et seq. Plaintiff brought his pro se complaint to
the Clerk's Office on the 89th day after receipt of his right-to-sue
notice from the Equal Employment Opportunity Commission. At that time,
plaintiff gave the complaint to the clerk along with a petition for leave
to file in formal pauperis. Five days later, plaintiff was granted leave
to proceed in forma pauperis; on that same day, the clerk filed
plaintiff's complaint. Defendant now brings a motion to dismiss on the
ground that plaintiff's complaint was not filed within the statutory
90-day period. We deny that motion.
Rule 11 of the General Rules for the United States District Court for
the Northern District of Illinois spells out the procedures for handling
a complaint which is accompanied by a petitioner leave to file in forma
pauperis. The rule requires the Clerk of the Court to accept the complaint
when it is first brought in to stamp the complaint "received" as the date
it is brought in; to file the petition for leave to file in forma
pauperis; and to forward all of the papers to the judge to whom the
petition is assigned. The rule then provides: "If the judge grants
plaintiff leave to file, the complaint shall e filed as of the date of
such order except s otherwise provided in the order...."
As illustrated by this case, these procedures, if followed literacy
could cause extreme and unwarranted prejudice to a plaintiff. For these
reasons, Judge Marovitz held in an identical case that where the
plaintiff presented his complaint along with his pauper petition and
affidavit of financial status, "and it was only because of internal
administrative procedures that the actual `filing' was delayed," the
plaintiff satisfied the statutory requirement of initiating a civil action
within 90 days. Crook v. Penn Central Transportation Company,
427 F. Supp. 956, 961 (N.D.Ill. 1977). Crook is on all fours with our
case, and we adopt its reasoning here.
Defendant's citation Harris v. National Tea Company, 454 F.2d 307 (7th
Cir. 1971), is not helpful because in Harris the plaintiff had requested
appointment of counsel but had not presented her complaint within the
statutory period. The plaintiff in Harris had "neither named the
defendant nor mentioned any claim of discrimination." Archie v. Chicago
Truck Drivers, Helpers and Warehouse Workers Union, 585 F.2d 210, (7th
Cir. 1978) (distinguishing Harris). Here, however, plaintiff did present
his complaint when he filed his pauper petition. The complaint did name
the defendant and spell out plaintiff's discrimination charge. The fact
that a summons was not issued within the 90-day period is not relevant
because this, too, was caused by internal administrative procedures,
which a plaintiff should not be penalized for following. Crook, supra, at
961-62; Archie, supra, at 217-218 (adopting the Crook reasoning).
As additional support for holding that plaintiff's claim was filed
within the 90-day period, we believe that General Rule 11, discussed
above, contemplates the inequities which could result to a plaintiff in
this situation and accordingly authorizes the court to deem a complaint
filed at the time it is presented rather than the time the pauper
petition is approved. As noted, the rule provides that "[i]f the judge
grants plaintiff leave to file [in forma pauperis], the complaint shall
be filed as of the date of such order except as otherwise provided in the
order...." (emphasis supplied). Because of the "remedial purposes" of
Title VII, Liberles v. County of Cook, 709 F.2d 1122, 1125 (7th Cir.
1983), and bearing in mind that "a technical reading of the filing
provisions [of Title VII] would be "particularly inappropriate in a
statutory scheme in which laymen, unassisted by trained lawyers, initiate
the process,'" Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 397,
102 S.Ct. 1127, 1134, 71 L.Ed.2d 234 (1982), quoting from Love v. Pullman
Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972), we
amend our order of July 11, 1982 granting plaintiff leave to file in
forma pauperis by adding the following sentence: "Plaintiff's complaint
shall be deemed filed on July 6, 1983."
For the reasons stated above, defendant's motion to dismiss is denied,
and our order of July 11, 1983 granting plaintiff leave to file in forma
pauperis is amended by adding the sentence, "Plaintiff's complaint shall
be deemed filed on July 6, 1983."
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