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Setala v. J.C. Penney Company2/8/2002
ng the mail for forwarding. Envelopes attached to documents submitted by Plaintiff during the course of this litigation demonstrate that the time span between tendering envelopes to prison officials and subsequent filing court dates range from a few days to two weeks. In the two times in which Plaintiff has filed a notice of appeal in this case, however, the lapse between the signing of the document and the filing of the document in the court is significant, given the thirty-day appeal period.
Further, there is some additional evidence on the notice that it was timely tendered to prison officials. Plaintiff's signature on the subject notice of appeal was dated Sunday, October 17, 1999, and he contends that on the following day, Monday, October 18, he tendered the envelope to prison officials for mailing. Plaintiff is housed at the Halawa Correctional Facility. Transmittal on October 18, 1999 would be within the appeal period and would provide adequate time for the mail to arrive at the first circuit court before the deadline of October 22, 1999. Plaintiff's notice of appeal was filed in the first circuit court clerk's office on November 5, 1999, forty-four days after the thirty-day appeal period had begun to run. The envelope in which the notice was transmitted was not attached to the document as was done with many of the other filings.
As to requiring other additional evidence in this case, such as a postmark on the envelope or notation by prison officials, Plaintiff should not be penalized for the absence of a postmarked and initialed envelope, which would prove his filing date. It is probable, based on documents in the court file, that the lack of the envelope was the result of a court clerk's action. See Da'Ville v. Wise, 470 F.2d 1364, 1365 (5th Cir.) (refusing to hold notice untimely when the court clerk's practices of forwarding notices on to a larger clerk's office, but " o record is kept of the papers received and forwarded[,]" created a strong possibility that the notice was not stamped when received), cert. denied, 414 U.S. 818 (1973); see also United States v. Smith, 545 F.2d 874, 875-76 (3d Cir. 1976) (remanding for a determination of whether a notice of appeal was timely, because although the notice was filed five days after the time for appeal had lapsed, there were indications that the clerk's office had signed for the certified mail containing the notice within the time period). In Smith, the court noted that " rdinarily we would assume that the ['filing'] notation would have been entered on the day it was received. Doubt is cast upon this assumption by . . . a photocopy of a return receipt for certified mail which shows that something was mailed by [appellant] to the district court on October 29, and received by E. K. Thomson in the district court on October 31[, five days before the notice was filed, and within the time allowed for appeal.]" Id. at 876. As far as preventing this possibility in the future is concerned, issuing an order to the circuit court clerk's office requiring the retention of the mailing envelopes may provide additional evidence for future litigants; however, such an order would not address Plaintiff's immediate circumstances.
Plaintiff has litigated his claim primarily through the mail system, because his circumstances leave him no other choice. Inasmuch as Plaintiff lost control over the notice of appeal and the envelope in which he mailed it when he tendered them to prison officials, it would be unfair to place the responsibility of producing the envelope on him. Requiring him to do so would deny Plaintiff meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817, 824, 828 (1977) (prisoners have fundamental constitutional right to adeq
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