Casanova v. Dubois, 289 F.3d 142 (1st Cir. 05/06/2002)

[1] U.S. Court of Appeals, First Circuit


[2] No. 99-1838


[3] 289 F.3d 142, 2002


[4] May 06, 2002


[5] 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.


[6] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]


[7] 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.


[8] Before Selya, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Senior Circuit Judge.


[9] The opinion of the court was delivered by: Stahl, Senior Circuit Judge


[10] 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). *fn1 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.


[11] I.


[12] 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 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.


[13] 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 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.


[14] 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.


[15] 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 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.


[16] 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. *fn2 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.


[17] 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. *fn3 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.


[18] II.


[19] 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.


[20] 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).


[21] 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.


[22] 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 F.2d 22, 23 (1st Cir. 1991), we find that dismissal of the appeal of the other inmates is unwarranted.


[23] III.


[24] 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.


[25] 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 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.


[26] 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).


[27] 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.


[28] 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.


[29] So ordered.



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Opinion Footnotes

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[30] *fn1 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.


[31] *fn2 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.").


[32] *fn3 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.

Casanova v. Dubois, 304 F.3d 75 (1st Cir. 09/13/2002)

[1] U.S. Court of Appeals, First Circuit


[2] No. 99-1838


[3] 304 F.3d 75, 2002


[4] September 13, 2002


[5] 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.


[6] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]


[7] Toni G. Wolfman, with whom Megan H. Mack, William W. Fick, and Foley, Hoag & Eliot Llp, were on brief, for appellants.


[8] Joel J. Berner, Counsel, with whom Nancy Ankers White, Special Assistant Attorney General, was on brief for appellees.


[9] Before Selya, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Senior Circuit Judge.


[10] The opinion of the court was delivered by: Stahl, Senior Circuit Judge


[11] 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) *fn1 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.'" *fn2 Id. at *6. Considering the fact that exhaustion of PLRA remedies is an affirmative defense, *fn3 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.


[12] Now that the plaintiffs have cleared (at least for now) the hurdle posed by the PLRA, in accordance with our earlier ruling, we focus our attention on the remaining issues presented by this litigation.


[13] I.


[14] 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. *fn4 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.


[15] 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.


[16] A. Mailbox Rule


[17] 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 mail will usually eliminate such disputes. Most circuits have extended the mailbox rule to prisoner § 1983 filings. *fn5


[18] 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).


[19] 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 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.


[20] 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. *fn6


[21] B. Filing Fee


[22] 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.


[23] The advance payment of a filing fee is generally not a jurisdictional prerequisite to a lawsuit. *fn7 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 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.


[24] 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.


[25] 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.


[26] II.


[27] 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 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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Opinion Footnotes

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[28] *fn1 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.).


[29] *fn2 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 exhaust administrative remedies expired before enactment of the PLRA. See Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999).


[30] *fn3 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.


[31] *fn4 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.").


[32] *fn5 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).


[33] *fn6 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 slight modification, on March 20, 1995.


[34] *fn7 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).