Malcolm Cobb, Jr. v. Aramark Correctional Services

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1909
MALCOLM COBB, JR.,
Plaintiff-Appellant,
v.
ARAMARK CORRECTIONAL SERVICES, LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 17-cv-00703 — Sarah Evans Barker, Judge.
____________________
SUBMITTED MARCH 5, 2019 1 — DECIDED AUGUST 29, 2019
____________________
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Malcolm Cobb, Jr., an Indiana pris-
oner, brought a state-court negligence action against Aramark
Correctional Services, LLC (“Aramark”) for failing to clean up
1 We have agreed to decide this case without oral argument because
the briefs and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. See FED. R. APP.
P. 34(a)(2)(C).
2 No. 18-1909
a spill in the kitchen at the Pendleton Correctional Facility,
causing him to slip and fracture his ankle. Aramark removed
the case to federal court, then asserted that Cobb had filed too
late; the district court agreed. Cobb appeals, maintaining that
his complaint should be deemed “filed” under the prison
mailbox rule on the date he handed it to his counselor for
mailing. Because the district court misinterpreted Indiana’s
prison mailbox rule, we reverse and remand for further pro-
ceedings. 2
Cobb initially filed this action in state court. He claimed
that Aramark’s failure to train its employees in safety rules,
such as posting signs signaling a wet floor, caused his injury
on December 15, 2014. The parties do not dispute that Cobb’s
personal-injury claim accrued on that date.
Aramark, a limited liability company whose sole member
is a Delaware corporation with its principal place of business
in Pennsylvania, removed this action to the Southern District
of Indiana on the basis of diversity jurisdiction. 28 U.S.C.
§§ 1332, 1441. Aramark then moved for summary judgment,
arguing that Cobb’s complaint was not timely under Indiana
law, which provides that a personal-injury action must be
brought no more than two years after the cause of action ac-
crues. IND. CODE § 34-11-2-4.
Cobb responded that on December 9, 2016—six days be-
fore the statute of limitations expired on December 15, 2016—
2 We note that one of the controlling Indiana state court cases that has
informed this opinion was decided on December 10, 2018, and thus the
district court would not have had the benefit of that Indiana Appellate
Court’s interpretation of the prison mailbox rule when it issued its April
10, 2018 opinion.
No. 18-1909 3
he handed his notarized complaint to a prison counselor, who
delivered this complaint to the mail room on the same day.
The counselor confirmed in an affidavit that he notarized
Cobb’s complaint on December 9, 2016, walked it to the
prison mail room, and dropped it off in the outgoing mailbox.
Prison records show that Cobb’s complaint was mailed on De-
cember 19, 2016—ten days after being deposited in the out-
going mailbox. 3 Cobb did not mail his complaint by regis-
tered, certified, or express mail, because, he stated, he lacked
the necessary funds to do so (and the prison does not advance
costs for certified mail).
The district court granted Aramark’s motion for summary
judgment. It concluded that the state statute of limitations
controlled, and Cobb’s action was too late unless his delivery
of the complaint to the counselor on December 9, 2016 consti-
tuted filing. The district court concluded that Indiana law con-
trolled, and that under Indiana’s law, a pleading must have
been sent to the state court clerk by registered, certified, or
express mail with a return receipt requested in order to be
considered filed when submitted for mailing. R. 47 at 5 (citing
Dowell v. State, 922 N.E.2d 605. 609 (Ind. 2010)). Otherwise, the
district court concluded, the pleading is considered filed upon
receipt by the state court clerk. Id. Because the record shows
that Cobb’s complaint was sent by regular first-class mail and
received on January 31, 2017, the district court held that
Cobb’s action was barred by the statute of limitations. Cobb
appeals, arguing that the court should have applied the fed-
eral prison mailbox rule, which requires only prepaid first-
class postage and deems prisoners’ legal papers filed on the
3 There is nothing in the record explaining this delay.
4 No. 18-1909
date delivered to prison authorities for mailing to the court
clerk. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266,
275–76 (1988); Taylor v. Brown, 787 F.3d 851, 858–59 (7th Cir.
2015) (federal mailbox rule applies to district court filings as
well as appeals). He also appears to be arguing that his filing
was timely under the more demanding Indiana prisoner mail-
box rule, which requires prisoners to provide reasonable, le-
gitimate, and verifiable documentation supporting a claim
that a document was timely submitted to prison officials for
mailing. Dowell, 922 N.E.2d at 607.
We review de novo a district court’s grant of summary
judgment based on a statute of limitations. Stepney v. Naper-
ville Sch. Dist. 203, 392 F.3d 236, 239 (7th Cir. 2004). Here, the
parties’ dispute boils down to whether we apply Indiana’s
prison mailbox rule or the federal prison mailbox rule. If the
federal rule applies, then Cobb’s action would not have been
barred, because his complaint would have been timely filed
at the moment he handed it to the prison counselor. Indiana’s
prison mailbox requires a bit more—it requires “reasonable,
legitimate, and verifiable documentation supporting a claim
that a document was timely submitted to prison officials for
mailing.” Dowell v. State, 922 N.E.2d at 607.
We agree with the district court that Indiana’s prison mail-
box rule applies. Federal Rule of Civil Procedure 81(c) pro-
vides that the federal rules apply to a civil action after it is
removed from state court. And we have instructed courts to
distinguish between actions that occur before and after re-
moval to federal court when applying federal procedure to
removed cases. Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119,
1122 (7th Cir. 2001). “The Federal Rules make clear that they
do not apply to filings in state court, even if the case is later
No. 18-1909 5
removed to federal court.” Id. Therefore, the federal prison
mailbox rule does not apply. Indiana’s does.
We therefore must analyze when Cobb’s complaint was
filed under Indiana’s prison mailbox rule. In 2010, the Indiana
Supreme Court expressly adopted its prison mailbox rule
(recognizing that Indiana courts had been using this approach
without expressly adopting it). It did so by first analyzing the
Indiana Rule of Trial Procedure 5 that defines what consti-
tutes a filing and when filings are deemed to have occurred:
(F) Filing With the Court Defined. The filing of
pleadings, motions, and other papers with the
court as required by these rules shall be made
by one of the following methods:
(1) Delivery to the clerk of the court;
(2) Sending by electronic transmission under the
procedure adopted pursuant to Administrative
Rule 12;
(3) Mailing to the clerk by registered, certified or
express mail return receipt requested;
(4) Depositing with any third-party commercial
carrier for delivery to the clerk within three (3)
calendar days, cost prepaid, properly ad-
dressed;
(5) If the court so permits, filing with the judge, in
which event the judge shall note thereon the fil-
ing date and forthwith transmit them to the of-
fice of the clerk; or
6 No. 18-1909
(6) Electronic filing, as approved by the Indiana Of-
fice of Judicial Administration (IOJA) pursuant
to Administrative Rule 16.
Filing by registered or certified mail and by
third-party commercial carrier shall be com-
plete upon mailing or deposit
Any party filing any paper by any method other
than personal delivery to the clerk shall retain
proof of filing.
Ind. R. Trial P. 5
Based on its analysis of these rules, the Indiana Supreme
Court declared that a court shall deem a court filing timely if
a pro se prisoner litigant submits the filing to prison officials
for mailing on or before its due date, and the prisoner “pro-
vide[s] reasonable, legitimate, and verifiable documentation
supporting a claim that a document was timely submitted to
prison officials for mailing.” Dowell, 922 N.E.2d at 607. The
prisoner-plaintiff in the Dowell case, however, did not have
verifiable documentation supporting his claim of mailing. He
did not use certified mail, return receipt requested; he did not
have a receipt from a third-party carrier; he did not get an af-
fidavit from a prison official, or have any other proof of filing.
Id. at 608–09.
After considering Dowell, the district court concluded that
“under Indiana’s mail box rule for trial courts, for any plead-
ing, motion, or other paper to be considered filed when
mailed, it must have been sent to the state court clerk by reg-
istered, certified, or express mail with a return receipt re-
quested.” R. 47 at 5. This, however, is too narrow a reading of
Dowell. In Dowell, the plaintiff had no such “reasonable,
No. 18-1909 7
legitimate, and verifiable documentation supporting [his]
claim” and therefore the court had no reason to evaluate what
forms of documentation would be acceptable. Dowell, 922
N.E.2d at 607. But as appellate courts have interpreted the In-
diana Supreme Court’s decision in Dowell, it has become clear
that a certified mail return receipt is one way, but not the only
way, for a prisoner-plaintiff to submit verifiable documenta-
tion. In other words, the Indiana prison mailbox rule is simply
that “the date a pro-se prisoner delivers notice to prison au-
thorities for mailing should be considered the date of filing as
opposed to the date of receipt [and] the burden is on the peti-
tioner to show that the notice was timely delivered to prison
authorities.” Morales v. State, 19 N.E.3d 292, 296 (Ind. Ct. App.
2014). A return receipt from certified mail is certainly one re-
liable and simple way for a prisoner to show that his docu-
ments were delivered on time to prison authorities, but it is
not the only way. And thus in Harkins v. Westmeyer, 116
N.E.3d 461, 469 (Ind. Ct. App. 2018), the Indiana Court of Ap-
peals accepted a letterhead statement from the facility admin-
istration explaining the reason the mail was late in reaching
the court. The appellate court noted that the “letter was not a
sworn affidavit submitted under penalty of perjury,” but de-
cided to give the prisoner-plaintiff, Harkins, the benefit of the
doubt as the evidence taken as a whole “creates a presump-
tion that Harkins functionally filed his documents” before the
deadline. Id. at 470 (internal citations omitted). The appellate
court explained the rule just as the Indiana Supreme Court
had (and in fact cited Dowell in doing so):
The prison mailbox rule provides that “a pro se
incarcerated litigant who delivers a [document]
to prison officials for mailing on or before its
due date accomplishes a timely filing”; and the
8 No. 18-1909
document is deemed “filed” on the date of sub-
mission to prison officials. [Dowell, 922 N.E.2d
at 605]. A pro se prisoner must provide “reason-
able, legitimate, and verifiable documentation
supporting a claim that a document was timely
submitted to prison officials for mailing.” Id. at
608. “Where a prisoner’s proof is lacking, how-
ever, the opposite result obtains.” Id.
Harkins, 116 N.E.3d at 469. We know that the appellate court
in Harkins properly interpreted the Indiana Supreme Court’s
decision in Dowell, because the court in Dowell gave as an ex-
ample of acceptable proof “an affidavit from [a] prison em-
ployee verifying that [the plaintiff] presented the record to her
on the date it was due but that [the prison employee] did not
mail the record until the next day.” Dowell, 922 N.E.2d at 608.
The example Dowell set forth said nothing about requiring
certified mail or return receipts.
In short, the Indiana prison mailbox rule is not limited to
instances involving certified mail. Although certified mail is
certainly one mode of proof, the Indiana courts simply “re-
quire a pro se prisoner to provide reasonable, legitimate, and
verifiable documentation supporting a claim that a document
was timely submitted to prison officials for mailing.” Dowell,
922 N.E.2d at 607. Cobb submitted an affidavit from a prison
counselor that attested to the fact that Cobb submitted his
documents to the counselor on December 9, 2016—six days
before the statute of limitations expired. The counselor stated
that he notarized the documents on that date and delivered
them to the mail room on the same day. R. 39-1 at 171. Cobb,
therefore, submitted reasonable, legitimate, and verifiable
No. 18-1909 9
documentation supporting his claim that his documents were
timely submitted to prison officials for mailing.
This leaves us with one last issue upon which to comment.
The district court also noted that Cobb alleged in his filings
that the Madison County Clerk turned away his parents when
they tried to file his complaint in person, well before the lim-
itations period expired. Indeed, the record contains a letter
from the Clerk of the Madison County Circuit Court to Cobb
which states, “If you are wanting to file a new suit while in
the Department of Correction [sic] you may either have some-
one file on your behalf who has power of attorney over you
or you may send in the paperwork yourself. … They also
must bring a copy of the paperwork showing that they do
have power of attorney over you. If they do not have the ap-
propriate paperwork we will not accept it.” R. 39-1 at 177. The
facts behind this allegation have not been developed, but on
remand, the district court might want to consider whether
such a requirement by the Clerk of the Madison Circuit Court
unconstitutionally restricts access to the courts, particularly if
the rule is applied differently to prisoners than the rest of the
litigants. There are, after all, myriad people who perform the
ministerial task of dropping off paperwork at clerks’ offices
including secretaries, messengers, law firm runners, courier
services, and the like. We would hope that this rule is not be-
ing used to discourage prisoners from filing cases in the Mad-
ison County Courts. As the Supreme Court has said, “Unlike
other litigants, pro se prisoners cannot personally travel to the
courthouse to see that the notice is stamped ‘filed’ or to estab-
lish the date on which the court received the notice,” and they
are at a significant disadvantage in filing documents with the
court. Houston v. Lack, 487 U.S. 266, 271 (1988).
10 No. 18-1909
For these reasons, the district court’s judgment is
REVERSED and this appeal is REMANDED to the district
court for further proceedings consistent with this order.