John Taylor, Jr. v. James Brown

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 12-1710

JOHN E. TAYLOR, JR.,

Plaintiff-Appellant,

v.

JAMES BROWN,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 11-cv-631-GPM — G. Patrick Murphy, Judge.

____________________

ARGUED DECEMBER 4, 2014 — DECIDED JUNE 2, 2014

____________________

Before BAUER, RIPPLE, and SYKES, Circuit Judges.

SYKES, Circuit Judge. John Taylor, an Illinois prisoner,

filed suit against several prison officials alleging various

civil-rights violations, but his complaint included misjoined

claims, one of which was a failure-to-protect claim against

Officer James Brown. A magistrate judge issued a show-

cause order indicating that he was inclined to sever the

claims but that Taylor could avoid a severance order—and a

second filing fee—if he dismissed one of the misjoined

2 No. 12-1710

claims voluntarily. Taylor reluctantly accepted the court’s

advice and drafted a response voluntarily dismissing his

claim against Officer Brown. Two days before the judge’s

deadline, Taylor gave the document to a prison librarian to

be e-filed. The court clerk never received it, however, and

the judge severed the claim against Officer Brown, opened a

new case, and assessed a second filing fee.

Both Taylor and the officer subsequently argued that

Taylor’s voluntary dismissal was timely under the prison

mailbox rule, but the court never addressed the issue. That

was a mistake. Taylor’s voluntary dismissal motion was

indeed timely under the prison mailbox rule, so the court

should not have severed the claim or imposed a second

filing fee.

I. Background

On February 7, 2011, Taylor filed a pro se complaint seek-

ing relief under 42 U.S.C. § 1983 against several employees

of the Menard Correctional Center in southern Illinois where

he was incarcerated. Taylor didn’t formally differentiate his

various allegations against the defendants, but the district

judge tasked with screening the complaint under 28 U.S.C.

§ 1915A discerned five distinct claims. The judge dismissed

three of the claims as legally or factually inadequate, but two

survived: Count 1 alleged medical indifference on the part of

several prison officials (primarily for failing to supply Taylor

with needed medication), and Count 3 alleged that Officer

Brown failed to protect Taylor from an assault by his cell-

mate. The suit was docketed as case number 11-cv-104-JPG

(the “104 Case”), and Taylor was approved to proceed in

No. 12-1710 3

forma pauperis (“IFP”), meaning he could pay the $350 filing

fee in installments. See 28 U.S.C. §§ 1914(a), 1915.

A magistrate judge reviewed the complaint and on

June 29 issued an order to show cause stating that he was

inclined to sever Counts 1 and 3 because they involved

different events and defendants. See FED. R. CIV.

P. 20(a)(2)(B) (Multiple defendants may be joined in one

action only if “any question of law or fact common to all

defendants will arise in the action.”); FED. R. CIV. P. 21 (“On

motion or on its own, … [t]he court may … sever any claim

against a party.”). The order informed Taylor that a second

filing fee would be assessed if the claims were severed, but

also explained that he could avoid the fee if he voluntarily

dismissed either count by July 13.

On July 6 the defendants expressed their support for ei-

ther a severance or the voluntary dismissal of either count

and agreed that they “would suffer no plain legal prejudice

as a result of an order permitting [a] voluntary dismissal.”

Taylor drafted a response to the show-cause order in ear-

ly July. In it he accepted the court’s suggestion that he

voluntarily dismiss one of the counts, saying that he “reluc-

tantly will dismiss Count III, even though the [p]laintiff in

his limited knowledge of the [l]aw believes that Count III …

should be included in the complaint.” He added, “[f]or

another filing fee to be levied upon the [p]laintiff it would be

a miscarriage of justice” and “an overwhelming financial

burden,” and “[t]herefore, under duress, the [p]laintiff will

dismiss Count III.”

By this time, however, Taylor had been transferred from

Menard to the Stateville Correctional Center. Stateville had

4 No. 12-1710

recently instituted a policy requiring prisoners’ court docu-

ments to be digitally scanned and e-filed by prison librari-

ans. On July 11 Taylor gave his response to a Stateville law

library paralegal named Ms. Winters. Taylor told her that it

was due July 13, and she assured him that it would be e-filed

before then. It wasn’t. Whether Winters forgot or there was a

technical glitch (she later claimed another staff member

watched her upload it), the document Taylor gave her on

July 11 never found its way to the court clerk. It was, how-

ever, mailed in hard-copy form to defense counsel, who

received it on July 19.

Having received no word from Taylor by the July 13

deadline, the magistrate judge severed Counts 1 and 3 under

Rule 21 on July 22.1 The clerk redocketed Count 3 as 3:11-cv-

00631-GPM (“the 631 Case”), and Taylor was ordered to pay

the $350 filing fee immediately or apply to proceed IFP.

When Taylor was informed of the severance in late July,

he became concerned that the court had not received his

response to the show-cause order. He asked Winters to refile

the document with a note indicating that it was a repeat

filing. The court clerk docketed the uploaded response in the

104 Case on August 4.

On August 18 Officer Brown, as the only defendant in the

631 Case (the original Count 3), moved to dismiss. His

primary argument was that because Taylor had “attempted

to agree to dismiss Count 3 of [p]laintiff’s [c]omplaint in [the

104 Case] by the [c]ourt’s deadline and before the [c]ourt

1The 104 Case (that is, Count 1) was later resolved in March 2013 on the

defendants’ motion for summary judgment.

No. 12-1710 5

directed the [c]lerk to open the instant case,” his response to

the order to show cause was timely under the prison mail-

box rule.2 Officer Brown asked the court to allow Taylor,

even now, to voluntarily dismiss the claim as he had tried to

do in his July 11 response.3

Taylor responded on August 24 and explained that he

had no control over when his motion for a voluntary dismis-

sal was filed after he gave it to the prison paralegal. He

“ask[ed] that the [c]ourt not penalize the [p]laintiff for the

[m]otions arriving beyond the deadline date to respond to

the Show Cause Motion.” Rather, because he “voluntarily

request[ed] the [c]ourt to dismiss Count III that no further

charges be [assessed] to the [p]laintiff’s account,” he

“pray[ed] that the [c]ourt will dismiss the Count III without

prejudice.”

On August 29 Taylor again asked the court to “consider[]

that the [p]laintiff had absolutely no control of the Motion to

2 Officer Brown’s motion to dismiss was the first clear indication to

Taylor that his July 11 response had not been properly filed. Taylor

wrote to the court clerk on September 11 and to the magistrate judge on

September 19 seeking to confirm whether any documents had been filed

on his behalf in the 104 Case in July 2011. On October 18 the court

confirmed that nothing had been filed for him during that month.

3 In the interest of completeness, we note that the next docket entry after

Officer Brown’s motion to dismiss was an order from the court on

August 23, 2011, reiterating that Taylor must pay the $350 filing fee

immediately or request to proceed IFP, and that failure to do so would

result in the dismissal of the case with prejudice.

6 No. 12-1710

Dismiss being electronically sent to the [c]ourt”4 and “rule

favorably on the Motion to Dismiss.”

The district judge denied Officer Brown’s motion to dis-

miss on September 12. The judge did not acknowledge the

officer’s argument about the prison mailbox rule or refer to

any of Taylor’s subsequent motions urging the court to

accept his response to the show-cause order as timely filed.

The court’s order was skeletal, but the judge seems to have

been under the misapprehension that Taylor had agreed to

the severance and wanted to pursue his claim against Officer

Brown. And so despite the wishes of both parties, the second

suit continued.

Taylor never paid the filing fee for the 631 Case, nor did

he request to proceed IFP. Accordingly, on September 22 the

district judge dismissed the 631 Case with prejudice under

Rule 41(b) for failure to comply with a court order. FED. R.

CIV. P. 41(b). The judge also sua sponte ordered Taylor to

pay Officer Brown’s litigation costs. See FED. R. CIV.

P. 54(d)(1) (allowing for the prevailing party’s costs—other

than attorney’s fees—to be reimbursed by the nonprevailing

party).

On September 30 and October 26, 2011, Taylor filed near-

ly identical postjudgment motions detailing his attempts to

file his response to the order to show cause and asking the

court, again, to permit him to voluntarily dismiss his claim

against Officer Brown. The first motion did not cite any

procedural rule, but the court construed it as a motion to

4 We think Taylor’s reference here to the “Motion to Dismiss” was meant

to refer to his response to the show-cause order, in which he moved for

voluntary dismissal of his claim against Officer Brown.

No. 12-1710 7

alter or amend the judgment under Rule 59(e). See FED. R.

CIV. P. 59(e) (requiring motions to alter or amend a judg-

ment to be filed within 28 days of the judgment); Obriecht v.

Raemisch, 517 F.3d 489, 493–94 (7th Cir. 2014) (explaining that

a nonspecific motion for reconsideration based on a claimed

error of law is treated as a motion under Rule 59(e), not

Rule 60(b)). The second motion specifically requested relief

from a final judgment under Rule 60(b). See FED. R. CIV.

P. 60(b). The court denied both motions on February 29,

2012. On March 12 Taylor filed a third postjudgment motion,

also under Rule 60(b), which included an affidavit and

evidence documenting his attempt to file his response to the

order to show cause on July 11. The district court denied that

motion on March 18, and Taylor timely appealed the denials

of all three postjudgment motions.

Taylor initially proceeded pro se on appeal, but we re-

cruited pro bono counsel to assist him.5 We asked the parties

to address two questions: (1) the effect of Taylor’s response

to the show-cause order and Officer Brown’s motion to

dismiss; and (2) whether Taylor’s response was timely under

the prison mailbox rule.

II. Discussion

Despite the complex procedural history, the resolution of

this case is relatively straightforward. As both Taylor and

Officer Brown argued in the district court, Taylor’s response

to the pre-severance show-cause order was timely under the

5 The court thanks Barry Levenstam and Daniel T. Fenske of Jenner &

Block LLP for their very capable pro bono representation of Taylor.

8 No. 12-1710

prison mailbox rule. Since Taylor accepted the court’s pro-

posal that he voluntarily dismiss Count 3, the 631 Case

should never have come into existence, Taylor should not

have been assessed a second filing fee, his claim against

Officer Brown should not have been dismissed with preju-

dice, and he should not have been held liable for Brown’s

litigation expenses. Taylor is entitled to unwind the clock.

A. Jurisdiction

Before analyzing the prison mailbox rule, we must en-

sure that the issue falls within the scope of this appeal.

Wingerter v. Chester Quarry Co., 185 F.3d 657, 660 (7th Cir.

1999); 28 U.S.C. § 1291. Officer Brown argues that the issue is

out of bounds because the severance order was issued in the

104 Case, and this is an appeal of the final judgment in the

631 Case.

It’s true that the severance order was initially entered in

the 104 Case—that was the only case in existence at the time,

after all—but it doesn’t follow that we cannot review that

order in an appeal from the final judgment in the 631 Case.

A newly severed case does not spring into existence ex nihilo;

it’s more like a fork in a stream, and events that occurred

pre-severance are logically common to both cases. It would

be counterintuitive to hold that Taylor could only appeal the

severance order from the “nonsevered” branch of the case

(the 104 Case), which proceeded apace unaffected in any

way by the severance, rather than the “severed” branch,

which owed its very existence to the order. An additional

concern is that the “nonsevered” branch of a case may be

resolved long before the “severed” branch, effectively

No. 12-1710 9

forcing parties to appeal a disputed severance preemptively.

That result would strongly cut against the rationale for the

final-judgment rule. See Chi. Bd. of Educ. v. Substance, Inc.,

354 F.3d 624, 626 (7th Cir. 2003) (“[J]udicial economy is

served by the consolidation of as many issues in a litigation

as possible in a single appeal. That is why it is almost never

mandatory to file an interlocutory appeal in order to pre-

serve an issue for appellate review.”).

We need not come to a definitive conclusion on the issue,

however, because the judge expressly instructed the clerk to

enter a copy of the severance order in the 631 Case docket.

That makes it an interlocutory order in the 631 Case, and “an

appeal from a final judgment brings up for review any

interlocutory order that has not become moot.” Id.

Officer Brown counters that “post-severance … suits are

independent for purposes of appellate jurisdiction.”

Gaffney v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, 444 (7th

Cir. 2006). That’s certainly true, but it’s the severance order

itself that’s at issue here, not the post-severance proceedings

in the 104 Case. In fact, the independence of severed cases

eliminates the risk that the resolution of this appeal could

disturb the finality of the 104 Case; any objections Taylor has

to the court’s handling of the 104 Case must be appealed

from the final judgment in that case. In an appeal from the

631 Case, we can only review the final judgment in the

631 Case, including any interlocutory decisions that have

merged with it.

Since Taylor’s notice of appeal referred to the district

court’s denial of his Rule 59(e) motion, we have jurisdiction

over the final judgment in the 631 Case. See Kunik v. Racine

County, Wis., 106 F.3d 168, 173 (7th Cir. 1997) (“[A]n appeal

10 No. 12-1710

from the denial of a Rule 59(e) motion [is] also sufficient to

bring the underlying judgment before the appellate court.”

(citing Foman v. Davis, 371 U.S. 178 (1962))); see also FED. R.

APP. P. 3(c). And because “the appeal from the final judg-

ment in the action brings up all interlocutory rulings that

preceded it,” Kunik, 106 F.3d at 172, we also have jurisdiction

to review the severance order.

B. Voluntary Dismissal and Amended Pleadings

Before we can understand the effect of Taylor’s attempt

to accept the magistrate judge’s proposal in the show-cause

order, we must be clear about exactly what that proposal

was—or, rather, what it should have been. The order to

show cause said that Taylor could “avoid the financial

burden of a new filing fee by filing a motion to voluntarily

dismiss Count 1 or Count 3.” Taylor’s response mirrored the

magistrate judge’s own language and asked to voluntarily

dismiss the claim against Officer Brown. Although the court

had the power to achieve its intended result—one claim

dropped from the case while the other progressed—it used

the wrong means.

Voluntary dismissal by court order under Rule 41(a)(2)

allows the plaintiff to dismiss “an action” on “terms that the

court considers proper.” FED. R. CIV. P. 41(a)(2). Although

some courts have held otherwise, we’ve said that Rule 41(a)

“does not speak of dismissing one claim in a suit; it speaks of

dismissing ‘an action’—which is to say, the whole case.”

Berthold Types Ltd. v. Adobe Sys. Inc., 242 F.3d 772, 777 (7th

Cir. 2001); see also Nelson v. Napolitano, 657 F.3d 586, 588 (7th

Cir. 2011) (noting that “the purpose of Rule 41(a)(1) is to

No. 12-1710 11

limit a plaintiff’s ability to dismiss an action” (citing Cooter &

Gell v. Hartmarx Corp., 496 U.S. 384, 397 (1990))). Berthold

Types and Nelson both concerned Rule 41(a)(1)(A), which

allows for voluntarily dismissal without a court order, rather

than 41(a)(2), but both provisions refer exclusively to “ac-

tions”—which, as Berthold Types said, means the entire case.6

Since “[w]e give the Federal Rules of Civil Procedure their

plain meaning,” Pavelic & LeFlore v. Marvel Entm’t Grp.,

493 U.S. 120, 123 (1989), Rule 41(a) should be limited to

dismissal of an entire action.7

6 We recognize that prior to Berthold Types, we were not always clear

about whether Rule 41(a) could be used to dismiss individual claims. See,

e.g., Baker v. Am.’s Mortg. Serv., Inc., 58 F.3d 321, 324 n.2 (7th Cir. 1995)

(noting that this court has not yet defined the scope of Rule 41(a)(1)(A)(i)

and assuming without deciding that a partial dismissal is acceptable);

Winterland Concessions Co. v. Smith, 706 F.2d 793, 796 (7th Cir. 1983)

(assuming arguendo that Rule 41(a) applies only to an entire action while

noting that some courts had rejected that view). Other circuits appear

divided. Compare Bailey v. Shell W. E&P, Inc., 609 F.3d 710, 719–20 (5th

Cir. 2010) (“Rule 41(a) dismissal only applies to the dismissal of an entire

action—not particular claims,” therefore, “[g]enerally, Rule 41(a)(1)

dismissal results in immediate termination of the suit.”), with Wilson v.

City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) (“The plaintiff may

dismiss some or all of the defendants, or some or all of his claims,

through a Rule 41(a)(1) notice.”).

7 This interpretation is strengthened by the fact that Rule 41(b), which

concerns involuntary dismissal, expressly provides that a defendant may

move to dismiss “the action or any claim against it” for failure to prose-

cute or comply with a rule or order. FED. R. CIV. P. 41(b) (emphasis

added). The fact that the drafters of the rules clearly included both

“actions” and “claims” in Rule 41(b) but only mentioned “actions” in

Rule 41(a) is a strong indication that they intended there to be a distinc-

tion between the two provisions.

12 No. 12-1710

Because the court offered Taylor the opportunity to dis-

miss the claim against Officer Brown in the 104 Case while

pursuing the claim against the Count 1 defendants,

Rule 41(a) was not the proper vehicle.8 Instead, the court

should have offered Taylor the opportunity to amend his

pleadings under Rule 15(a). Like Rule 41(a), Rule 15(a)

allows a plaintiff to amend his complaint—including by

adding or dropping parties and claims—as a matter of right

in some situations and by court order in others, and “[t]he

court should freely give leave when justice so requires.” FED.

R. CIV. P. 15(a)(2).

8 Taylor suggests that we could have resolved his case under a different

provision of Rule 41(a)—Rule 41(a)(1)(A), which permits parties to

stipulate to the dismissal of an action without requiring leave of the

court. His position is that both parties stipulated to the dismissal of the

631 Case as of the filing of Officer Brown’s motion to dismiss. But while

such a stipulation would have dismissed Taylor’s claim against Officer

Brown without prejudice, it would not have relieved Taylor from his

obligation to pay the $350 filing fee. To voluntarily dismiss the 631 Case

is to presume that it properly came into being, and if it properly came

into being, then the filing fee is owed no matter when or how the case

was resolved. See 28 U.S.C. 1914(a) (“The clerk ... shall require the parties

instituting any civil action, ... whether by original process, removal or

otherwise, to pay a filing fee of $350 ... .” (emphasis added)); Szabo Food

Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1078–79 (7th Cir. 1987) (“You

can only get so far with the comparison [of a voluntary dismissal] to a

suit never filed, however. Suppose the plaintiff files suit and pays the

filing fee with a rubber check, then orders a transcript of some prelimi-

nary proceedings … and dismisses under Rule 41(a)(1)[A](i). Does the

plaintiff avoid paying the docket fee and the court reporter on the

ground that ‘[i]t is as if the suit had never been brought’? Neither filing

fees nor reporters need be paid when suit is never filed, yet the plaintiff

must pay up nonetheless.”). A plaintiff does not have to pay the filing fee

for a case that was wrongfully severed over his objection, however.

No. 12-1710 13

Accordingly, we construe Taylor’s response to the show-

cause order as a motion to amend his complaint under

Rule 15(a)(2) rather than as a motion to voluntarily dismiss

an action under Rule 41(a). See McGee v. Bartow, 593 F.3d 556,

565 (7th Cir. 2010) (filings by pro se litigants are to be con-

strued liberally). But for consistency’s sake, we will continue

to refer to Taylor’s attempt to drop his claim against Officer

Brown as an attempt at voluntary dismissal.9

C. The Prison Mailbox Rule

The magistrate judge’s show-cause order gave Taylor a

straightforward choice: voluntarily dismiss one of the mis-

joined claims and avoid a filing fee, or do nothing and the

claims would be severed and a new filing fee imposed. The

judge severed the claims only after finding that “[n]o objec-

tions are on file.” Therefore, the key question is whether

Taylor’s response to the show-cause order was timely in

light of the prison mailbox rule.

“The prison mailbox rule … provides that a prisoner’s

notice of appeal is deemed filed at the moment the prisoner

places it in the prison mail system, rather than when it

reaches the court clerk.” Hurlow v. United States, 726 F.3d

958, 962 (7th Cir. 2013). The rule is justified because “the pro

se prisoner has no choice but to entrust the forwarding of his

notice of appeal to prison authorities whom he cannot

9 The parties indicated that it’s common practice in some district courts

in this circuit to allow the voluntary dismissal of individual claims under

Rule 41(a). If that is true, we remind judges to use Rule 15(a) instead.

14 No. 12-1710

control or supervise and who may have every incentive to

delay.” Houston v. Lack, 487 U.S. 266, 271 (1988); see also Ray

v. Clements, 700 F.3d 993, 1002–03 (7th Cir. 2012). Although

the prison mailbox rule was first applied to notices of ap-

peal, see Houston, 487 U.S. at 276, the rule applies to all

district-court filings save for “exceptional situation[s],”

Edwards v. United States, 266 F.3d 756, 758 (7th Cir. 2001) (per

curiam). See, e.g., Ray, 700 F.3d at 1004 (applying the prison

mailbox rule to petitions for state postconviction relief unless

state law clearly rejects it); Edwards, 266 F.3d at 756

(Rule 59(e) motions); Jones v. Bertrand, 171 F.3d 499, 501 (7th

Cir. 1999) (petitions for federal writs of habeas corpus).

We have not yet had occasion to apply the prison mail-

box rule to documents that are e-filed by prison staff rather

than sent through the prison mailroom. However, pro se

prisoners are no more able to guarantee that properly ten-

dered documents are e-filed than that they’re mailed. Ac-

cordingly, we conclude that a pro se prisoner’s legal docu-

ments are considered filed on the date that they’re tendered

to prison staff in accordance with reasonable prison policies,

regardless of whether they are ultimately mailed or upload-

ed.10

10 Some minor adaptations to current doctrine might be required for

e-filing. For example, Rule 4(c) of the Federal Rules of Appellate Proce-

dure requires that to qualify for the prison mailbox rule, a prisoner must

submit a sworn affidavit stating that first-class postage has been prepaid,

which is obviously not applicable when e-filing.

No. 12-1710 15

D. Severance Order

We review a court’s decision to sever claims for abuse of

discretion. Gaffney, 451 F.3d at 442; Rice v. Sunrise Express,

Inc., 209 F.3d 1008, 1016 (7th Cir. 2000). The same standard of

review applies to the denial of a Rule 15(a) motion to

amend—which, as we’ve said, is the procedural device the

magistrate judge should have proposed and how Taylor’s

response to the show-cause order should have been con-

strued. Adams v. City of Indianapolis, 742 F.3d 720, 727 (7th

Cir. 2014). If Taylor timely complied with the judge’s explicit

instructions on how to dismiss his claim against Officer

Brown and thereby avoid severance, it certainly would have

been an abuse of discretion to ignore his motion for volun-

tary dismissal of Count 3 and sever the claims anyway.

We note, of course, that when the judge found that “[n]o

objections are on file” and issued the severance order, he did

not know that Taylor had attempted to file his response on

July 11, two days before the deadline. So the initial severance

order was not an abuse of discretion. However, the prison

mailbox rule requires that courts reassess their orders once

the rule has been invoked. In this case, the judge not only

failed to reassess whether the severance was proper, he

never acknowledged that the prison mailbox rule was in

play—even after both parties brought the rule to his atten-

tion.

Officer Brown first referred to the prison mailbox rule in

his August 18 motion to dismiss. Taylor’s subsequent filings

provided detailed narratives of his attempts to file his re-

sponse to the show-cause order. And although Taylor didn’t

reference the prison mailbox rule by name, he clearly in-

voked the principle when he asked the court to “accept the

16 No. 12-1710

[p]laintiff’s argument and the State’s Attorney[’s] argument

that the [p]laintiff has absolutely no control on when out-

going mail goes out.” The relief he sought aligned exactly

with that which Officer Brown had himself requested: “The

[p]laintiff is asking that since the [p]laintiff is voluntarily

requesting the [c]ourt to dismiss Count III that no further

charges be [assessed] to the [p]laintiff’s account.”

Likewise, in his August 29 response to the court’s order

instructing him to pay the filing fee, Taylor reiterated that he

“had absolutely no control of the Motion to Dismiss being

electronically sent to the court” and asked the court to “rule

favorably on the Motion to Dismiss.”11

Despite the fact that the prison mailbox rule lay at the

heart of Officer Brown’s motion to dismiss and Taylor’s

responses, the district judge never mentioned the rule in his

order denying the motion to dismiss (which also denied

Taylor’s motions as “moot”). Rather, the court characterized

Officer Brown’s argument as merely advancing the theory

that “this case should be dismissed because Taylor agreed to

the severance of Count III of his complaint in [the 104 Case]

only reluctantly.” That understanding of the facts was

clearly faulty. In his response to the show-cause order,

Taylor didn’t reluctantly agree to sever Count 3—he

11 There’s a minor ambiguity regarding whether Taylor’s request that the

court “rule favorably on the Motion to Dismiss” referred to Officer

Brown’s motion to dismiss or to his own response to the show-cause

order, which Taylor had referred to as a motion to dismiss earlier in the

document. But Officer Brown’s motion to dismiss argued that the court

should give effect to Taylor’s response to the show-cause order, so the

relief that Taylor was requesting was the same under either interpreta-

tion.

No. 12-1710 17

reluctantly agreed to voluntarily dismiss Count 3. The judge’s

misunderstanding of Taylor’s wishes was compounded by

his misapprehension that Taylor had already applied to

proceed IFP in the 631 Case. If that were true, it would

certainly have been a strong indication that Taylor wanted

his suit against Officer Brown to survive. But, of course, it

wasn’t true. The judge issued a clarification order the next

day but never reexamined the implications of his mistaken

assumption, nor did he confront Taylor’s multiple filings

requesting the voluntary dismissal of his claim against

Officer Brown in accord with the proposal made by the

magistrate judge in the show-cause order.

In sum, the court overlooked the prison mailbox rule

throughout the course of this litigation even though both

parties agreed that the rule applied, making Taylor’s motion

to voluntarily dismiss timely and thus averting the sever-

ance. By denying, sub silentio, Taylor’s motion to dismiss

Count 3 and instead severing that count to create the

631 Case, the court abused its discretion.

When a court overlooks the prison mailbox rule, it’s often

necessary to remand for additional fact-finding to ensure

that the filing was, in fact, timely under the rule. But Officer

Brown conceded below that Taylor qualified for the prison

mailbox rule, so he’s waived any argument on appeal that

Taylor did not qualify. See Hale v. Chu, 614 F.3d 741, 744 (7th

Cir. 2010) (“It is well-established that a party waives the

right to argue an issue on appeal if he fails to raise that issue

before the district court.”). In situations where the rule

serves to give a court jurisdiction over a matter that would

otherwise be time-barred, the court has an independent duty

to ensure that the prisoner actually sent his mail when he

18 No. 12-1710

says he did—the opposing party’s waiver may not be

enough. In those cases, prisoners are often required to

submit a notarized affidavit attesting to the circumstances of

the filing, see, e.g., FED. R. APP. P. 4(c), and sometimes addi-

tional documentary or testimonial evidence is required, see

Ray, 700 F.3d at 1011–12.

Here, Taylor provided both a sworn affidavit and docu-

mentary evidence in his second Rule 60(b) motion. Ordinari-

ly, the basis for a successive Rule 60(b) motion must not

have been available when the first one was filed, see Servants

of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000),

but here “the district court did not provide the appellant

with an opportunity to prove that his [late-received docu-

ments] were filed in a timely manner,” Thompson v. Rasberry,

993 F.2d 513, 515 (5th Cir. 1993) (per curiam). See also Grady

v. United States, 269 F.3d 913, 918 (8th Cir. 2001) (“[T]he

prisoner must at some point attest to [the date of the filing] in

an affidavit or notarized statement.” (emphasis added)). In a

case like this in which a nonjurisdictional deadline was at

stake and the opposing party conceded below that the

mailbox rule applies and there is an affidavit from the pris-

oner in the record, we see no reason to remand for addition-

al fact-finding.

Accordingly, we VACATE the order dismissing the

631 Case with prejudice and taxing Officer Brown’s costs

against Taylor. We REMAND for further proceedings con-

sistent with this opinion, including the reimbursement of

any fees Taylor has paid toward the 631 Case filing fee or

toward Brown’s litigation expenses.