Opinion
Civil Action No. 00-2110, Section "K" (3)
August 1, 2001
MINUTE ENTRY
The Court, having considered the complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and defendants' submission, hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter.
Plaintiff Keenan Temple, a prisoner currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana filed a 42 U.S.C. § 1983 claim against several parties, including Ed Day, Warden of the Washington Correctional Institute, and Richard Stalder, Secretary of the Department of Corrections.
Stalder and Day filed a motion to dismiss arguing that Temple's cause of action prescribed because he failed to file a signed complaint within the prescriptive period in violation of Rule 11 of the Federal Rules of Civil Procedure. The Magistrate Judge denied the motion, essentially finding that since Temple filed a unsigned complaint within the prescriptive period, a signed complaint outside the prescriptive period could relate back to the original filing and thus fall within the prescriptive period. The Magistrate looked to the purposes of Rule 11, and found that the following actions relevant to the complaint satisfied the purposes of Rule 11: (1) Accompanying plaintiff's unsigned complaint of June 27, 2000 was a signed and dated application to proceed in forma pauperis and; (2) plaintiff filed a signed complaint by July 6, 2000. Defendants objected to the finding that Rule 11 was satisfied by allowing the signed complaint to relate back nine days to the filing of the original complaint.
In Becker v. Montgomery, 121 S.Ct. 1801 (May 29, 2001) a unanimous Court discussed the Rule 11 signature requirement as follows:
As plainly as Civil Rule 11(a) requires a signature on filed papers, however, so the rule goes on to provide in its final sentence that "omission of the signature" may be "corrected promptly after being called to the attention of the attorney or party." "Correction can be made," the Rules Advisory Committee noted, "by signing the paper on file or by submitting a duplicate that contains the signature." Advisory Committee's Notes on Fed. Rule Civ. Proc. 11, 28 U.S.C. App., p. 666.Id. at 1806. In Becker, the Court reversed the dismissal of a pro se prisoner's appeal for failure to comply with Rule 11's signature requirement when the defect could easily be remedied. The Court stated that "[petitioner] proffered a correction of the defect in his notice in the manner Rule 11(a) permits — he attempted to submit a duplicate containing his signature . . . and therefore should not have suffered dismissal . . ., for nonobservance of the Rule." Id. See also Operating Engineers Local 139 Health benefit Fund v. Rawson Plumbing, Inc., 130 F. Supp.2d 1022 (E.D. Wisc. 2001); Adams v. Perloff Brothers, Inc., 784 F. Supp. 1195 (E.D. Pa. 1992); See generally Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure, § 1333 (in absence of prejudice the court can treat failure to sign defect as technical and should grant leave to correct).
In this case, plaintiff cured his defective complaint less than two weeks after it was initially tendered. Such action certainly qualifies as a prompt correction, and thus the matter should be considered filed from tendering of the initial complaint. Defendants' argument that this case is factually analogous to Gonzales v. Wyatt, 157 F.3d 1016 (5th Cir. 1998) is not persuasive. In Gonzales, the Court of Appeals did not permit an unsigned complaint to relate back when the court made a factual finding that a third party non-lawyer prisoner who was housed at a different prison filed the unsigned complaint at least one week before the actual plaintiff, who never ratified, tendered, or adopted that complaint, even saw the complaint. Id. at 1021. Again, this plaintiff filed a signed and dated application to proceed in forma pauperis application with the unsigned complaint and remedied the defect soon thereafter. Thus, the factual basis of the Gonzales opinion is simply distinguishable here. The Magistrate was correct in its finding that the purposes of Rule II were satisfied by the filings tendered by plaintiff, that the signed complaint should relate back and that the suit was therefore timely filed. Accordingly,
IT IS ORDERED that the defendants' motion to dismiss plaintiff's section 1983 claims as to Richard Stalder and Ed Day is DENIED.