Timothy Bell v. Eugene McAdory , 820 F.3d 880 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1036
TIMOTHY BELL,
Plaintiff-Appellant,
v.
EUGENE MCADORY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 12-3138-CSB-DGB — Colin S. Bruce, Judge.
____________________
ARGUED JANUARY 21, 2016 — DECIDED APRIL 29, 2016
____________________
Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.
EASTERBROOK, Circuit Judge. In 2006 Timothy Bell was ad-
judicated to be a sexually dangerous person and civilly de-
tained under Illinois law. He was sent to the Treatment and
Detention Facility in Rushville but did not stay there long.
After he violently attacked a guard, he was convicted and
spent the next four years in prison. When his sentence ex-
2 No. 15-1036
pired in 2010, he was sent back to Rushville and did not like
the transfer one bit.
Bell took the position that he was entitled to release from
custody and declined to cooperate with Rushville’s intake
procedures. He refused to answer questions. He refused to
be photographed. He threatened the guards, who under-
standably took the threats seriously. Housed in segregation,
he put paper over the windows to block monitoring and
otherwise tried to frustrate the Facility’s normal operation.
After the impasse had continued for 20 days, Eugene
McAdory, Rushville’s Security Director, told the guards to
take Bell to a secure room in the infirmary, which had larger
windows, and to take away his clothing. Bell refused to co-
operate with the transfer, which as a result entailed some use
of force. He spent the next eight days naked in the infirma-
ry—and, he says, uncomfortably cold, because the air condi-
tioning was on and he lacked protection from the draft. On
the ninth day Bell agreed to cooperate with Rushville’s in-
take procedure. He was given clothes and moved to the gen-
eral population. He filed this suit under 42 U.S.C. §1983, con-
tending that the eight cold, uncomfortable, unclothed days,
meted out without a hearing, violated the Due Process
Clause of the Constitution’s Fourteenth Amendment.
The district court granted summary judgment to all de-
fendants, concluding that Bell had no constitutional right to
comfort, clothes, or a hearing. 2014 U.S. Dist. LEXIS 110337
(C.D. Ill. Aug. 11, 2014). The court observed that “routine
discomfort is part of the penalty” for crime, quoting from
Hudson v. McMillian, 503 U.S. 1, 9 (1992), and that if prison
conditions are “restrictive and even harsh, they are part of
the penalty that criminal offenders pay for their offenses
No. 15-1036 3
against society”, quoting from Rhodes v. Chapman, 452 U.S.
337, 347 (1981). The terms of Bell’s confinement therefore did
not violate the Cruel and Unusual Punishments Clause of
the Eighth Amendment, the court concluded. See 2014 U.S.
Dist. LEXIS 110337 at *7–15.
There’s an obvious problem with this reasoning. Bell in-
voked the Due Process Clause, not the Cruel and Unusual
Punishments Clause. He did that because he is a civil de-
tainee, not a prisoner. States must treat detainees at least as
well as prisoners, and often they must treat detainees bet-
ter—precisely because detainees (whether civil or pretrial
criminal) have not been convicted and therefore must not be
punished. See, e.g., Bell v. Wolfish, 441 U.S. 520 (1979). So to
say that harsh conditions are proper as part of the penalty
for crime is not remotely to justify Bell’s treatment.
Indeed, it is far from clear that spending eight days with-
out clothes in a fan-blown stream of chilled air would be
proper for a convicted prisoner, when the goal was to get the
prisoner to pose for a photograph. Since Bell had been de-
tained at Rushville before, it is unclear why he had to go
through the intake process again—though it is understanda-
ble that he be cooped up while he was threatening violence
against the staff.
But after the district court erred by equating civil detain-
ees to convicted prisoners, Bell made a blunder of his own.
He did not file a timely appeal. And that blunder is poten-
tially conclusive, because the time to appeal in civil litigation
sets a limit on appellate jurisdiction. Bowles v. Russell, 551
U.S. 205 (2007).
4 No. 15-1036
The district court entered its judgment on August 11,
2014, giving Bell until September 10 to file a notice of appeal.
See 28 U.S.C. §2107(a); Fed. R. App. P. 4(a)(1)(A). In lieu of a
notice of appeal, Bell might have sought reconsideration; he
had 28 days (until September 8) to file such a motion. Fed. R.
Civ. P. 59(e). He did not meet either deadline. Instead, on
September 11, he filed a motion that the district judge treat-
ed as one under Fed. R. Civ. P. 60(b). A motion filed within
28 days of the judgment suspends the judgment’s finality
and defers the time for appeal. Fed. R. App. P. 4(a)(4). But a
motion filed after 28 days does not affect the time for appeal.
So Bell’s time expired on September 10.
The disposition of a motion under Rule 60 is separately
appealable. The district judge denied Bell’s motion on Octo-
ber 1, and again Bell did not file a proper notice of appeal. He
did file a flurry of other papers, however, and this court
eventually held that a document he had filed on October 16
contained the information required by Fed. R. App. P. 3(c)
and should be treated as a notice of appeal. See Smith v. Bar-
ry, 502 U.S. 244 (1992). This gives us appellate jurisdiction.
But it is canonical that an appeal from the denial of a motion
under Rule 60(b) does not allow the court of appeals to ad-
dress the propriety of the original judgment, for that would
be equivalent to accepting a jurisdictionally untimely appeal.
See Browder v. Director, Department of Corrections, 434 U.S. 257,
263 n.7 (1978) (“an appeal from denial of Rule 60(b) relief
does not bring up the underlying judgment for review”).
Bell offers excuses for his failure to appeal on time. He
contends, for example, that he thought that the 28- and 30-
day periods began to run only when he received the court’s
judgment (which he says happened on August 15)—and he
No. 15-1036 5
did file his motion within 28 days of the judgment’s receipt.
But there is no ambiguity in the statute or rules, and at all
events Bowles held that there can be no equitable exceptions
to the time for appeal. 551 U.S. at 213–14. That’s what it
means to call the time limit jurisdictional. Excuses and mis-
understandings can extend many a time limit, see United
States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015) (collecting au-
thority), but they have no effect on jurisdictional limits.
Assisted by able counsel, Bell sees two ways around this
problem. First, he contends that Fed. R. Civ. P. 60(b)(1)
should be treated differently from Rule 60(b)(6), the subsec-
tion involved in Browder and similar decisions. Second, he
maintains that the district judge himself effectively reopened
the time for appeal by writing, in the brief order denying the
Rule 60 motion, that the original judgment was correct. Since
he is entitled to appeal from the denial of the Rule 60 mo-
tion, Bell maintains, he is equally entitled to litigate whether
the original judgment was right.
Both varieties of this argument have the same problem:
They would effectively override Bowles and Browder and al-
low belated appeals by anyone who files under Rule 60(b).
Judges routinely say when denying Rule 60 motions that
they do not see an error in the initial judgment. Bell has not
cited, and we could not find, any decision from the Supreme
Court or any court of appeals holding that, by contesting the
merits of the judgment in a Rule 60 motion, a litigant gets a
second crack at appeal. Instead we find many decisions say-
ing that disagreement with the merits of the underlying
judgment simply is not a reason for relief under Rule 60(b).
See, e.g., Parke-Chapley Construction Co. v. Cherrington, 865
F.2d 907 (7th Cir. 1989); Cash v. Illinois Division of Mental
6 No. 15-1036
Health, 209 F.3d 695, 698 (7th Cir. 2000); Bell v. Eastman Kodak
Co., 214 F.3d 798, 800 (7th Cir. 2000); Banks v. Chicago Board of
Education, 750 F.3d 663, 668 (7th Cir. 2014). Instead of trying
to relitigate the merits through Rule 60(b), a litigant has to
come up with something different—perhaps something over-
looked before, perhaps something new. See, e.g., Gonzalez v.
Crosby, 545 U.S. 524, 536–38 (2005); Ackermann v. United
States, 340 U.S. 193 (1950).
Rule 60(b)(1) does have a special use in allowing a dis-
trict court to reopen a default judgment that was entered be-
cause of the litigant’s mistake or excusable neglect. But this
does not imply that a losing litigant’s mistake about how
much time he has to file an appeal provides a basis for reo-
pening, when the goal of the Rule 60(b) motion is to extend
the time for appeal rather than to get an initial decision on
the merits in the district court.
The Rules of Appellate Procedure nonetheless offer some
assistance to litigants who misunderstand when an appeal
must be filed. Rule 4(a)(5)(A)(i) permits a district judge to
add another 30 days to the time for appeal, if “a party so
moves no later than 30 days after the time prescribed by this
Rule 4(a) expires”. It is unclear to us why the district judge
did not treat Bell’s motion as one under that rule. After all,
the judge knew that the motion had been miscaptioned. It
called itself a Rule 59 motion for reconsideration; the judge
recognized that it was too late to be that and treated it as if it
were a Rule 60 motion. Why not treat it as a Rule 4(a)(5) mo-
tion instead? The judge did not say.
A court of appeals cannot grant relief under Rule 4(a)(5),
but a district judge can—and the judge can grant that relief
to Bell even now, because the document that Bell filed on
No. 15-1036 7
September 11 was within the time allowed by Rule
4(a)(5)(A)(i), and the Rule does not set an outer limit for ac-
tion by the district court. A district could may allow a poten-
tial appellant an extra 30 days measured from the judgment,
or an extra 14 days from the time the extension order is en-
tered, whichever is later. Rule 4(a)(5)(C). A court of appeals
has the authority to order “such further proceedings to be
had as may be just under the circumstances.” 28 U.S.C.
§2106. We think that a remand, so that the district court may
decide whether to allow Bell more time for appeal, is the
best way to proceed.
Lest the appeal come right back to us for decision on the
merits, we add that if the district judge is inclined (in light of
the analysis in this opinion) to revisit the judgment as well
as to grant extra time, we grant him permission to do so un-
der Circuit Rule 57.
Finally, to tie up one loose end, we see no reason for the
district judge to give a second thought to Bell’s argument
that Rushville’s (asserted) failure to give him the benefit of
procedures established by state law creates a problem under
§1983. Although the Due Process Clause sometimes requires
procedures, as a matter of federal law, when state statutes
and regulations define substantive entitlements, it does not
treat state procedural requirements as property interests in
their own right. See Hewitt v. Helms, 459 U.S. 460 (1983); Olim
v. Wakinekona, 461 U.S. 238 (1983); Sandin v. Conner, 515 U.S.
472 (1995).
The case is remanded with instructions to treat the doc-
ument filed on September 11, 2014, as a request for an exten-
sion of time under Rule 4(a)(5).