Holly, Christopher v. Patrianakos, Dimitri

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 9, 2005*
Decided May 23, 2005
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 04-3031
CHRISTOPHER HOLLY, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 02 C 4593
DIMITROS PATRIANAKOS, et al.,
Defendants-Appellees. Ruben Castillo,
Judge.
ORDER
Illinois inmate Christopher Holly appeals the denial of his second motion
under Federal Rule of Civil Procedure 60(b) attacking the settlement agreement
reached by the parties in case no. 02 C 4593, a civil rights suit he filed in 2002. We
affirm.
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 04-3031 Page 2
Holly claimed in his lawsuit that he was denied adequate medical care while
he was confined in the Cook County jail as a pretrial detainee. In April 2003, after
being informed that the parties had negotiated a settlement, the district court
dismissed the suit “without prejudice subject to a dismissal with prejudice upon the
filing of an appropriate stipulation.” The settlement included as one of its terms
that Holly would release his claims at issue in appeal no. 03-1567, another case in
this court arising from one of Holly’s suits. Holly later signed a release that
specifically mentioned the pending appeal, but nonetheless continued to prosecute it
in this court. Then, nearly a year after the dismissal of his complaint, Holly filed
his first motion under Rule 60(b) seeking to set aside the settlement on the grounds
that his appointed lawyer had been negligent in prosecuting his lawsuit, and that
the magistrate judge who supervised the negotiations had railroaded him into
agreeing to dismiss appeal no. 03-1567 as part of the settlement. The district court
denied this motion in April 2004, explaining that the settlement agreement had
been fairly reached and that neither ground asserted by Holly justified setting it
aside. Holly did not appeal that decision, and instead he sought and was given an
extension of time to file a “Motion for Reconsideration.” In that motion, filed eight
weeks later in June 2004, Holly repeated his argument that he was coerced into
agreeing to dismiss appeal no. 03-1567. The district court again denied his motion,
and this appeal followed.
Although the parties never acted on the district court’s invitation to seek
conversion of the dismissal to one with prejudice, the April 2003 order was a final
decision that ended Holly’s lawsuit. Whether with or without prejudice, a dismissal
is final for purposes of appeal if the district court “has finished with the case.” Hill
v. Potter, 352 F.3d 1142, 1144-45 (7th Cir. 2003); see also Shah v. Inter-Cont’l Hotel
Chi. Operating Corp., 314 F.3d 278, 281 (7th Cir. 2002). Here the district court did
all it intended to do in the absence of a further request from the parties when it
dismissed the suit. Nothing in its order suggests that the court intended to
condition the dismissal on the parties entering a stipulation that the dismissal be
with prejudice. In practical effect the dismissal may act as one with prejudice since
the settlement agreement, and the release that he signed, bound Holly to a
dismissal with prejudice, see Golden v. Barenborg, 53 F.3d 866, 868-69 (7th Cir.
1995), but the dismissal was still final whether or not preclusive, see Hill, 352 F.3d
at 1144-45. Moreover, the finality of the dismissal was not impaired by the absence
of a separate document setting forth the judgment as required by Federal Rule of
Civil Procedure 58. See Fed. R. App. P. 4(a)(7) (failure to comply with separate
document requirement of Rule 58 has no effect on finality of decision once 150 days
have lapsed); TDK Elecs. Corp. v. Draiman, 321 F.3d 677, 679-80 (7th Cir. 2003).
Thus Holly’s motions are just what they purport to be—postjudgment motions
arising under Rule 60(b).
No. 04-3031 Page 3
Rule 60(b) permits a district court to set aside a judgment on any number of
grounds, e.g., mistake, excusable neglect, or newly discovered evidence, but the rule
is not a substitute for an appeal, or a means of extending the time for appellate
review. Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir. 2002); Bell v. Eastman
Kodak Co., 214 F.3d 798, 801 (7th Cir. 2001); Neuberg v. Michael Reese Hosp.
Found., 123 F.3d 951, 955 (7th Cir. 1997). And that is all that Holly seeks to do
here. The parties settled, and the district court dismissed, Holly’s lawsuit in 2003.
Rule 60(b) is not a vehicle to press arguments that Holly bypassed when he chose
not to appeal that dismissal. Gleash, 308 F.3d at 761. And even if there had been
legitimate grounds for Holly to attack the settlement by way of Rule 60(b), he used
up that opportunity when he filed his first Rule 60(b) motion in March 2003. If he
was unhappy with the district court’s ruling on that motion, his remedy was to
appeal to this court, Madej v. Briley, 371 F.3d 898, 899 (7th Cir. 2004), not to file a
second Rule 60(b) motion raising the identical argument. While Holly labeled his
June 2004 motion as one for “reconsideration,” it was indeed a second Rule 60(b)
motion because it was filed more than 10 business days after the denial of the first
(the extension of time to file a motion for reconsideration, of course, being
ineffectual, see Fed. R. Civ. P. 6(b), 59(e); Talano v. Northwestern Med. Faculty
Found., Inc., 273 F.3d 757, 761 (7th Cir. 2001)). The point of the second motion was
to gain an untimely appeal from the denial of the first, see Gleash, 308 F.3d at 761;
Bell, 214 F.3d at 800; Holly was not entitled to succeed, and accordingly we
AFFIRM the district court’s order.