Opinion
DA 23-0658
11-21-2023
BRYAN N. ARVIDSON, Plaintiff and Appellant. v. DELOUIS BALL, BRAD BRAGG, RANDOLPH, LEO DUTTON, and LEWIS AND CLARK COUNTY, Defendants and Appellees.
ORDER
Bryan N. Arvidson has filed a verified Petition for Out-of-Time Appeal, indicating several reasons why he was unable to seek a timely appeal. He states that he never received a copy of the Lewis and Clark County District Court's Dismissal Motion Order in May 2023, as supported by a copy of the incoming and outgoing mail for that time frame from Crossroads Correctional Center (CCC), where he was housed. He adds that he only knew about the final judgment when he received a Notice of Entry of Judgment on July 17, 2023, from Defendants' counsel. Arvidson points out that he was transferred to Montana State Prison (MSP) on August 29, 2023. which delayed submitting his legal documents.
This Court observes that while Arvidson provides a verified Petition, pursuant to M. R. App. P. 4(6), he did not serve copies of his pleading on counsel of record, pursuant to M. R. App. P. 10(2). He states on the Certificate of Service form, that he "was unable to send a [copy] to the Defendant due to MSP only letting me get 30 copies per month."
M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice[.]"
Arvidson appeals a May 19, 2023 Order that granted the underlying Defendants' motion to dismiss because Arvidson's complaint was untimely. The District Court noted that pursuant to § 49-2-511 (3)(a), MCA, Arvidson had until February 12,2023, to file his Complaint. Because Arvidson's Complaint was not filed until February 21, 2023, the District Court held that his claims were barred as a matter of law.
Attached as Exhibit C to Arvidson's Petition for Out-of-Time Appeal is "Plaintiffs Reply to Defendants [sic] Motion to Dismiss." In his reply, Arvidson does not dispute that his Complaint had to be filed by February 12, 2023, nor does he dispute that it was not received by the District Court until February 21, 2023. But while acknowledging that "[a] complaint is considered filed for limitations purposefs] when the clerk receives it," Arvidson argues that "a prisoner's complaint... is filed as of the time the prisoner gives it to prison staff or place[s] it in the prison mailbox." Because Arvidson mailed his Complaint to the District Court on February 10, 2023, he argues that he "filed the complaint before [F]ebruary 12, 2023."
Arvidson cited two federal circuit court cases in ostensible support of his argument that a prisoner's complaint is deemed filed upon mailing. Neither of the cases Arvidson cited stands for this proposition.
In Montana, the filing of pleadings and other papers with the court as required by the Montana Rules of Civil Procedure shall be made by filing with the clerk of court. Unlike service by mail, which is complete on the date of mailing, filing by mail is not complete until the pleading is placed in the custody of the clerk of court. Lesage v. Twentieth Judicial Dist. Court, 2021 MT 72, ¶ 7, 403 Mont. .476, 483 P.3d 490 (citing Schaffer v. Champion Home Builders Co., 229 Mont. 533, 536, 747 P.2d 872, 874 (1987)).
We conclude that denial of Arvidson's Petition for an Out-of-Time Appeal will not amount to a gross miscarriage of justice. Accordingly, IT IS ORDERED that Arvidson's Petition for Out-of-Time Appeal is DENIED.
IT IS FURTHER ORDERED that the Clerk of the Supreme Court shall UPDATE counsel of record for the listed Appellees as Molenda L. McCarty.
The Clerk is directed to provide a copy of this Order to Molenda L. McCarty, counsel of record, along with a copy of Arvidson's Petition for Out-of-Time Appeal, and to Bryan N. Arvidson.