John Taylor, Jr. v. James Brown , 787 F.3d 851 ( 2015 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 12-1710
    JOHN E. TAYLOR, JR.,
    Plaintiff-Appellant,
    v.
    JAMES BROWN,
    Defendant-Appellee.
    ____________________
    Appeal from the United States District Court
    for the Southern District of Illinois.
    No. 11-cv-631-GPM — G. Patrick Murphy, Judge.
    ____________________
    ARGUED DECEMBER 4, 2014 — DECIDED JUNE 2, 2014
    ____________________
    Before BAUER, RIPPLE, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. John Taylor, an Illinois prisoner,
    filed suit against several prison officials alleging various
    civil-rights violations, but his complaint included misjoined
    claims, one of which was a failure-to-protect claim against
    Officer James Brown. A magistrate judge issued a show-
    cause order indicating that he was inclined to sever the
    claims but that Taylor could avoid a severance order—and a
    second filing fee—if he dismissed one of the misjoined
    2                                                  No. 12-1710
    claims voluntarily. Taylor reluctantly accepted the court’s
    advice and drafted a response voluntarily dismissing his
    claim against Officer Brown. Two days before the judge’s
    deadline, Taylor gave the document to a prison librarian to
    be e-filed. The court clerk never received it, however, and
    the judge severed the claim against Officer Brown, opened a
    new case, and assessed a second filing fee.
    Both Taylor and the officer subsequently argued that
    Taylor’s voluntary dismissal was timely under the prison
    mailbox rule, but the court never addressed the issue. That
    was a mistake. Taylor’s voluntary dismissal motion was
    indeed timely under the prison mailbox rule, so the court
    should not have severed the claim or imposed a second
    filing fee.
    I. Background
    On February 7, 2011, Taylor filed a pro se complaint seek-
    ing relief under 42 U.S.C. § 1983 against several employees
    of the Menard Correctional Center in southern Illinois where
    he was incarcerated. Taylor didn’t formally differentiate his
    various allegations against the defendants, but the district
    judge tasked with screening the complaint under 28 U.S.C.
    § 1915A discerned five distinct claims. The judge dismissed
    three of the claims as legally or factually inadequate, but two
    survived: Count 1 alleged medical indifference on the part of
    several prison officials (primarily for failing to supply Taylor
    with needed medication), and Count 3 alleged that Officer
    Brown failed to protect Taylor from an assault by his cell-
    mate. The suit was docketed as case number 11-cv-104-JPG
    (the “104 Case”), and Taylor was approved to proceed in
    No. 12-1710                                                   3
    forma pauperis (“IFP”), meaning he could pay the $350 filing
    fee in installments. See 28 U.S.C. §§ 1914(a), 1915.
    A magistrate judge reviewed the complaint and on
    June 29 issued an order to show cause stating that he was
    inclined to sever Counts 1 and 3 because they involved
    different events and defendants. See FED. R. CIV.
    P. 20(a)(2)(B) (Multiple defendants may be joined in one
    action only if “any question of law or fact common to all
    defendants will arise in the action.”); FED. R. CIV. P. 21 (“On
    motion or on its own, … [t]he court may … sever any claim
    against a party.”). The order informed Taylor that a second
    filing fee would be assessed if the claims were severed, but
    also explained that he could avoid the fee if he voluntarily
    dismissed either count by July 13.
    On July 6 the defendants expressed their support for ei-
    ther a severance or the voluntary dismissal of either count
    and agreed that they “would suffer no plain legal prejudice
    as a result of an order permitting [a] voluntary dismissal.”
    Taylor drafted a response to the show-cause order in ear-
    ly July. In it he accepted the court’s suggestion that he
    voluntarily dismiss one of the counts, saying that he “reluc-
    tantly will dismiss Count III, even though the [p]laintiff in
    his limited knowledge of the [l]aw believes that Count III …
    should be included in the complaint.” He added, “[f]or
    another filing fee to be levied upon the [p]laintiff it would be
    a miscarriage of justice” and “an overwhelming financial
    burden,” and “[t]herefore, under duress, the [p]laintiff will
    dismiss Count III.”
    By this time, however, Taylor had been transferred from
    Menard to the Stateville Correctional Center. Stateville had
    4                                                         No. 12-1710
    recently instituted a policy requiring prisoners’ court docu-
    ments to be digitally scanned and e-filed by prison librari-
    ans. On July 11 Taylor gave his response to a Stateville law
    library paralegal named Ms. Winters. Taylor told her that it
    was due July 13, and she assured him that it would be e-filed
    before then. It wasn’t. Whether Winters forgot or there was a
    technical glitch (she later claimed another staff member
    watched her upload it), the document Taylor gave her on
    July 11 never found its way to the court clerk. It was, how-
    ever, mailed in hard-copy form to defense counsel, who
    received it on July 19.
    Having received no word from Taylor by the July 13
    deadline, the magistrate judge severed Counts 1 and 3 under
    Rule 21 on July 22.1 The clerk redocketed Count 3 as 3:11-cv-
    00631-GPM (“the 631 Case”), and Taylor was ordered to pay
    the $350 filing fee immediately or apply to proceed IFP.
    When Taylor was informed of the severance in late July,
    he became concerned that the court had not received his
    response to the show-cause order. He asked Winters to refile
    the document with a note indicating that it was a repeat
    filing. The court clerk docketed the uploaded response in the
    104 Case on August 4.
    On August 18 Officer Brown, as the only defendant in the
    631 Case (the original Count 3), moved to dismiss. His
    primary argument was that because Taylor had “attempted
    to agree to dismiss Count 3 of [p]laintiff’s [c]omplaint in [the
    104 Case] by the [c]ourt’s deadline and before the [c]ourt
    1The 104 Case (that is, Count 1) was later resolved in March 2013 on the
    defendants’ motion for summary judgment.
    No. 12-1710                                                              5
    directed the [c]lerk to open the instant case,” his response to
    the order to show cause was timely under the prison mail-
    box rule.2 Officer Brown asked the court to allow Taylor,
    even now, to voluntarily dismiss the claim as he had tried to
    do in his July 11 response.3
    Taylor responded on August 24 and explained that he
    had no control over when his motion for a voluntary dismis-
    sal was filed after he gave it to the prison paralegal. He
    “ask[ed] that the [c]ourt not penalize the [p]laintiff for the
    [m]otions arriving beyond the deadline date to respond to
    the Show Cause Motion.” Rather, because he “voluntarily
    request[ed] the [c]ourt to dismiss Count III that no further
    charges be [assessed] to the [p]laintiff’s account,” he
    “pray[ed] that the [c]ourt will dismiss the Count III without
    prejudice.”
    On August 29 Taylor again asked the court to “consider[]
    that the [p]laintiff had absolutely no control of the Motion to
    2 Officer Brown’s motion to dismiss was the first clear indication to
    Taylor that his July 11 response had not been properly filed. Taylor
    wrote to the court clerk on September 11 and to the magistrate judge on
    September 19 seeking to confirm whether any documents had been filed
    on his behalf in the 104 Case in July 2011. On October 18 the court
    confirmed that nothing had been filed for him during that month.
    3 In the interest of completeness, we note that the next docket entry after
    Officer Brown’s motion to dismiss was an order from the court on
    August 23, 2011, reiterating that Taylor must pay the $350 filing fee
    immediately or request to proceed IFP, and that failure to do so would
    result in the dismissal of the case with prejudice.
    6                                                        No. 12-1710
    Dismiss being electronically sent to the [c]ourt”4 and “rule
    favorably on the Motion to Dismiss.”
    The district judge denied Officer Brown’s motion to dis-
    miss on September 12. The judge did not acknowledge the
    officer’s argument about the prison mailbox rule or refer to
    any of Taylor’s subsequent motions urging the court to
    accept his response to the show-cause order as timely filed.
    The court’s order was skeletal, but the judge seems to have
    been under the misapprehension that Taylor had agreed to
    the severance and wanted to pursue his claim against Officer
    Brown. And so despite the wishes of both parties, the second
    suit continued.
    Taylor never paid the filing fee for the 631 Case, nor did
    he request to proceed IFP. Accordingly, on September 22 the
    district judge dismissed the 631 Case with prejudice under
    Rule 41(b) for failure to comply with a court order. FED. R.
    CIV. P. 41(b). The judge also sua sponte ordered Taylor to
    pay Officer Brown’s litigation costs. See FED. R. CIV.
    P. 54(d)(1) (allowing for the prevailing party’s costs—other
    than attorney’s fees—to be reimbursed by the nonprevailing
    party).
    On September 30 and October 26, 2011, Taylor filed near-
    ly identical postjudgment motions detailing his attempts to
    file his response to the order to show cause and asking the
    court, again, to permit him to voluntarily dismiss his claim
    against Officer Brown. The first motion did not cite any
    procedural rule, but the court construed it as a motion to
    4 We think Taylor’s reference here to the “Motion to Dismiss” was meant
    to refer to his response to the show-cause order, in which he moved for
    voluntary dismissal of his claim against Officer Brown.
    No. 12-1710                                                      7
    alter or amend the judgment under Rule 59(e). See FED. R.
    CIV. P. 59(e) (requiring motions to alter or amend a judg-
    ment to be filed within 28 days of the judgment); Obriecht v.
    Raemisch, 
    517 F.3d 489
    , 493–94 (7th Cir. 2014) (explaining that
    a nonspecific motion for reconsideration based on a claimed
    error of law is treated as a motion under Rule 59(e), not
    Rule 60(b)). The second motion specifically requested relief
    from a final judgment under Rule 60(b). See FED. R. CIV.
    P. 60(b). The court denied both motions on February 29,
    2012. On March 12 Taylor filed a third postjudgment motion,
    also under Rule 60(b), which included an affidavit and
    evidence documenting his attempt to file his response to the
    order to show cause on July 11. The district court denied that
    motion on March 18, and Taylor timely appealed the denials
    of all three postjudgment motions.
    Taylor initially proceeded pro se on appeal, but we re-
    cruited pro bono counsel to assist him.5 We asked the parties
    to address two questions: (1) the effect of Taylor’s response
    to the show-cause order and Officer Brown’s motion to
    dismiss; and (2) whether Taylor’s response was timely under
    the prison mailbox rule.
    II. Discussion
    Despite the complex procedural history, the resolution of
    this case is relatively straightforward. As both Taylor and
    Officer Brown argued in the district court, Taylor’s response
    to the pre-severance show-cause order was timely under the
    5 The court thanks Barry Levenstam and Daniel T. Fenske of Jenner &
    Block LLP for their very capable pro bono representation of Taylor.
    8                                                 No. 12-1710
    prison mailbox rule. Since Taylor accepted the court’s pro-
    posal that he voluntarily dismiss Count 3, the 631 Case
    should never have come into existence, Taylor should not
    have been assessed a second filing fee, his claim against
    Officer Brown should not have been dismissed with preju-
    dice, and he should not have been held liable for Brown’s
    litigation expenses. Taylor is entitled to unwind the clock.
    A. Jurisdiction
    Before analyzing the prison mailbox rule, we must en-
    sure that the issue falls within the scope of this appeal.
    Wingerter v. Chester Quarry Co., 
    185 F.3d 657
    , 660 (7th Cir.
    1999); 28 U.S.C. § 1291. Officer Brown argues that the issue is
    out of bounds because the severance order was issued in the
    104 Case, and this is an appeal of the final judgment in the
    631 Case.
    It’s true that the severance order was initially entered in
    the 104 Case—that was the only case in existence at the time,
    after all—but it doesn’t follow that we cannot review that
    order in an appeal from the final judgment in the 631 Case.
    A newly severed case does not spring into existence ex nihilo;
    it’s more like a fork in a stream, and events that occurred
    pre-severance are logically common to both cases. It would
    be counterintuitive to hold that Taylor could only appeal the
    severance order from the “nonsevered” branch of the case
    (the 104 Case), which proceeded apace unaffected in any
    way by the severance, rather than the “severed” branch,
    which owed its very existence to the order. An additional
    concern is that the “nonsevered” branch of a case may be
    resolved long before the “severed” branch, effectively
    No. 12-1710                                                    9
    forcing parties to appeal a disputed severance preemptively.
    That result would strongly cut against the rationale for the
    final-judgment rule. See Chi. Bd. of Educ. v. Substance, Inc.,
    
    354 F.3d 624
    , 626 (7th Cir. 2003) (“[J]udicial economy is
    served by the consolidation of as many issues in a litigation
    as possible in a single appeal. That is why it is almost never
    mandatory to file an interlocutory appeal in order to pre-
    serve an issue for appellate review.”).
    We need not come to a definitive conclusion on the issue,
    however, because the judge expressly instructed the clerk to
    enter a copy of the severance order in the 631 Case docket.
    That makes it an interlocutory order in the 631 Case, and “an
    appeal from a final judgment brings up for review any
    interlocutory order that has not become moot.” 
    Id. Officer Brown
    counters that “post-severance … suits are
    independent for purposes of appellate jurisdiction.”
    Gaffney v. Riverboat Servs. of Ind., Inc., 
    451 F.3d 424
    , 444 (7th
    Cir. 2006). That’s certainly true, but it’s the severance order
    itself that’s at issue here, not the post-severance proceedings
    in the 104 Case. In fact, the independence of severed cases
    eliminates the risk that the resolution of this appeal could
    disturb the finality of the 104 Case; any objections Taylor has
    to the court’s handling of the 104 Case must be appealed
    from the final judgment in that case. In an appeal from the
    631 Case, we can only review the final judgment in the
    631 Case, including any interlocutory decisions that have
    merged with it.
    Since Taylor’s notice of appeal referred to the district
    court’s denial of his Rule 59(e) motion, we have jurisdiction
    over the final judgment in the 631 Case. See Kunik v. Racine
    County, Wis., 
    106 F.3d 168
    , 173 (7th Cir. 1997) (“[A]n appeal
    10                                                  No. 12-1710
    from the denial of a Rule 59(e) motion [is] also sufficient to
    bring the underlying judgment before the appellate court.”
    (citing Foman v. Davis, 
    371 U.S. 178
    (1962))); see also FED. R.
    APP. P. 3(c). And because “the appeal from the final judg-
    ment in the action brings up all interlocutory rulings that
    preceded it,” 
    Kunik, 106 F.3d at 172
    , we also have jurisdiction
    to review the severance order.
    B. Voluntary Dismissal and Amended Pleadings
    Before we can understand the effect of Taylor’s attempt
    to accept the magistrate judge’s proposal in the show-cause
    order, we must be clear about exactly what that proposal
    was—or, rather, what it should have been. The order to
    show cause said that Taylor could “avoid the financial
    burden of a new filing fee by filing a motion to voluntarily
    dismiss Count 1 or Count 3.” Taylor’s response mirrored the
    magistrate judge’s own language and asked to voluntarily
    dismiss the claim against Officer Brown. Although the court
    had the power to achieve its intended result—one claim
    dropped from the case while the other progressed—it used
    the wrong means.
    Voluntary dismissal by court order under Rule 41(a)(2)
    allows the plaintiff to dismiss “an action” on “terms that the
    court considers proper.” FED. R. CIV. P. 41(a)(2). Although
    some courts have held otherwise, we’ve said that Rule 41(a)
    “does not speak of dismissing one claim in a suit; it speaks of
    dismissing ‘an action’—which is to say, the whole case.”
    Berthold Types Ltd. v. Adobe Sys. Inc., 
    242 F.3d 772
    , 777 (7th
    Cir. 2001); see also Nelson v. Napolitano, 
    657 F.3d 586
    , 588 (7th
    Cir. 2011) (noting that “the purpose of Rule 41(a)(1) is to
    No. 12-1710                                                               11
    limit a plaintiff’s ability to dismiss an action” (citing Cooter &
    Gell v. Hartmarx Corp., 
    496 U.S. 384
    , 397 (1990))). Berthold
    Types and Nelson both concerned Rule 41(a)(1)(A), which
    allows for voluntarily dismissal without a court order, rather
    than 41(a)(2), but both provisions refer exclusively to “ac-
    tions”—which, as Berthold Types said, means the entire case.6
    Since “[w]e give the Federal Rules of Civil Procedure their
    plain meaning,” Pavelic & LeFlore v. Marvel Entm’t Grp.,
    
    493 U.S. 120
    , 123 (1989), Rule 41(a) should be limited to
    dismissal of an entire action.7
    6 We recognize that prior to Berthold Types, we were not always clear
    about whether Rule 41(a) could be used to dismiss individual claims. See,
    e.g., Baker v. Am.’s Mortg. Serv., Inc., 
    58 F.3d 321
    , 324 n.2 (7th Cir. 1995)
    (noting that this court has not yet defined the scope of Rule 41(a)(1)(A)(i)
    and assuming without deciding that a partial dismissal is acceptable);
    Winterland Concessions Co. v. Smith, 
    706 F.2d 793
    , 796 (7th Cir. 1983)
    (assuming arguendo that Rule 41(a) applies only to an entire action while
    noting that some courts had rejected that view). Other circuits appear
    divided. Compare Bailey v. Shell W. E&P, Inc., 
    609 F.3d 710
    , 719–20 (5th
    Cir. 2010) (“Rule 41(a) dismissal only applies to the dismissal of an entire
    action—not particular claims,” therefore, “[g]enerally, Rule 41(a)(1)
    dismissal results in immediate termination of the suit.”), with Wilson v.
    City of San Jose, 
    111 F.3d 688
    , 692 (9th Cir. 1997) (“The plaintiff may
    dismiss some or all of the defendants, or some or all of his claims,
    through a Rule 41(a)(1) notice.”).
    7 This interpretation is strengthened by the fact that Rule 41(b), which
    concerns involuntary dismissal, expressly provides that a defendant may
    move to dismiss “the action or any claim against it” for failure to prose-
    cute or comply with a rule or order. FED. R. CIV. P. 41(b) (emphasis
    added). The fact that the drafters of the rules clearly included both
    “actions” and “claims” in Rule 41(b) but only mentioned “actions” in
    Rule 41(a) is a strong indication that they intended there to be a distinc-
    tion between the two provisions.
    12                                                            No. 12-1710
    Because the court offered Taylor the opportunity to dis-
    miss the claim against Officer Brown in the 104 Case while
    pursuing the claim against the Count 1 defendants,
    Rule 41(a) was not the proper vehicle.8 Instead, the court
    should have offered Taylor the opportunity to amend his
    pleadings under Rule 15(a). Like Rule 41(a), Rule 15(a)
    allows a plaintiff to amend his complaint—including by
    adding or dropping parties and claims—as a matter of right
    in some situations and by court order in others, and “[t]he
    court should freely give leave when justice so requires.” FED.
    R. CIV. P. 15(a)(2).
    8 Taylor suggests that we could have resolved his case under a different
    provision of Rule 41(a)—Rule 41(a)(1)(A), which permits parties to
    stipulate to the dismissal of an action without requiring leave of the
    court. His position is that both parties stipulated to the dismissal of the
    631 Case as of the filing of Officer Brown’s motion to dismiss. But while
    such a stipulation would have dismissed Taylor’s claim against Officer
    Brown without prejudice, it would not have relieved Taylor from his
    obligation to pay the $350 filing fee. To voluntarily dismiss the 631 Case
    is to presume that it properly came into being, and if it properly came
    into being, then the filing fee is owed no matter when or how the case
    was resolved. See 28 U.S.C. 1914(a) (“The clerk ... shall require the parties
    instituting any civil action, ... whether by original process, removal or
    otherwise, to pay a filing fee of $350 ... .” (emphasis added)); Szabo Food
    Serv., Inc. v. Canteen Corp., 
    823 F.2d 1073
    , 1078–79 (7th Cir. 1987) (“You
    can only get so far with the comparison [of a voluntary dismissal] to a
    suit never filed, however. Suppose the plaintiff files suit and pays the
    filing fee with a rubber check, then orders a transcript of some prelimi-
    nary proceedings … and dismisses under Rule 41(a)(1)[A](i). Does the
    plaintiff avoid paying the docket fee and the court reporter on the
    ground that ‘[i]t is as if the suit had never been brought’? Neither filing
    fees nor reporters need be paid when suit is never filed, yet the plaintiff
    must pay up nonetheless.”). A plaintiff does not have to pay the filing fee
    for a case that was wrongfully severed over his objection, however.
    No. 12-1710                                                             13
    Accordingly, we construe Taylor’s response to the show-
    cause order as a motion to amend his complaint under
    Rule 15(a)(2) rather than as a motion to voluntarily dismiss
    an action under Rule 41(a). See McGee v. Bartow, 
    593 F.3d 556
    ,
    565 (7th Cir. 2010) (filings by pro se litigants are to be con-
    strued liberally). But for consistency’s sake, we will continue
    to refer to Taylor’s attempt to drop his claim against Officer
    Brown as an attempt at voluntary dismissal.9
    C. The Prison Mailbox Rule
    The magistrate judge’s show-cause order gave Taylor a
    straightforward choice: voluntarily dismiss one of the mis-
    joined claims and avoid a filing fee, or do nothing and the
    claims would be severed and a new filing fee imposed. The
    judge severed the claims only after finding that “[n]o objec-
    tions are on file.” Therefore, the key question is whether
    Taylor’s response to the show-cause order was timely in
    light of the prison mailbox rule.
    “The prison mailbox rule … provides that a prisoner’s
    notice of appeal is deemed filed at the moment the prisoner
    places it in the prison mail system, rather than when it
    reaches the court clerk.” Hurlow v. United States, 
    726 F.3d 958
    , 962 (7th Cir. 2013). The rule is justified because “the pro
    se prisoner has no choice but to entrust the forwarding of his
    notice of appeal to prison authorities whom he cannot
    9 The parties indicated that it’s common practice in some district courts
    in this circuit to allow the voluntary dismissal of individual claims under
    Rule 41(a). If that is true, we remind judges to use Rule 15(a) instead.
    14                                                          No. 12-1710
    control or supervise and who may have every incentive to
    delay.” Houston v. Lack, 
    487 U.S. 266
    , 271 (1988); see also Ray
    v. Clements, 
    700 F.3d 993
    , 1002–03 (7th Cir. 2012). Although
    the prison mailbox rule was first applied to notices of ap-
    peal, see 
    Houston, 487 U.S. at 276
    , the rule applies to all
    district-court filings save for “exceptional situation[s],”
    Edwards v. United States, 
    266 F.3d 756
    , 758 (7th Cir. 2001) (per
    curiam). See, e.g., 
    Ray, 700 F.3d at 1004
    (applying the prison
    mailbox rule to petitions for state postconviction relief unless
    state law clearly rejects it); 
    Edwards, 266 F.3d at 756
    (Rule 59(e) motions); Jones v. Bertrand, 
    171 F.3d 499
    , 501 (7th
    Cir. 1999) (petitions for federal writs of habeas corpus).
    We have not yet had occasion to apply the prison mail-
    box rule to documents that are e-filed by prison staff rather
    than sent through the prison mailroom. However, pro se
    prisoners are no more able to guarantee that properly ten-
    dered documents are e-filed than that they’re mailed. Ac-
    cordingly, we conclude that a pro se prisoner’s legal docu-
    ments are considered filed on the date that they’re tendered
    to prison staff in accordance with reasonable prison policies,
    regardless of whether they are ultimately mailed or upload-
    ed.10
    10 Some minor adaptations to current doctrine might be required for
    e-filing. For example, Rule 4(c) of the Federal Rules of Appellate Proce-
    dure requires that to qualify for the prison mailbox rule, a prisoner must
    submit a sworn affidavit stating that first-class postage has been prepaid,
    which is obviously not applicable when e-filing.
    No. 12-1710                                                 15
    D. Severance Order
    We review a court’s decision to sever claims for abuse of
    discretion. 
    Gaffney, 451 F.3d at 442
    ; Rice v. Sunrise Express,
    Inc., 
    209 F.3d 1008
    , 1016 (7th Cir. 2000). The same standard of
    review applies to the denial of a Rule 15(a) motion to
    amend—which, as we’ve said, is the procedural device the
    magistrate judge should have proposed and how Taylor’s
    response to the show-cause order should have been con-
    strued. Adams v. City of Indianapolis, 
    742 F.3d 720
    , 727 (7th
    Cir. 2014). If Taylor timely complied with the judge’s explicit
    instructions on how to dismiss his claim against Officer
    Brown and thereby avoid severance, it certainly would have
    been an abuse of discretion to ignore his motion for volun-
    tary dismissal of Count 3 and sever the claims anyway.
    We note, of course, that when the judge found that “[n]o
    objections are on file” and issued the severance order, he did
    not know that Taylor had attempted to file his response on
    July 11, two days before the deadline. So the initial severance
    order was not an abuse of discretion. However, the prison
    mailbox rule requires that courts reassess their orders once
    the rule has been invoked. In this case, the judge not only
    failed to reassess whether the severance was proper, he
    never acknowledged that the prison mailbox rule was in
    play—even after both parties brought the rule to his atten-
    tion.
    Officer Brown first referred to the prison mailbox rule in
    his August 18 motion to dismiss. Taylor’s subsequent filings
    provided detailed narratives of his attempts to file his re-
    sponse to the show-cause order. And although Taylor didn’t
    reference the prison mailbox rule by name, he clearly in-
    voked the principle when he asked the court to “accept the
    16                                                        No. 12-1710
    [p]laintiff’s argument and the State’s Attorney[’s] argument
    that the [p]laintiff has absolutely no control on when out-
    going mail goes out.” The relief he sought aligned exactly
    with that which Officer Brown had himself requested: “The
    [p]laintiff is asking that since the [p]laintiff is voluntarily
    requesting the [c]ourt to dismiss Count III that no further
    charges be [assessed] to the [p]laintiff’s account.”
    Likewise, in his August 29 response to the court’s order
    instructing him to pay the filing fee, Taylor reiterated that he
    “had absolutely no control of the Motion to Dismiss being
    electronically sent to the court” and asked the court to “rule
    favorably on the Motion to Dismiss.”11
    Despite the fact that the prison mailbox rule lay at the
    heart of Officer Brown’s motion to dismiss and Taylor’s
    responses, the district judge never mentioned the rule in his
    order denying the motion to dismiss (which also denied
    Taylor’s motions as “moot”). Rather, the court characterized
    Officer Brown’s argument as merely advancing the theory
    that “this case should be dismissed because Taylor agreed to
    the severance of Count III of his complaint in [the 104 Case]
    only reluctantly.” That understanding of the facts was
    clearly faulty. In his response to the show-cause order,
    Taylor didn’t reluctantly agree to sever Count 3—he
    11 There’s a minor ambiguity regarding whether Taylor’s request that the
    court “rule favorably on the Motion to Dismiss” referred to Officer
    Brown’s motion to dismiss or to his own response to the show-cause
    order, which Taylor had referred to as a motion to dismiss earlier in the
    document. But Officer Brown’s motion to dismiss argued that the court
    should give effect to Taylor’s response to the show-cause order, so the
    relief that Taylor was requesting was the same under either interpreta-
    tion.
    No. 12-1710                                                   17
    reluctantly agreed to voluntarily dismiss Count 3. The judge’s
    misunderstanding of Taylor’s wishes was compounded by
    his misapprehension that Taylor had already applied to
    proceed IFP in the 631 Case. If that were true, it would
    certainly have been a strong indication that Taylor wanted
    his suit against Officer Brown to survive. But, of course, it
    wasn’t true. The judge issued a clarification order the next
    day but never reexamined the implications of his mistaken
    assumption, nor did he confront Taylor’s multiple filings
    requesting the voluntary dismissal of his claim against
    Officer Brown in accord with the proposal made by the
    magistrate judge in the show-cause order.
    In sum, the court overlooked the prison mailbox rule
    throughout the course of this litigation even though both
    parties agreed that the rule applied, making Taylor’s motion
    to voluntarily dismiss timely and thus averting the sever-
    ance. By denying, sub silentio, Taylor’s motion to dismiss
    Count 3 and instead severing that count to create the
    631 Case, the court abused its discretion.
    When a court overlooks the prison mailbox rule, it’s often
    necessary to remand for additional fact-finding to ensure
    that the filing was, in fact, timely under the rule. But Officer
    Brown conceded below that Taylor qualified for the prison
    mailbox rule, so he’s waived any argument on appeal that
    Taylor did not qualify. See Hale v. Chu, 
    614 F.3d 741
    , 744 (7th
    Cir. 2010) (“It is well-established that a party waives the
    right to argue an issue on appeal if he fails to raise that issue
    before the district court.”). In situations where the rule
    serves to give a court jurisdiction over a matter that would
    otherwise be time-barred, the court has an independent duty
    to ensure that the prisoner actually sent his mail when he
    18                                                  No. 12-1710
    says he did—the opposing party’s waiver may not be
    enough. In those cases, prisoners are often required to
    submit a notarized affidavit attesting to the circumstances of
    the filing, see, e.g., FED. R. APP. P. 4(c), and sometimes addi-
    tional documentary or testimonial evidence is required, see
    
    Ray, 700 F.3d at 1011
    –12.
    Here, Taylor provided both a sworn affidavit and docu-
    mentary evidence in his second Rule 60(b) motion. Ordinari-
    ly, the basis for a successive Rule 60(b) motion must not
    have been available when the first one was filed, see Servants
    of the Paraclete v. Does, 
    204 F.3d 1005
    , 1012 (10th Cir. 2000),
    but here “the district court did not provide the appellant
    with an opportunity to prove that his [late-received docu-
    ments] were filed in a timely manner,” Thompson v. Rasberry,
    
    993 F.2d 513
    , 515 (5th Cir. 1993) (per curiam). See also Grady
    v. United States, 
    269 F.3d 913
    , 918 (8th Cir. 2001) (“[T]he
    prisoner must at some point attest to [the date of the filing] in
    an affidavit or notarized statement.” (emphasis added)). In a
    case like this in which a nonjurisdictional deadline was at
    stake and the opposing party conceded below that the
    mailbox rule applies and there is an affidavit from the pris-
    oner in the record, we see no reason to remand for addition-
    al fact-finding.
    Accordingly, we VACATE the order dismissing the
    631 Case with prejudice and taxing Officer Brown’s costs
    against Taylor. We REMAND for further proceedings con-
    sistent with this opinion, including the reimbursement of
    any fees Taylor has paid toward the 631 Case filing fee or
    toward Brown’s litigation expenses.
    

Document Info

Docket Number: 12-1710

Citation Numbers: 787 F.3d 851, 2015 U.S. App. LEXIS 9260

Judges: Bauer, Ripple, Sykes

Filed Date: 6/2/2015

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (19)

Bailey v. Shell Western E&P, Inc. , 609 F.3d 710 ( 2010 )

Chad Grady v. United States , 269 F.3d 913 ( 2001 )

pete-wilson-in-his-official-capacity-as-governor-of-the-state-of , 111 F.3d 688 ( 1997 )

Bruce E. Jones v. Daniel Bertrand , 171 F.3d 499 ( 1999 )

Houston v. Lack , 108 S. Ct. 2379 ( 1988 )

Servants of the Paraclete v. Does , 204 F.3d 1005 ( 2000 )

Winterland Concessions Co. v. Lee Smith , 706 F.2d 793 ( 1983 )

Berthold Types Limited v. Adobe Systems Incorporated , 242 F.3d 772 ( 2001 )

Michael Kunik and Lisa Kretschmer v. Racine County, ... , 106 F.3d 168 ( 1997 )

Kevin Wingerter v. Chester Quarry Company , 185 F.3d 657 ( 1999 )

Szabo Food Service, Inc. v. Canteen Corporation , 823 F.2d 1073 ( 1987 )

Lawrence Edward Thompson v. Kerry Rasberry , 993 F.2d 513 ( 1993 )

james-e-baker-on-behalf-of-himself-and-all-other-persons-similarly , 58 F.3d 321 ( 1995 )

McGee v. Bartow , 593 F.3d 556 ( 2010 )

michael-p-gaffney-thomas-bell-edward-anderson-v-riverboat-services-of , 451 F.3d 424 ( 2006 )

Foman v. Davis , 83 S. Ct. 227 ( 1962 )

Willie Edwards, Jr. v. United States , 266 F.3d 756 ( 2001 )

Hale v. Victor Chu , 614 F.3d 741 ( 2010 )

Nelson v. Napolitano , 657 F.3d 586 ( 2011 )

View All Authorities »