1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

VANCE EDWARD JOHNSON,

Plaintiff, No. CIV S-04-0776 LKK EFB P

vs.

D. L. RUNNELS, et al.,

Defendants. ORDER

 /

Plaintiff is a prisoner without counsel suing for alleged civil rights violations. See 42

U.S.C. § 1983. Currently pending is plaintiff’s motion for an order compelling defendant

Martinez to respond to discovery requests, which was entered on this court’s docket on

November 20, 2007, but mailed by plaintiff on November 15, 2007. Defendant Martinez has

filed an opposition, asserting that the motion was filed after discovery closed. For the reasons

explained below, the court finds that the motion to compel is timely.

I. Facts

This action proceeds on the June 21, 2006, third amended complaint. On July 16, 2007,

defendant Martinez filed an answer. Thus, on July 27, 2007, the court entered a discovery and

scheduling order establishing November 16, 2007, as the date by which discovery must have

been completed. The court emphasized that the parties had until that date to file any 

Case 2:04-cv-00776-TLN-EFB Document 113 Filed 04/18/08 Page 1 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

motions to compel discovery. Plaintiff signed the certificate of service attached to the motion to

compel on November 15, 2007. As evidence that this is the date he relinquished control of the

motion, he submits a request that prison staff interview him, which he dated November 15, 2007. 

In this request, he states:

Please process this mot. to compl prdtn. of docmnts/exh. to: U.S. Dist. Ct. Eastern

Dist. Of CA, Office of the Clerk, 501 I St. Ste. 4-200, Sacto. CA 95814-2322. 

Please return this slip back to me for my records. Thank you. Vance.

Pl.’s Mot., Ex. C. Plaintiff asserts that he delivered this request and the legal documents to a

guard named Garcia. Pl.’s Rply., at 2:8-10. This document is date-stamped as having been

received on November 19. It also shows that someone named Valerie interviewed plaintiff and

noted that the papers were “Rec’d, Logged, & mailed 11/19/2007.” Pl.’s Mot., Ex. C. 

Defendant Martinez has submitted a copy of an envelope, in which he asserts he received

plaintiff’s motion to compel. Defs.’ Opp’n, Ex. B. That envelope bears the handwritten

notation, “C/O Green 11/18.07.” There is no evidence as to the identities or roles of the person

named Valerie or the person named C/O Green. As noted above, on November 20, 2007, the

Clerk of the Court docketed the motion to compel discovery.

II. Standards 

Neither party disputes that the prisoner mailbox rule applies here. Under this wellestablished rule, a prisoner’s legal document is deemed filed at the moment he delivers it to the

prison authorities for forwarding to the clerk of the court. Houston v. Lack, 487 U.S. 266, 276

(1988); Schroeder v. McDonald, 55 F.3d 454, 459 (9th Cir. 1995) (applying prison mailbox rule

to prisoners like plaintiff, who represent themselves in civil rights litigation). This rule exists to

correct for the uncertainty inherent when a prisoner uses the prison’s mail system to submit

documents to a court. Once a prisoner delivers a document to prison officials for mailing to the

clerk of the court, a prisoner loses control over the filing. Houston, 487 U.S. at 270-71. Also,

prison officials may delay prisoners’ court filings, but this would be difficult for a prisoner to

prove. Id., at 271. Furthermore, prisoners “cannot take the steps other litigants can to monitor

Case 2:04-cv-00776-TLN-EFB Document 113 Filed 04/18/08 Page 2 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

the processing of their [documents] and to ensure that the court clerk receives and stamps [them]

before” the applicable deadlines. Id., at 270-71.

III. Analysis

Defendant Martinez argues that plaintiff’s motion to compel should be denied because it

was filed after the November 16, 2007, the discovery cutoff. Plaintiff asserts that he filed the

motion on November 15, 2007. The parties agree that the mailbox rule applies here because

plaintiff is a prisoner without counsel. Moreover, they do not dispute that a document is “filed”

when the prisoner delivers it to prison officials for mailing to the court. Rather, they dispute the

date plaintiff actually delivered the motion to prison officials. Crucial here is who has the

burden of proof on this question. The Ninth Circuit has not directly addressed the burden of

proof under Houston, but the Eleventh Circuit has held that Houston places the burden of

proving the date the prisoner delivered the documents on prison officials. See Garvey v. Vaughn,

993 F.2d 776, 781 (11th Cir. 1993). The court finds that the rule of Garvey is consistent with the

decision in Houston, in which the Supreme Court noted that:

The pro se prisoner does not anonymously drop his [document] in a public

mailbox-he 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 delivered the

paper on a different date.

The prison will be the only party with access to at least some of the evidence

needed to resolve such questions-one of the vices the general rule is meant to

avoid-and evidence on any of these issues will be hard to come by for the prisoner

confined to his cell, who can usually only guess whether the prison authorities,

the Postal Service, or the court clerk is to blame for any delay.

Houston, 487 U.S. at 276. Therefore, absent evidence to the contrary, a prisoner’s document is

deemed filed the date he signed it. Here, the court finds that the classic gaps in information

identified in Houston exist here. The parties agree that plaintiff signed the certificate of service

attached to the motion to compel on November 15, 2007. However, defendant Martinez

contends that the handwritten notation, “C/O Green 11/18/07" establishes that prison officials

did not receive the document until one day after discovery closed. Plaintiff’s evidence suggests

Case 2:04-cv-00776-TLN-EFB Document 113 Filed 04/18/08 Page 3 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

that he did in fact relinquish control of the documents on November 15, 2007, but that this

delivery was not officially acknowledged and recorded until November 19, the date stamped on

plaintiff’s request. Significantly, this is after November 18, the date Martinez contends that

prison officials first received the documents. Also significant is that Martinez submits nothing

more than a photocopy of the envelope containing the documents mailed to counsel without

reference to any internal logs, policies, procedures, or even plaintiff’s November 15, 2007,

request that the documents be mailed. Thus, the court has no way of determining the

significance of C.O. Green’s name appearing on the envelope received by counsel for Martinez. 

Neither is there any way for the court to account for the time between the date plaintiff signed

the certificate of service, November 15, and the date the parties seem to agree the motion was

mailed, November 19. On the evidence before the court, it is reasonable to infer the following: 

(1) plaintiff delivered the motion and exhibits to Garcia on November 15; (2) these papers came

into the custody of Green, who signed and dated the envelope November 18; and, (3) Valerie

interviewed plaintiff about the documents and mailed them on November 19. Under the mailbox

rule, it does not matter when prison officials actually mailed the documents. It matters when the

plaintiff relinquishes them to prison officials. Plaintiff’s evidence suggests that this occurred

November 15, 2007, and defendants’ evidence is insufficient to establish otherwise. 

Accordingly, the court finds that plaintiff’s motion to compel was delivered to prison authorities

and therefore filed on November 15, 2007. Since discovery closed on November 16, 2007, the

motion is timely. 

Accordingly, it is ORDERED that:

1. The court accepts plaintiff’s motion to compel discovery as timely; and, 

2. Defendant Martinez has 30 days from the date this order is signed to file and serve an

opposition to the motion.

Dated: April 18, 2008.

Case 2:04-cv-00776-TLN-EFB Document 113 Filed 04/18/08 Page 4 of 4