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.

September 13, 2002

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 STAHL, Senior Circuit Judge. We remanded this case to

the district court for additional fact-finding with respect to

whether the exhaustion requirement of the Prison Litigation Reform

Act of 1995 (PLRA)1 precludes the appellants' lawsuit. After

reviewing the findings of the district court, see Casanova v.

Dubois, No. Civ.A.98-11277-RGS, 2002 WL 1613715 (D. Mass. July 22,

2002), we hold that the PLRA does not mandate dismissal for failure

to exhaust, at least not at this prefatory stage of litigation.

From the proceedings that transpired below on remand, it appears

that the Massachusetts Department of Corrections had no grievance
procedure available for complaints of the type appellants have

brought in this case. See id. at *3 ("[I]t is evident that . . .
the DOC's practice during the relevant time period was to treat
complaints of alleged civil rights abuses by staff as 'not

grievable.'"); id. at *6. The district court found that defendants

"provided nothing of a substantive nature to dispute the
plaintiffs' assertion" that the Massachusetts Department of

Corrections "had a practice of refusing to process complaints
involving the use of force by prison staff by almost uniformly
labeling them 'not grievable.'"2 Id. at *6. Considering the fact

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.).
2
In addition, it appears as though the appellants' ability to
exhaust whatever administrative remedies they may have had in
connection with the events giving rise to this litigation likely
expired before enactment of the statute (i.e., April 26, 1996). We
reserve for future consideration whether we will join the other
circuit courts that have held that prisoners are not bound by the
PLRA's exhaustion of remedies requirement where their ability to

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that exhaustion of PLRA remedies is an affirmative defense,3 we
believe that, in this case, the PLRA provides no basis to affirm a

sua sponte dismissal of the appellants' complaint. Nothing in this

opinion, however, is intended to preclude the appellees from

appropriately presenting this affirmative defense in any further

proceedings.

Now that the plaintiffs have cleared (at least for now)

the hurdle posed by the PLRA, in accordance with our earlier

exhaust administrative remedies expired before enactment of the
PLRA. See Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999).
3
Although we did not explicitly weigh in on this issue in our
previous opinion, the district court properly noted in its response
to our remand that the vast majority of circuit courts have
characterized PLRA exhaustion as an affirmative defense. See Ray
v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002) ("We thus join the many
other circuits that have held that failure to exhaust is an
affirmative defense to be pleaded by the defendant."); Wyatt v.
Terhune, 280 F.3d 1238, 1245 (9th Cir. 2002) ("We believe the
majority of circuits have decided this question correctly. We agree
with Judge Easterbrook that exhaustion under the PLRA is comparable
to a statute of limitations, which is an affirmative defense.");
Jackson v. District of Columbia, 254 F.3d 262, 267 (D.C. Cir. 2001)
(noting that exhaustion is an affirmative defense to be raised by
defendant); Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001)
(observing that reliance on the PLRA exhaustion requirement is an
affirmative defense, notwithstanding two previous Eighth Circuit
cases faulting plaintiff for his failure to provide evidence of
exhaustion); Massey v. Wheeler, 196 F.3d 727, 734-35 (7th Cir.
2000) ("Because failure to exhaust administrative remedies is an
affirmative defense, defendants have the burden of pleading and
proving the defense."); Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d
Cir. 1999) ("a defendant in a prisoner § 1983 suit may also assert
as an affirmative defense the plaintiff's failure to comply with
the PLRA's [exhaustion] requirements"). See also Wendell v. Asher,
162 F.3d 887, 890 (5th Cir. 1998) ("Rather, the amended statute
imposes a requirement [of exhaustion], rather like a statute of
limitations, that may be subject to certain defenses such as
waiver, estoppel, or equitable tolling."). As the district court
correctly predicted, we adopt the majority rule.

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ruling, we focus our attention on the remaining issues presented by

this litigation.

I.

Specifically, we shall consider the ground actually

provided by the district court for its sua sponte dismissal:

namely, that the bulk of the prisoners' claims had been filed

outside of the three-year statute of limitations.4 Appellants
acknowledge that their complaint was not formally docketed until

July 1, 1998, approximately three months after the statute of

limitations expired. Nevertheless, they argue that under the
"mailbox rule," their complaint should be considered "filed" at the
time they handed the complaint over to the prison officials for
mailing. Under this rule, their complaint would be deemed filed

on March 18, 1998, and would therefore be timely. Part of the
delay was caused, however, by the fact that the clerk's office of
the district court refused to file the complaint until the $150

filing fee had been paid in full because the prisoners had not
included an application to proceed in forma pauperis (IFP).
Appellants maintain that the advance payment of a fee is not a
prerequisite to filing for the purposes of tolling the statute of

limitations.

4
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
do so.").

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 In opposition to the appellants' invocation of the

mailbox rule, the appellees maintain that the Massachusetts

Department of Corrections does not maintain a special system for
recording legal mail. Consequently, the appellees insist that

there would be no way to determine when a prisoner mailed his

complaint, rendering a mailbox rule unworkable in the Massachusetts
state system. Second, the appellees argue that the local rules

give the district court clerk the authority to reject a complaint

submitted for filing unless it is accompanied by the full filing

fee or a proper IFP application. Accordingly, they insist, the

district court correctly relied upon the docket sheet to determine

when the complaint had been filed for the purposes of assessing

whether the statute of limitations precluded the appellants from
bringing the bulk of their claims. We turn first to the question

of the mailbox rule.

A. Mailbox Rule

In Houston v. Lack, 487 U.S. 266 (1988), the Supreme

Court articulated the compelling reasons for adopting a mailbox
rule in order to determine when a prisoner's complaint should be
deemed "filed." In light of the fact that the prisoners can do no

more than hand over their complaint to the prison officials, and do
not have any discretion over how the complaint will be filed, the
relevant point should be when the complaint is handed over to the

prison officials. Even though disputes might arise in the non-
incarcerated world over the exact date when a filing was ostensibly

mailed, the extensive procedures for chronicling the flow of prison

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mail will usually eliminate such disputes. Most circuits have

extended the mailbox rule to prisoner § 1983 filings.5

The only two circuit court cases cited by the appellees,
which purportedly stand for the opposite conclusion, are

inapposite. See Jenkins v. Burtzloff, 69 F.3d 460, 462 (10th Cir.

1995) (failing to recognize a "reverse mailbox rule," which would
only commence the clock with regard to the time for appeal when the

final judgment was actually received by the inmate party); Nigro v.

Sullivan, 40 F.3d 990, 994 (9th Cir. 1994) (rejecting mailbox rule

because "filed" had been specifically defined by administrative

regulations as receipt by the clerk).

Appellees attempt to distinguish this case from Morales-

Rivera v. United States, 184 F.3d 109 (1st Cir. 1999), in which we
adopted the prisoner mailbox rule for § 2254 and § 2255 filings, by

pointing to the fact that the Puerto Rican prison system at issue

in Morales-Rivera has a specific process for tracking legal mail,

whereas the Massachusetts system does not. See 103 C.M.R. 481.01

et seq. Yet, it would seem somewhat unusual for the determination

of whether the mailbox rule applies to depend on the particular

5
See Cooper v. Brookshire, 70 F.3d 377, 380-81 (5th Cir.
1995); Garvey v. Vaughn, 993 F.2d 778, 783 (11th Cir. 1993); Dory
v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993); Lewis v. Richmond City
Police Dep't, 947 F.2d 733, 736 (4th Cir. 1991) (per curiam). The
Sixth Circuit reached the same conclusion, although it appears that
the issue has only been addressed in unpublished opinions.
Aldridge v. Gill, 24 Fed. Appx. 428, 429 (6th Cir. 2001); Shelton
v. Edge, 234 F.3d 1269 (6th Cir. 2000). See also Edwards v. United
States, 266 F.3d 756, 758 (7th Cir. 2001) ("[W]e [have] assumed
that the mailbox rule applies to all prisoner district court
filings . . . . This appears to be the rule in every other circuit
to have considered the point.") (citing cases).

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mail processing system a state has decided to implement.

Recognizing the potential for inconsistency, we observe that

Federal Rules of Appellate Procedure 4 and 25 allow inmates to
demonstrate that their filings are timely by including a

declaration or a notarized statement specifying the date the mail

was deposited in the prison system and stating that first-class
postage was pre-paid. In any event, Massachusetts is free to adopt

a specific process for tracking legal mail.

Therefore, we discern no basis for deviating from the

rationale offered in Morales-Rivera, and hold that the mailbox rule

shall govern the determination of when a prisoner's § 1983 filing

has been completed. So long as the prisoner complies with the

prison's procedures for sending legal mail, the filing date for
purposes of assessing compliance with the statute of limitations

will be the date on which the prisoner commits the mail to the

custody of prison authorities. Although the appellants in this
case did not file a declaration in conformance with Rule 4 or 25 of

the Federal Rules of Appellate Procedure, none of the parties

dispute that, were the mailbox rule to apply (and setting aside for

the moment the question of the filing fee), the appellants' claims

should be considered timely filed for purposes of a sua sponte

dismissal.6

6
In addition, we note that the record provides additional
verification of the date that appellants placed the complaint into
the prison mail system. On March 18, 1998, Casanova requested the
release of $3.90 in order to send his complaint via certified mail,
and written verification of this transaction is included as an
exhibit in the joint appendix. This request was approved, with a

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B. Filing Fee

The appellants face an additional hurdle, however, in

that they did not include the requisite filing fee with their

complaint when they placed it in the prison mail system. Nor did

they include an application to proceed IFP with their complaint.

As we explained in our previous opinion, however, the appellants

made noteworthy efforts, despite their incarceration, to get the

filing fee to the court at the time they filed their complaint.

See Casanova v. Dubois, 289 F.3d 142, 144 (1st Cir. 2002). In

fact, they went so far as to solicit the assistance of an outside
attorney solely for the purpose of facilitating the processing of

their filing fee.
The advance payment of a filing fee is generally not a
jurisdictional prerequisite to a lawsuit.7 Rather, the fee

requirement derives from two sources: federal statutes and the
local rules. Section (a) of 28 U.S.C. § 1914 provides that
district courts shall require a filing fee, and section (c) states

that "[e]ach district court by rule or standing order may require

slight modification, on March 20, 1995.
7
See, e.g., Wrenn v. Am. Cast Iron Pipe Co., 575 F.2d 544,
547 (5th Cir. 1978) ("[T]he district court mistakenly assumed that
timely payment of a filing fee is a jurisdictional requisite. The
Supreme Court has held, with respect to 28 U.S.C.A. § 1917, that
untimely payment of a filing fee does not vitiate the validity of
a notice of appeal. Parissi v. Telechron, Inc., 349 U.S. 46, 75
S.Ct. 577, 99 L.Ed. 46 (1955) (per curiam). We perceive no
distinction between § 1917 and § 1914, which requires a filing fee
for complaints, that would lead to a different conclusion here."),
overruled on other grounds by Baldwin County Welcome Ctr. v. Brown,
466 U.S. 147, 149-50 (1984).

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advance payment of fees." Local Rule 4.5 for the District of

Massachusetts permits the clerk to refuse to perform any services

"for which a fee is lawfully prescribed" unless the fee has been
paid.

The only case to which the appellees can cite in support

of their argument that appellants' failure to prepay the filing fee
cannot be excused is Keith v. Heckler, 603 F. Supp. 150 (E.D. Va.

1985). In Keith, however, the court emphasized that the local rule

in that district mandated the prepayment of fees. Id. at 156.

Regardless of whether the analysis in Keith could withstand

scrutiny, the facts in Keith render the case inapposite, as the

local rule at issue in this case makes this requirement one that

can be waived at the discretion of the clerk, rather than a
mandatory, inflexible prerequisite to suit.

We find it unnecessary to deal with anything other than

the case presented to us today. On this record, we are satisfied
that the appellants appear to have done everything within their

power to comply with the filing fee provisions of the court, and it

is hard to attribute any delay in the processing of that fee to

them. Therefore, based on the foregoing, the appellants made out

a sufficient case for timely filing to forestall a sua sponte

dismissal of their complaint.

II.

For the reasons expressed in this and our previous

opinion, we find that the appellants' claims dismissed below should

be reinstated. We remand the case for further proceedings

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consistent with these rulings. Finally, we commend the district

court for its prompt and thorough response to our remand, and

likewise thank the appellants' appointed counsel for their service
to their clients and this court.

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