93 1559 La.App. 1 Cir. 5/20/94, Tatum v. Lynn

• Decision Date: 20 May 1994
• Citation: 637 So.2d 796
• Parties: 93 1559 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 796

637 So.2d 796

93 1559 La.App. 1 Cir. 5/20/94

Thad TATUM v. Bruce LYNN, Department of Public Safety.

No. 93 CA 1559.

Court of Appeal of Louisiana First Circuit.

May 20, 1994.

Thad Tatum, pro se.

Edward A. Songy, Jr., Baton Rouge, for defendant-appellee Bruce Lynn, et al.

Before LOTTINGER, C.J., and CRAIN and LeBLANC, JJ.

[93 1559 La.App. 1 Cir. 2] CRAIN, Judge.

The issue before us in this pro se prisoner's suit is whether the filing of a petition for judicial review by prisoner Thad Tatum was timely. From an adverse decision of the district court dismissing petitioner's suit as untimely, petitioner appeals.

Tatum, a prisoner at the Louisiana State Penitentiary at Angola filed a grievance with the Department of Public Safety and Corrections (Department) pursuant to the Corrections Administrative Remedy Procedure Act, La.R.S. 15:1171-1177. It is uncontested that Tatum received notice of an adverse decision by the Department on October 1, 1991. Tatum subsequently sought judicial review of the agency decision by placing the petition for judicial review in the hands of prison authorities for forwarding to the district court on October 28, 1991. The petition was deposited in the mail (U.S. Postal System) by the prison authorities and was postmarked October 28, 1991. It was received and filed with the Nineteenth Judicial District Court on November 5, 1991, four days after the thirty day filing requirement of La.R.S. 49:964(B).

Tatum contends that pursuant to Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the petition for judicial review was filed at the moment of delivery to prison authorities, October 28, 1991, four days before the statutory deadline and was thus timely.

A party aggrieved by an adverse decision by the Department pursuant to La.R.S. 15:1171-1177 may "within thirty days after receipt of the decision, seek judicial review of the decision only in the Nineteenth Judicial District Court.... in the manner provided by R.S. 49:964." La.R.S. 15:1177(A). La.R.S. 49:964(B) of the Administrative Procedure Act provides in part that "[p]roceedings for review may be instituted by filing a petition in the district court.... within thirty days after mailing of notice of the final decision by the agency...."

The Administrative Procedure Act is applicable to administrative proceedings held pursuant to the Corrections Administrative Remedy Procedure Act. Magee v. State, Through Department of Public Safety and Corrections, 555 So.2d 6 (La.App. 1st Cir.1989), writ denied, [93 1559 La.App. 1 Cir. 3] 559 So.2d 138 (La.1990). In order for the jurisdiction of the reviewing court to attach, the petition for judicial review of these administrative determinations must be timely filed. See Bryant v. Middlebrooks, 486 So.2d 188 (La.App. 1st Cir.1986).

We have previously addressed the issue of whether the "mailbox rule," i.e. filing by depositing the document in the mail, is a valid method of "filing" under the law of our state. After surveying the jurisprudence and examining the history of the Constitutional Convention of 1973, we rejected the notion that a document is "filed" at the moment it is placed in the mail. Thomas v. Department of Corrections, 430 So.2d 1153 (La.App. 1st Cir.), writs denied, 435 So.2d 432, 438 So.2d 566 (La.1983). However, the filing at issue in Thomas was a Civil Service appeal, not a pro se prisoner suit.

In Nix v. King, 457 So.2d 805 (La.App. 1st Cir.1984), we considered the constitutionality of the filing requirement of La.R.S. 49:964(B) in the context of a pro se prisoner seeking judicial review of an adverse administrative determination by the Department. Under the facts of Nix, petitioner placed his petition for judicial review in the prisoners' mailbox one day before the statutory deadline. The prison authorities delayed mailing of the petition for two days. It arrived at the clerk's office six days later. The court focused on the number of days required for mail delivery to its intended destination (6 days) and determined that the fact that petitioner "failed to take appropriate steps to perfect his right does not render the Administrative Procedure Act constitutionally infirm. By appearing pro se [petitioner] assumed the responsibility for his inadequacy and lack of knowledge of procedural and substantive law." Nix v. King, 457 So.2d at 808.

Tatum's petition was deposited in the prisoner's mail box five days prior to the statutory deadline and was placed in the mail on the same date. It took nine days to arrive at its destination. At first blush it may seem that under Nix v. King Tatum's petition was untimely. However, in Nix v. King we addressed the issue of whether the adoption of the "mailbox rule" is constitutionally [93 1559 La.App. 1 Cir. 4] required in the context of pro se prisoner suits under the Administrative Procedure Act. We held its adoption was not constitutionally required in such situations. Our holding, however, did not preclude its application.

Subsequent to our decision in Nix v. King, 457 So.2d 805, the U.S. Supreme Court decided the case of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), a case presenting similar issues to those arising in the case before us. The facts in Houston v. Lack involved a pro se prisoner seeking appellate review of a Federal District Court judgment dismissing his pro se habeas corpus petition. The notice of appeal had been deposited with the prison authorities for mailing to the Federal District Court three days prior to the statutory deadline. It was filed by the clerk of court one day after the expiration of the filing period. Federal Rules of Appellate Procedure 3(a) and 4(a)(1) required filing of the document in the district court within a set thirty day period. The Supreme Court held that the notice of appeal was filed at the moment of delivery to prison authorities for forwarding to the Federal District Court and the district court thus had jurisdiction of the petition. The Court reasoned:

Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped "filed" or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se...