John Williams v. State of Illinois

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2652
JOHN E. WILLIAMS,
Plaintiff-Appellant,
v.
STATE OF ILLINOIS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 11-1382 — Joe Billy McDade, Judge.
SUBMITTED DECEMBER 9, 2013* — DECIDED DECEMBER 11, 2013
Before CUDAHY, ROVNER, and WILLIAMS, Circuit Judges.
PER CURIAM. John Williams never served his complaint on
the defendants in this action under 42 U.S.C. § 1983 and Illinois
law, and after more than a year the district court dismissed the
*
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 the case is appropriate for summary
disposition. Thus, the appeal is submitted on the appellant’s brief and the
record. See FED. R. APP. P. 34(a)(2).
2 No. 13-2652
suit for failure to prosecute. Williams appeals. We affirm the
judgment.
Williams filed his complaint in October 2011 listing more
than a hundred defendants, including the State of Illinois, its
Attorney General, and Illinois State University. He alleges that
university police officers arrested him without probable cause
and that afterward other defendants pursued baseless criminal
charges. After the suit had languished for 13 months, the
magistrate judge overseeing the case ordered Williams to
explain why the defendants had not been served or else
demonstrate that service had been accomplished. The
magistrate judge warned that he was considering
recommending dismissing the suit for lack of prosecution.
FED. R. CIV. P. 41(b). Williams replied that his ability to serve
the defendants had been stymied by the university’s refusal to
supply the names and home addresses of its employees.
He added that in October 2012 he had sent a request for waiver
of service to the university’s counsel. When two more months
passed without action on the case, the magistrate judge
recommended dismissal for lack of prosecution. Williams
objected that twice he had asked university counsel to waive
service, and he explained that the clerk of the district court had
refused to issue a multitude of summonses after the magistrate
judge’s recommendation was issued.
The district court adopted that recommendation and
dismissed the suit on the basis that Williams’s failure to effect
service established a lack of prosecution. The court explained
that Williams, who was not proceeding in forma pauperis, bore
the burden of identifying the names and addresses of the
individual defendants. The court also noted that Williams
No. 13-2652 3
could have served the governmental defendants, but did not.
Twenty-nine days later, Williams asked the court to reinstate
the case, asserting that he had made diligent efforts to serve
process. But the 28-day deadline to move for reconsideration
had passed, see FED. R. CIV. P. 59(e), and thus the court
construed Williams’s motion as a request to vacate the
judgment and denied it because he had not shown any of the
specific grounds justifying relief, see FED. R. CIV. P. 60(b). The
court reiterated that dismissal for want of prosecution was
appropriate because Williams had not offered a valid
explanation for the lack of service more than a year after filing
his lawsuit. By the time Williams had requested all of his
needed summonses, the court explained, 16 months had
elapsed without service on even one defendant.
On appeal Williams contends that the district court erred in
evaluating his post-judgment motion under Rule 60(b). But we
have established a bright-line rule that any motion for
reconsideration filed after the deadline must be construed as
a motion to vacate. See Justice v. Town of Cicero, Ill., 682 F.3d
662, 663–65 (7th Cir. 2012); Kiswani v. Phoenix Sec. Agency, Inc.,
584 F.3d 741, 742–43 (7th Cir. 2009). Williams insists that he
had three extra days to ask for reconsideration because he
received the dismissal by mail, see FED. R. CIV. P. 6(d), but that
rule enlarges the filing time only when the period for acting
runs from the service of a notice, not when the time begins
after the entry of judgment, as it did here. See McCarty v.
Astrue, 528 F.3d 541, 545 (7th Cir. 2008); Johnson v. McBride, 381
F.3d 587, 589 (7th Cir. 2004). We now join every circuit that has
ruled on this precise issue and conclude that Rule
6(d)—formerly Rule 6(e)—does not extend the deadline for
4 No. 13-2652
Rule 59(e) motions. See Jackson v. Crosby, 375 F.3d 1291, 1296
(11th Cir. 2004); Albright v. Virtue, 273 F.3d 564, 571 (3d Cir.
2001); Arnold v. Wood, 238 F.3d 992, 995 n.2 (8th Cir. 2001);
Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 467–68 (5th Cir.
1998); Parker v. Bd. of Pub. Utils. of Kansas City, Kan., 77 F.3d
1289, 1290–91 (10th Cir. 1996); Derrington-Bey v. D.C. Dep’t of
Corr., 39 F.3d 1224, 1225–26 (D.C. Cir. 1994); Flint v. Howard,
464 F.2d 1084, 1087 (1st Cir. 1972). Thus the judge properly
considered the motion under Rule 60(b) and did not abuse his
discretion in denying it. Relief under Rule 60(b) is limited to
grounds specified in the rule or to extraordinary
circumstances, see Mendez v. Republic Bank, 725 F.3d 651, 657
(7th Cir. 2013); Stoller v. Pure Fishing Inc., 528 F.3d 478, 480 (7th
Cir. 2008), none of which Williams established. Although he
argues that the district court erred by dismissing his suit with
prejudice for failure to prosecute when it could have dismissed
without prejudice for lack of service, see FED. R. CIV. P. 4(m), a
court has the discretion to dismiss for want of prosecution if
the plaintiff’s delay in obtaining service is so long that it
signifies failure to prosecute, see O’Rourke Bros. Inc. v. Nesbitt
Burns, Inc., 201 F.3d 948, 953 (7th Cir. 2000); Powell v. Starwalt,
866 F.2d 964, 966 (7th Cir. 1989); Dewey v. Farchone, 460 F.2d
1338, 1340–41 (7th Cir. 1972). Williams had not served any of
the defendants more than 16 months after filing suit, four times
the normal limit for service of process. See FED. R. CIV. P. 4(m);
Cardenas v. City of Chicago, 646 F.3d 1001, 1004–05 (7th Cir.
2011).
Williams asserts for the first time on appeal that Judge
McDade was prejudiced against him, suggesting that the
judge’s adverse rulings were retaliation for an ethics complaint
No. 13-2652 5
he filed when the judge was on the state bench 30 years earlier.
Williams did not raise the issue of recusal in the district court,
so to the extent we can review his argument at all, we review
for clear error. See United States v. Johnson, 680 F.3d 966, 980
(7th Cir. 2012). Williams cannot meet this standard: Adverse
rulings do not establish personal prejudice, see Liteky v. United
States, 510 U.S. 540, 555–56 (1994); Tezak v. United States, 256
F.3d 702, 717–18 (7th Cir. 2001), and nothing in the record hints
that the judge harbored any animus (or even remembered his
distant complaint). Thus we see nothing that would lead a
reasonable observer to believe that the judge was incapable of
ruling fairly, as required to show prejudice. Collins v. Illinois,
554 F.3d 693, 697 (7th Cir. 2009); Tezak, 256 F.3d at 717–18.
We have reviewed Williams’s remaining contentions, and
none has merit.
AFFIRMED.