United States Court of Appeals
For the First Circuit
No. 99-1838
RAUL CASANOVA, DEMOND HICKS, KEVIN BUSH, ANTWYAN PRIDGETT,
JOSEPH D. WILLIAMS, GARY BON, AND JOHN CARTER,
Plaintiffs, Appellants,
v.
LARRY E. DUBOIS, RONALD DUVAL, STEVEN AYALA,
DANIEL GEORGE SULLIVAN, EDWARD KLOS, ROBERT DAIGLE,
RICHARD HOLDEN, RICHARD E. KELLY, WILLIAM KELLY,
JAMES B. HETHERSON, JAMES COFFONE, PATRICK SMITH, JOHN BRODBECK,
BRUCE TESSIER, WILLIAM GROSSI, RICHARD DERALEAU, EDWARD RIZZI,
KEVIN DESCHAMPS, TIMOTHY J. BOLTON, WAYNE BELISLE,
SCOTT A. GALSBAND, SCOTT T. REGAN, RICHARD BUSA, KENNETH PERRON,
STEVEN LYDON, DONALD DENOMME, BRIAN FORD, ROBERT J. BLOOD,
MICHAEL ALLAN, FRED CALLENDER, JAMES S. ROBERTS,
ROLAND GONSALVES, THOMAS PERKINS, KENNETH AYALA, THOMAS FISHER,
STEVEN N. DEHESTANI, RONALD GONCALVES, JOHN BRUCE, PAUL AUCOIN,
THOMAS BORRONI, KENNETH J. SILVA, SR., MARK O'REILLY,
RUSSELL S. HALLETT, WILLIAM COMEAU, ERNEST THERRIEN,
SCOTT CALLENDER, KHALID N. KHAN, MD, CHRISTINE MALMQUIST,
NAOMI BAKER, BERNADETTE MELENDY, D. MICHEL, RN,
AND MAUREEN MCIMN,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Senior Circuit Judge.
Toni G. Wolfman, with whom Megan H. Mack, William W. Fick, and
Foley, Hoag & Eliot LLP, were on brief, for appellants.
Joel J. Berner, Counsel, with whom Nancy Ankers White, Special
Assistant Attorney General, was on brief for appellees.
May 6, 2002
STAHL, Senior Circuit Judge. Appellants, inmates at MCI
Cedar Junction, have appealed from the sua sponte dismissal of
their complaint by the district court on the basis that the
majority of their claims were time-barred and that the non-barred
claims failed to allege facts that rose to the level of a
constitutional violation. Appellees challenge the jurisdiction of
this court to consider the appeal of all of the appellants except
that of Raul Casanova for their failure to file proper notices of
appeal on a timely basis. In addition to the arguments presented
in their briefs supporting affirmance, appellees asserted at oral
argument that sua sponte dismissal was appropriate because
appellants did not exhaust their administrative remedies prior to
filing suit in federal court, as required by the Prison Litigation
Reform Act of 1995 (PLRA).1 Although we find that there are no
barriers to our exercising jurisdiction in this case, we remand the
case to the district court for further development of the record
with regard to the issue of exhaustion.
I.
On April 3, 1995, a corrections officer allegedly was
assaulted in the appellants' housing unit during a recreation
period when inmates were permitted to be outside of their cells.
The prison officials ("appellees") immediately closed all cell
doors, locking some inmates, including appellants, out of their
1
Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended in
scattered sections of 18 U.S.C., 28 U.S.C., & 42 U.S.C.). See
discussion infra Part III.
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cells. Appellees then activated the Tactical Response Team, which
purportedly gassed and attacked with batons and dogs those inmates
not in their cells. Even after the inmates were fully restrained,
appellees allegedly continued to beat appellants. Although they
were injured, appellants claim that they were denied proper medical
treatment, and beaten further when they asked for medical
attention. They were allegedly forced to lie face down in
handcuffs and leg shackles for 3-4 hours in cold outdoor yard
cages. Appellees then purportedly locked all of the appellants
behind a steel door for approximately thirty days without shower
facilities, towels, bed sheets, blankets, pillows, cell cleaning
supplies or toiletries. In addition to various physical hardships
allegedly inflicted on the inmates, the prisoners claim that
appellees also denied them access to legal phone calls and to both
legal and personal mail during the thirty-day period they remained
behind the steel door. Appellants also allege that they were
denied all yard exercise from April 3 until August 1995.
On March 18, 1998, Plaintiff Casanova handed over a
complaint, a cover letter and a purchase slip for certified postage
to a prison caseworker for mailing to the federal district court.
The complaint was signed by Kevin Bush, Antwyan Pridgett, Joseph D.
Williams, Demond Hicks, Gary Bon, John Carter and Casanova himself.
Casanova's cover letter to the District Court Clerk ("Clerk")
explained that the filing fee would arrive separately. The court
received the cover letter and complaint on March 24, 1998. On
March 25, 1998, Plaintiff Carter (and another inmate not named in
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the appeal) submitted purchase slips to a prison caseworker for the
issuance and mailing of two checks payable to the District Court
Clerk in the amounts of $120 and $30. Carter also gave the
caseworker a cover letter to enclose with his $120 check,
specifying the case name and advising the Clerk to expect a second
check for $30.
On April 27, 1998, the Clerk returned the complaint and
the check for $120 to Casanova with a form letter stating that "the
remainder of the filing fee in the amount of $30 is missing." Two
days later, Casanova wrote to the court, stating that the filing
fee would be resent. That same day, he also sent a copy of the
complaint to an attorney with the Massachusetts Correctional Legal
Services (MCLS), Gary Rothberger, and requested his assistance to
assure that the complaint and filing fee were delivered
simultaneously to the court.
On June 8, 1998, Rothberger mailed the complaint to the
court with a cover letter indicating that the filing fee would
arrive separately. Plaintiff Carter requested that the prison
authorities issue a check in the amount of $150 to the district
court to cover the filing costs. The district court received his
letter and check on June 12, 1998, a few days after the complaint
had arrived. Despite Rothberger's communications with the Clerk's
Office, on June 11, 1998, the Clerk again returned the complaint to
Casanova with a form letter indicating that it could not be
docketed without a filing fee or an application to proceed in forma
pauperis (IFP). Rothberger then apparently spoke with the pro se
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clerk directly, and requested that she hold the $150 filing fee
until Casanova could resubmit the complaint. On June 29, 1998,
Casanova sent the complaint to the pro se clerk's attention. The
Clerk finally docketed the complaint on July 1, 1998.
On January 15, 1999, the district court denied without
opinion motions for appointment of counsel and for service of the
complaint by the U.S. Marshal on the numerous defendants named
therein. He also issued an order to show cause why the case should
not be dismissed under Fed. R. Civ. P. 12(b)(6) based on the
statute of limitations and other ostensible deficiencies in the
complaint. Plaintiffs Casanova and Pridgett both submitted various
filings that attempted to respond to the order to show cause and
reiterated their request that an attorney be appointed in their
case. For some reason, not all of these filings appeared on the
docket sheet (and apparently did not make it into the record),
leading the plaintiffs to file some of their documents with the
court multiple times. Nevertheless, on May 7, 1999, the district
court dismissed the case by summary order, finding that the bulk of
the alleged violations in the complaint were barred by the statute
of limitations. Specifically, the relevant Massachusetts statute
of limitations governing the allegations stemming from the events
of April 3 was three years, and had expired on April 3, 1998.2
2
The parties agree that Massachusetts's three-year statute of
limitations on personal injury actions, Mass. Gen. L. ch. 260 § 2A,
governs the appellants' § 1983 complaint. See generally Wilson v.
Garcia, 471 U.S. 261, 266-67 (1985) ("When Congress has not
established a time limitation for a federal cause of action, the
settled practice has been to adopt a local time limitation as
federal law if it is not inconsistent with federal law or policy to
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Furthermore, the court found that the only claim that was not time-
barred -- namely, the allegedly impermissible denial of yard
exercise -- did not as a matter of law violate the Eighth
Amendment.
On May 28, 1999, Plaintiff Casanova filed a notice of
appeal on behalf of all the plaintiffs, stating that "all
plaintiffs in the above action hereby appeal." Casanova signed the
notice "on behalf of all plaintiffs," but the other inmates did not
affix their signatures to the notice of appeal. In lieu of a
responsive brief, on December 18, 2000, Defendants filed a motion
for summary disposition, which argued that only Casanova had
perfected his appeal. In an order dated June 22, 2001, this court
directed the Clerk's Office to serve each of the six non-signing
plaintiffs with a copy of the notice of appeal, an application to
proceed IFP, and instructions to sign and return the papers within
fourteen days to indicate their respective interest in being a
party to this appeal.3 All plaintiffs returned signed copies in a
timely manner. We allowed the appeal to proceed with respect to
the additional complainants, but reserved the question of our
jurisdiction to hear the nonsigning appellants' appeal on the
merits.
do so.").
3
In that same order, this court appointed counsel to represent
Casanova and the other inmates for purposes of this appeal. We
thank them for their able service.
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II.
Accordingly, we turn first to the issue of whether the
six prisoners who did not sign Casanova's notice of appeal have
lost their opportunity to be heard by this court. Appellees insist
that the well-established rule prohibiting non-attorney inmates
from representing one another, Herrera-Venegas v. Sanchez-Rivera,
681 F.2d 41, 42 (1st Cir. 1982), requires this court to dismiss the
appeal of all petitioners except Casanova. See Ruiz Rivera v.
Riley, 209 F.3d 24, 27 (1st Cir. 2000) ("a notice of appeal that is
not signed either by the appealing party or by that party's
attorney is a nullity"). Appellants, on the other hand, argue that
the failure of the six other prisoners to sign the notice of appeal
is a mere technical error, the correction of which permits this
court to hear their appeal.
According to Federal Rule of Appellate Procedure 3, a
party has thirty days after the entry of judgment to file a notice
of appeal with the district court. Any other party who wishes to
appeal has fourteen days after the initial notice was filed to
pursue an appeal. Fed. R. App. P. 4(a)(3). Where an inmate
desires to appeal from an adverse judgment, Rule 4(c)(1) provides
that "the notice is timely filed if it is deposited in the
institution's mail system on or before the last day for filing."
If other parties wish to join the appeal, they have fourteen days
from the date when the district court dockets the inmate's notice
of appeal. Fed. R. App. P. 4(c)(2).
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In this case, Casanova filed a timely notice of appeal
purportedly on behalf of all plaintiffs, but the notice contained
only his signature. Rather than call this error to the attention
of the court immediately, however, the appellees waited over
eighteen months to raise the issue. As a result, we are unable to
know with certainty whether the other six prisoners intended to
appeal from the district court's adverse ruling during the
relatively brief window of opportunity provided by the federal
rules. Nonetheless, we do know that once the prisoners were given
the opportunity to signify their desire to join in the appeal by
providing signatures for the notice of appeal, all six of them did
so within the time frame provided by this court.
The Supreme Court's recent decision in Becker v.
Montgomery, 532 U.S. 757 (2001), specifically states that the
signature requirement of Federal Rule of Civil Procedure 11 is not
jurisdictional, and so long as the technical mistake is corrected
promptly after being brought to a party's attention, the court may
hear the appeal. Id. at 766. The purpose of the signature
requirement is to ensure that there is no doubt about "who is
appealing, from what judgment, to which appellate court." Id. at
767. In this case, the other prisoners may very well have believed
that Casanova's appeal was sufficient to preserve the rights of all
plaintiffs, and they corrected the error as soon as it was brought
to their attention. In light of Becker and our general obligation
to read pro se complaints generously, see Rodi v. Ventetuolo, 941
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F.2d 22, 23 (1st Cir. 1991), we find that dismissal of the appeal
of the other inmates is unwarranted.
III.
The next issue we must confront deals with exhaustion.
At oral argument, appellees insisted that, in addition to the
reasons given by the district court, sua sponte dismissal of the
prisoners' complaint was proper because they had not exhausted
their administrative remedies. Section 1997e of the PLRA states
that "[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are
available are exhausted." 42 U.S.C. § 1997e(a). According to
appellees, the prisoners' failure to demonstrate in their pleadings
that they have satisfied this exhaustion requirement divested the
lower court of jurisdiction to consider the case.
Although this is an issue of first impression in this
circuit, all federal appellate courts that have considered the
question have rejected this jurisdictional argument. Most
recently, in Ali v. District of Columbia, the D.C. Circuit
clarified the extent to which appellees' argument has been
repudiated: "Removing any doubt, we now hold, as has every circuit
to have considered the matter, that the PLRA's exhaustion
requirement simply governs the timing of the action and does not
contain the type of sweeping and direct language that would
indicate a jurisdictional bar rather than a mere codification of
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administrative exhaustion requirements." 278 F.3d 1, 5-6 (D.C.
Cir. 2002) (internal quotations omitted). In justifying its
decision, the Ali court cited cases from the Third, Fifth, Sixth,
Seventh, Eighth, Ninth and Tenth Circuits. Finding the analysis of
our sister circuits to be sound, we join the chorus of voices
concluding that exhaustion is not a prerequisite to federal
jurisdiction.
Although not jurisdictional, the exhaustion requirement
is nonetheless mandatory. See Curry v. Scott, 249 F.3d 493, 501
n.2 (6th Cir. 2001) ("We note, however, that, while it is true we
have concluded § 1997e does not impose a jurisdictional bar to
federal jurisdiction, we have also concluded that the obligation to
exhaust administrative remedies before resort to federal court is
a mandatory one."). As the Supreme Court recently clarified, cases
involving allegations of physical violence by prison guards are not
exempt from this rule. Porter v. Nussle, 122 S. Ct. 983, 992
(2002).
While we have the ability to affirm the lower court's
dismissal on any grounds made manifest by the record, Aldridge v.
A.T. Cross Corp., 284 F.3d 72, 84 (1st Cir. 2002), here, the record
is devoid of any evidence whatsoever on the issue of exhaustion.
Unless appellants have satisfied the PLRA's exhaustion requirement,
their case must be dismissed. If, on the other hand, appellants
have exhausted their administrative remedies, this court would then
need to consider numerous other complicated issues that have been
raised in this case.
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After reviewing the matter carefully, we believe that it
would not be prudent to proceed further until the matter of
exhaustion has been resolved. Therefore, we remand this case to
the district court for development of the record with regard to the
issue of exhaustion of administrative remedies. After eliciting
from the parties whatever information it deems necessary to making
this determination, the district court shall transmit its written
findings to the Clerk of this Court no later than sixty days from
the date of this opinion. Although we remand for this limited
purpose, we retain jurisdiction over this appeal so that we may
consider, if required, the remaining arguments raised by the
parties in this appeal.
So ordered.
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