Hamm v. Moore

• Decision Date: 14 December 1992
• Docket Number: No. 91-3504,91-3504
• Citation: 984 F.2d 890
• Parties: Samuel C. HAMM, Appellant, v. Dick MOORE, Bill Armontrout, Larry H. Henson, Lt. Bohannan, Co. I Eye, Co. I Craig, Lt. Malone, Sgt. Compton, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 890

984 F.2d 890

24 Fed.R.Serv.3d 877

Samuel C. HAMM, Appellant, v. Dick MOORE, Bill Armontrout, Larry H. Henson, Lt. Bohannan, Co. I Eye, Co. I Craig, Lt. Malone, Sgt. Compton, Appellees.

No. 91-3504.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 17, 1992.

Decided Dec. 14, 1992.

Martin D. Warhurst, Kansas City, MO, for appellant.

Stewart M. Freilich, Asst. Atty. Gen., Jefferson City, MO, for appellees.

Before Judges McMILLIAN, WOLLMAN, and LOKEN.

WOLLMAN, Circuit Judge.

Samuel C. Hamm appeals from the district court's ¹ order dismissing his complaint brought under 42 U.S.C. § 1983. We affirm.

I.

Hamm, an inmate confined at Jefferson City Correctional Center (JCCC), a Missouri penal institution, named as defendants the Director of the Missouri Department of Corrections (MDOC), officials at MDOC, and officials at JCCC.

Hamm alleged that the defendants engaged in a pattern of harassment in retaliation for Hamm's performance of his duties as a prison law clerk. Hamm specifically alleged that the defendants' retaliatory conduct included: 1) threatening him with administrative segregation; 2) citing him for fictitious conduct violations; 3) ignoring his due process rights in conducting the hearings on his conduct violations; 4) failing to protect him from an attack by an HIV positive inmate; and 5) knowingly allowing him to be exposed to an inmate with tuberculosis. Notwithstanding this alleged retaliatory conduct, however, the defendants did not dismiss Hamm from his law clerk position.

The district court adopted the magistrate judge's ² report and recommendation. The district court entered summary judgment in favor of the defendants on October 1, 1991. On October 31, 1991, Hamm submitted his notice of appeal to David Hull, a prison case worker, who notarized it. Hull informed Hamm that the document probably would not be mailed until the next day. Hamm dated his certificate of mailing November 1, 1991, and the notice was mailed on that date. The notice of appeal was stamped as filed in the district court clerk's office on November 4, 1991.

We appointed counsel to assist Hamm on appeal and requested supplemental briefing on two issues: 1) whether Hamm's notice of appeal was timely under Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), and 2) whether prison officials may, in the light of Flittie v. Solem, 827 F.2d 276 (8th Cir.1987), punish or harass an inmate for the legal assistance he provides other inmates after having granted him permission to render such assistance. We address these issues in turn.

II.

In Houston v. Lack, the Supreme Court held as timely filed a pro se notice of appeal deposited by an inmate with prison authorities for mailing within the thirty-day period fixed by Fed.R.App.P. 4(a) for the filing of a notice of appeal. The Court held that "the Court of Appeals had jurisdiction over petitioner's appeal because the notice of appeal was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk." 487 U.S. at 276, 108 S.Ct. at 2385. The Court reasoned that Houston lost control over and contact with his notice of appeal when he delivered it to the prison authorities and not when the clerk received it. Id. at 275, 108 S.Ct. at 2384. The Court observed that Fed.R.App.P. 4(a) contemplates a civil litigant who chooses to mail a notice of appeal and who should thus assume the risk of untimely delivery and filing. Id. By contrast, a pro se prisoner has no choice but to submit his notice to prison authorities for forwarding to the court clerk. Id.

The question before us is whether the rationale of Houston v. Lack should apply to a pro se notice of appeal in a section 1983 action submitted by an inmate to prison authorities for filing within the time fixed by Fed.R.App.P. 4(a).

Other circuits that have considered this question have extended the Houston rule to section 1983 suits by pro se prisoners. In Hostler v. Groves, 912 F.2d 1158, 1160 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1074, 112 L.Ed.2d 1180 (1991), the court observed that "[t]he opinion in Houston gives no indication that its holding should be limited to habeas cases." The court noted that Houston's underlying policy--that of not penalizing pro se prisoners for delays over which they have no control once they have timely delivered notices of appeal to prison authorities--applies with equal force to section 1983 actions. 912 F.2d at 1161. Moreover, the court recognized that "[i]n fact, prison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials." Id. See also Vaughan v. Ricketts, 950 F.2d 1464, 1467-68 (9th Cir.1991). In Lewis v. Richmond City Police Dept., 947 F.2d 733, 735-36 (4th Cir.1991) (per curiam), the court set forth the considerations that prompted it to extend Houston's holding to pro se complaints filed in civil actions:

The concerns which prompted the Supreme Court's ruling in Houston are equally present in the case at hand. The litigants are similarly situated. Both are incarcerated pro se litigants who are unable to monitor the process of the mails as are other litigants. They are unaware of delays and unable to rectify any problems even if they were apprised of them. They cannot deliver a copy of their document to the clerk by hand, and do not have access to express mail services. They must rely on correctional authorities, who may be motivated to delay the filing. If the pleading is delayed, they have no way to determine the cause and possibly obtain evidence to support a finding of excusable neglect. Because they are acting pro se, they do not have an attorney who can monitor the process for them. Furthermore, correctional facilities maintain records of outgoing prisoner mail, thereby minimizing disputes and uncertainties regarding the moment of filing.

We agree with the reasoning in Hostler and Lewis, and we therefore hold that Hamm's appeal was timely under Houston if he delivered the notice of appeal to prison authorities within the filing time limit with instructions that it be mailed.

Defendants request that if Houston is held to apply to Hamm's notice of appeal, we remand the case to the district court for a determination of whether the notice of appeal was timely delivered to prison authorities. Although in another case such a remand might be appropriate, we conclude that remand is not required in this case. The "Certificate of Mailing" attached to Hamm's notice of appeal was notarized on October 31, 1991. See Designated Record on Appeal at 453. As Hamm's reply brief notes, it is highly improbable that Hamm would have first had a prison official notarize his notice of appeal and would then have refused to permit the official to take the document with him for mailing purposes. Thus, we conclude that the appeal was timely filed.

III.

Turning to the merits of the appeal, Hamm argues that the district court erred in granting summary judgment on his claim that prison officials harassed him to prevent him from carrying out his duties as one of the prison's law clerks. Flittie v. Solem, 827 F.2d 276 (8th Cir.1987), controls the resolution of this issue.

The facts of Flittie closely resemble the facts in this case. Flittie, an inmate law clerk, received a reprimand from prison authorities for a rule infraction and was dismissed from his law clerk position two weeks later. Id. at 277. Flittie then filed a section 1983 complaint alleging, among other things, that he had been improperly discharged from his law clerk post in retaliation...