Melvin Reed v. PF of Milwaukee Midtown ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3057
MELVIN D. REED,
Plaintiff-Appellant,
v.
PF OF MILWAUKEE MIDTOWN, LLC, doing business as Planet
Fitness,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 19-cv-1609 — Lynn Adelman, Judge.
____________________
ARGUED OCTOBER 5, 2021 — DECIDED OCTOBER 28, 2021
____________________
Before EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.
EASTERBROOK, Circuit Judge. Melvin Reed applied for a job
at Planet Fitness of Milwaukee. When it did not hire him, he
filed with the EEOC a charge of age discrimination. After the
agency found a lack of support for that charge, Reed sued un-
der the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621–34.
2 No. 20-3057
The clerk of court returned Reed’s complaint, unfiled. In
2012 the district court had issued a litigation-bar order based
on Reed’s history of frivolous suits. Reed v. Lincare, Inc., No.
11-C-221 (E.D. Wis. Nov. 21, 2012). The judge concluded that
Reed sent off many employment applications every year. If
hired, he worked for a short time before giving the employer
cause to fire him, then asserted discrimination. If not hired, he
asserted that this, too, was discriminatory. After suing, Reed
made sealement demands based on the cost to defendants of
defending the suit rather than a plausible estimate of the like-
lihood that he would prevail. The judge directed Reed to pay
a sanction of $5,000 and enforced it by preventing further liti-
gation in federal court until the money had been paid. We af-
firmed both the order dismissing the suit and the sanction.
Reed v. Lincare, Inc., No. 12-3782 (7th Cir. July 30, 2013) (non-
precedential disposition). An earlier decision of this court tal-
lied at least 16 of Reed’s frivolous suits. Reed v. Ewald Automo-
tive Group, Inc., No. 10-3186 (7th Cir. May 11, 2011) (nonprec-
edential disposition). Less-extensive records of abusive litiga-
tion have led to bar orders. See, e.g., Support Systems Interna-
tional, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995).
The bar order entered in Lincare, modeled on the one in
Mack, provided that the court would entertain an application
to lift it after two years. Instead of doing that, however, Reed
tried to file this suit as if the bar order did not exist. He cannot
have been surprised when the clerk returned the papers. At
this point the clock to sue had been ticking for weeks—and it
was a fast-running clock. The EEOC’s right-to-sue leaer
started a 90-day period for filing a timely action. On day 46 of
this period Reed asked the district court to vacate the bar or-
der. He gave a single reason: that Judge Randa, who entered
the bar order, had been biased against him. This request was
No. 20-3057 3
frivolous, because an assertion that Judge Randa had been bi-
ased was advanced on appeal in 2013 and rejected. Just as
Reed initially ignored the bar order, his motion to vacate the
bar order ignored the fact that it had been affirmed and that
the bias argument had failed. This exemplifies the paaern of
frivolous acts and contentions that led to the bar order in the
first place. Predictably, Reed’s motion to vacate the bar order
was denied—this time by Judge Adelman, who had been as-
signed both to Reed’s new suit and to replace Judge Randa in
Lincare after the laaer’s death.
Reed soon filed another motion to vacate, and in response
Judge Adelman observed that such orders should not last for-
ever and that sustained inability to pay might support relief.
He invited Reed to file an affidavit detailing the state of his
finances since 2012, when the bar order was entered. Unfortu-
nately, the clerk of court sent this order to an outdated ad-
dress from the Lincare case rather than Reed’s current address.
The order was dated and mailed on September 16, 2019, but
not received until October 16. By then the 90-day period for
suit had expired. (The deadline was October 7.)
Two days after receiving the September 16 order, Reed
filed an affidavit of indigence. The district judge accepted the
affidavit in Lincare and vacated the filing bar, but in Planet Fit-
ness (filed on November 1, after the bar was lifted) the judge
denied Reed’s request for equitable tolling and dismissed the
suit as untimely. Reed v. PF of Milwaukee Midtown, 2020 U.S.
Dist. LEXIS 177370 (E.D. Wis. Sept. 25, 2020). The judge ob-
served that tolling requires both some extrinsic obstacle and
diligence to surmount it. Yet the obstacle—the bar order—was
of Reed’s own making, the result of tactics lasting more than
a decade, and his efforts to avoid the order cannot be called
4 No. 20-3057
diligent. Even if the judiciary were to ignore all time between
2012 and 2019, Reed defied the bar order rather than asking
for vacatur. And when, halfway through the 90 days, Reed
asked for vacatur, he advanced only a frivolous argument
(Judge Randa’s supposed bias). Meanwhile he bypassed a
self-help remedy: suit in state court, to which the bar order
did not apply. Both state and federal courts entertain ADEA
suits. Judge Adelman observed that Reed’s professed greater
familiarity with federal court does not justify adding time to
the statutory 90 days; many a would-be litigant must spend a
liale effort to learn how to file suit in state court.
The clerk’s use of an outdated address on September 16
was unfortunate, but by then the 90 days was almost gone—
and Reed had friaered away most of the period with misbe-
goaen acts (ignoring the bar order) and arguments (judicial
bias), making it impossible for him to demonstrate diligence.
It is a litigant’s responsibility to act diligently throughout a pe-
riod of limitations, in order to avoid the risk that a clerical er-
ror will eat up the last few days or weeks. See, e.g., Simms v.
Acevedo, 595 F.3d 774, 781 (7th Cir. 2010); Johnson v.
McCaughtry, 265 F.3d 559, 565–66 (7th Cir. 2001). We agree
with the district court and need not add to its analysis of these
subjects.
An amicus curiae contends that the litigation-control order
entered in Lincare is invalid and could be ignored (rendering
the initial complaint timely) because Judge Randa did not tell
Reed that indigence will lead to the order’s vacatur. That’s
wrong for two reasons.
First, it is an argument that could have been raised on ap-
peal in 2013 but was not. Our decision affirming the bar order
is not subject to collateral aaack.
No. 20-3057 5
Second, the argument is mistaken on the merits. Indigent
persons are not entitled to file an endless string of frivolous
suits. A court may halt the abuse of the judicial process, which
imposes substantial costs on people and businesses that have
done no wrong. Everyone has a duty to avoid frivolous suits
and arguments, and a person who cannot or will not abide by
that rule must be stopped. If a need to pay money won’t work
as a deterrent (and it won’t for indigent litigants), then some
form of bar order becomes essential.
When administering Mack orders, this court does not au-
tomatically vacate a bar after two years. We require two
demonstrations. (1) The litigant must have paid what he or
she could, even if not the whole amount. (2) The litigant must
demonstrate that he or she will desist from frivolous suits and
contentions. See In re Chicago, 500 F.3d 582, 585–86 (7th Cir.
2007). Reed did not satisfy either requirement. We accept his
assertion that he was unable to pay the whole $5,000. But he
did not pay, say, $10 a week for several years and then ask for
relief. He paid nothing for seven years. He was working dur-
ing some of this time; surely he was able to afford more than
$0. But instead of making a good-faith effort to satisfy as much
of his obligation as he could, he thumbed his nose at the judi-
cial system. And then, far from demonstrating a resolve to
avoid frivolous litigation, Reed made a frivolous aaack on the
Lincare order itself. The district court’s willingness to vacate
the Lincare order under these circumstances is surprising.
Reed must understand that continued frivolous suits and
contentions will lead to a new bar order. In the meantime, we
conclude that his history of frivolous litigation—including
frivolous arguments in this very suit—justifies an order that
he prepay all fees to file new suits in the district court and
6 No. 20-3057
appeals to this court. In other words, by a sustained course of
conduct, Reed has forfeited the privilege of litigating in forma
pauperis under 28 U.S.C. §1915.
AFFIRMED