Circuit gives pro se inmate a break

The case involves continuing violations and equitable tolling for an inmate who claims he got lousy medical care while he was incarcerated. The Court of Appeals revives the claim on the basis that plaintiff might be excused for his late filing because he was made to wait for a notary to stamp his lawsuit.

The case is Sides v. Paolano, a summary order issued on October 22. Sides says that in August/September 2012, he was denied adequate medical care. He filed the lawsuit on October 1, 2012, more than three years after the bad medical treatment. Problem: the statute of limitations is three years. The lawsuit fell outside that time-frame. Can plaintiff get around this? The district court said no. The Court of Appeals (Walker, Carney and Koeltl [D.J.]) says yes.

Equitable tolling is God's way of saying that some latenesses can be excused, but only for a compelling reason. Plaintiff says that he needed a notary stamp on his lawsuit before he could file it. He requested the notary at the prison on September 21, 2015, and he got the assistance on September 29, 2015. We call that bureaucratic inertia. It's not like inmates can just walk into a bank for a notary. You are at the mercy of prison staff. Notarizing signatures is not a priority.

State court lawsuits in New York have to be verified. That is not the case in federal court. Why did plaintiff need a notary in the first instance? Sides says he relied on a pro se handbook and a prisoner manual that said complaints have to be notarized. Only injunction applications in federal court need to be notarized, since you have to file an affidavit.

The Court of Appeals says the handbook advice may or may not have been correct. But we have an inmate plaintiff here, and the cases have long held that inmates get some solicitude in dealing with deadlines and other procedural requirements. Since Sides did file his lawsuit within days of the September 28, 2015 deadline, the late filing might be excused. The case is sent back to the district court to determine in the first instance whether plaintiff is entitled to equitable tolling.