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Setala v. J.C. Penney Company2/8/2002
ntiary showing by the opposing party." Id. at 989.
IV.
The Houston Court believed that prison mail logs would provide sufficient evidence of the date the mail was turned over to the prison officials. See Houston, 487 U.S. at 275. Accordingly, it adopted a bright-line constructive filing rule as practicable, because " he pro se prisoner does not anonymously drop his [or her] notice of appeal in a public mailbox -- he [or she] hands it over to prison authorities who have well-developed procedures for recording the date and time at which they receive papers for mailing and who can readily dispute a prisoner's assertions that he [or she] delivered the paper on a different date." Id. Because "the prisoner confined to his [or her] cell . . . can usually only guess the prison authorities, the Postal Service, or the court clerk is to blame for any delay[,]" id. at 276, the prison may be the only entity that has evidence of the date of mailing.
However, the absence of a prison log detailing when mail was received is not fatal to "constructive filing." For example, it has been deemed adequate that the prisoner placed his or her notice of appeal in a mailbox designated "legal mail." Caldwell v. Amend, 30 F.3d 1199, 1202 (9th Cir. 1994). An affidavit attesting to the date submitted along with some evidence as to the date tendered on the notice have been held to be sufficient evidence of filing. See Veteto, 793 So.2d at 816 (finding prisoner's notation of "Submission date: March 20, 2000" on the notice of appeal and a later filed affidavit attesting that he had given the notice of appeal to a prison official for mailing prior to the deadline sufficient); Ex parte Williams, 651 So. 2d 569, 570 (Ala. 1992) (finding prisoner's statement that he tendered petition of certiorari to prison officials to be mailed within the time prescribed by law for filing and two statements from other persons to this effect filed with the court were sufficient).
Where there is no evidence of mailing, appellate courts may remand the case to the trial court for a determination of when the notice was given to the prison authorities by the pro se litigant.
he proper course was to remand to the district court for a determination of whether the notice of appeal was delivered to prison authorities on time. While this procedure may substantially delay review of prisoner petitions, we agree that it is the best course to follow, because even greater deficiencies accompany the two alternatives: A presumption of timeliness would encourage prisoners to fraudulently backdate notices of appeal; a presumption of untimeliness would encourage prison officials, who often are the appellees in these suits, to delay mailing notices of appeal. Miller v. Sumner, 872 F.2d 287, 289 (9th Cir. 1989); see also Saffold v. Newland, 250 F.3d 1262, 1268-69 (9th Cir. 2000) (remanding case to district court for a determination of when prisoner delivered petition to state prison authorities for mailing, because prisoner maintained he delivered petition to authorities fourteen days prior to filing stamp), cert. granted, __ U.S. __, 122 S.Ct. 393 (2001).
Allowing a similar supplementing of the record to resolve the issue of timeliness would not prejudice Defendants in this case, because it relates solely to the timeliness of the appeal and does not address the merits.
V.
In the present case, the "mailbox rule" is particularly applicable to Plaintiff. He has previously filed numerous pro se court documents and mailed them through the prison mailing system. These documents have been marked, apparently routinely, with the date of submission and the initials of the prison official receivi
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