“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.”
How later courts described this case
- “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.”
- filings by pro se litigants are to be con‐ strued liberally
- “[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.”
- “[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))
Written by the judges who cited it.
The opinion
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, 2015
____________________
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
1 The 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.