Casanova v. Dubois

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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