Douglas v. Noelle ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAMEION DOUGLAS, 
Plaintiff-Appellant,
v.
No. 06-35195
DAN NOELLE, Sheriff; DAVIS,
Deputy; HALL, Deputy; JAMES  D.C. No.
CV-04-01774-ALA
HARRINGTON, Deputy; LIVINGSTON,
Deputy; MCCAIN, Lieutenant; OPINION
MCLAVAIN, Deputy; SHOUT,
Sergeant,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted
November 19, 2008—Portland, Oregon
Filed June 5, 2009
Before: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and Charles R. Breyer,* District Judge.
Opinion by Judge William A. Fletcher
*The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
6725
DOUGLAS v. NOELLE 6727
COUNSEL
David Christian Lundsgaard, GRAHAM & DUNN, Seattle,
Washington, Dameion Douglas, Pro se, Ontario, Oregon, for
the appellant.
Jacqueline A. Weber, OFFICE OF THE MUTLNOMAH
COUNTY ATTORNEY, Portland, Oregon, for the appellees.
6728 DOUGLAS v. NOELLE
OPINION
W. FLETCHER, Circuit Judge:
Between July 2000 and December 2002, Dameion Douglas
was in the custody of the Multnomah County Sheriff’s Office
in Portland, Oregon. In 2004, Douglas, acting pro se, filed a
complaint under 42 U.S.C. § 1983, alleging that Sheriff’s
Office personnel (collectively “Defendants”) violated his First
Amendment rights on six occasions while he was in jail. The
district court held that Douglas failed to file his complaint
within the applicable statute of limitations and dismissed his
complaint.
We reverse the district court and hold that the mailbox rule
of Houston v. Lack, 487 U.S. 266 (1988), applies to a pro se
prisoner’s § 1983 complaint. We further hold that at least one
of Douglas’s claims was timely filed.
I. Background
Douglas’s complaint contains six claims that Defendants
violated his First Amendment rights by interfering with his
exercise of religion and his right to petition the government
for redress of grievances. Each of the claims is based on a
particular episode of alleged interference, but Douglas con-
tends that all of the claims are part of a pattern of illegal
behavior by Defendants. All of the alleged events occurred
while Douglas was in the custody of the Sheriff’s Office, in
either the Multnomah County Inverness Jail or the Multno-
mah County Detention Center. Douglas’s allegations are as fol-
lows.1
First, Douglas alleges that on July 14, 2000, Deputy Gilson
McLavain pulled down Douglas’s pants while he was pray-
1
For ease of reading, we address Douglas’s claims in chronological
order. Douglas’s complaint numbers them differently.
DOUGLAS v. NOELLE 6729
ing. Douglas filed a grievance against McLavain under the
jail’s grievance procedures. He followed it “all the way up the
chain of command” but received no relief.
Second, Douglas alleges that on May 19, 2001, he filed a
grievance against Deputy James Harrington for making “very
nasty sexually perverse” statements to him. Harrington took
a number of retaliatory measures against Douglas in response
to the filing of the grievance. On or about June 11, 2001, Har-
rington threw Douglas’s religious materials out of his cell. On
July 16, 2001, Harrington did not turn in Douglas’s commis-
sary form, and as a result, on July 18, 2001, Douglas did not
“receive any commissary.” On September 15, 2001, Harring-
ton did not allow Douglas to take his Quran and other reli-
gious materials into “the hole,” in violation of the jail’s
policy. Douglas filed a second grievance against Harrington
for this conduct on September 19, 2001. On September 22,
2001, Harrington and Douglas exchanged words about the
status of that grievance. Harrington then “wrote up” Douglas,
claiming that Douglas had threatened him. Douglas denies
that he used threatening language. Douglas received ten extra
days in the hole as a result of Harrington’s write-up. Harring-
ton did not respond to the September 19, 2001, grievance until
November 14, 2001, in response to Douglas filing a third
grievance against Harrington to force him to respond to the
September 19, 2001, grievance.
Third, Douglas alleges that on July 15, 2001, Deputy Ralph
Davis made racially insensitive comments to him and to
another black inmate. As they were entering the law library,
Davis said, “Why yall [sic] bring these boys up here you
know somebody already tore the pictures out of the books you
know they can’t read.” The next day, Davis accused Douglas
of masturbating after Douglas spilled cleaning solution on his
pants. On July 18, 2001, Douglas filed a grievance against
Davis for the racially insensitive comments Davis made on
July 15. On July 20, Davis told Douglas that he would have
him fired from his prison job for filing the grievance. Thirty
6730 DOUGLAS v. NOELLE
minutes later, Douglas was fired from his job and was moved
out of the work dorm. Douglas later learned that he was fired
because Davis and Sergeant Douglas Shout gave him two
“negative marks” on July 20, 2001.
Fourth, Douglas alleges that on October 30, 2001, Lieuten-
ant Bruce McCain attempted to intimidate him in response to
what appears to be a grievance Douglas had earlier filed
against McCain. McCain told Douglas that the Sheriff’s
Office was considering charging inmates $5 to file a griev-
ance and that Douglas was a “key reason” for the policy
change.
Fifth, Douglas alleges that on April 29, 2002, the Sheriff’s
Office changed its grievance policy to charge inmates $5 to
process a grievance. Douglas alleges that this change was
made in retaliation against him for filing numerous griev-
ances. The policy successfully discouraged Douglas from fil-
ing grievances because he could not afford the $5 fee.
Sixth, Douglas alleges that on December 1, 2002, during a
cell search, Deputy John Hall threw away Douglas’s religious
materials. The jail’s policy allows inmates to have unlimited
religious materials in their cells. Douglas filed a grievance.
Douglas alleges that Deputy Robert Livingston violated the
Sheriff’s Office’s grievance procedures by answering the
grievance against Hall before giving Hall an opportunity to
respond to the grievance.
The Oregon Department of Corrections thereafter took cus-
tody of Douglas and transferred him to the Oregon Snake
River Correctional Facility. He filed his § 1983 complaint
while confined in the Snake River facility.
The district court dismissed Douglas’s complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim because he had not filed it within the applicable two-
year statute of limitations. The events giving rise to Douglas’s
DOUGLAS v. NOELLE 6731
last claim occurred on December 1, 2002. The clerk of the
court recorded Douglas’s complaint as filed over two years
later, on December 8, 2004. After the district court dismissed
his complaint, Douglas, still acting pro se, filed a motion for
reconsideration. He attached a statement describing generally
the procedures followed by the Snake River Correctional
Facility for legal mail and describing specifically the proce-
dures followed in his case. We construe Douglas’s statement
in support of his motion for reconsideration as the functional
equivalent of an amendment to his complaint.
According to Douglas, indigent inmates at the Snake River
Correctional Facility physically hand their mail to prison
authorities for mailing. Non-indigent inmates, however, may
not do so. Non-indigent inmates must handle their own mail.
Douglas is a non-indigent inmate.
There are two mailboxes in the prison, one designated for
legal mail and the other for regular mail. Both boxes are
secured with locks. Douglas recounted in his statement:
Delivery of deadline mail to prison authorities, at
this prison, occurs when [non-indigent] prisoners
physically drop legal mail in the mail box marked
legal mail. Jail authorities in the mailroom here act
as inmates[’] agent[s] when they receive and sign
mail on our behalf. The jail authorities made a copy
of the face of the env[e]lope (exhibit 2) that con-
tained my civil complaint that I sent to [the district
court. T]hey put the registered mail stamp at the top
stamped Ontario Or[egon] on November 30, 2004.
Exhibit 1 to Douglas’s statement is a “Special Handling List”
maintained by the prison. It shows that registered mail from
Douglas was sent to the district court on November 30, 2004.
Exhibit 2 is a photocopy of the face of an envelope from
Douglas to the district court with a postmark of November 30,
2004. The Special Handling List indicates that Douglas’s
6732 DOUGLAS v. NOELLE
complaint was delivered to the district court on December 9,
2004. However, the clerk of the court recorded Douglas’s
complaint as filed on December 8, 2004.
The district court concluded that the “mailbox rule” of
Houston v. Lack, 487 U.S. 266 (1988), does not apply to
§ 1983 suits. It therefore denied his motion to reconsider even
on the assumption that his complaint had been placed in the
mailbox for legal mail no later than November 30, 2004.
Douglas has timely appealed the dismissal of his complaint.
II. Standard of Review
“We review de novo a district court’s decision to dismiss
for failure to state a claim pursuant to Rule 12(b)(6). All alle-
gations of material fact are taken as true and construed in the
light most favorable to the nonmoving party.” Sivlas v.
E*Trade Mortg. Corp., 514 F.3d 1001, 1003 (9th Cir. 2008)
(citation omitted).
III. Discussion
A. The Mailbox Rule
[1] The central issue in this appeal is whether the Houston
mailbox rule applies to § 1983 suits brought by pro se prison-
ers and, if so, whether Douglas’s complaint was timely filed
under that rule. In Houston, a pro se prisoner sought to appeal
the district court’s dismissal of his § 2254 habeas corpus peti-
tion. The Supreme Court held that he filed his notice of appeal
“at the time [he] delivered it to the prison authorities for for-
warding to the court clerk.” 487 U.S. at 276. We have applied
the Houston mailbox rule to a number of different legal filings
by pro se prisoners. See James v. Madison St. Jail, 122 F.3d
27, 28 (9th Cir. 1997) (per curiam) (trust-account statements
required to be filed by 28 U.S.C. § 1915(a)(2)); Caldwell v.
Amend, 30 F.3d 1199, 1201 (9th Cir. 1994) (Rule 50(b)
DOUGLAS v. NOELLE 6733
motion); Faile v. Upjohn Co., 988 F.2d 985, 989 (9th Cir.
1993) (discovery responses); Hostler v. Groves, 912 F.2d
1158, 1161 (9th Cir. 1990) (notice of appeal in non-habeas
civil cases). However, we have not yet addressed the question
whether the Houston mailbox rule applies to a § 1983 suit
filed by a pro se prisoner.
Defendants argue, first, that the Houston mailbox rule does
not apply to § 1983 suits. They argue, second, that if the mail-
box rule does apply, Douglas failed to comply with it. We
respond to these arguments in turn.
1. Applicability of the Mailbox Rule to § 1983 Suits
Defendants argue that the mailbox rule should not apply to
suits, such as suits brought under § 1983, where the limita-
tions period is long and where the prisoner therefore does not
operate under tight time constraints in filing his legal papers.
We reject this argument as inconsistent with the rationale of
Houston.
[2] The Court in Houston applied the mailbox rule to legal
filings by prisoners because of (1) prisoners’ lack of control
over the method of mailing, (2) prisoners’ inability to monitor
the court’s receipt of their filings, and (3) the incentive of
prison authorities to delay the prisoners’ filings. 487 U.S. at
270-71. The Court never mentioned short limitations periods
as a reason to apply the mailbox rule.
[3] Our precedent applying the mailbox rule to pro se pris-
oners’ suits focuses on the Court’s three rationales for the
rule. In Caldwell, we applied the mailbox rule to Rule 50(b)
motions, which have a ten-day limitations period, and noted
that the prisoner “was faced with time constraints allowing
less room for delay than in Houston.” 30 F.3d at 1201. But the
short time period was not essential to our decision. Rather, we
applied the mailbox rule based on the “policies underlying the
Court’s holding in Houston,” particularly the prison officials’
6734 DOUGLAS v. NOELLE
incentives to delay Caldwell’s filings. Id. Other courts of
appeals do not restrict the application of Houston’s mailbox
rule to cases in which short limitation periods are at issue.
See, e.g., Sulik v. Taney County, 316 F.3d 813, 815 (8th Cir.
2003); Lewis v. Richmond City Police Dept., 947 F.2d 733,
736 (4th Cir. 1991).
[4] All of the rationales articulated by the Supreme Court
in Houston for applying the mailbox rule to prisoners’ notices
of appeal apply equally, if not more strongly, to § 1983 com-
plaints. The prisoners are unable to control their complaints
once they are delivered to prison officials. The prisoners lack
the ability to monitor their mail and to determine whether it
has been received by the court. Finally, and perhaps most
important, prison officials have a particular incentive to delay
the filing of § 1983 suits because many of them are brought
against those very officials.
[5] A majority of circuit courts has been asked to apply the
Houston mailbox rule to § 1983 suits filed by pro se prison-
ers, and all of those circuits have done so. See Casanova v.
Dubois, 304 F.3d 75, 79 (1st Cir. 2002); Dory v. Ryan, 999
F.2d 679, 682 (2d Cir. 1993), modified on other grounds on
reh’g, 25 F.3d 81 (2d Cir. 1994); Lewis, 947 F.2d at 736;
Cooper v. Brookshire, 70 F.3d 377, 380 (5th Cir. 1995);
Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008); Sulik,
316 F.3d at 815; Price v. Philpot, 420 F.3d 1158, 1164 (10th
Cir. 2005); Garvey v. Vaughn, 993 F.2d 776, 783 (11th Cir.
1993); see also Edwards v. United States, 266 F.3d 756, 758
(7th Cir. 2001) (per curiam) (extending the Houston mailbox
rule to all pro se filings absent exceptional circumstances).
We now join our sister circuits and hold that the Houston
mailbox rule applies to § 1983 suits filed by pro se prisoners.
2. Douglas’s Compliance with the Mailbox Rule
Defendants argue that even if the Houston mailbox rule
applies to § 1983 suits, Douglas has not complied with the
DOUGLAS v. NOELLE 6735
rule in this case. They rely on our decision in Miller v. Sum-
ner, 921 F.2d 202 (9th Cir. 1990), to support their argument.
In Miller, a pro se prisoner deposited in a regular prison
mailbox a notice of appeal from a decision of a federal district
court. Miller submitted a declaration stating that he had
deposited the notice on a date that would have made his filing
timely under the mailbox rule. Another prisoner submitted a
declaration stating that on the date specified by Miller, he had
opened the mailbox to allow Miller to deposit his notice of
appeal. Prison officials maintained a log of outgoing certified
registered or insured mail, and had no record of any mail hav-
ing been sent by Miller during this period. It is unclear from
our opinion whether Miller’s notice of appeal was sent by
either registered or insured mail, and therefore whether the
prison would have had a record of its having been sent.
We noted that Miller could have chosen to give his mail
directly to a prison official for mailing:
The record in this case discloses no evidence that
Miller attempted to deliver the notice to prison
authorities or that the authorities would have refused
to accept and mail it for him had he attempted it. Nor
is there evidence that the mailbox was the only
means available to him for sending his notice of
appeal to the district court.
Id. at 203 n.1. Under the circumstances, we held that Miller
had not complied with the mailbox rule announced in Hous-
ton:
For the exception to filing requirements for pro se
prisoners to apply, the prisoner must deliver the
notice to prison authorities in a timely fashion for
mailing so that the authorities may post it through
the prison log system. Houston, 487 U.S. at 275.
6736 DOUGLAS v. NOELLE
This is the only way to avoid uncertainty and chica-
nery.
Id. at 203-04.
However, our decision in Miller has been effectively abro-
gated. In Caldwell, decided four years later, a prisoner depos-
ited his notice of appeal in a prison mailbox designated for
legal mail. The prisoner filed a declaration that he had depos-
ited the notice on a date that would have complied with the
filing deadline under the mailbox rule. If the prisoner had
chosen to send the notice by certified mail, the prison would
have recorded the date on which it was mailed. However, the
prisoner did not do so because of the added cost of certified
mail, and the prison accordingly had no record of the date on
which it was mailed. Despite the absence of any prison record
showing the date of mailing, we held that the prisoner had
complied with Houston, and that the date of filing was the
date specified in the prisoner’s declaration. Caldwell, 30 F.3d
at 1202-03.
In Koch v. Ricketts, 68 F.3d 1191 (9th Cir. 1995), we relied
on a recently adopted amendment to Federal Rule of Appel-
late Procedure 4(c), which had not been in effect at the time
of Miller, to conclude that our interpretation of the Houston
mailbox rule in Miller is no longer good law. The amended
rule provides:
If an inmate confined in an institution files a notice
of appeal in either a civil or a criminal case, the
notice is timely if it is deposited in the institution’s
internal mail system on or before the last day for fil-
ing. If an institution has a system designed for legal
mail, the inmate must use that system to receive the
benefit of this rule. Timely filing may be shown by
a declaration in compliance with 28 U.S.C. § 1746 or
by a notarized statement[.]
DOUGLAS v. NOELLE 6737
Fed. R. App. P. 4(c)(1). We explicitly noted in our opinion
that the advisory committee notes “ma[d]e clear” that “Rule
4(c) was intended to formalize the constructive filing rule of
Houston.” 68 F.3d at 1193; see also Fed. R. App. P. 4(c)
(1993) advisory committee’s note (“In Houston v. Lack, 487
U.S. 266 (1988), the Supreme Court held that a pro se prison-
er’s notice of appeal is ‘filed’ at the moment of delivery to
prison authorities for forwarding to the district court. The
amendment reflects that decision.”).
[6] It is obvious in this case that Douglas complied with
“the constructive filing rule of Houston.” Under the policies
in effect at the Snake River Correctional Facility, Douglas
could have handed his legal mail directly to a prison official
to be mailed if he had been indigent. However, Douglas was
not indigent and was therefore required to do the mailing him-
self. He deposited his complaint in the locked prison mailbox
designated for legal mail. Under Houston, as interpreted by
Rule 4(c), that alone would have been enough, provided that
he supply a declaration or notarized statement. But such a
declaration or statement was unnecessary, for the prison’s
own records show that Douglas’s complaint was sent to the
district court by registered mail on November 30, 2004.
Moreover, Douglas provided a photocopy of the envelope in
which his complaint was sent, on which the postmark is
November 30, 2004.
[7] We therefore conclude that Douglas has fully complied
with any possible requirement under Houston for showing the
date on which he filed his complaint.
3. Application
The statute of limitations on Douglas’s § 1983 claims is
two years. State law governs the statute of limitations period
for § 1983 suits and closely related questions of tolling. Silva
v. Crain, 169 F.3d 608, 610 (9th Cir. 1999). Section 1983
claims are characterized as personal injury suits for statute of
6738 DOUGLAS v. NOELLE
limitations purposes. Davis v. Harvey, 789 F.2d 1332, 1333
(9th Cir. 1986). Oregon’s statute of limitations for such suits
is two years. Or. Rev. Stat. § 12.110(1). The statute does not
allow tolling during periods of imprisonment. Or. Rev. Stat.
§ 12.160.
Under federal law, a claim accrues when the plaintiff
knows or should know of the injury that is the basis of the
cause of action. Johnson v. California, 207 F.3d 650, 653 (9th
Cir. 2000). We look to Federal Rule of Civil Procedure 3 to
determine when a § 1983 action commences for purposes of
the statute of limitations. Sain v. City of Bend, 309 F.3d 1134,
1136 (9th Cir. 2002). Rule 3 provides that “[a] civil action is
commenced by filing a complaint with the court.”
[8] The events that form the basis of Douglas’s sixth claim
occurred on December 1, 2002. Under the Houston mailbox
rule, Douglas’s § 1983 complaint was filed on November 30,
2004, just within the two-year statute of limitations. We there-
fore conclude that Douglas has timely filed his sixth claim
under § 1983.
B. Douglas’s Remaining Claims
[9] Douglas makes several arguments as to why the statute
of limitations does not bar his other claims. The district court
did not have a proper opportunity to address these arguments.
We generally do not “consider an issue not passed upon
below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). We
remand to the district court for consideration of Douglas’s
arguments in the first instance.
Conclusion
We hold that the Houston mailbox rule applies to § 1983
complaints filed by pro se prisoners. Under the mailbox rule,
Douglas timely filed at least his sixth claim. We remand to
allow the district court to consider this claim on the merits.
DOUGLAS v. NOELLE 6739
We also remand to allow the district court to consider Doug-
las’s argument that his five other claims were timely filed.
REVERSED and REMANDED.