ROBERT T. MATHIS, SR. v. THE UNITED STATES, 190 Ct. Cl. 925

Per Curiam: This case was referred to Trial Commissioner William E. Day with directions to make findings of fact and recommendation for conclusions of law under the order of reference, Buie 57(a) [since September 1, 1969, Buie 134(h)], and the opinion of this court herein, entered June 14, 1968, 188 Ct. 'Cl. 150, 394 F. 2d 519. The commissioner has done so in an opinion and report filed May 12, 1969. Exceptions to the commissioner’s opinion, findings and recommended conclusion of law were filed by plaintiff. Defendant urged that the report and recommendation be accepted and the petition dismissed.

The case has been submitted to the court on plaintiff’s exceptions and the briefs of the parties without oral argument of counsel. Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law with minor modification, it hereby adopts the same as modified as the basis for its judgment in this case as hereinafter set forth. Therefore, plaintiff is not entitled to recover and his petition is dismissed.

Commissioner Day’s opinion, with minor modification by the court, is as follows: This is a military pay case in which the plaintiff alleges in substance that he, as an enlisted man in the Army, was unlawfully discharged from the Army. On March 15,1968, the court dismissed plaintiff’s petition as not having been filed within 6 years of the plaintiff’s discharge from the Army (on September 26, 1960), and was therefore barred by limitations.

In its opinion, the conrt treated a handwritten petition (sent by plaintiff to the conrt on October 25, 1966, and received a few days later) as the commencement of the plaintiff’s action, even though it was not actually filed because the rules of the court had not been followed as to the requisite number of copies. The plaintiff filed a motion for rehearing to which was appended a copy of a petition addressed to this court, the last page of which (page 28) bears a notarial certificate dated September 6, 1966, which he says he tried to send to the court from prison.

Because this date is within the limitations period (being within 6 years of the date of the plaintiff’s discharge from the Army), the court vacated its order dismissing the petition and remanded the case to the trial commissioner for trial or other proceeding limited to the issue of whether the plaintiff attempted to transmit from prison a petition to this court on or before September 26, 1966.

A trial has been held and the plaintiff has had full opportunity to come forward with any evidence he might have to support his statements to the court concerning his attempts to file prior to the limitations date referred to above. The evidence is convincing that not only did the plaintiff not attempt to file a petition prior to September 26, 1966, but also that the plaintiff has used an altered document as evidence in support of his contention.

A prison official, the plaintiff and six individuals (then inmates of the Florida State Prison, each of whom had been a fellow-inmate with plaintiff at the time the latter was also an inmate of that institution) testified. The prison official-' Jim Beddish — is (and was during the times herein material) classification supervisor. Part of his duties involved the administering of oaths to inmates desiring notarial certificates on various papers, usually for filing in court.

On February 18, 1963, the Circuit Court of Osceola County, Florida, sentenced the plaintiff to a term of 6 months to 5 years (on a charge of issuing worthless checks) to the Florida State Prison at Kaiford, Florida. Plaintiff was an inmate of that institution from some time shortly after sentencing until February 17, 1967, when he was discharged from prison.

It is established from the evidence that whenever an inmate had a paper which he wished to have notarized and mailed to an addressee, the practice which was followed was for the inmate to prepare the paper ready for signature as well as an envelope properly addressed to the addressee. If he had the required postage, he would place it on the envelope. The papers were then handed to Reddish, who took the acknowledgment of the inmate who signed the paper before Reddish, the notary. Reddish would then take the papers back to his office where he would sign the paper and affix his date stamp and seal.

The credible proof shows that all papers notarized by Reddish were mailed to the addressee. Notarial services were always available to the inmates as to any paper addressed to a court or to attorneys. Notarial services were denied (according to prison instructions) in the case where an inmate requested a notarial certificate on a personal letter to a newspaper “for printing in a paper.” In those instances where the inmate did not have postage for mailing papers for which notarial services had been furnished, the prison supplied and affixed the postage.

The inmate prepared the envelopes for mailing in all cases, by addressing such envelopes, including return address. In all cases, the mailing was performed by the office staff of Reddish. In addition to requesting notarial services as described above, inmates often wished to have a personal copy which included the notarial certificate. They were told that this would not be permitted.

Although plaintiff, and each inmate who testified, concluded that many papers which had been notarized had not been mailed by the prison, the proof shows that in each case a paper 'bearing a notarial certificate was presented to the notary, it was mailed by his office. The impression that some papers had not been mailed was founded on the fact that sometimes an expected reply was not received. There is in evidence a sheaf of 61 papers, each of which is a receipt for legal papers which the plaintiff had notarized and mailed by prison officials at the Florida State Prison at Raiford, Florida.

Many of tbe 61 papers bad been addressed to more than one addressee. Tbe period covered is from Marob 1963 tbrougb January 1967. (Tbe plaintiff was discharged from the above-named prison on February 17,1967.) Among tbe receipts in tbe group described above is one dated September 6,1966, being a receipt from the plaintiff for “Application for Leave to File an Application for a Writ of Mandamus/or Prohibition, mailed this date to” the attorney general of Florida, the chief justice of tbe Supreme Court of Florida and tbe Chief Justice of the United States, all with full correct addresses.

The credible proof shows that tbe paper described above is tbe only paper which Jim Reddish notarized for tbe plaintiff on September 6,1966. Tbe plaintiff introduced in evidence plaintiff’s exhibit 2, which is a handwritten complaint addressed to this court. It was never received by the court. This is a 28-page document (referred to earlier as an altered document) written in pencil with the last page bearing a notarial certificate of Jim Reddish dated September 6,1966. Appended to this document is an affidavit of the plaintiff with a notarial certificate dated May 6, 1966, signed by a different notary.

This latter paper does not appear to have any relation to the document to which it is affixed. A comparison between plaintiff’s exhibit 2 and the handwritten complaint which the plaintiff actually sent to and was received by the clerk of this court, dated October 25, 1966, is revealing.

The latter document was sent to the court with a letter of transmittal of the same date, an affidavit authorizing appointment of an attorney, a motion for leave to file a cause of action, a pauper’s affidavit, and a motion for appointment of counsel to prosecute the claim, each of which was signed by the plaintiff, and notarized by Jim Reddish on October 25, 1966. The complaint itself was 23 pages in length. On the 23rd page, the plaintiff signed a proof of service and the document was notarized by Jim Reddish on October 25,1966.

Appended to all of the above documents was a 5-page affidavit of the plaintiff, also notarized by Reddish on the same date. A number of exhibits were also appended. These are identified as exhibits 1,1 % 2, 3, 3 *, 3 2 and 4. All are original letters addressed to the plaintiff, except exhibit 11, which is a copy of a letter to the plaintiff. Plaintiff’s exhibit 2 (apart from the difference in attached exhibits) is almost but not entirely a word-for-word replica of the October 25 document. The bold black-lettered word “Conclusion” which appears on page 21 of the latter, was omitted from exhibit 2.

Both pages 22 (which includes the prayer for relief) read the same, except that the four last lines which appear on exhibit 2 were not included in the October 25 complaint. The 23rd page of exhibit 2 does not fit in with the concluding portions of the plaintiff’s complaint. It is regarded as significant that on 22 pages of the complaint in exhibit 2 (the September 6,1966 version) the plaintiff refers to himself as plaintiff 159 times (an average of more than 7 times per page). On page 23, however, he refers to himself as petitioner 3 times; not once as plaintiff.

It is concluded that prior to the filing of the petition for rehearing, the plaintiff recopied the words of the complaint which he had sent to the court on October 25, 1966, altering page 21 by omitting the word “conclusion,” altering the substance of page 22 by adding four additional unrelated lines, and then adding the last page of a legal paper having a September 6, 1966 notarization to make it appear that he had attempted to mail the complaint earlier than the limitations date of September 26,1966.

The record shows that the inmates of the Florida State Prison (and the plaintiff) testified that in order to obtain a copy of a paper that had been notarized, they would make several originals of a paper addressed to a court and furnish the prison authorities the name and address of a wrong court or an unsolicited lawyer so that upon receipt by the addressee, or delivery to an unsolicited lawyer, the paper might be returned to the sender.

It is concluded that one of the sets of papers which the plaintiff requested Jim Keddish to notarize and mail to three addressees on September 6,1966, was returned to the plaintiff in the manner described above, which accounts for the plaintiff’s possession of that paper with the notarial certificate of that date. It is, accordingly, found that the plaintiff did not attempt to mail a complaint to this court prior to September 26, 1966. The plaintiff’s petition should, therefore, be dismissed as barred by limitations. Findings of Fact 1.

On October 25, 1966, the plaintiff prepared and addressed a handwritten complaint to this court. It consisted of 23 pages, plus an appendix of 5 pages, plus a number of original exhibits. Appended to this complaint was a 1-page affidavit authorizing any appointed attorney to secure official Army files on plaintiff’s behalf in the prosecution of the claim. There was also included a motion for leave to file the cause of action, an affidavit in forma pauperis and an affidavit for appointment of counsel.

Each of the above papers was presented to Jim Reddish and notarized by him, a total of 5 notarial certificates in all. With these papers, the plaintiff also furnished a letter of transmittal (quoted in the next finding) addressed to the clerk of this court, bearing the same date. All of the above papers were handed to Reddish for accomplishment of the notarial certificate and for mailing, after affixing his notarial certificate. The entire group of papers was mailed by employees of the Florida State Prison to the clerk of this court. In due course, the papers were received by the clerk.

The papers described above are discussed in note 3 of the court’s opinion on the defendant’s motion to dismiss the case, 183 Ct. Cl. 145, 149, 391 F. 2d 938, 940. 2. The letter of transmittal dated October 25,1966, of the papers described above, directed to the clerk of this court, reads as follows: Reference to your letter dated October 6. 1966, find enclosed the complaint against the United States relevant to my letter dated September 30, 1966.

Please reproduce a copy of each paper and mail a complete copy of this pleading to the Department of Justice, Washington, D.U., since I did not mail them a copy because I can not reproduce the exhibits because I do not have a machine and the papers would not been [sic] complete with those in your courtj minus exhibits. Ultimately, please advise upon receipt of these papers and also inform me what docket number this case is given. Thanking you for your kind consideration. 3.

The plaintiff was an inmate of the Florida State Prison at Raiford, Florida from shortly after February 18, 1963, to February 17, 1967, having been sentenced by the Circuit Court of Osceola County, Florida on a conviction of issuing worthless checks. 4. While in prison, the plaintiff was a prolific writer of legal papers, most of which related to his incarceration. The evidence shows that many inmates were engaged in similar pursuits. 5.

The credible evidence shows that inmates of the Florida State Prison at Raif ord were freely permitted to write letters to courts and attorneys and, where notarization of papers for this purpose was requested, it was provided. 6. The Florida State Prison at Raiford, Florida, maintains a record of papers mailed to addressees as requested by the inmates. There is in evidence, as defendant’s exhibit 1, a sheaf of 61 papers which is a record of all papers which the plaintiff (between March 12, 1963, and January 3, 1967) had requested be placed in the mail by the prison authorities.

Many of these papers were notarized. Many were addressed to more than one addressee. Several were addressed to as many as five addressees. The credible evidence shows that all were mailed to the addressees as requested by the plaintiff. The practice followed at the prison as to the notarization of papers was to have the inmate prepare the paper he wished to sign before the prison notary, as well as a properly addressed stamped envelope. These were handed by the inmate to the prison notary, who did not read the papers, but inquired whether the statements contained therein were true, after administering the oath.

The papers were then taken by the prison notary to his office, where they were signed by the notary, had the seal impressed and had applied the date stamp, as well as the stamp identifying the notary and showing the expiration date of his commission. The prison employees then placed the papers in the envelopes which had been prepared, and placed them in the U.S. mail. 7. At the trial session, the plaintiff (a former inmate) and six present inmates of the prison testified on behalf of the plaintiff.

The substance of their testimony was that the plaintiff had shown the other inmates some papers which he prepared, that the plaintiff had told them he was filing suit against the United States, claiming that he was illegally discharged from the service and that they were of the impression that sometimes the prison officials, though requested, did not mail important papers such as to a court or to attorneys. It is clear that the impression referred to, was in each instance based upon the fact that sometimes, when a reply was anticipated, it was not received. 8.

The testimony of the inmates shows that the inmates (including plaintiff, when he was an inmate) often wished to have a copy of everything they prepared for mailing and which they requested be mailed. They were free to make their own handwritten duplicate copy, but they also wished to have a copy of a notarial certificate if a paper was to be notarized.

The practice was for the inmate to prepare another copy of a paper for notarization, have it notarized by furnishing the prison authorities with an envelope bearing the name of a “wrong” court (i.e. a court completely unrelated to the subject matter), or a lawyer whose name and address was plucked from the telephone book, or similar source of the names and addresses of lawyers. When the document was received, it would be returned to the sender and in this way the inmate received back a notarized copy of the legal paper which he desired. 9.

On September 6, 1966, the plaintiff prepared a paper entitled “Application for Leave to File an Application for a Writ of Mandamus/or Prohibition,” together with two copies thereof. These papers were notarized by Beddish that day and mailed by employees of his office to the three addressees — the attorney general of Florida, the chief justice of the Supreme Court of Florida and the Chief Justice of the United States. 10. The conclusion is inescapable that one of the copies of the papers referred to in the preceding finding was returned to the plaintiff at the prison.

This, as explained in finding 8, was the only way an inmate could obtain a copy of a paper which he had had notarized by the prison notary. 11. There is in evidence as plaintiff’s exhibit 2, a handwritten complaint addressed to this court, but not received, consisting of 23 pages, plus a 1-page affidavit bearing a notarial certificate dated May 6, 1966, apparently executed in Dade County (the Miami area) by a different notary. Page 23 of plaintiff’s exhibit 2 bears a notarial certificate dated September 6,1966, signed by Jim Reddish, the prison notary at Raiford Prison in Bradford County. 12.

A comparison between plaintiff’s exhibit 2 and the complaint described in finding 1, compels the conclusion that page 23 of plaintiff’s exhibit 2 has been substituted from another legal paper in order to persuade the court of an attempted filing of a case in this court earlier than September 26, 1966. The comparison of both papers reflects that both pages 21 read the same, except that the word “conclusion” in large black letters which appears on the October 25, 1966, complaint does not appear on exhibit 2.

Both pages 22 read the same, except that on exhibit 2, four lines have been added in order to tie in with a citation at the top of page 23 of exhibit 2. Page 23 of exhibit 2 differs materially from page 23 of the October 25, 1966 complaint. It is also significant that on the last page of plaintiff’s exhibit 2, plaintiff refers to himself as petitioner, whereas he referred to himself as plaintiff on all other pages of the exhibit. He referred to himself as plaintiff on all pages (including page 23) of the October 25, 1966, complaint. 13.

Since page 23 of plaintiff’s exhibit 2 bears the notarial certificate of Jim Reddish dated September 6, 1966, it can only be concluded that one of the papers which Reddish notarized for the plaintiff on that date (and mailed to the attorney general of Florida, the chief justice of the Florida Supreme Court and the Chief Justice of the United States) was returned to the plaintiff by one of the addressees and was used as a last page of plaintiff’s exhibit 2. 14. Plaintiff’s testimony at the trial session, that he did prepare plaintiff’s exhibit 2 and requested its mailing to the court, is not worthy of belief. 15.

The affidavit attached to plaintiff’s exhibit 2 is completely unrelated to the contents of the 23-page complaint. 16. There is no letter of transmittal to the court, such as was attached to the October 25, 1966 complaint. The latter complaint is complete with a multitude of affidavits, motions, exhibits and an appendix, which do not appear in plaintiff’s exhibit 2. 17. It is found that the plaintiff did not, while in prison, attempt to mail a complaint to this court prior to September 26, 1966.

CONCLUSION OF Law Upon the foregoing findings of fact and opinion, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff’s petition must be and it hereby is dismissed. 183 Ct. Cl. 145, 391 F. 2d 938. 183 Ct. Cl. 150, 394 F. 2d 519.