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Johnny Licerio is confined to the Colorado Mental Health Institute at Pueblo. But his claims don’t concern his treatment at CMHIP, they concern an earlier attack on Licerio while he was a pretrial detainee at the Arapahoe County Detention Facility. Licerio alleged officers at ACDF facilitated and encouraged the attack, including engineering his placement in a specific pod, and giving inmates information about him. He also alleged medical personnel denied him adequate treatment after the attack, at the ACDF and at a local hospital.
Licerio’s complaint made 14 claims against seven named defendants and 10 Doe defendants. Several defendants moved to dismiss the claims against them, and a magistrate judge recommended the district court dismiss all of Licerio’s claims because he failed to state a claim where relief could be granted. The magistrate judge’s report and recommendation notified Licerio that he had 14 days to file written objections to the recommendation and that failure to file timely objections could result in a waiver of the right to appeal.
The report and recommendation were filed July 15, 2021. Licerio was served by mail, so he had three additional days to file his objections. The extended deadline was Aug. 2 and the district court didn’t receive the objections until Aug. 6. The district court considered the objections but it ultimately adopted the recommendation and dismissed the complaint with prejudice.
Licerio claimed his objections were timely by invoking the prison-mailbox rule. This rule states that an inmate who places a federal court filing in the prison’s internal mail system will be treated as having filed the document on the date given to prison authorities for mailing. The rule carries specific requirements that the inmate must establish timely filing by alleging and proving they made timely use of the prison’s legal mail system or if a legal system isn’t available, then by making timely use of the prison’s regular mail system with a notarized statement or declaration under penalty of perjury of the date on which the documents were given to prison authorities and attesting postage was prepaid.
Licerio’s response states, under penalty of perjury, that at the time he wasn’t aware of the requirements for satisfying the prison-mailbox rule, but that he deposited his objections into CMHIP’s mailbox July 18, 2021. Licerio asked the court to accept his response as a late-filed declaration of compliance with the mailbox rule.
According to the 10th Circuit Court of Appeals, Licerio’s certificate of service doesn’t satisfy the prison-mailbox rule because it didn’t state that postage was prepaid, so his objections were untimely. Even if the objections had been timely, several of Licerio’s objections weren’t sufficiently specific. The 10th circuit affirmed the district court’s judgment.