Harry O'Neal v. James Reilly ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2981
HARRY O’NEAL,
Plaintiff-Appellant,
v.
JAMES REILLY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-cv-10526 — Virginia M. Kendall, Judge.
____________________
ARGUED MAY 21, 2020 — DECIDED JUNE 9, 2020
____________________
Before MANION, BARRETT, and BRENNAN, Circuit Judges.
BARRETT, Circuit Judge. Harry O’Neal was convicted of ag-
gravated battery of a police officer after an altercation during
a traffic stop. While incarcerated and while his criminal con-
viction was pending on direct appeal, O’Neal filed a pro se
lawsuit that asserted § 1983 claims against the police officers
who had arrested him. Under Heck v. Humphrey, however,
O’Neal’s § 1983 suit was barred unless his conviction was re-
versed or expunged. 512 U.S. 477, 486–87 (1994). Heck-barred
2 No. 19-2981
suits are usually stayed or dismissed without prejudice, but
O’Neal’s suit took a different course. After he failed to comply
with court-ordered briefing deadlines, the district court is-
sued an order directing O’Neal to show cause why his case
should not be dismissed for want of prosecution. When
O’Neal didn’t respond, the district court dismissed his claims
with prejudice for failure to prosecute. See FED. R. CIV. P. 41(b).
Several months later, O’Neal’s conviction was overturned
on appeal, lifting the Heck bar to his § 1983 suit. Another ten
months after that, O’Neal went back to the district court. This
time represented by counsel, he filed a “Motion to Reinstate
the Case and for Leave to File an Amended Complaint Pursu-
ant to Fed. R. Civ. P. 15.” His motion nowhere mentioned Fed-
eral Rule of Civil Procedure 60(b), which is the procedural
mechanism for obtaining relief from a judgment. But the de-
fendants raised Rule 60(b) in their response to the motion,
maintaining that O’Neal was not entitled to relief under that
rule. This argument caught O’Neal’s attention, and in his re-
ply brief, he attempted to articulate why Rule 60(b) relief was
warranted.
The district court denied O’Neal’s Rule 15 motion, ex-
plaining that it was procedurally improper because he could
not file an amended complaint in a terminated case. O’Neal’s
only procedural option was the one that the defendants had
anticipated: securing relief from the judgment under Rule
60(b). But O’Neal didn’t even mention Rule 60(b) until his re-
ply brief, so the district court held that the argument was
waived. It observed, though, that O’Neal wouldn’t have been
able to satisfy the requirements of Rule 60(b) anyway.
On appeal, O’Neal argues that the district court was
wrong to treat his Rule 60(b) argument as waived. We review
No. 19-2981 3
a finding of waiver de novo, Baker v. Lindgren, 856 F.3d 498,
506 (7th Cir. 2017), and we agree with the district court:
O’Neal waived this argument. His motion invoked Rule 15,
not Rule 60. It never mentioned Rule 60(b), referred to any of
the specific grounds for relief under Rule 60(b), or cited any
cases applying Rule 60(b)—in fact, the motion cited no cases
at all. It’s not a close call to conclude that O’Neal failed to ad-
equately raise or develop a Rule 60(b) argument in his initial
motion. He didn’t invoke that rule until his reply brief, and
we have repeatedly recognized that district courts are entitled
to treat an argument raised for the first time in a reply brief as
waived. See, e.g., Narducci v. Moore, 572 F.3d 313, 324 (7th Cir.
2009); Bodenstab v. County of Cook, 569 F.3d 651, 658 (7th Cir.
2009).
O’Neal resists this straightforward analysis by insisting
that the motion’s timing, if not its content, required the dis-
trict court to treat it as one under Rule 60(b). According to
O’Neal, any motion “challenging the merits of a district
court’s ruling after the time for appeal has expired” should be
characterized one seeking relief from the judgment. But the
cases that O’Neal cites for this proposition are inapposite.
They all deal with the jurisdictional determination whether
the time to file a notice of appeal had been tolled by a post-
judgment motion. They do not stand for a general rule that
post-judgment motions—no matter what arguments they
make—must be treated on their merits as motions under Rule
60 if they arrive outside the time to file a notice of appeal. See
Blue v. Int’l Bhd. of Elec. Workers Local Union 159, 676 F.3d 579,
585 (7th Cir. 2012); Mares v. Busby, 34 F.3d 533, 535 (7th Cir.
1994); United States v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1993).
There is no such rule.
4 No. 19-2981
In any event, it is highly unlikely that O’Neal could have
filed a successful Rule 60(b) motion even if he had pursued
that course. O’Neal filed his motion more than one year after
judgment was entered, so his only option would have been
Rule 60(b)(6), the residual clause, which allows the court to
relieve a party from a final judgment for “any other reason
that justifies relief.” Relief under this subsection is reserved
for movants who can “establish that ‘extraordinary circum-
stances’ justify upsetting a final decision.” Choice Hotels Int’l,
Inc. v. Grover, 792 F.3d 753, 754 (7th Cir. 2015) (citation omit-
ted). And even though a movant under Rule 60(b)(6) need not
file within a year, he still needs to file “within a reasonable
time.” FED. R. CIV. P. 60(c)(1); see also Arrieta v. Battaglia, 461
F.3d 861, 865 (7th Cir. 2006) (“A motion under the ‘catchall’
provision contained in Rule 60(b)(6) also must be made
‘within a reasonable time.’”).
Regardless of whether O’Neal could show that his is an
“extraordinary circumstance,” he can’t show that he moved
for relief within a reasonable time. The order dismissing
O’Neal’s case with prejudice for failure to prosecute was en-
tered in June 2016, but he took no action to appeal that deci-
sion. O’Neal says that he didn’t receive notice of the judgment
when it was issued, and it’s true that courts have sometimes
used Rule 60(b)(6) to “grant[] relief … when the losing party
fail[ed] to receive notice of the entry of judgment in time to
file an appeal.” 11 CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 2864 (3d ed., up-
date Apr. 2020) (footnote omitted). But even if O’Neal didn’t
know about the judgment when it was issued, he concedes
that he received notice of it no later than December 2017. Not
only did he fail to file a notice of appeal then, see FED. R. APP.
P. 4(a)(6) (allowing a district court to reopen the time to file
No. 19-2981 5
an appeal if the moving party didn’t receive notice of the en-
try of judgment and other conditions are met), he didn’t file
his “motion to reinstate” for another year and a half. Thus,
O’Neal’s procedural blunder under Rule 15 is not the only ob-
stacle to reviving his suit.
In sum, the district court correctly concluded that O’Neal
waived any argument that he may have had under Rule 60(b).
And because the case had been terminated on the merits, the
district court was right to deny his Rule 15 motion for leave
to file an amended complaint. The judgment is AFFIRMED.