Raymond Sease v. Lawrence Darko ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 13, 2019
Decided November 27, 2019
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-2284
RAYMOND A. SEASE, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 15-cv-877
LAWRENCE DARKO, et al.,
Defendants-Appellees. John Z. Lee,
Judge.
ORDER
Raymond Sease sued two Chicago police officers under 42 U.S.C. § 1983 for
falsely arresting and unreasonably searching him eight years earlier. The district court
found Sease’s claims untimely and entered summary judgment in favor of the officers.
The court also denied Sease’s motion to reconsider. Sease’s appeal is timely only with
regard to the denial of his postjudgment motion, which the district court appropriately
denied, so we affirm.
No. 18-2284 Page 2
I
A little past midnight on July 24, 2007, Officers Anthony Lewis and Lawrence
Darko were on patrol when, as Lewis testified at his deposition, a “concerned citizen”
flagged them down and said he believed “some guys” were selling drugs behind a
nearby restaurant on Chicago’s south side. The officers drove to the restaurant. Upon
seeing Sease and two others, the officers got out of their car. As Lewis approached,
Sease walked toward him but then started running away. Lewis pursued on foot.
Lewis testified that he saw Sease tear open a plastic bag and toss out white
powder. Sease denies carrying this bag. Suspecting that the powder was cocaine, Lewis
ordered Sease to the ground and handcuffed him. (The substance was, in fact, cocaine.)
Lewis searched Sease’s coat pocket and found 10 to 30 grams of cannabis and a few
unprescribed Viagra pills. The parties dispute whether Sease also had heroin, ecstasy,
and Xanax. Sease was charged in state court with felonies for possession with intent to
deliver cocaine, cannabis, heroin, and Viagra. In February 2012, Sease moved to quash
his arrest and suppress the seized evidence because the officers had no reasonable
suspicion to stop him. His motion was eventually granted after the judge determined
that the law was unsettled over whether police may chase after suspects who flee in
high-crime areas. The state dismissed the charges.
In 2015, nearly eight years after his arrest, Sease brought this § 1983 suit against
Officers Lewis and Darko and the City of Chicago for false arrest and an unreasonable
search. After the court dismissed the City of Chicago from the suit because of Sease’s
failure to state a Monell claim, the officers moved for summary judgment. The officers
argued that when Sease filed suit in 2015, his claims were barred by the two-year statute
of limitations applicable to § 1983 claims. 735 ILCS 5/13-202; Brooks v. City of Chicago,
564 F.3d 830, 832 (7th Cir. 2009).
At Sease’s deposition, he agreed that he “knew” in July 2007 that he had been
arrested and searched “for no reason.” Sease countered that his claims were not time-
barred because they did not arise until the suppression hearing in February 2012—
when, he argued, he learned that the officers had “fabricated” the “concerned citizen.”
Sease reasoned that the officers must have fabricated the tipster’s identity because
neither officer could identify the “concerned citizen” or describe the person in terms
other than race. Given this fabrication, Sease invoked Illinois’s fraudulent concealment
statute, 735 ILCS 5/13-215, and argued that the statute of limitations had tolled for five
years, until February 2017, rendering his claims timely.
No. 18-2284 Page 3
On September 26, 2017, the district court granted the officers’ motion and entered
summary judgment in their favor, concluding that Sease’s claims were untimely
because he knew or should have known that he had been wrongfully arrested as early
as 2007. In the court’s view, Sease’s belief that the officers had concocted the story was
sheer speculation and thus could not defeat a summary judgment motion.
On October 26, 30 days after the entry of judgment, Sease sought an extension of
time to file a motion to reconsider. The district court granted him a month’s extension
until November 27.
On November 27, Sease filed a motion to reconsider, arguing that the
defendants’ inconsistencies and improbabilities at the suppression hearing in his
criminal case had created a credibility contest over whether the officers fraudulently
concealed the fabrication of the “concerned citizen.”
On May 18, 2018, the district court denied the motion to reconsider, finding
Sease’s arguments inappropriate because he did not identify “newly discovered
evidence” or any “manifest errors of law or fact.” See Hicks v. Midwest Transit, Inc., 531
F.3d 467, 474 (7th Cir. 2008) (“[M]otions for reconsideration serve a limited function; to
correct manifest errors of law or fact or to present newly discovered evidence.” (quoting
Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987)).
Twenty-one days later, on June 8, 2018, Sease filed a notice of appeal. This court,
noting that Sease’s notice appeared to be untimely as to the underlying judgment, see
FED. R. APP. P. 4(a)(4), ordered him to explain why appellate review should not be
limited to the district court’s May 18 order denying his motion to reconsider. After both
parties submitted statements, we limited the appeal to a review of the May 18 order.
We explained that the district court entered judgment on September 27, 2017,
and Sease filed his notice of appeal on June 8, 2018, far exceeding the 30-day time limit
imposed by FED R. APP. P. 4(a)(1)(A). If Sease had filed his motion to reconsider
earlier—within 28 days of entry of the judgment—then the rules would have allowed
for tolling of the deadline to appeal. See FED. R. APP. P. 4(a)(4)(A)(v) (permitting tolling
if a FED. R. CIV. P. 59 motion is filed 28 days from entry of judgment); FED. R. APP. P.
4(a)(4)(A)(vi) (allowing for tolling if a FED. R. CIV. P. 60(b) motion is filed 28 days from
entry of judgment). But Sease missed the 28-day window to file his postjudgment
motion, and FED. R. CIV. P. 6(b) prohibited the district court from keeping the window
open any longer. See Blue v. Int’l. Bhd. of Elec. Workers, 676 F.3d 579, 583 (7th Cir. 2012).
So the clock had continued ticking on the underlying judgment, and Sease’s notice of
No. 18-2284 Page 4
appeal was too late. Sease’s appeal of the district court’s denial of his motion to
reconsider, however, was timely.
II
A
Sease now argues that because the defendants did not object to the district
court’s extension of time for him to file his motion to reconsider, they forfeited any
argument that this motion was untimely for purposes of FED. R. APP. P. 4’s tolling
provision. Under Rule 4, the timely filing of one of the listed postjudgment motions
tolls the time to appeal until an order is entered that disposes of the last remaining
motion. See FED. R. APP. P. 4(a)(4)(A)(i)–(vi). Sease argues that his motion to reconsider
was one such postjudgment motion, tolling the time to appeal until the district court
issued an order denying it.
Blue covers Sease’s case. Sease did not file his motion to reconsider until two
months after entry of judgment. In Blue, we confirmed that only “timely” postjudgment
motions have tolling effect, and postjudgment motions are timely when filed within 28
days of the judgment. See 676 F.3d at 582; FED. R. APP. P. 4(a)(4)(A). Whether the district
court granted an extension to file a postjudgment motion does not matter because FED.
R. CIV. P 6(b)(2) prohibits a court from extending the time to appeal such a motion. Blue,
676 F.3d at 582.
In so holding in Blue, we expressly rejected a contrary ruling by the Sixth Circuit,
National Ecological Foundation v. Alexander, 496 F.3d 466, 476 (6th Cir. 2007), which held
that a party’s forfeiture of an objection to an untimely Rule 59(e) motion “makes the
motion ‘timely’ for purposes of Rule 4(a)(4)(A)(iv).” We explained that allowing
untimely postjudgment motions to toll the appeal clock would “create[] a new
opportunity for parties to extend the time to appeal,” undermining congressional
“bounds on appellate jurisdiction.” Blue, 676 F.3d at 583. We have followed Blue since.
See, e.g., Robinson v. Sweeny, 794 F.3d 782, 783 (7th Cir. 2015); Justice v. Town of Cicero,
682 F.3d 662, 663–65 (7th Cir. 2012).
The timely filing of a notice of appeal in a civil case is a jurisdictional
requirement that cannot be forfeited by mere lack of objection. See Bowles v. Russell,
551 U.S. 205, 213–14 (2007); see 28 U.S.C. § 2107(a). Therefore, we cannot toll the appeal
clock simply because the defendants did not object to Sease’s extension of time. Further,
28 U.S.C. § 2107(c) provides the reasons under which a district court may delay the
No. 18-2284 Page 5
appeal clock—a court may do so “upon a showing of excusable neglect or good cause.”
Section 2107(c)’s requirement of a showing of excusable neglect or good cause to file an
appeal outside of the original deadline is jurisdictional and cannot be waived. Nestorovic
v. Metro. Water Reclamation Dist., 926 F.3d 927, 431 (7th Cir. 2019). The mere lack of
objection to “[a] party’s choice to wait, without more, is not a proper reason for
extending the time to appeal.” See id. at 432.
We stand by our preliminary order limiting Sease’s appeal to the denial of his
motion to reconsider.
B
On appeal Sease contends that his motion to reconsider—in which he questioned
the credibility of the officers’ testimony—did identify a “manifest error of law.” We
interpret this argument to mean that the district court erred in not finding that the
alleged inconsistent testimony by the officers created a triable issue of fact over whether
they had fraudulently concealed the fabrication of the “concerned citizen.”
Although Sease did not clarify whether he brought his motion to reconsider
under Rule 59(e) or 60(b), “the important question for characterizing these motions is
their timing,” Carter v. City of Alton, 922 F.3d 824, 826 n.1 (7th Cir. 2019), and we have
“long construed [untimely Rule 59(e) motions] as motions for relief under Federal Rule
of Civil Procedure 60.” Blue, 676 F.3d at 583. We do the same here.
The district court properly denied Sease’s motion to reconsider as inappropriate
under Rule 60(b). Relief under Rule 60 is limited to “extraordinary situations” where
the judgment is not merely the result of an error of law. Kennedy v. Schneider Elec.,
893 F.3d 414, 419 (7th Cir. 2018). Sease did not explain why the “inconsistencies and
improbabilities” in the defendants’ testimony constituted such an “extraordinary
situation.” Even if Sease’s motion could be construed under Rule 60(b)(3) to allege fraud
by an opposing party, “the alleged fraud must go beyond mere discrepancies in the
record evidence.” Id. at 420. Nor could Sease avail himself under the catch-all provision
of Rule 60(b)(6) (“other reason that justifies relief”). Sease believes that the district court
overlooked a fact question regarding whether the defendants fraudulently concealed
the fabrication of the tipster, but arguments that the court “misinterpreted the evidence
that was presented” cannot provide Rule 60(b) relief. Id.For these reasons, we AFFIRM.