Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division, No. 84 202 C -- S. Hugh Dillon, Judge.
Coffey, Ripple and Manion, Circuit Judges.
In this case, we must decide whether we have jurisdiction to hear an appeal from a judgment entered by the district court dismissing the plaintiff's complaint for lack of subject matter jurisdiction. For the reasons which follow, we dismiss the appeal for want of jurisdiction.
The plaintiff, Keith Benjamin, is a Rastafarian who, at the time he filed his complaint, was incarcerated at the United States Penitentiary at Terre Haute, Indiana. In his suit seeking monetary damages, a declaratory judgment and injunctive relief, Mr. Benjamin alleged that the prison officials denied him his requests for a meat-free diet. Abstinence from meat is one tenet of the Rastafarian religious teachings. Appellant's Br. at 3-4.
On July 17, 1984, Mr. Benjamin filed a complaint in the United States District Court for the Southern District of Indiana. The complaint contained a request for appointed counsel and a motion to proceed in forma pauperis. Mr. Benjamin, in his original complaint, listed Thomas Keohane, Jr. as defendant. Mr. Keohane was the Warden of the Terre Haute penitentiary at the time Mr. Benjamin commenced this action. Mr. Benjamin also named as a defendant the Assistant Warden, Paul J. Hungerford. R.2. On September 7, 1984, the district court ordered Mr. Benjamin to file an affidavit in support of his accompanying motion to proceed in forma pauperis. R.3 at 1-2. Mr. Benjamin complied with the court's order on October 9, 1984. R.4. Thereafter, on a date not specified in the record, Mr. Benjamin was transferred to the federal penitentiary in El Reno, Oklahoma. In an order dated November 8, 1984, the district judge granted Mr. Benjamin's motion to proceed in forma pauperis as to Mr. Keohane, but denied the motion as to Mr. Hungerford because, with respect to him, the complaint failed to state a claim upon which relief could be granted. R.5 at 2. Subsequently, federal authorities moved Mr. Benjamin to another federal penitentiary at Lompoc, California.
On January 17, 1985, the United States, on behalf of Mr. Keohane, moved for summary judgment and/or dismissal. R.6. Mr. Benjamin responded in opposition to the Government's motion on February 14, 1985. R.8. After the parties exchanged a further set of pleadings relating to the United States' motion, the district court, in an order dated July 3, 1985, denied summary judgment and withheld ruling on Mr. Benjamin's request for appointment of counsel. R.11 at 2. On August 6, 1985, the United States then moved to substitute itself for Mr. Keohane as the party-defendant. The government argued that such substitution was proper because Mr. Keohane had been named a plaintiff only in his official capacity. R.12; see Kolar v. County of Sangamon, 756 F.2d 564, 568 (7th Cir. 1985). A copy of this motion was mailed to Mr. Benjamin, then incarcerated at the federal penitentiary at Lompoc, California. Mr. Benjamin did not reply to this motion nor did he amend his complaint. The district court granted the Government's motion in an order dated August 29, 1985. R.13.
In its initial responsive pleading, an answer to Mr. Benjamin's compliant dated September 12, 1985, the United States raised the affirmative defense of sovereign immunity. R.14 at 3. Several weeks later, on October 7, 1985, the district judge dismissed Mr. Benjamin's complaint for lack of subject matter jurisdiction. In a document entitled "entry," filed the same day as the judgment, the district court held that the plaintiff had failed to allege any exception to the bar of sovereign immunity. Benjamin v. United States, No. 84-202-C, entry at 1 (S.D. Ind. Oct. 7, 1987) [hereinafter Entry]; R.15 at 1. Mr. Benjamin then filed a timely notice of appeal with this court on November 4, 1985.
Dismissal of the Complaint
The government submits that this court is without jurisdiction because the district court simply dismissed the complaint, not the action in its entirety. Consequently, argues the government, there is no final judgment. See 28 U.S.C. § 1291. The jurisdictional question in this case therefore turns on whether the district court dismissed Mr. Benjamin's complaint or, instead, dismissed his action. We previously have held that the simple dismissal of a complaint does not terminate the litigation. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1111 (7th Cir. 1984), cert. denied, 470 U.S. 1054, 84 L. Ed. 2d 821, 105 S. Ct. 1758 (1985); Peterson Steels, Inc. v. Seidmon, 188 F.2d 193, 194 (7th Cir. 1951). In contrast, a dismissal of the entire action ends the litigation and forces the plaintiff to choose between appealing the judgment or moving to reopen the judgment and amend the complaint pursuant to Fed. R. Civ. P. 59 or Rule 60. Car Carriers, 745 F.2d at 1111; see Swam v. United States, 327 F.2d 431, 433 (7th Cir.), cert. denied, 379 U.S. 852, 13 L. Ed. 2d 55, 85 S. Ct. 98 (1964). With this critical distinction in mind, we must examine the district court's order in this case to determine whether the dismissal was of the compliant or of the action.
In its judgment dated October 7, 1985, the district court stated that "Plaintiff take[s] nothing by his Complaint and said Complaint is DISMISSED." Benjamin v. United States, No. 84-202-C, judgment (S.D. Ind. Oct. 7, 1987); R.15 (emphasis supplied). Although the plain language used by the district court in its judgment evidences a dismissal of the complaint, in the accompanying entry, the district judge used the words "complaint" and "action" interchangeably. Entry at 1-2. In light of ...