*Senior District Judge of the Eastern District of Louisiana,

sitting by designation. 

 

1The appellees, in this matter, failed to file a brief in

opposition to the appeal. 

United States Court of Appeals,

Fifth Circuit.

No. 92-4127.

Lawrence Edward THOMPSON, Plaintiff-Appellant,

v.

Kerry RASBERRY, et al., Defendants-Appellees.

June 23, 1993.

Appeal from the United States District Court for the Eastern

District of Texas.

Before WISDOM and DAVIS, Circuit Judges, and SCHWARTZ*, District

Judge.

PER CURIAM:

This is an appeal from a district court order adopting a

United States Magistrate Judge's Report and Recommendation

dismissing appellant's civil rights suit. The only issue raised on

appeal is whether the district court properly refused to consider

as untimely appellant's written objections to the magistrate's

proposed findings and recommendation.1 The appellant, proceeding

pro se and in forma pauperis, is a state prisoner incarcerated at

a correctional institution in Texas. Finding that the appellant

should be provided with an opportunity to show that his written

objections were delivered to prison officials for mailing prior to

expiration of the district court's deadline. We vacate the order

dismissing appellant's lawsuit and remand the case for a

determination of timeliness.
I. BACKGROUND

Appellant-prisoner Lawrence Edward Thompson instituted this

civil rights lawsuit under 42 U.S.C. § 1983. The case was referred

to a magistrate judge in accordance with 28 U.S.C. § 636(b)(1) &

(3) and the local rules of the Eastern District of Texas. After an

evidentiary hearing, the magistrate judge issued findings and

recommended that the lawsuit be dismissed as frivolous pursuant to

28 U.S.C. § 1915(d). The magistrate's report further advised

Thompson that failure to file written objections within ten days

after being served with a copy of the report would bar de novo

review by the district court of the proposed findings and

recommendations as well as appellate review of factual findings

except in the case of plain error or manifest injustice.

Thompson acknowledged receipt of the magistrate's report on

October 24, 1991. Prior to the passage of the district court's

November 4, 1991 deadline for filing written objections, Thompson

filed a motion to extend the deadline. The district court granted

the extension and reset the deadline for filing written objections

to November 20, 1991. Thompson alleges that he attempted to mail

his written objections to the clerk of court on November 18, 1991

by placing the written objections in an envelope supplied by the

clerk and depositing the envelope in the mailbox assigned for

outgoing prisoner mail. He further alleges that prison authorities

attempted to return the envelope to him on December 4, 1991, citing

his failure to place his name and prisoner number on the envelope.

Thompson claims he refused to accept the envelope without a

written explanation from prison authorities concerning why the
envelope had not been mailed. Prison officials apparently provided

the appellant with a signed statement on December 5, 1991 at which

time he took possession of the envelope. Appellant mailed the

written objections for a second time on December 9, 1991. They

were received by the clerk of court on December 12, 1991—twenty-two

days after the Court's deadline for receiving written objection had

passed.

On December 13, 1991, the district court adopted the

magistrate judge's report and recommendation and issued an order

dismissing plaintiff's complaint as frivolous. The district court

entered its final judgment on the same day. Although it did not

specifically acknowledge receipt of the written objections, the

district court found that no written objections had been timely

filed. The district court, subsequently, denied appellant's motion

for reconsideration without addressing the circumstances

surrounding the filing of his written objections.

II. DISCUSSION

Thompson argues on appeal that the district court's order

dismissing the lawsuit was improper because the court failed to

review his written objections. To support his contention, Thompson

cites Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d

245 (1988) and Logan v. Central Freight Lines, 858 F.2d 993 (5th

Cir.1988) (per curiam) for the proposition that a pro se prisoner

plaintiff's written objections to a magistrate's report and

recommendation are timely filed if they are handed to prison

officials prior to the expiration of the district court's deadline.

Although neither case stands squarely for the cited proposition, We
 

2For example, the Court noted the following distinctions: 

(1) prisoners are unable to personally travel to the court house

to see that notice is stamped; (2) prisoners are unable to

choose the type of mail carrier or form of service; and (3)

prisoners are unable to follow up on the progress of their mail

by contacting the court house or mail carrier. 

believe Thompson's argument has merit.

In Houston, the Supreme Court "held that a prisoner's notice

of appeal in a civil case is deemed timely filed if it is delivered

to prison authorities, for forwarding to the district court, on or

before the thirtieth day following entry of judgment." Logan, 858

F.2d at 994. The Court's willingness to forego technical filing

requirements in lieu of a bright line mailbox rule for pro-se

prisoners was prompted by its concern that, in the absence of such

a rule, the rights of prisoners could be unfairly prejudiced due to

their status. The Supreme Court reasoned that, unlike other

litigants, prisoners are forced to rely exclusively on prison

authorities to mail documents in a timely manner and thus lack the

wherewithal to take the same precautions as other litigants for

ensuring that a particular document is received by the clerk of

court prior to the passage of a court appointed deadline.2

Houston, 407 U.S. at 270-76, 108 S.Ct. at 2382-85; see also

Thompson v. Montgomery, 853 F.2d 287 (5th Cir.1988) (per curiam);

Miller v. Sumner, 872 F.2d 287 (9th Cir.1989) (remanding case to

the district court for a determination of whether a notice of

appeal was delivered to prison authorities on time); cf. United

States v. Leonard, 937 F.2d 494, 495 (10th Cir.1991) (finding

Houston was inapplicable where prisoner did not rely on prison

officials for mail delivery).
 

3Other courts have extended the bright line mailbox rule in

Houston to contexts outside notices of appeal. See Ortiz v.

Cornetta, 867 F.2d 146, 148-49 (2d Cir.1989) (extending the

mailbox rule to the filing of complaints for statute of

limitation purposes); Smith v. Evans, 853 F.2d 155 (3rd

Cir.1988) (finding the reasoning in Houston to be

indistinguishable in the context of F.R.C.P. Rule 59(e)); 

Moskovits v. Drug Enforcement Admin., 774 F.Supp. 649, 653

(D.D.C.1991) (extending the mailbox rule to the filing of an

affidavit with the Drug Enforcement Administration for forfeiture

purposes; cf. Allen v. Wood, 964 F.2d 745 (8th Cir.1992) (filing

in habeas case does not occur until petitioner has either paid

filing fee or been granted leave to proceed in forma pauperis

even if petition delivered to prison official in timely fashion). 

Pro se prisoners filing written objections to a magistrate's

report and recommendation pursuant to F.R.C.P. Rule 72(b) are

subject to the same conditions and limitations of confinement as a

prisoner filing a notice of appeal. Moreover, the time within

which to file and serve written objections to a magistrate's report

and recommendation is substantially shorter in duration than the

time within which to file a notice an appeal. There is thus no

reasonable basis upon which to distinguish the ruling in Houston

from the facts of this case.3 We therefore hold that, for purposes

of F.R.C.P. 72(b), a pro se prisoner's written objections to a

magistrate's report and recommendations must be deemed filed and

served at the moment they are forwarded to prison officials for

delivery to the district court. This ruling, however, does not

relieve a prisoner of the responsibility of doing all that he or

she can reasonably do to ensure that documents are received by the

clerk of court in a timely manner. See Fallen v. United States,

378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Failure to

stamp or properly address outgoing mail or to follow reasonable

prison regulations governing prisoner mail does not constitute
compliance with this standard.

Since the district court did not provide the appellant with an

opportunity to prove that his written objections were filed in a

timely manner, We VACATE its order dismissing appellant's lawsuit

and REMAND the case to the district court for a determination of

timeliness. If Thompson delivered his written objections to prison

officials on or before November 20, 1991, the district court should

then consider his written objections in determining whether to

accept, reject, or modify the recommended decision, receive further

evidence, or recommit the matter to the magistrate with

instructions. If Thompson failed to file his objections in a

timely fashion, the district court may disregard those objections

and reinstate its prior judgment.