LaShawn Lofton v. SP Plus Corporation , 710 F. App'x 265 ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 1, 2018*
Decided February 1, 2018
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 17-1745
LASHAWN N. LOFTON, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 12 C 5716
SP PLUS CORP., f/k/a STANDARD
PARKING CORPORATION and Rebecca R. Pallmeyer,
TEAMSTERS LOCAL 727, Judge.
Defendants-Appellees.
ORDER
Lashawn Lofton seeks to reopen her case more than two years after we affirmed
its dismissal as a sanction for lying on her application to proceed in forma pauperis. The
district judge denied Lofton’s motion for relief from judgment under Federal Rule of
Civil Procedure 60(b), and then denied her motion to reconsider that decision. We
affirm.
*We have agreed to decide this case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17-1745 Page 2
In 2012 Lofton, a parking garage attendant, sued her former employer, SP Plus
Corporation, and her local union. The Second Amended Complaint, filed by Lofton’s
recruited counsel, claimed that SP Plus discriminated against her based upon her
disability (the effects of prior strokes), discharged her in retaliation for reporting
suspected theft, and was responsible for a battery or assault she suffered at the hands of
a supervisor. Lofton also claimed that Teamsters Local 727 breached its duty of fair
representation in the grievance process after SP Plus fired her.
SP Plus moved to dismiss Lofton’s complaint because, among other things,
Lofton had omitted income, personal property, and real estate from her successful
application to proceed in forma pauperis. The district judge granted the motion on that
basis and dismissed the case with prejudice. We affirmed the sanction in October 2014.
Lofton v. SP Plus Corp., 578 F. App’x. 603, 604 (7th Cir. 2014) (citing Thomas v. Gen.
Motors Acceptance Corp., 288 F.3d 305, 306–08 (7th Cir. 2002)).
In 2016 Lofton moved to reopen her case, to proceed in forma pauperis, and for
recruited counsel. In her motion, Lofton said only: “I am [a] disabled person asking this
court[] to have mercy for me.” Judge Darrah granted all three motions without
explanation. One month later, the case was reassigned to Judge Pallmeyer, who vacated
the order granting reinstatement because Lofton’s motion had not mentioned any of the
“narrow circumstances” covered under Federal Rule of Civil Procedure 60(b)—the only
vehicle for reopening her case. Judge Pallmeyer then denied Lofton’s motion to
reconsider, which was filed by her recruited attorney. Lofton appeals both rulings.
Lofton, now pro se, wants another bite at the apple—that much is clear. But her
brief is patently inadequate. On the first page she declares that she had illnesses, and on
the last page she asks us “for mercy.” In between, she does not address the district
judge’s reasoning or make any cogent legal argument; she largely discusses issues
related to her disability and her loss of pension benefits. We would be well within our
rights to dismiss Lofton’s appeal under Federal Rule of Appellate Procedure 28(a)(8).
See Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001).
Addressing the merits of the appeal does not help Lofton. District judges have
“‘discretion piled on discretion’” when making a Rule 60(b) decision. Bakery Mach. &
Fabrication, Inc. v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009) (quoting
Swaim v. Moltan Co., 73 F.3d 711, 722 (7th Cir. 1996)). Although a movant is required to
specify which Rule 60(b) ground justifies relief, Lofton simply said that she had a
disability. See Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir. 2001).
No. 17-1745 Page 3
Because she failed to make a discernible argument, the judge had reason enough to
deny her motion. See Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011).
In any case, no Rule 60(b) ground justifies relief. If, as the judge thought, Rule
60(b)(1) (“mistake, inadvertence, surprise, or excusable neglect”) was the most
applicable subsection, Lofton missed the one-year jurisdictional deadline. FED. R. CIV.
P. 60(c)(1); see Arrieta v. Battaglia, 461 F.3d 861, 864 (7th Cir. 2006). And Lofton did not
argue that her health setbacks amounted to “extraordinary circumstances” under the
catchall provision, Rule 60(b)(6). See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Lofton’s
recruited attorney filed the motion to reconsider in which he discussed only whether an
amended complaint would be timely—but that is not a relevant Rule 60(b) argument.
Lofton’s remaining appellate contentions fail. She rehashes her original claims,
which is inappropriate at this stage. See Swaim, 73 F.3d at 722 (“we review only the Rule
60(b) decision itself for an abuse of discretion and will not visit the merits of the
underlying … judgment.”). And she alludes to other claims that were never brought
before the district judge; those claims are waived. See Poullard v. McDonald, 829 F.3d 844,
855 (7th Cir. 2016) (citing Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012)).
AFFIRMED.