Albert Schuholz v. Robert McFadden , 230 F. App'x 637 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1320
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Albert Schuholz, *
*
Appellant, * Appeal from the United States
* District Court for the Western
v. * District of Missouri
*
Robert McFadden; United States, * [UNPUBLISHED]
*
Appellees. *
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Submitted: July 26, 2007
Filed: July 31, 2007
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Before RILEY, MAGILL, and SMITH, Circuit Judges.
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PER CURIAM.
Federal inmate Albert Schuholz appeals the district court’s dismissal, as time-
barred, of his complaint brought under the Federal Tort Claims Act. He also moves
for leave to appeal in forma pauperis. We grant Schuholz leave to proceed in forma
pauperis on appeal, see Henderson v. Norris, 129 F.3d 481, 484-85 (8th Cir. 1997)
(per curiam), and for the reasons discussed below, we reverse and remand.
Upon de novo review of the record, see Duncan v. Dep't of Labor, 313 F.3d
445, 446 (8th Cir. 2002) (per curiam) (standard of review), we find that the district
court erred in concluding that Schuholz’s complaint was time-barred. This is because
the complaint was presented to the district court in a timely manner on June 11, 2005:
through what appears to have been a misunderstanding in the clerk’s office, the
complaint was erroneously filed in an existing case, and by the time the error was
discovered and the complaint was correctly filed as a new case on January 5, 2006, the
six-month limitations period under 28 U.S.C. § 2401(b) had expired. When the
complaint was filed as a new action, the district court clerk failed to docket it as
having been filed on June 11, 2005--the date that the complaint was received in the
district court. See Fed. R. Civ. P. 3 (civil action is commenced by filing complaint
with court), 5(e) (defining “filing” with court).
Accordingly, the judgment is reversed and the case remanded for further
proceedings consistent with this opinion.
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