Ammons, Vincent v. Gerlinger, Bruce ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-2920 & 08-1448
V INCENT L. A MMONS,
Plaintiff-Appellant,
v.
B RUCE G ERLINGER, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 3:06-cv-00020-bbc—Barbara B. Crabb, Chief Judge.
S UBMITTED O CTOBER 2, 2008—D ECIDED O CTOBER 27, 2008
Before E ASTERBROOK, Chief Judge, and W ILLIAMS and
S YKES, Circuit Judges.
P ER C URIAM. Vincent Ammons, a felon serving time
in Wisconsin, sued several of his prison’s staff members
under 42 U.S.C. §1983. He proposed to litigate without
prepaying fees or costs, but the district court denied that
request because he has at least three frivolous suits or
appeals to his credit. 28 U.S.C. §1915(g). He then paid
the filing fee. The district court entered summary judg-
ment for the defendants, and Ammons filed a notice of
appeal but did not pay the required appellate fees.
2 Nos. 07-2920 & 08-1448
For unexplained reasons, the district court deemed the
notice of appeal to include a request for leave to proceed
in forma pauperis. Having already decided that Ammons
is statutorily ineligible for that privilege unless under
imminent danger of serious physical injury, the only
exception to §1915(g), the district judge should not
have reopened this subject. Then, again without explana-
tion, the district judge authorized Ammons to litigate
his appeal without prepaying the fees and directed him
to submit a certified copy of his trust account so that a
partial fee could be assessed under §1915(a)(2). He com-
plied without alerting the judge to her error and has
accepted a benefit to which he knows he is not entitled.
Because Ammons has a history of frivolous suits and
appeals, he must prepay all fees unless in imminent
physical danger—which he is not. (For samples of his
frivolous litigation, see Ammons v. Radtke, No. 96-1100 (7th
Cir. Sept. 5, 1996); Ammons v. Poliak, No. 95-2069 (7th Cir.
July 5, 1995); Ammons v. Fitzpatrick, No. 94-C-806 (E.D. Wis.
July 28, 1994); Ammons v. Ames, No. 94-C-0264 (E.D. Wis.
Mar. 15, 1994).) His effort to take advantage of the
district court’s obvious error—obvious because the
judge had already told Ammons in this very suit that
§1915(g) requires payment—was deceptive if not fraudu-
lent. A litigant who knows that he has accumulated
three or more frivolous suits or appeals must alert the
court to that fact. See Sloan v. Lesza, 181 F.3d 857, 858–59
(7th Cir. 1999). Ammons did not do that at the outset, and
later he took advantage of the district court’s oversight.
We enforce §1915(g) by terminating this appeal—not
Nos. 07-2920 & 08-1448 3
only for lack of payment but also as a sanction for mis-
conduct. See Campbell v. Clarke, 481 F.3d 967 (7th Cir. 2007).
Filing fees remain due. The fee for each notice of appeal
is $455, and Ammons’s prison has so far remitted $42.83
toward that sum for his initial appeal. We say “initial”
appeal because he has filed two. Six months after the
district court entered judgment for the defendants,
Ammons filed a motion under Fed. R. Civ. P. 60(b) asking
the court to reopen its decision. When that motion was
denied, Ammons filed another appeal. He proposed to
have it treated as an amendment to the initial notice
of appeal, but this court’s clerk docketed it as a second
appeal and directed the district court to access and
collect the required fees. The district judge determined
that no further fee is required. That was another
mistake, and we publish this opinion to make clear that
a fee is due when a litigant appeals from an adverse
decision on a Rule 60(b) motion.
One fee is due for each notice of appeal. See Fed. R.
App. P. 3(e). Ammons can avoid paying a second fee
only if the initial notice of appeal can be amended to
contest the order denying the Rule 60(b) motion, for “[n]o
additional fee is required to file an amended notice [of
appeal].” Fed. R. App. P. 4(a)(4)(B)(iii). A notice of appeal
may be amended within the time allowed for appeal.
Rule 4(a)(4)(A) extends that time for specified motions
that suspend a judgment’s finality. If an appeal is filed
before such a motion has been resolved, then it may be
amended after the motion is denied. Fed. R. App. P.
4(a)(4)(B)(ii).
4 Nos. 07-2920 & 08-1448
A motion under Rule 60 is on the list in Rule
4(a)(4)(A)—but only when “filed no later than 10 days after
the judgment is entered.” Fed. R. App. P. 4(a)(4)(A)(vi).
The idea behind this subsection is that a motion
nominally under Rule 60, but made within the time
available for a motion under Rule 50, 52, 54, or 59, should
be treated the same as one of those motions (all of
which must be filed within 10 days, or not at all) no
matter what its caption. A Rule 60 motion filed after
10 days, however, does not affect the time to appeal, and
whether the district court grants or denies that motion
a separate notice of appeal is required if a litigant ad-
versely affected by the decision wants appellate review.
See Martinez v. Chicago, 499 F.3d 721, 727 (7th Cir. 2007);
SEC v. Van Waeyenberghe, 284 F.3d 812, 814 (7th Cir. 2002).
Ammons’s Rule 60 motion was filed more than
10 business days after the judgment. Rule 4(a)(4)(B)(ii)
therefore did not allow him to amend his original notice
of appeal to include a challenge to the district court’s
order denying his motion. That order was independently
appealable, and a second notice of appeal—and hence
a second fee—was essential.
Newlin v. Helman, 123 F.3d 429, 436–37 (7th Cir. 1997),
holds that, when a prisoner who is subject to §1915(g)
continues filing suits or appeals without paying
required fees, this court will enter an order directing
the clerks of all courts within this circuit to return all of
the litigant’s future filings until the necessary fees have
been paid. Ammons paid the filing fee for the suit in
the district court, but he owes $867.17 for his two ap-
Nos. 07-2920 & 08-1448 5
peals. Until that sum has been received, clerks of court will
return any papers that Ammons submits (other than any
collateral attacks under 28 U.S.C. §2254 on his imprison-
ment). Cf. Support Systems International, Inc. v. Mack, 45
F.3d 185 (7th Cir. 1995).
The appeals are dismissed, and a Newlin order will
be entered.
10-27-08