Summary
applying the same "well settled principle" to a pro se litigant's filing of a complaint
Summary of this case from Awah v. Midland Credit Mgmt. of AmericaOpinion
No. 06-30934 Summary Calendar.
April 3, 2007.
Thomas L. Clark, pro se.
Leslie A. Lanusse, Raymond Peter Ward, Elizabeth Anderson Roussel, Adams Reese, New Orleans, LA, for Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of Louisiana, No. 2:06-CV-01307.
Before SMITH, WIENER, and OWEN, Circuit Judges.
The district court dismissed Thomas Clark's disability discrimination claim because he failed to file his complaint within ninety days after he received notice of his right to sue from the Equal Employment Opportunity Commission. We affirm.
See 42 U.S.C. §§ 12117 2000e-5(f)(1).
Clark clearly did not file his lawsuit within ninety days of receipt, but the filing-deadline calculation was complicated by inaccessibility of the district court following Hurricanes Katrina and Rita and a district court order that suspended deadlines and delays, including liberative prescriptive and preemptive periods in all civil cases, until November 25, 2005. But even if the ninety-day-period did not begin until November 25, 2005, which the defendant disputes, Clark's complaint had to be received by the clerk of the court no later than February 23, 2006. Although Clark mailed his complaint on February 14, 2006, it was not received by the clerk until March 9, 2006. If a complaint is mailed, "filing" is accomplished only when the complaint is actually received by the clerk, and filings reaching the clerk's office after a deadline are untimely even if mailed before the deadline. "[H]aving chosen to transmit the [complaint] by mail service, [Clark] assumed the risk of any untimely delivery and filing of [his complaint]."
Scott v. United States Veteran's Admin., 929 F.2d 146, 147 (5th Cir. 1991); see also FED. R.CIV.P. 5(e) ("The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court. . . .") But see generally Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (recognizing a "mailbox" exception for incarcerated litigants).
Bad Bubba Racing Prods., Inc. v. Huenefeld, 609 F.2d 815, 816 (5th Cir. 1980) (concerning the filing of a notice of appeal in the context of a bankruptcy proceeding).
Clark appears to argue that the postmark date should be used in this case, contending there were "'mailing' problems that were going on at that time with court proceedings, deadlines, phones, filing motions, moving to different locations, etc." and stating "how really bad [the New Orleans] courts were (in terms of damages, loss of employees) after Hurricane[s] Katrina and Rita." Clark does not contend, however, that there was any actual impediment to filing his complaint by February 23, 2006. Although the result seems harsh, Clark chose to risk the vagaries of the postal delivery system despite circumstances that militated against doing so and failed to monitor whether the clerk had received his complaint within the prescribed filing period.
Emphasis omitted.
AFFIRMED.