Anthony Kiselis v. Anthony Suizzo

NONPRECEDENTIAL DISPOSITION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 October 18, 2012*
Decided November 1, 2012
Before
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 12-1024
ANTHONY J. KISELIS, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 C 6518
ANTHONY G. SUIZZO, et al.,
Defendants-Appellees. Blanche M. Manning,
Judge.
ORDER
Anthony Kiselis, an attorney representing himself, appeals the district court’s denial
of his second motion to reconsider its dismissal of his civil complaint. We affirm.
*
The defendants were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. The appeal is thus submitted on the brief and
the record. See Fed. R. App. P. 34(a)(2)(C).
No. 12-1024 Page 2
Kiselis sued Northwestern Memorial Hospital and Briar Place (a nursing and
rehabilitation center) for holding him for medical treatment against his will, in violation of
the Thirteenth Amendment and the rarely invoked Antipeonage Act, 18 U.S.C.
§§ 1581–1596. He also sued Anthony Suizzo, a former law-firm colleague, for unpaid wages
for work performed a decade earlier. The district court screened the complaint and
dismissed it for failing to state a claim. See 28 U.S.C. § 1915(e)(2)(B). Kiselis moved the
court to reconsider, but it declined to change its ruling.
Thirty-one days later, Kiselis submitted another filing—the subject of this
appeal—in which he asserted that the court (1) did not give him notice before dismissing
his complaint and (2) should have conducted a hearing to develop his legal arguments. The
district court treated this filing as a second motion to reconsider and denied it.
On appeal Kiselis challenges the district court’s original order dismissing his
complaint and the subsequent order denying his second motion to reconsider. He insists
that his claims are meritorious and continues to press his arguments about inadequate
notice and the need for a hearing.
Our review here is limited to the denial of Kiselis’s second motion to reconsider.
Any challenge to the dismissal order is time-barred. See Fed. R. App. 4(a)(1)(A) (civil
judgments and orders must be appealed within thirty days). But Kiselis’s appeal of the
denial of his second motion to reconsider is timely (he filed the notice of appeal twenty-
four days after the denial). Because more than thirty days had passed since the judgment,
we construe the motion as arising under Federal Rule of Civil Procedure 60(b) and review it
for an abuse of discretion, see, e.g., Blue v. Int’l Bhd. of Elec. Workers Local Union 159, 676 F.3d
579, 583–84 (7th Cir. 2012), mindful that Rule 60(b) is an “extraordinary remedy” granted
only in “exceptional circumstances,” Bakery Mach. & Fabrication, Inc. v. Traditional Baking,
Inc., 570 F.3d 845, 848 (7th Cir. 2009).
To the extent that Kiselis’s “lack of notice” argument challenges the dismissal order
as inconsistent with due process and thus void under Rule 60(b)(4), see Price v. Wyeth
Holdings Corp., 505 F.3d 624, 631 (7th Cir. 2007), it is unpersuasive. The district court was
expressly authorized by statute to take this action. See 28 U.S.C. § 1915(e)(2) (stating that the
court “shall dismiss the case at any time” upon conclusion that it “fails to state a claim on
which relief may be granted” (emphasis added)). A sua sponte dismissal of a meritless
complaint that cannot be saved by amendment comports with due process. See Curley v.
Perry, 246 F.3d 1278, 1283–84 (10th Cir. 2001) (collecting cases upholding constitutionality of
28 U.S.C. § 1915(e)(2)). Kiselis has not suggested how he would amend his complaint. His
allegations only amount to a claim that he was illegally detained; nothing in his complaint
No. 12-1024 Page 3
suggests that he was forced to work as prohibited by the Thirteenth Amendment and
Antipeonage Act. See, e.g., United States v. Kozminski, 487 U.S. 931, 943 (1988). Indeed,
nothing in any of Kiselis’s filings suggests that the hospital or nursing home forced him to
work. Finally, Kiselis has not identified any other “exceptional circumstances” justifying
relief. Fed. R. Civ. P. 60(b)(6); Bakery Mach., 570 F.3d at 849.
AFFIRMED.