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State prison inmate Thomas Moore has an unlikely ally in a four-year, cell-bound fight to sue Sacramento County for $53 million — California’s attorney general. In an unusual move, the AG’s office, which normally prosecutes criminals, has told a state appeal court that Moore’s tort claim — accusing the county of negligence in allegedly losing three boxes of legal papers — should not have been dismissed for missing a statutory filing deadline. While taking no position on the merits of Moore’s case, the AG and San Quentin’s Prison Law Office argue that a civil suit by an inmate should be deemed filed with the court once it’s been handed over to prison officials for mailing. That’s how criminal appeals by prisoners have been treated for 57 years. Moore contends he gave his complaint to prison officials for mailing 10 days before it was due at court but that it still arrived three days late. “To rigidly construe the term �filing’ to mean only receipt at the courthouse — even when timely delivery to the courthouse is delayed solely through the fault of state prison officials,” Solicitor General Manuel Medeiros wrote for the AG, “would lead to an unjust deprivation of the prisoner’s right of equal access to the courts.” The issue has never been addressed in California, even though several states and the federal courts have similar “prison delivery” rules for civil suits and criminal appeals. Opponents argue that a change in the law could encourage more civil suits by inmates who already file thousands of criminal appeals each year and give inmates more rights than upright citizens. “There exist a myriad of situations where non-prisoners are confronted with impediments to their access to the courts,” wrote Jeri Pappone, an associate at Sacramento’s Longyear, O’Dea & Lavra, who represents the county. “Auto accidents, hospitalizations, ignorance, legal malpractice — and yet these people are given no relief from the statutory deadlines.” She also says state legislators intentionally set a strict statute of limitations for suits against public entities and that the court doesn’t have the authority to rewrite the rules. “The function of the courts is to declare the law,” Pappone wrote, “not to make it.” The 50-year-old Moore, a Three-Striker, is waging his legal battle from Salinas Valley State Prison near Soledad, where he’s serving a 40-year sentence for attempted robbery. He claims that corrections officers confiscated three boxes of legal documents on Nov. 22, 2000, while he was confined in Sacramento County and then lost them. After the county of Sacramento rejected Moore’s tort claim on May 31, 2001, he had six months under the terms of Government Code § 945.6 to file a civil suit in Sacramento County Superior Court. Moore contends that he gave his suit to prison officials for mailing on Nov. 20, 2001, but that it didn’t reach the court clerk until Dec. 3. Sacramento County Superior Court Judge Loren McMaster dismissed Moore’s suit in 2003, saying it was untimely. Moore appealed. Last month, Sacramento’s Third District Court of Appeal took the extra step of asking the AG and the Prison Law Office to file amicus curiae briefs addressing whether a prisoner’s pro se complaint in a civil suit should be considered filed on the date it’s delivered to prison officials for mailing. Medeiros, the state solicitor general, said the facts in Moore’s case were enough to compel the AG’s position. “The prisoner gave the complaint to prison officials 10 days before it was due, but it didn’t get to the courthouse until three days after it was due,” he said. “It took 13 days to get there, and that’s a bit extreme.” In his court papers, Medeiros argued that inmates’ civil suits should be considered “constructively filed” with the court once delivered to prison officials, just as criminal appeals have been treated since the state Supreme Court’s 1947 ruling in People v. Slobodian, 30 Cal.2d 362. In that case, a prisoner had given prison officials his appellate document five days before the expiration of a 10-day filing period, only to see it postmarked five days after the deadline. Medeiros and Prison Law Office Director Donald Specter also point to 1988′s Houston v. Lack, 487 U.S. 266, a civil case in which the U.S. Supreme Court ruled that the jailer “is in effect” the clerk of the court when federal inmates wish to file suit. The same should apply to state prisoners in California, Medeiros said by telephone. “Where the prisoner acted in good faith,” he said, “and tried to deliver the complaint to prison officials to be delivered to the court — and the delay is caused by the prison official — in that case, it’s arguably unconstitutional.” Even so, Medeiros warned the Third District that inmates shouldn’t be allowed to abuse the system through intentional delay. “If a prisoner waits until the last date of a period of limitations to deliver his complaint into the prison mail system,” he wrote, “he cannot fairly complain that delay in the court’s ultimate receipt of the complaint in the ordinary course of mail delivery is attributable to unreasonable conduct by prison officials.” The county’s defense lawyers agree with the AG on that point but not on the broader issue of extending the prison delivery rule to civil suits by inmates. Legislators provided that public entities be given six months’ notice of suit, they argue, to prevent public funds from being consumed in needless litigation and to offer cities and counties a chance to correct the problems being raised. “The proposal outlined by the state would result in a statutory rewrite without the proper procedure, hearings and argument afforded changes in legislation,” Pappone wrote in court papers. “If, in fact, a delay is caused by prison officials, that delay is to be addressed in a civil suit against that official, not by this court’s rewrite of the California Tort Claims Act.” Pappone also raised concerns about how the trial courts would go about determining whether a prisoner had actually made a good-faith effort to meet filing deadlines. “In this particular case, the litigant is highly sophisticated and has filed over 30 lawsuits against public entities,” she said. “He knows the rules and he’s been able to get all his paperwork in on time before.” Whether the Third District will hold oral arguments in the case remains to be seen, but Medeiros said he hopes the court’s justices look beyond the county’s statute of limitations argument. “We don’t think this is an issue of violating the statute of limitations,” he said. “It’s a question of how the court is going to define the term �filing’ under the circumstances. It still has to be filed within six months.” The case is Moore v. Twomey, C044749.

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