Kenny Simelton v. Alexander County Housing Auth ( 2022 )

NONPRECEDENTIAL DISPOSITION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
Submitted March 10, 2022 *
Decided March 10, 2022
Before
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-2595
KENNY WAYNE SIMELTON, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illinois.
v. No. 19-CV-00879-JPG
ALEXANDER COUNTY HOUSING J. Phil Gilbert,
AUTHORITY, et al., Judge.
Defendants-Appellees.
ORDER
Kenny Simelton appeals the denial of his motion to reinstate his lawsuit,
see FED. R. CIV. P. 60(b)(1), after it was dismissed because of his repeated failure to
comply with discovery requests and the district court’s orders, see FED. R. CIV. P. 41(b).
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 21-2595 Page 2
The district court did not abuse its discretion in denying the motion, which offered no
valid excuse for Simelton’s failure to prosecute his case. Thus, we affirm.
Simelton sued the Alexander County Housing Authority and four of its former
directors for discrimination under Title VI of the Civil Rights Act, the Fair Housing Act,
and the Illinois Civil Rights Act. See 42 U.S.C. §§ 2000d, 3604; 740 ILCS 23/5(b). He
alleged that the defendants discriminated against him and other former residents of two
Alexander County housing developments based on race and familial status. 1
The case proceeded to discovery. The defendants served Simelton with a set of
interrogatories and requests for production of documents, and he did not respond.
When Simelton missed the 30-day discovery deadline, see FED. R. CIV. P. 33(b)(2),
34(b)(2)(A), the defendants mailed him a letter requesting his discovery responses
within seven days. He did not reply, and the defendants moved to compel Simelton’s
responses. See FED. R. CIV. P. 37(a)(3)(B). Simelton did not respond to that motion either.
The district court granted the motion to compel, ordering Simelton to respond
within 30 days to the defendants’ discovery requests and warning “[f]ailure to do so
will lead to dismissal.” Simelton still did not respond, and the defendants moved to
dismiss his complaint. See FED. R. CIV. P. 37(b)(2)(A)(v). They informed the court that
Simelton told them he mailed the responses in early February, but that they never
arrived. The defendants also mentioned that their counsel had moved offices and
checked the mail at his previous address. Counsel filed the change-of-address notice
with the court the day after Simelton’s deadline to respond to the discovery requests
expired.
The district court ordered Simelton, within 30 days, to show cause why he did
not respond to the defendants’ discovery requests. Simelton did not respond, and the
defendants again requested dismissal.
The court dismissed the case with prejudice. Dismissal was appropriate, the
court explained, for three reasons: Simelton failed (1) to prosecute his case by not
responding to the defendants’ motions to dismiss; (2) to comply with the Federal Rules
1
The district court consolidated his suit with those of five other plaintiffs who made
similar allegations. Because Simelton was the only plaintiff from the consolidated
lawsuit to appeal, we do not address the other plaintiffs here.
No. 21-2595 Page 3
by not engaging in discovery; and (3) to comply with the court’s discovery and show-
cause orders. See FED. R. CIV. P. 41(b).
Thirty-five days later, Simelton moved to reinstate the case under Rule 60(b) of
the Federal Rules of Civil Procedure. Simelton argued that his case should not be
dismissed because his lapses during discovery were based on an honest mistake and
excusable neglect. See FED. R. CIV. P. 60(b)(1). Namely, he argued that he failed to
comply with discovery requests and did not respond to the defendants’ motions for
dismissal because the defendants did not properly serve him.
After conducting a hearing (for which there is no transcript), the district court
denied the Rule 60(b) motion. The court detailed the history of Simelton’s failures to
comply and concluded that he flagrantly disregarded the defendants’ discovery
requests despite ample opportunity to respond. Simelton’s motion, the court continued,
had identified no extraordinary circumstances that excused this conduct or warranted
vacating the judgment. Specifically, Simelton did not provide—in his motion or at the
hearing—any support for his claim of improper service, and the defendants showed
that they served him the relevant discovery requests and motions by mailing those
documents to the address Simelton had listed with the court.
Simelton now appeals, and we begin by addressing the appeal’s scope. Because
the appeal is not timely with respect to the district court’s order of dismissal, we issued
an order limiting review of the present appeal to the district court’s order denying
Simelton’s Rule 60(b) motion. See FED. R. APP. P. 4(a)(1). Typically, “an appeal from the
denial of a Rule 60(b) motion does not allow us to review the underlying decision.”
United States v. Hassebrock, 21 F.4th 494, 497 (7th Cir. 2021). But, in cases where the
“district court's denial of the Rule 60(b) motion effectively amount[s] to reinforcing and
standing by its original dismissal decision,” we are, in effect, still reviewing the
underlying dismissal order, though under a more deferential standard of review. Krivak
v. Home Depot U.S.A., Inc., 2 F.4th 601, 606 (7th Cir. 2021); see also Shaffer v. Lashbrook, 962
F.3d 313, 315 (7th Cir. 2020) (“[I]n a number of cases, we have considered the merits of
the underlying judgment when reviewing whether a district erred by refusing to
reinstate a case dismissed for want of prosecution.”). Here, the district court’s denial of
Simelton’s Rule 60(b) motion reinforced its original dismissal order, explaining in
greater detail the reasons why it concluded that dismissal was appropriate. We are
unable to extricate our review of the court’s denial of Simelton’s motion to reinstate
from its original decision to dismiss the case, and so we will also perform a limited
No. 21-2595 Page 4
review of the underlying order. We review both decisions for an abuse of discretion. See
Krivak, 2 F.4th at 605–06.
Simelton contends that the district court wrongly dismissed his lawsuit as a
sanction for failing to prosecute it or to comply with discovery. We take seriously the
severity of the district court’s sanction. “Dismissal for want of prosecution is an
extraordinarily harsh sanction that should be used only in extreme situations.” Kasalo v.
Harris & Harris, Ltd., 656 F.3d 557, 561 (7th Cir. 2011) (internal citation omitted). Even so,
we cannot say the district court abused its discretion by dismissing Simelton’s case and
denying his request for reconsideration. Simelton did not participate in his case for over
six months, and in doing so failed to comply with two of the district court’s orders,
despite warnings that his continued inaction would lead to dismissal. Such conduct is
an appropriate ground for dismissal. See Shaffer, 962 F.3d at 317.
Simelton claims for the first time on appeal that the district court should have
excused his conduct because he sent the interrogatory responses, and it was not his
fault that the defendants never received them. He says he sent the responses in March
after the court granted the motion to compel, and the documents were never received
because the defendants’ attorney changed his address without setting up mail
forwarding. These responses were eventually returned to him by mail, Simelton says,
but not until almost three weeks after the case had been dismissed. Therefore, he
contends, the district court should have granted him relief under Rule 60(b).
This argument fails for two reasons, each of which compels us to affirm the
district court’s ruling. First, Simelton waived this argument by failing to raise it in the
district court. See Mahran v. Advocate Christ Med. Ctr., 12 F.4th 708, 713 (7th Cir. 2021).
Simelton never told the district court that his failure to comply with the discovery
requests was because of the defendants’ change of address. Instead, his Rule 60(b)
motion argued only that the defendants improperly served him the requests. While we
do not have a transcript of the hearing on the Rule 60(b) motion, Simelton does not
mention having raised this argument at the hearing.
Second, the district court did not abuse its discretion by dismissing the suit.
Simelton argues that his interrogatory responses were sent and not delivered, but he
has provided no evidence to that effect, nor does it appear that he provided any to the
district court. In fact, his contention that he sent the responses in March conflicts with
the defendants’ representation in the district court that Simelton told them he sent the
responses in early February. Simelton offers no explanation for this discrepancy. But
No. 21-2595 Page 5
even if we assume what Simelton says is true, this does not explain why he failed to
respond to the defendants’ other discovery request for the production of documents or
why he did not comply with the court’s orders compelling his discovery responses and
to show cause, despite having received warnings that his failure to do so would lead to
dismissal. Cf. Sroga v. Huberman, 722 F.3d 980, 982–83 (7th Cir. 2013) (reversing
dismissal where plaintiff “offered a plausible reason why he did not receive the court’s
warning”). Nor does this excuse explain why he sent the interrogatory responses to the
wrong address, given that he says he sent them several weeks after the defendants’
counsel updated his address on the court’s docket and mailed the notice of address
change to Simelton. See Shaffer, 962 F.3d at 317 (litigants expected to stay apprised of
developments in case by periodically monitoring the court’s docket).
Because Simelton’s arguments are waived and fail on their merits, we cannot
find that the district court abused its discretion.
AFFIRMED