Gilbert v. Victim Compensation and Government Claims Bd. CA5

BACKGROUND

On February 11, 2008, while performing his assigned duties as a state prisoner, appellant was injured. According to appellant, his right index finger was severed just below the fingernail. Appellant prepared a government tort claim dated August 3, 2008. Appellant alleges that he submitted the claim on August 3, 2008, by delivering it to a prison employee who then placed it in the prison mailbox provided for collection of outgoing legal mail. However, the prison mail log does not list appellant’s claim as outgoing mail on August 3 or any date thereafter.

2. The Board denied appellant’s claim on September 9, 2008, as untimely. Thus, although the prison mail log has no record of this claim being sent, it must have been sent at some point for the Board to receive it before it was denied on September 9. Appellant responded to this denial by arguing that his claim was timely because it was deposited in the prison mail on August 3, 2008, and should have been mailed by August 4, 2008. Appellant further asserted that, if the claim was mailed late, he was not at fault. The Board construed appellant’s response as an application for leave to file a late claim. On December 26,…