Johnson v. Brown, S92-46M.

• Decision Date: 28 September 1992
• Docket Number: No. S92-46M.,S92-46M.
• Parties: Jacob JOHNSON, Jr., Plaintiff, v. Phyllis BROWN, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

803 F. Supp. 1414

Jacob JOHNSON, Jr., Plaintiff, v. Phyllis BROWN, et al., Defendants.

No. S92-46M.

United States District Court, N.D. Indiana, South Bend Division.

September 28, 1992.

Donald W. Rice, Portage, Ind., for plaintiff.

Shaw R. Friedman, LaPorte, Ind., for defendants.

MEMORANDUM AND ORDER

MILLER, District Judge.

Plaintiff Jacob Johnson, Jr. brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that the defendants discriminated against him because of his race. The defendants seek dismissal under Fed.R.Civ.P. 12(b)(1), claiming that Mr. Johnson failed to file his complaint within ninety days after receipt of his right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"). 42 U.S.C. § 2000e-5(f)(1). The motion requires the court to consider several issues that appear to be open questions in this circuit. The court must decide (1) whether the ninety-day period was tolled when Mr. Johnson filed his petition to proceed in forma pauperis; (2) if so, when the ninety-day period began to run anew; (3) whether Mr. Johnson's complaint was filed within the ninety-day period as extended by the tolling; and (4) if not, whether equitable tolling is available to defeat the dismissal motion. For the following reasons, the court finds that the defendants' motion should be denied.

I.

Mr. Johnson received his EEOC right-to-sue letter on October 11, 1991. Seventy-seven days later, on December 27, Mr. Johnson presented an application to proceed in forma pauperis and (perhaps) a copy of his EEOC right-to-sue letter to the court clerk. On January 6, 1992, Mr. Johnson submitted his complaint to the court clerk, who stamped the complaint "RECEIVED".

On January 17, the court denied Mr. Johnson's application to proceed in forma pauperis and dismissed his complaint without prejudice with "leave to refile upon payment of the $120.00 filing fee." January 17 was a Friday, and January 20 was a holiday; hence January 21 was the first working day after the order was signed. On January 21, the court clerk docketed the court's January 17 order dismissing Mr. Johnson's complaint. On the same day, however, the clerk stamped Mr. Johnson's complaint "FILED".

Finally, on February 6, Mr. Johnson paid the $120.00 filing fee and the clerk issued the summons. When Mr. Johnson paid the fee, the clerk did not require him to file a new complaint, nor did the clerk stamp the original complaint "filed" or "refiled" as of February 6.

II.

Title VII requires that Mr. Johnson commence any civil action within ninety days after receipt of his EEOC notice of right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). The ninety-day filing period is not a jurisdictional prerequisite; instead, it is subject to equitable tolling. Anooya v. Hilton Hotels Corp., 733 F.2d 48, 49 (7th Cir.1984); Gardner v. U.S. Steel, 670 F.Supp. 1411, 1413 (N.D.Ind.1987); see also Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984).

Thus, the court first must determine whether Mr. Johnson filed his complaint within ninety days after receipt of his right-to-sue letter. If so, the court has subject matter jurisdiction. If not, the court must then decide whether equitable considerations permit Mr. Johnson's complaint to be deemed timely.

A.

The ninety-day period begins to run the day the plaintiff receives his EEOC right-to-sue letter. Jones v. Madison Service Corp., 744 F.2d 1309, 1312 (7th Cir. 1984). In Harris v. National Tea Co., 454 F.2d 307 (7th Cir.1971), the court held that the ninety-day period is tolled when the plaintiff files an application to proceed in forma pauperis, and remains tolled while the application pends. See also Ortiz v. Clarence H. Hackett, Inc., 581 F.Supp. 1258, 1261 (N.D.Ind.1984).

The defendants argue that the ninety-day period might never have been tolled. They note that the docket and file are somewhat ambiguous as to whether Mr. Johnson's right to sue letter accompanied his petition to proceed in forma pauperis, or instead was filed later. The defendants point to Gardner v. U.S. Steel, 670 F.Supp. 1411, 1413 (N.D.Ind.1987), as indicating that a petition to proceed in forma pauperis does not toll the limitations period unless the plaintiff's right-to-sue letter is attached to the petition. The Gardner court did not so hold; it simply mentioned the possible existence of such an issue in light of Brown v. J.I. Case Co., 756 F.2d 48 (7th Cir.1985).

Brown, however, contains no holding that a pauper petition or a request for appointment of counsel cannot toll the limitations period absent a simultaneous submission of the right-to-sue letter. The plaintiff had filed his right-to-sue letter and a request for appointment of counsel within the limitations period. The Brown court held that "the remedial purposes of Title VII and the special equitable circumstances raised by a request for appointment of counsel justify a general rule allowing a request for appointed counsel combined with the presentation of a Notice of Right-to-Sue to toll the running of the ninety-day period until the court acts upon the counsel request." 756 F.2d at 50. To hold that the facts then before the court allow a general rule does not constitute a holding that the right-to-sue letter is a necessary ingredient in any tolling of the limitations period.

Accordingly, the court concludes that the limitations period was tolled on December 27, when Mr. Johnson filed his petition to proceed in forma pauperis. It remains to be determined when the limitations began to run again.

B.

Mr. Johnson received his EEOC right-to-sue letter on October 11, 1991. He filed the letter and an application to proceed in forma pauperis seventy-seven days later, on December 27. The court denied his application on January 17. Thus, Mr. Johnson had at least thirteen days, until January 30, to file his complaint.

Mr. Johnson contends that he had more than thirteen days. He maintains that the ninety-day limitations did not begin to run anew until he received notice of the denial of his in forma pauperis application. Because the ruling was sent by regular mail, no formal record exists of the date it was served on Mr. Johnson, and Mr. Johnson does not recall when he received it. Accordingly, Mr. Johnson contends that the three-day presumption of Fed.R.Civ.P. 6(e) should come into play. By Mr. Johnson's reasoning, the clerk mailed the order the day it was docketed (January 21) and he should be presumed to have received the order three days later, on January 24. Thus, he contends, he had thirteen days from January 24 within which to file his complaint. February 6, perhaps fortuitously, was precisely thirteen days from January 24.

Mr. Johnson contends that the Due Process Clause commands his theory's application. At best, however, Mr. Johnson had a right to notice of the denial of pauper petition. Whether that right arises from the Due Process Clause is a moot point; Fed. R.Civ.P. 77(d) obliged the clerk to notify Mr. Johnson of the ruling by regular mail. Mr. Johnson had no due process right, however, to have thirteen more days within which to file his complaint. Rule 6(e) provides no such right; that rule simply builds in three days for receipt of mail whenever a party must act within a prescribed period of time after service of a notice. Neither Rule 6(e) nor any other provision of the law provides that a petitioner for pauper status benefits from tolling until notice is received.

Although no case specifically has held that the ninety-day limitations period of Title VII begins to run anew when the pauper petition is decided, rather than when the plaintiff learns of the decision, the absence of any provision to the contrary has led several courts to so assume. See, e.g., Brown v. J.I. Case Co., 756 F.2d 48, 51 (7th Cir.1985) ("the running of the ninety-day filing period should have been tolled until the ... denial of his request for appointed counsel."); Coulibaly v. T.G.I. Friday's, Inc., 623 F.Supp. 860, 862 (S.D.Ind.1985) ("The statutory period began to run again on ... the day this Court granted Coulibaly's motion to proceed in forma pauperis.").

The Due Process Clause does not require deadlines to be computed from receipt of notice rather than court action. The time for filing a notice of appeal, for example, runs from the date of judgment rather than receipt of notice of the court action. See Fed.R.Civ.P. 77(d); Fed.R.App.P. 4(d). Parties or their counsel are given the responsibility of checking the status of the case to assure that clerical error or delay will not affect their substantive rights. See, e.g., Tucker v. Commonwealth Land Title Ins. Co., 800 F.2d 1054, 1056 (11th Cir.1986).

Accordingly, the court concludes that Mr. Johnson's ninety-day period resumed operation on January 17, when the court denied the pauper petition. Mr. Johnson had thirteen days from that date in which to file his complaint. It remains to be determined whether the complaint was filed before January 30.

C.

Mr. Johnson's complaint already was in the clerk's possession when his pauper petition was denied. Indeed, the clerk stamped Mr. Johnson's complaint "FILED" on January 21, four days after the court dismissed the complaint. On January 21, the clerk also docketed the court's January 17 order dismissing the complaint. As noted before, Mr. Johnson paid the $120.00 filing fee on February 6.

The defendants contend that Mr. Johnson's complaint was not "filed" until February 6, when he paid the filing fee and the clerk issued summons. To support their position, the defendants cite Rule 3(a) of the Local Rules of the United States District Court for the Northern District of Indiana and Robinson v. America's Best Contacts and Eyeglasses, 876 F.2d 596 (7th Cir.1989). Mr. Johnson contends that his complaint was filed when the clerk stamped it "FILED" on January 21.

"A civil action is commenced by filing a...