Michael James Garvey, Plaintiff-appellant, v. C. Roland Vaughn, Iii, Chief of Police City of Conyers,georgia, Lew Comans, Sergeant, Dekalb County Policedepartment, Dekalb County, Georgia, City of Conyers Policedepartment, Dekalb County Police Department, Dekalb County,georgia, Defendants-appellees.raymond Johnson, Plaintiff-appellant, v. Bruce Cook, National Appeal Board, G. Mackenzie Rast, D.j.southerland, Brian Ross, Executive Assistant, Billie Hodges,unit Manager, Bruce Ballard, Counselor, Eva Porter, Casemanager, William Eiston, Lt., M. Hinton, Lt., Peggylenemoore, Correctional Officer, Lawson, Physician Assistant,federal Correctional Institution, Talladega, Al, Defendants-appellees, 993 F.2d 776 (11th Cir. 1993)

This consolidated appeal presents the first impression issues for this circuit of whether Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988) should be extended to the filing of a pro se prisoner's initial complaint in a 42 U.S.C. § 1983 action and claim under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The cases arise from a state inmate in Georgia and a federal inmate in Alabama, and respectively involve district courts' granting a motion to dismiss and a motion for summary judgment for the government officials. After review of the record and consideration of the applicable law, we REVERSE and REMAND.

Plaintiff-appellant Michael James Garvey, a Georgia state prisoner, filed a complaint pursuant to 42 U.S.C. § 1983 against various police departments and officers. Garvey alleged that officers used excessive force in arresting him¹  on March 10, 1983, and challenged the legality of his arrest, trial and conviction. Garvey has been incarcerated since his arrest.

Garvey's complaint is dated February 21, 1985, and he avers that he placed the complaint addressed to District Court for the Northern District of Georgia in the institutional mail receptacle on March 7, 1985.²  His complaint was not received in the clerk's office for the Northern District of Georgia until March 13, 1985. Following an in forma pauperis determination, his complaint was filed in district court on April 26, 1985. Dependant on prison personnel to mail his court filings, Garvey cannot explain the delay in the receipt of his complaint in federal court.³ 

Pursuant to 28 U.S.C. § 1915(d), a magistrate judge dismissed as frivolous Garvey's challenges to his arrest, trial and conviction, but ordered that his claim of excessive force proceed.⁴  The district court denied Garvey's motion for appointment of counsel. On defendants-appellees' motion to dismiss, the district court subsequently dismissed Garvey's case because it was barred by the Georgia two-year statute of limitations for personal injury actions. In pertinent part, the district court reasoned:

An action is deemed commenced by filing a complaint with the court. Fed. R. Civ. P. 3. Filing is done by filing the complaint with the Clerk of Court. Fed. R. Civ. P. 5(e). The complaint here was not received by the court until March 13, 1985, beyond the statute of limitations. The fact that it was dated February 21, 1985 is irrelevant to this analysis.

R1-32-3. Judgment for defendants-appellees was entered on March 20, 1990.

The district court granted Garvey's motion to appeal in forma pauperis. The court specifically noted Garvey's good faith questioning of the statute of limitations bar. On appeal, Garvey argues that Houston should be extended to a pro se prisoner whose 42 U.S.C. § 1983 complaint is delivered to prison authorities prior to the expiration of the applicable limitations period, but is not received by the district court until after the limitations period has expired.⁵ 

Plaintiff-appellant Raymond Johnson was an inmate at the Federal Correctional Institution in Talladega, Alabama, when the alleged causes of action arose. Following a report from the Federal Bureau of Investigation that Johnson's wife had received a letter, postmarked Talladega, threatening his life, Johnson was placed in administrative detention for his protection on November 30, 1988, pending an investigation by the Bureau of Prisons. Although the ensuing investigation by prison officials was inconclusive concerning whether Johnson's safety was in jeopardy, the prison administration requested that he be transferred to another institution.

On February 16, 1989, the Southeast Regional Office of the Bureau of Prisons designated Johnson for transfer to the Federal Correctional Institution in Oakdale, Louisiana, where he presently is incarcerated. Prior to the transfer, a nationwide moratorium on federal prison transfers became effective. Consequently, Johnson was not transferred until April 6, 1989. Therefore, he remained in administrative detention from November 30, 1988, until April 6, 1989.

Johnson filed a pro se complaint in the Northern District of Alabama on February 16, 1989, and alleged violations of his rights under the First, Fifth and Eighth Amendments.⁶  He contends that he was placed in detention in retaliation for filing administrative grievances and as part of a plot to conceal subversive communist activity at the prison. While he was detained, Johnson claims that he was mistreated in a variety of ways.⁷  His case was referred to a magistrate judge.

The magistrate judge ordered defendants-appellees to respond to Johnson's section 1331 claims in a special report. The special report, essentially denying fault in the treatment of Johnson during his detention, was filed with affidavits from several of the defendant-appellee prison officials and copies of Johnson's administrative claims and the responses. The magistrate judge informed both parties that the defendants-appellees' special report would be construed as a motion for summary judgment.

Johnson subsequently filed a motion to incorporate a tort claim, wherein he alleges that defendant-appellee D.J. Southerland lost Johnson's hobby craft materials valued at $80. Previously, Johnson had filed an administrative claim with the Bureau of Prisons as required under the Federal Tort Claims Act, 28 U.S.C. § 2675(a). The Bureau of Prisons denied the claim on November 16, 1989. Because, under 28 U.S.C. § 2401(b), Johnson had six months from the date of agency denial to file a complaint under the Federal Tort Claims Act, the magistrate judge reasoned that Johnson had until May 16, 1990, to file his action in district court. Since Johnson's motion to incorporate his tort claim was not received by the district court until May 18, 1990, the magistrate judge denied his motion as untimely.

The magistrate judge issued a report and recommendation and concluded that Johnson's complaint should be dismissed.⁸  Johnson submitted objections to the magistrate judge's report and recommendation wherein he essentially disagreed with the magistrate judge's legal conclusions, but not the facts and issues presented.⁹  The district court adopted the magistrate judge's report and recommendation, granted defendants-appellees' summary judgment motion, and dismissed Johnson's complaint with prejudice. Johnson appeals the dismissal of his case. The district court issued a certificate of probable cause and allowed Johnson to proceed in forma pauperis.

Johnson's appeal presents only one issue, the timeliness of his motion to incorporate his federal tort claim, that we will address in conjunction with a similar issue in the consolidated case.¹⁰  He contends that the magistrate judge erroneously denied his motion as untimely. Although the district court did not receive his motion until May 18, 1991, Johnson asserts that it should have been considered timely filed when presented to prison officials on May 16, 1991, under the authority of Houston. The government admits that " [a]lthough Plaintiff did not raise the date of filing issue below in the district court, defendants concede it is reasonable to presume Plaintiff presented his motion for mailing on May 16, 1990." Appellees' Brief at 8 n. 4.

In Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988), the Supreme Court held that a notice of appeal by a pro se prisoner is filed when it is delivered to prison authorities for forwarding to the district court, rather than filing with the clerk of court. Houston involved a pro se state prisoner who gave a notice of appeal from the dismissal of his habeas corpus petition to prison authorities to mail to district court twenty-seven days after the adverse judgment was entered. The district court clerk stamped the notice filed thirty-one days after the district court judgment, or one day outside the thirty-day filing period of Federal Rule of Appellate Procedure 4(a) (1). The Supreme Court reversed the Sixth Circuit's dismissal of the appeal based on the untimely filing and found that the notice of appeal was filed when the petitioner relinquished it to the prison officials for mailing to the district court.

Central to the Court's holding in Houston is its concern for fairness in recognition of the "unique" disadvantages of an incarcerated pro se litigant for court filings. 487 U.S. at 270, 108 S. Ct. at 2382. Pro se prisoners are unable to file personally in the clerk's office, they cannot utilize a private express carrier, and they cannot place a telephone call to ascertain whether a document mailed for filing arrived. Not only do they lack these safeguards available to other litigants to ensure that their court filings are timely, but also they do not have counsel to monitor the filing process. Importantly, the pro se prisoner has no recourse other than to entrust his court filings to prison authorities over whom he has no control. As defendants in a pro se prisoner's civil rights action, prison officials "may have every incentive to delay," and, even if he suspects delay by prison authorities, the pro se prisoner is helpless to investigate or prove such dilatoriness. 487 U.S. at 271, 108 S. Ct. at 2382. Additionally, the pro se prisoner may be hindered in his filing by slow postal service or a court clerk's failing to stamp a document filed on the date received.

Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access--the prison authorities--and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice.

487 U.S. at 271-72, 108 S. Ct. at 2382-83.

In establishing a brightline rule in Houston, the Court clearly sought to place pro se prisoners on equal footing with other litigants who are not impeded by the practical difficulties encountered by incarcerated petitioners in meeting filing requirements. Significantly, Houston does not create an exception for a pro se inmate to evade time requirements, but states an equitable, standardized method for measuring time restrictions so that requisite time limitations for filing do not preclude the incarcerated petitioner's equal access to the courts.¹¹  The Court also recognized that prison officials have procedures for recording the date and time that they receive inmates' papers for mailing and, therefore, are in a position to verify whether a prisoner delivered a document for mailing on a particular date. 487 U.S. at 275, 108 S. Ct. at 2384-85.

Realizing the hardship of a pro se federal prisoner in explaining the tardiness in the clerk's office receipt of his notice of appeal pursuant to Federal Rule of Criminal Procedure 37(a) (2) and that this situation should not be an impediment to his appeal, the Court previously concluded that "there is no reason on the basis of what this record discloses to doubt that petitioner's date at the top of the letter was an accurate one and that subsequent delays were not chargeable to him." Fallen v. United States, 378 U.S. 139, 143-44, 84 S. Ct. 1689, 1692, 12 L. Ed. 2d 760 (1964). Fallen recognizes that, once a pro se inmate has deposited his document to be filed in the prison mailbox, "the jailer is in effect the clerk of the District Court." 378 U.S. at 144, 84 S. Ct. at 1692-93 (Stewart, J., concurring). Accordingly, Houston places the burden of proof for the pro se prisoner's date of delivering his document to be filed in court on the prison authorities, who have the ability to establish the correct date through their logs.¹²  United States v. Grana, 864 F.2d 312, 316 (3d Cir. 1989).

Houston and Fallen demonstrate that the Court will regard the distinct filing disabilities of state or federal pro se prisoners in both civil and criminal cases. In fashioning an equitable resolution to the pro se prisoner's filing dilemma, the Court was mindful that "the Rules are not, and were not intended to be, a rigid code to have an inflexible meaning irrespective of the circumstances." Fallen, 378 U.S. at 142, 84 S. Ct. at 1691. Moreover, Houston does not indicate that it should be limited to habeas corpus appeals. Lewis v. Richmond City Police Dep't, 947 F.2d 733, 736 (4th Cir. 1991) (per curiam); Hostler v. Groves, 912 F.2d 1158, 1160 (9th Cir. 1990), cert. denied, 498 U.S. 1120, 111 S. Ct. 1074, 112 L. Ed. 2d 1180 (1991). Using its fairness rationale, other circuits have applied the Houston pro se prisoner filing rule extensively to state and federal inmates and have not limited Houston to its facts.¹³ 

In Lewis, the Fourth Circuit extended Houston to include Federal Rules of Civil Procedure 3 and 5(e) for a pro se state prisoner who filed a 42 U.S.C. § 1983 action. Strikingly similar to Garvey's case, the Lewis plaintiff-appellant had placed his complaint alleging excessive force at his arrest in the box designated for prisoner mail at his correctional facility in Virginia. Because his complaint was received by the district court outside the two-year, Virginia statute of limitations for personal injury actions, the court dismissed his complaint as untimely.

On appeal, the Fourth Circuit applied and extended Houston based on its conclusion that Houston established a fundamental "rule of equal treatment ... to ensure that imprisoned litigants are not disadvantaged by delays which other litigants might readily overcome." Lewis, 947 F.2d at 735. The court found the same concerns that prompted Houston were present in Lewis in that the pro se prisoner was unable to monitor the mails or to rectify any delays in the mail, even if he had been aware of them. Additionally, such pro se prisoners must rely on prison authorities, who may be motivated to delay the filing and who control and log prisoners' outgoing mail. See Hostler, 912 F.2d at 1161 (" [P]rison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials.").

The Fourth Circuit compared the wording of Federal Rules of Appellate Procedure 3(a) and 4(a) (1), implicated in Houston, with that of Federal Rule of Civil Procedure 5(e), and found them to be so similar that an identical interpretation was warranted.¹⁴  As applied to pro se prisoners, the Supreme Court construed "filing" in the Appellate Rules to mean "directed to" the clerk of the district court, which occurred upon delivery to prison officials.¹⁵  Lewis, 947 F.2d at 736. Accordingly, the Fourth Circuit determined that the subject complaint was filed timely because it was delivered to prison officials within the two-year statute of limitations period.¹⁶  We approve and adopt the Fourth Circuit's reasoning in Lewis, which is directly analogous to Garvey's case.

Regarding Johnson's case, we find that the same considerations of equal access to the courts involved in a state pro se prisoner's filing a section 1983 action apply to a federal pro se prisoner's filing a claim under the Federal Tort Claims Act. See Hostler, 912 F.2d at 1161 (The "broad language of Houston and its important policy concerns" indicate that it should be applied in contexts other than habeas cases when prisoners act pro se.). Further, the Court has emphasized "that the requirements of the rules of procedure should be liberally construed and that 'mere technicalities' should not stand in the way of consideration of a case on its merits." Torres v. Oakland Scavenger Co., 487 U.S. 312, 316, 108 S. Ct. 2405, 2408, 101 L. Ed. 2d 285 (1988). In keeping with the Court's clear direction in Houston to provide pro se prisoners equal access to the courts with other litigants, we do not view the distinction between a federal pro se prisoner filing a federal tort claim to be "meaningfully distinguishable" from a state pro se prisoner filing a section 1983 action. Grana, 864 F.2d at 315. "Once a pro se litigant has done everything possible to bring his action, he should not be penalized by strict rules which might otherwise apply if he were represented by counsel." Oritz v. Cornetta, 867 F.2d 146, 148 (2d Cir. 1989).

Therefore, we now hold that this circuit extends Houston to pro se prisoners filing complaints in section 1983 cases and claims under the Federal Tort Claims Act. In these cases, the date of filing shall be that of delivery to prison officials of a complaint or other papers destined for district court for the purpose of ascertaining timeliness. "The teaching of Houston is that prison delay beyond the litigant's control cannot fairly be used in computing time for appeal." Grana, 864 F.2d at 316. Because the respective actions of Garvey and Johnson¹⁷  would have been filed timely within the operative statutes of limitation had the dates of delivery to prison authorities been used, these cases must be reinstated for adjudication on the merits in district court.¹⁸ 

The respective district courts in the Garvey and Johnson cases dismissed the pro se prisoners' actions because they were not filed timely. Under our extension of Houston, announced herein, the section 1983 complaint and the federal tort claim in the respective cases were filed timely when they were delivered by the incarcerated plaintiffs-appellants to prison authorities. Therefore, we REVERSE the dismissal of these actions by the respective district courts and REMAND for consideration of the pro se prisoners' claims.