Johnson v. South Bend Indiana The City of et al

Filing 36

OPINION AND ORDER re 23 AMENDMENT COMPLAINT filed by Eric Leon Johnson. The Amendment Complaint is construed by the Court to be a Motion to Alter or Amend Judgment and is DENIED. Clerk DIRECTED to docket this Order and forward a copy to Clerk, U.S. Court of Appeals for the Seventh Circuit. Signed by Judge William C Lee on 3/1/16. (cc: Eric Leon Johnson; USCA). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ERIC L. JOHNSON,
Plaintiff-Appellant,
v.
CITY OF SOUTH BEND, et al.,

Defendants-Appellees.

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Case No.: 2:14-CV-249
(U.S. Court of Appeals for
the Seventh Circuit Case No. 15-3887)

ORDER
This matter is before the court sua sponte for purposes of addressing the “Amendment
Complaint” filed by Plaintiff Eric Johnson on January 5, 2015 (docket entry 23). The Defendants
filed a response on September 22, 2015 (DE 26). The court construes Johnson’s filing as a
motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e) and DENIES the motion.1 The
Clerk of the Court is instructed to docket this Order and forward a copy to the Clerk of the Court
for the U.S. Court of Appeals for the Seventh Circuit.
DISCUSSION
Johnson filed this lawsuit on July 17, 2014 (DE 1). The Defendants filed a motion to
dismiss the case on September 23, 2014 (DE 16) and this court granted the motion on December
9, 2014 (DE 21). That was supposed to be the end of this case, so far as this court was concerned.
However, Johnson filed his document titled “Plaintiff’s Amendment Complaint” about a month

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It should be noted that recently Johnson also filed a motion to proceed in forma
pauperis on appeal and a motion for appointment of counsel (DE 30 and 32, respectively). On
February 29, 2016, this court entered an order denying Johnson’s motion to proceed in forma
pauperis and deeming moot his motion to appoint counsel (the latter having been forwarded to
the court of appeals, where it was intended to be filed). See Order (DE 35).

after the case was dismissed. The Defendants filed a response a little more than nine months
later. The Defendants’ response does not state why it was filed so many months after Johnson
filed his purported amended complaint. It would appear that defense counsel saw Johnson’s
filing at some point and concluded that a response was advisable even given the status of the
case. This presumption is likely a valid one, given that the Defendants state in their response that
it “appears to Defendants [that Johnson’s purported amended complaint is] more of a Motion for
Relief from Judgment, than an amended complaint.” Defendants’ Response, p. 1. The
Defendants then go on to argue that Johnson’s motion should be denied because Johnson “has
not provided any basis under F.R.C.P. Rule [sic] 60(b) to demonstrate a just basis for vacating
the Opinion and Order of this Court.” Defendants’ Response, p. 3. Notwithstanding the
Defendants’ interpretation, this court deems Johnson’s filing to be a Rule 59(e) motion rather
than a Rule 60(b) motion (a conclusion shared by the Seventh Circuit Court of Appeals, as
discussed below). Accordingly, the filing should be (and should have been from the outset)
construed as a motion to alter or amend judgment pursuant to Rule 59. Again, the parties’ filings
were made after the court had entered an Opinion and Order dismissing this case in its entirety on
December 9, 2014 (DE 21). Johnson’s filing languished since it was filed in a closed case and
was not accompanied by or titled as any sort of motion, which would have alerted the Clerk’s
Office to bring the filing to the court’s attention (something that should have been done anyway).
Neither party pursued the matter and Johnson did not file any reply to the Defendants’ response
brief. Eleven months later, on December 18, 2015, Johnson filed a notice of appeal (DE 27)
indicating his intention to appeal this court’s December 2014 order dismissing this case to the
U.S. Court of Appeals for the Seventh Circuit. The appeal was docketed in the Seventh Circuit
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on December 30, 2015 (DE 29).
“Ordinarily, filing a notice of appeal divests a district court of jurisdiction.” U.S. v.
Ramer, 787 F.3d 837, 838 (7th Cir. 2015) (citations omitted). “The filing of a notice of appeal is
an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests
the district court of its control over those aspects of the case involved in the appeal.”
U.S. v. Brown, 732 F.3d 781, 787 (7th Cir. 2013) (quoting Griggs v. Provident Consumer Disc.
Co., 459 U.S. 56, 58 (1982)). “‘Only one court at a time has jurisdiction over a subject.’” Id.
(quoting United States v. McHugh, 528 F.3d 538, 540 (7th Cir. 2008)). “The point of the rule is
to ‘avoid the confusion of placing the same matter before two courts at the same time and to
preserve the integrity of the appeal process.’” Id. (quoting In re Teknek, LLC, 563 F.3d 639, 650
(7th Cir. 2009)).
Regrettably, in this case, confusion was not avoided. Shortly after Johnson filed his notice
of appeal, the Defendants filed a motion to dismiss it pursuant to Fed.R.App.P. 27 on the basis
that it was untimely. Appellate Court Docket at 12. The parties then began litigating the motion
to dismiss the appeal. Id. at DE 15 (Appellant’s brief) and DE 17 (Appellees’ Response).
Meanwhile, Johnson’s filing in this court, and the Defendants’ response, sat on the shelf
gathering dust until very recently, when the court of appeals spotted them on the docket, which in
turn led that court to question its own jurisdictional authority to hear Johnson’s appeal.
On February 5, 2016, the appellate court entered an order noting the filing of Johnson’s
“Amendment Complaint” and concluding that “[s]ince the paper captioned ‘Plaintiff’s
Amendment Complaint’ was filed within 28 days of entry of judgment on December 9, 2014, the
plaintiff’s filing may be treated as a timely Rule 59 motion.” Order, Appellate Court DE 18, pp.
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1-2 (citing Charles v. Daley, 799 D.2d 343, 347 (7th Cir. 1986)). The appellate court then stated
as follows: “IT IS ORDERED that appellees shall file, on or before February 19, 2016, a brief
memorandum stating why this appeal should not be STAYED pending the entry of the order
disposing of the motion[.]” and also stating that “[b]riefing shall be suspended pending further
court order.” Id., p. 2. The court instructed the appellees to caption their filing as a “Jurisdictional
Memorandum.” Id. This court, however, was never privy to these orders or otherwise aware that
the appellate court had raised this issue. On February 19, 2016, the appellees filed their
“Jurisdictional Memorandum” as directed by the Seventh Circuit. Appellate Court DE 19-1. In
that memorandum, appellees state that they “recognize that the Appellant filed in the District
Court a Plaintiff’s Amendment Complaint, which Appellees filed a response to and left it to the
district court’s discretion of whether [sic] to treat it as a Rule 59 motion.” Id., p. 1. (Actually, as
stated above, the Defendants incorrectly interpreted Johnson’s filing as a motion under Rule 60.)
Finally, on February 23, 2016, the Seventh Circuit entered another Order, again directed at the
Defendants/Appellees, which stated, in its entirety, as follows:
On consideration of the “Jurisdictional Statement” filed by appellees on
February 19, 2016,
IT IS ORDERED that appellees file, on or before March 1, 2016, a status
report regarding the disposition of plaintiff’s filing captioned “Plaintiff’s
Amendment Complaint.”
If the district court has not issued its ruling, counsel for appellees should
inquire of the district judge when a ruling is expected.
Briefing shall continue to be SUSPENDED pending further court order.
Appellate Court DE 20. The next day, defense counsel contacted this court and sent the court a
copy of the Seventh Circuit’s February 23 order. It was at that point that this court became aware,
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for the first time, of the issue regarding Johnson’s “Amendment Complaint.” This recitation of
the events that led to the present confusion is not intended to excuse the fact that Johnson’s
“Amendment Complaint” should have been brought to the court’s attention when it was filed (or
at the very least when the Defendants’ response was filed nine months later), so the court could
rule on it. It is this court’s hope that that oversight will be remedied now.
This court agrees with the Seventh Circuit that Johnson’s “Amendment Complaint” is
properly construed as a motion under Fed.R.Civ.P. 59(e) since it seeks “to alter or amend” this
court’s order dismissing this case and was filed “no later than 28 days after the entry of the
judgment.” Fed.R.Civ.P. 59(e). “A motion to alter or amend a judgment is only proper when ‘the
movant presents newly discovered evidence that was not available at the time of trial or if the
movant points to evidence in the record that clearly establishes a manifest error of law or fact.’”
Burritt v. Ditlefsen, 807 F.3d 239, 252 (7th Cir. 2015) (quoting Matter of Prince, 85 F.3d 314,
324 (7th Cir. 1996)). In his motion, Johnson fails to set forth any grounds that would entitle him
to relief from this court’s judgment. Johnson’s motion does not point to any “newly discovered
evidence” nor does it establish that this court’s ruling constituted “a manifest error of law or
fact.” Instead, as the Defendants state in their response, the motion merely “reiterate[s] the exact
same facts” that were presented in his filings in this court in opposition to the Defendants’
motion to dismiss (i.e., that he should be granted a “statutory exception” to the applicable statute
of limitations because he suffered from alleged mental or emotional problems or illnesses that he
claims prevented him from filing his original Complaint in a timely manner). Defendants’
Response (DE 26), p. 1; Court Order (DE 21), generally. In short, Johnson’s Rule 59 motion
presents nothing new and adds nothing to the calculus. For this reason, the motion is DENIED.
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CONCLUSION
For the reasons discussed herein, the “Amendment Complaint” filed by Plaintiff Eric
Johnson on January 5, 2015 (DE 23) is construed as a motion to alter or amend judgment
pursuant to Fed.R.Civ.P. 59(e) and is DENIED.2 The Clerk of the Court is instructed to docket
this Order and forward a copy to the Clerk of the Court for the U.S. Court of Appeals for the
Seventh Circuit.
Entered: March 1, 2016.
/s/ William C. Lee
William C. Lee, Judge
United States District Court
Northern District of Indiana

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It should be noted that recently Johnson also filed a motion to proceed in forma
pauperis on appeal and a motion for appointment of counsel (DE 30 and 32, respectively). On
February 29, 2016, this court entered an order denying Johnson’s motion to proceed in forma
pauperis and deeming moot his motion to appoint counsel (the latter having been forwarded to
the court of appeals, where it was intended to be filed). See Order (DE 35).
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