988); Carter v. Stalder, 60 F.3d 238, 239 (5th Cir. 1995).2 In
Smith, we distinguished the situation where a nonlawyer signs the
notice of appeal on behalf of another from that where the appellant
named in the notice submits it, unsigned, to the clerk, observing
that the former situation, but not the latter, is governed by the
2
Other circuits are in accord. See, e.g., Knoefler v. United
Bank of Bismark, 20 F.3d 347 (8th Cir. 1994); Covington v.
Allsbrook, 636 F.2d 63, 64 (4th Cir. 1980), cert. denied, 101 S.Ct.
1990 (1981). See also 20 Moore’s Federal Practice (3d ed.) §
303.21[3][b][iii][A], 303-43 (“A notice of appeal naming several
pro se appellants, but signed by only one of them, does not
initiate an appeal on behalf of the nonsigning appellants. This
rule is based on the fact that a nonlawyer appearing pro se cannot
represent other parties . . . .”) (footnote omitted). A narrow
exception is established by the provision of Fed. R. App. P. 3(c)
that “A notice of appeal filed pro se is filed on behalf of the
party signing the notice and the signer’s spouse and minor
children, if they are parties, unless the notice of appeal clearly
indicates a contrary intent.”
11
rule “that a layperson cannot represent other persons in filing a
notice of appeal.” Id. at 1043 n.1. And, where a nonlawyer
purports to file a notice of appeal for another, no signing or
ratification by the thus “represented” party after expiration of
the Fed. R. App. P. 4(a) periods can be effective. Carter at 239.
Here, nonlawyer Milton, a prisoner confined in the Darrington
Unit, mailed the unsigned complaint, which was received January 19,
to the clerk, but Gonzales, who was then confined in the French
Robertson Unit, hundreds of miles from the Darrington Unit, had not
even seen the complaint (or had it read to him), did not see it
until January 26 at the earliest, and prior to January 26 did
nothing to ratify its filing or tender or to adopt it.3
Consequently, when limitations expired on January 25, no complaint
by Gonzales had been received by the clerk or delivered by Gonzales
to the prison authorities for transmittal to the clerk. When
Gonzales took action on March 4 or 5, limitations had already run
(as it had when the prison authorities allegedly confined him to
his cell and confiscated his papers on January 30 or 31).
The district court did not abuse its discretion in dismissing
the suit as barred by limitations, and its judgment is accordingly
AFFIRMED.
3
In these circumstances, it is irrelevant that Gonzales may
have previously in some way “authorized” Milton to draft for him a
complaint against Wyatt respecting the January 24, 1994, incident
and mail it to the clerk.
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