Gerald Hill v. United States , 762 F.3d 589 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1428
GERALD HILL,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:13-cv-00307-JPG-PMF — J. Phil Gilbert, Judge.
____________________
SUBMITTED JULY 9, 2014 — DECIDED AUGUST 11, 2014
____________________
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The plaintiff was a federal prisoner
serving a 60-month sentence for possession of a gun in fur-
therance of drug trafficking when he was attacked by a fel-
low prisoner wielding a metal object of some sort. The attack
destroyed the vision in one of the plaintiff’s eyes (as a result
of which the eye had to be removed) and seriously impaired
the vision in the other. It appears that as a result he is blind
or nearly so. While still in prison he filed pro se a timely suit
2 No. 14-1428
against the United States under the Federal Tort Claims Act.
He contended that he would not have been attacked had it
not been for the Bureau of Prisons’ negligently allowing the
prison in which he was held (the Federal Correctional Insti-
tute at Greenville, Illinois) to become overcrowded, and neg-
ligently failing to protect inmates from violence by other in-
mates that was made more likely by the overcrowding. Hill
v. United States, No. 3:11-cv-00317-MJR (S.D. Ill. Apr. 18,
2011).
While the plaintiff’s suit was pending, he was released
from prison to a halfway house and instructed to keep the
court informed of any future change of address. He was
evicted (we have not been told why) from the halfway house
and failed to notify the court of his new address. As a result,
the district court dismissed his suit for failure to prosecute it.
The dismissal was without prejudice—but the six-month
statute of limitations from the date of the final denial of his
administrative claim for relief, see 28 U.S.C. § 2401(b), had
run.
The plaintiff obtained counsel, who moved to set aside
the dismissal. In support of the motion the plaintiff stated
that his failure to have advised the court of his change of
address after leaving the halfway house “was not intentional
nor was it meant to vex the government or unduly delay the
courses [sic] of my case. Life for me now is a major struggle
and I have been greatly distracted by my ongoing problems
as an ex-convict.” That sounds rather persuasive, given his
greatly impaired vision. But the judge denied the motion,
and the plaintiff did not appeal the denial.
Six months later, represented by the same lawyer, the
plaintiff filed a materially identical suit. The six-month stat-
No. 14-1428 3
ute of limitations had expired some 19 months earlier, but he
argued that its running should be equitably tolled; we have
held that the statute of limitations for suits under the Federal
Tort Claims Act can be equitably tolled. Arteaga v. United
States, 711 F.3d 828, 833 (7th Cir. 2013). The district court re-
jected the argument and dismissed the suit, precipitating
this appeal. The judge reasoned that the plaintiff had failed
to exercise “due diligence,” a failure generally fatal to a plea
for equitable tolling. E.g., Norman v. United States, 467 F.3d
773, 775–76 (D.C. Cir. 2006). The plaintiff, he said, “was able
to file [his first] complaint pro se while incarcerated … and
was able to submit a change of address to the court [the
change of address he had submitted had been the change
from the address of the prison to the address of the halfway
house]. Upon release, tasks such as changing his address
with the Court and retaining an attorney should have be-
come less onerous.” The government describes the plaintiff’s
delay in filing his second suit as “delinquency.”
The district judge’s explanation for refusing to allow the
late filing of the suit was cursory. He did not suggest (nor
does the government) that the government had been preju-
diced by the plaintiff’s delay in suing. And upon being re-
leased from prison the plaintiff was likely to have found it
more rather than, as the district judge said, less difficult to
advise the court of changes of address. As a prisoner the
plaintiff could ask a fellow prisoner or a member of the pris-
on staff to mail a letter for him; upon release he was a blind
ex-con struggling to keep his head above water, and the
struggle must have intensified when he was expelled, alleg-
edly without notice and for reasons unexplained in the pa-
pers in this case, from the halfway house that was his first
home after he completed his prison sentence. There is no in-
4 No. 14-1428
dication in the record that he had a family to help him cope
with the difficult situation in which he found himself.
But then there is the inexplicable delay in the filing of the
second suit. The plaintiff must have obtained his lawyer
very shortly after the dismissal of the first suit, for it was on-
ly two weeks after that dismissal that the lawyer filed a mo-
tion to set it aside. But when the motion was denied, instead
of appealing the lawyer waited more than six months to file
a new suit.
The lawyer’s dawdling demonstrates a lack of diligence
for which he offers no excuse—his brief says nothing about
the delay. And ordinarily the deficiencies of a lawyer are
imputed to the client. Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U.S. 380, 396–97
(1993); Farzana K. v. Indiana Department of Education, 473 F.3d
703, 705-06 (7th Cir. 2007). What makes this case unusual is
that in dismissing the second suit the district judge, while
mentioning briefly (and with appropriate disapproval) the
delay in the filing of that suit, did not suggest that that delay
was sufficient in itself to warrant denial of equitable tolling.
He focused instead on the plaintiff’s failure to have notified
the court of his change of address after his expulsion from
the halfway house. The judge gave no weight to what may
well have been the plaintiff’s desperate circumstances when
he found himself on his own after that sudden expulsion.
Ordinarily as we said the pratfalls of a party’s lawyer are
imputed to the party. But given the unusual gravity of the
plaintiff’s injuries, the absence of any suggestion of prejudice
to the defendant from the delay in suing, and the district
judge’s cursory treatment of the issue of equitable tolling, we
have decided that the judgment should be vacated and the
No. 14-1428 5
case remanded to the district court for further consideration
of the tolling issue. We do not prejudge the issue; we merely
think it deserves fuller consideration.
We note in closing a curious wrinkle in the district
court’s handling of the case. The plaintiff’s first suit, which
was materially identical to his second, current suit, was as
we said dismissed without prejudice for failure to prosecute.
Rule 41(b) of the civil rules provides that a dismissal for fail-
ure to prosecute is with prejudice "unless the dismissal order
states otherwise." In other words, dismissal for failure to
prosecute is presumptively with prejudice, as we pointed
out in Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993). Citing
that decision, the magistrate judge to whom Judge Reagan
(the district judge in our plaintiff’s first case) had referred
the motion recommended dismissal of the first suit with
prejudice. Had Judge Reagan followed that recommenda-
tion, the second suit would be barred by res judicata. The
judge, however, dismissed the suit before him—the first of
the plaintiff’s two suits—without prejudice, but also without
giving any reason for rejecting the Rule 41(b) presumption.
The government accepted that form of dismissal despite the
absence of a stated reason, remarking in a footnote in its
brief to us that “even though this suit is essentially the same
as Hill’s first suit, it is not foreclosed by operation of the doc-
trine of res judicata, because the dismissal of Hill’s first suit
was without prejudice.” Judge Reagan may or may not have
had a good reason to make that dismissal without prejudice,
but in light of the government’s acceptance of that determi-
nation (an acceptance for which the government may, for all
we know, have a good reason as well, though we can’t think
of any), we are not disposed to pursue the issue; the defense
of res judicata has been waived.
6 No. 14-1428
The judgment of the district court is reversed and the
case remanded for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.