Submitted August 18, 2016.
from the United States District Court for the Southern
District of Illinois. No. 12-CV-01171-MJR-SCW - Michael J.
Reagan, Chief Judge.
Posner, Easterbrook, and Sykes, Circuit Judges.
Easterbrook, Circuit Judge.
Armstrong contends in this suit under 42 U.S.C. §1983
that police officers in Belleville, Illinois, needlessly used
a Taser against him when he was disoriented after being hit
by a bus. We assume for the purpose of this appeal that
Armstrong was knocked unconscious by the bus and unable to
respond to commands issued by the police in the minutes after
he regained consciousness. The defendants moved for summary
judgment, contending that use of the Taser was reasonable
under the circumstances as they appeared to the police, who
did not have all the facts. Armstrong did not reply to the
motion for summary judgment. The district court accepted
defendants' version of events and on May 1, 2014, entered
judgment in their favor.
did not file a notice of appeal within the 30 days allowed by
28 U.S.C. §2107(a) or request an extension under
§2107(c). See also Fed. R. App. P. 4(a)(1)(A). In
September 2014 he asked the clerk of court for a docket
sheet, which showed that the case had been closed in May. On
January 12, 2015, Armstrong filed a motion asking the court
to reopen the case on the ground that he had not received
defendants' motion for summary judgment or the order
granting it. The motion was captioned as one under
Fed.R.Civ.P. 59(e), but the district judge deemed it to be
under Rule 60(b), because it had been filed well after the 28
days that Rule 59 allows. The district judge denied this
motion on January 27, 2015, because he thought Armstrong
himself responsible for the lack of notice.
notified the clerk of court that his address had changed, but
the notice did not contain the caption or docket number of
either of the two suits he had pending. The clerk searched
the docket and found one case, changing the address in that
one, but did not locate the other. The district court wrote
that Armstrong should have informed the clerk of all docket
numbers affected by the address change. Perhaps the clerk
assumed that Armstrong had only one case pending and stopped
the search after finding it. That's a reasonable
assumption; most litigants have only one suit pending at a
time. A litigant is in the best position to alert the
court's staff to all affected cases. Armstrong should
count himself lucky that the clerk managed to track down and
fix the address information in even one of his suits.
again Armstrong did not appeal. Instead, on March 9, 2015, he
filed a second motion for relief from the judgment of May
2014. The district court denied this on March 13, observing
that Armstrong had not provided any new reason, and that the
decision of January 27 therefore should stand.
days after the order of March 13, a notice of appeal appeared
in the district court's electronic filing system. The
Southern District of Illinois permits law libraries of state
prisons to use the electronic system, and this is how the
notice of appeal was filed. We directed Armstrong to explain
why this appeal should not be dismissed as untimely. He
replied via a declaration, see 28 U.S.C. §1746, that he
gave the notice to the law library's staff on April 12,
which would have allowed a timely filing, but that the
prison's employees tarried. We have no reason to doubt
the veracity of that contention and therefore deem the appeal
timely under the mailbox rule, which provides that the filing
date of a notice is the date it is placed in the prison mail
system. Fed. R. App. P. 4(c)(1). If a prison requires legal
documents to be handed over to the law library, that counts
as a legal-mail system and makes the appeal timely even if
the prison's staff is laggard. See Taylor v.
Brown, 787 F.3d 851, 858-59 & n.10 (7th Cir. 2015).
conclusion does not assist Armstrong, however, because he did
not appeal at all until the district court had denied
multiple post-judgment motions. Successive post-judgment
motions do not allow an effective extension of the time to
appeal from the denial of the initial motion, let alone the
original judgment. See, e.g., Browder v. Director,
Department of Corrections, 434 U.S. 257, 263 n.7 (1978);
York Group, Inc. v. Wuxi Taihu Tractor Co., 632 F.3d
399, 401 (7th Cir. 2011). The only thing appealable was the
district court's order of March 13, 2015, and that order
is unexceptionable, because Armstrong did not provide a good
reason to upset the order of January 27. Litigants cannot
string out the process, and defer the time for appeal, by
filing successive motions.
contends that the district court should not have treated his
contest to the order of January 27 as a successive Rule 60
motion. Instead, he maintains, the court should have
proceeded as if the motion had been filed in mid-February,
and therefore as a Rule 59(e) request to change the Rule 60
decision. That would have permitted an appeal from the
decision of January 27 under Fed. R. App. P. 4(a)(4)(A)(iv),
which says that Rule 59 motions suspend the time to appeal.
But the earliest plausible filing date under the
prison-mailbox rule was more than 28 days after the decision
of January 27, so this motion was indeed successive, rather
than a timely request to reconsider the initial post-judgment
there is a further problem. Although the district judge and
the litigants have discussed Armstrong's initial
post-judgment motion as if it were one under Rule 60(b), that
is not the right rule. Appellate Rule 4(a)(6) governs what
happens when a litigant does not receive timely notice of a
judgment's entry. Rule 4(a)(6)(B) permits a district
court to reopen the time to appeal, but only if the motion is
filed within 180 days of the judgment, or 14 days of actual
notice, whichever is earlier. Armstrong learned of the
judgment within 180 days of its entry, but he waited some
three months to ask the district court for relief (and that
request arrived about eight months after the judgment's
entry). So his request was late under both parts of Rule
4(a)(6)(B), and the district court lacked authority to reopen
the time for appeal. Treating Armstrong's January 2015
motion as under Rule 4(a)(6)(B) would mean that the March
2015 submission was the first genuine Rule 60(b) motion, but
that would not matter. Armstrong missed deadlines that a
court is forbidden to extend, see Fed. R. App. P. 26(b)(1);
Fed.R.Civ.P. 6(b)(2), so the characterization of the papers
that Armstrong filed in March 2015 is irrelevant.
we look at this case through the lens of Appellate Rule
4(a)(6) or Civil Rule 60(b), Armstrong has taken too long
after learning about defendants' motion for summary
judgment and the resulting ...