Damien Terry v. Mark Spencer, et al

Filing

Filed opinion of the court by Judge Sykes. REVERSED and REMANDED. Joel M. Flaum, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6920977-1] [6920977] [17-2331]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2331
DAMIEN G. TERRY,
Plaintiff-Appellant,
v.
MARK SPENCER, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 17-CV-1079 — Harold A. Baker, Judge.

____________________
SUBMITTED APRIL 12, 2018 * — DECIDED APRIL 27, 2018
____________________
Before FLAUM, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge. Damien Terry, an Illinois prisoner
proceeding pro se, sued prison officials and corrections
administrators under 42 U.S.C. § 1983 claiming that they were
*

The appellees were not served and are not participating in this appeal.
We resolve this case without oral argument because the appellant’s brief
and the record adequately present the facts and legal arguments, and oral
argument would not aid the court. See FED. R. APP. P. 34(a)(2)(C).

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deliberately indifferent to a painful tumor on his neck and
prevented him from timely filing suit on that claim. A district
judge screened the case, see 28 U.S.C. § 1915A, held a
“merit-review hearing,” see Hughes v. Farris, 809 F.3d 330, 334–
35 (7th Cir. 2015), and dismissed the complaint, ruling that it
impermissibly joined two unrelated sets of claims against different defendants. The judge gave Terry 30 days to replead.
Terry instead moved for reconsideration, citing Rule 59(e)
of the Federal Rules of Civil Procedure. He explained that his
claims were not unrelated and his complaint should not have
been dismissed on that ground. The judge denied the motion,
observing that Rule 59(e) does not permit reconsideration of
a nonfinal order of dismissal. The judge then entered judgment ending the case, and Terry appealed.
We reverse. The judge misunderstood his discretion to
entertain Terry’s reconsideration motion. Though Rule 59(e)
did not apply, a district judge may reconsider an interlocutory
order at any time before final judgment. And the judge should
have done so here; reading the complaint generously, Terry’s
claims are related.
We also note an anomaly in this record and invoke our supervisory authority to guard against its recurrence. We have
upheld the use of so-called merit-review hearings at § 1915A
screening, but we’ve cautioned that this unusual procedure
must be strictly limited to “enabling a pro se plaintiff to clarify
and amplify his complaint.” Id. at 335. We have also explained
that a transcript or other recording must be made. Henderson
v. Wilcoxen, 802 F.3d 930, 932–33 (7th Cir. 2015). This record
contains no transcript or digital recording of the judge’s
merit-review hearing; indeed, it’s unclear from the docket
whether it was recorded at all. We now require district judges

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who use this procedure to docket a transcript or a digital
recording of the hearing.
I. Background
The complaint alleges two sets of facts, which we accept
as true at this stage. See Oakland Police & Fire Ret. Sys. v. Mayer
Brown, LLP, 861 F.3d 644, 649 (7th Cir. 2017). Terry claims that
officials at two Illinois prisons—the Tamms Correctional
Center and the Pontiac Correctional Center—were deliberately indifferent to his requests for treatment of a tennis ballsized growth on the back of his neck and head. The tumor,
which he first noticed in 2006, caused “pain, blurred vision,
lack of sleep, and mania.” He repeatedly sought treatment for
the tumor and in 2012 specifically asked to be referred for surgery to remove it, but his requests were denied or ignored.
Terry waited until 2017 to file this suit seeking relief for
the failure to treat his tumor. The defendants are various
prison officials and corrections administrators, including an
unnamed Jane Doe. Terry alleges that some of the defendants
were deliberately indifferent to his serious medical needs and
others interfered with his right to file suit. Regarding the latter
set of claims, Terry alleges that he tried to file suit in
December 2015 and March 2016 to redress the failure to treat
his tumor but was stymied when prison staff intentionally
“lost” his legal mail.
The judge screened the complaint and scheduled a meritreview hearing. Terry appeared from prison by videoconference. After the hearing the judge dismissed the complaint. As
the judge understood the case, Terry was asserting two unrelated sets of claims—one for deliberate indifference to his
serious medical needs and one for interference with his right

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to access the courts. The judge identified three deficiencies in
the complaint: (1) it impermissibly “join[ed] unrelated
defendants and unrelated claims into a single complaint”;
(2) the two-year statute of limitations for § 1983 claims in
Illinois barred the deliberate-indifference claims against some
of the defendants, see 735 ILL. COMP. STAT. 5/13-202; and
(3) Terry’s claims against the corrections administrators failed
because those defendants “had no constitutional duty to intervene, [to] respond to his letters, or to approve his grievances.”
Terry promptly filed a motion invoking Rule 59(e) and
seeking reconsideration of the dismissal order. He argued
that all of his claims were in fact related because the interference with his right to access the courts both explained and excused the possible untimeliness of his deliberate-indifference
claims.
On the day the 30-day period to amend the complaint
expired, the judge denied Terry’s reconsideration motion in a
cursory text order. The judge stated that because the court had
not yet entered final judgment, “Federal Rule of Civil
Procedure 59 does not provide a basis for [p]laintiff to ask the
Court to reconsider its Merit Review Order.” The order also
said that Terry “should file an Amended Complaint that cures
the deficiencies noted by the Court in its Merit Review
Order.” A week later the judge closed the case, noting that
Terry had not filed an amended complaint.
II. Analysis
Terry argues that the judge should have granted reconsideration and reinstated his case because the two sets of claims

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alleged in his complaint are factually and legally related. We
agree.
First, the judge correctly observed that Rule 59 is not the
right procedural hook for seeking reconsideration of a nonfinal order. But pro se filings should be read liberally. Obriecht
v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008). Looking past the
label, Terry’s motion plainly sought reconsideration of the
judge’s nonfinal dismissal order, and district judges may
reconsider interlocutory orders at any time before final judgment. See Mintz v. Caterpillar Inc., 788 F.3d 673, 679 (7th Cir.
2015); Galvan v. Norberg, 678 F.3d 581, 587 (7th Cir. 2012).
Because the judge focused solely on the motion’s label rather
than its substance, we cannot be sure that he appreciated his
authority to revisit the interlocutory dismissal order. See Koon
v. United States, 518 U.S. 81, 100 (1996) (recognizing that the
trial court “by definition” abuses its discretion when it misapprehends law).
As for the substance of the motion, the judge should have
granted reconsideration and allowed the case to go forward.
The judge misread the complaint as alleging that the interference with Terry’s legal mail caused him to miss an unspecified court-imposed deadline. But what the complaint actually
contends is that the interference with his legal mail prevented
him from filing the tumor-related claims within the statute of
limitations. Generously construed, the allegations about lost
mail represent both a separate claim and an anticipatory
response to a statute-of-limitations defense to the deliberateindifference claims. The two sets of claims are against different defendants, but they belong in the same suit because they
arise out of the same set of connected “transactions.” FED. R.
CIV. P. 20(a)(2)(A); Wheeler v. Wexford Health Sources, Inc.,

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689 F.3d 680, 683 (7th Cir. 2012). Joining these related claims
in one suit is not the “scattershot” litigation strategy we have
criticized in the past. Owens v. Godinez, 860 F.3d 434, 436 (7th
Cir. 2017).
The judge also prematurely concluded that the statute of
limitations bars Terry’s deliberate-indifference claims. The
judge correctly recognized that Terry’s complaint focuses
mostly on events that occurred between 2006 and 2012. But as
Terry pointed out in his motion to reconsider, “a federal court
relying on the Illinois statute of limitations in a § 1983 case
must toll the limitations period while a prisoner completes the
administrative grievance process.” Johnson v. Rivera, 272 F.3d
519, 522 (7th Cir. 2001).
Terry alleges that despite his best efforts, he did not finish
exhausting his administrative remedies until March 2014. His
complaint further alleges that he would have filed suit within
two years of that date if prison staff had not twice intentionally lost his legal mail. Given these allegations, which the
judge did not acknowledge, we cannot say that a potential
statute-of-limitations defense is “so plain from the language
of the complaint … that it renders the suit frivolous.” Gleash
v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002).
That said, Terry’s complaint does not appear to state a
claim against several Department of Corrections administrators, and he does not challenge that aspect of the judge’s dismissal order. But if on remand Terry tries again to assert
claims against the corrections administrators, he must explain
how each personally participated in violating his rights. See
Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012);
Knight v. Wiseman, 590 F.3d 458, 462–63 (7th Cir. 2009).

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One final matter remains. As we’ve explained, the judge
dismissed Terry’s complaint after a so-called merit-review
hearing. We have upheld the use of this unusual procedure,
but only “for the narrow purpose of enabling a pro se plaintiff
to clarify and amplify his complaint if it is confusing; the district judge may not use the hearing[] to cross-examine a plaintiff or elicit admissions.” Hughes, 809 F.3d at 334–35. We have
also explained that the judge must ensure that the hearing is
recorded either by a court reporter or a digital recording. See
id. at 334; Henderson, 802 F.3d at 932–33. This record does not
contain a transcript or digital recording of the judge’s meritreview hearing. Nor does a transcript or a digital recording
appear on the district-court docket. The docket does not show
whether the hearing was recorded at all.
Our supervisory authority permits us to require district
judges to observe “procedures deemed desirable from the
viewpoint of sound judicial practice although in no-wise commanded by statute or by the Constitution.” Thomas v. Arn,
474 U.S. 140, 146–47 (1985) (quoting Cupp v. Naughten,
414 U.S. 141, 146 (1973)); see also Lemons v. Skidmore, 985 F.2d
354, 356 (7th Cir. 1993). Invoking this authority, we now hold
that a judge who conducts a merit-review hearing in order to
clarify a pro se complaint at § 1915A screening must docket
either a transcript of the hearing, prepared at public expense
if the plaintiff’s indigency warrants, or a digital recording of
the hearing.
We REVERSE and REMAND for further proceedings consistent with this opinion.