Petition for Writ of Certiorari — Frederick S. Koger, Petitioner v. Charles E. Kleidon, et al.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

Ilniteh

ffluurf of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 17, 2025*

Decided March 20, 2025

Before

FRANK H. EASTERBROOK, Circuit Judge

THOMAS L. KIRSCH II, Circuit Judge

CANDACE JACKSON-AKIWUMI, Circuit Judge

No. 24-1324

FREDERICK S. KOGER,

Plaintiff-Appellant,

Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

V.

No. l:17-cv-09277

CHARLES E. KLEIDON, et al.,

Defendants-Appellees.

Martha M. Pacold,

Judge.

ORDER

Frederick Koger appeals the denial of his post-judgment motion to reopen a case

that he dismissed with prejudice in 2018. The district court concluded that Koger's

request was both untimely and unsupported by valid reasons to reopen. We affirm.

* We have agreed to decide the 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. 24-1324

Page 2

In 2014, Chicago police arrested Koger after a physical altercation with his

daughter. Although Koger was released from custody and no charges were filed against

him, the record of his arrest, including his mugshot, remained publicly available. In

2017, he discovered his mugshot online and sued the officers involved in his arrest for

publishing the arrest report, violating his rights by arresting him without cause, failing

to read him his Miranda rights, and inflicting emotional distress that resulted in

post-traumatic stress disorder (PTSD). Koger soon moved to voluntarily dismiss the

case with prejudice, though he maintained that he wanted his mugshot removed from

the Internet. After confirming that Koger knew the defendants could not provide him

with that relief, the court granted his motion and dismissed the case.

Four years later, in 2022, Koger moved to reopen the case. He argued that he had

only agreed to dismiss his complaint because the defendants had promised to remove

his mugshot from the Internet, but had not done so, and reiterated that he had suffered

constitutional violations during his arrest. The district court construed the motion as

arising under Federal Rule of Civil Procedure 60(b) and denied it. To the extent that

Koger sought relief from the judgment dismissing his case based on mistake, newly

discovered evidence, or misconduct by an opposing party, his request was too late. Fed.

R. Civ. P. 60(b)(l)-(3); (c)(1) (imposing one-year deadline on motions under Rule

60(b) (l)-(3)). Even if the request could be construed as arising under the catchall

provision of Rule 60(b)(6), which generally permits a motion for relief from judgment

for any other reason provided the motion is filed in a reasonable time, it failed. Many of

the concerns Koger raised in the motion had been addressed at the time the case was

dismissed, and none of his other concerns justified reopening the case. He did not

appeal this decision.

In 2024, Koger filed a second post-judgment motion. Again, he sought to reopen

his case. He re-asserted the arguments from the first motion to reopen and added that

his PTSD caused him to mistakenly dismiss his case. He also requested that Judge

Pacold, who had denied the first post-judgment motion, recuse herself. The court

denied these motions, explaining that its reasoning from the first post-judgment motion

to reopen still applied, Koger had raised no additional valid reasons to reopen the case,

and he had provided no legitimate basis for Judge Pacold's recusal.

Koger appeals the denials of his 2022 and 2024 motions, arguing that the district

court erred in denying them. We limited review to the 2024 denial because he had not

timely appealed the 2022 decision. He does not contest this decision or argue that the

court erred in denying his motion to recuse, so we do not address these topics. We

Case: l:17-cv-09277 Document#: 69 Filed: 12/09/22 Page 1 of 2 PagelD#:399

UNITED STATES DISTRICT COURT

FOR THE Northern District of Illinois - CM/ECF NextGen 1.6.3

Eastern Division

Frederick Koger

Plaintiff,

Case No.: l:17-cv-09277

Honorable Martha M. Pacold

C.E. Kleidon, et al.

Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Friday, December 9, 2022:

MINUTE entry before the Honorable Martha M. Pacold: This case was recently

reassigned to the undersigned judge. The Court has carefully considered the entire recoid.

The thrust of Plaintiff s motions to reopen, aside from reiterating the allegations in his

complaint, is that he only agreed to the dismissal with prejudice based on his assumption

that Defendants were going to have his mugshot removed from the internet, but he has

since seen the mugshot online. Broadly construed, Plaintiff appears to be seeking relief

based on mistake, newly discovered evidence, and/or purported misconduct by an

opposing party. These grounds are within the ambit of Rule 60(b)(1), (2), and (3).

Plaintiffs arguments in this regard are self-defeating: Plaintiff admits that he stated to

opposing counsel and the court that he wanted the mugshot removed from the internet, but

was informed that "it doesn't work that way," and still agreed to the dismissal. [63] at 4;

[65] at 4. Further, any request for relief under these portions of Rule 60(b) is untimely.

See Fed. R. Civ. P. 60(b)(c) (motions under these provisions must be brought within one

year). Plaintiff seeks to reopen this case almost four years after he voluntarily dismissed it

with prejudice, see [43] (dismissal order dated 4/18/2018), [56] (transcript of 4/18/2018

proceedings), [44] and [46] (initial filings seeking reopening, dated 3/18/2022 and

4/4/2022 respectively). Due to the timing of Plaintiff s motions, his "only option would

have been Rule 60(b)(6)." O'Neal v. Reilly, 961 F.3d 973, 975 (7th Cir. 2020). But "Rule

60(b)(6), as a residual catchall, applies only if the other specifically enumerated rules do

not." Pearson v. Target Corp., 893 F.3d 980, 984 (7th Cir. 2018). Even setting aside that

issue, Plaintiff voiced the primary concerns asserted in the current motions before he

decided to dismiss this case, see [56] (transcript of 4/18/2018 proceedings), Plaintiff did

not seek relief within a reasonable time, and no extraordinary circumstances support the

requested relief. See Ameta v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006). To the extent

Plaintiff makes new arguments as to why his arrest was wrongful, those do not constitute

extraordinary circumstances either. Thus, Plaintiffs motions to reopen, [46], [49], [63]

and [65], and for summary judgment [52], are denied. This case remains closed, (rao,)

Case: l:17-cv-09277 Document #: 69 Filed: 12/09/22 Page 2 of 2 PagelD #:400

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of

Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was

generated by CM/ECF, the automated docketing system used to maintain the civil and

criminal dockets of this District. If a minute order or other document is enclosed, please

refer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit our

web site at www.ilnd.uscourts.gov.

Case: l:17-cv-09277 Document #: 77 Filed: 02/20/24 Page 1 of 2 PagelD #:477

UNITED STATES DISTRICT COURT

FOR THE Northern District of Illinois - CM/ECF NextGen 1.7.1.1

Eastern Division

Frederick Koger

Plaintiff,

Case No.: l:17-cv-09277

Honorable Martha M. Pacold

v.

C.E. Kleidon, et al.

Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Tuesday, February 20,2024:

MINUTE entry before the Honorable Martha M. Pacold: The court has received a

second "affirmation in support of motion" [75], which was filed by plaintiff alongside a

"notice of motion to recuse" [76], filed by the Clerk's Office on 2/7/2024, and entered on

the docket on 2/12/2024. The notice of motion and associated hearing are stricken. The

court's motion procedures, which are posted on the court's website, prohibit the noticing of

motions at this time. Plaintiffs filing [75] appears to be largely the same as plaintiffs

previous "affirmation in support of motion" [72], which the court recently construed as a

motion to reopen and denied [74]. To the extent that plaintiffs second "affirmation in

support of motion" [75] constitutes an additional motion to reopen, it is denied for the

reasons stated in the court's previous minute entry [74]. Plaintiffs second "affirmation in

support of motion&quo;t; [75] also demands that the court recuse itself from consideration

of this case under 28 U.S.C. § 455. The court construes this as a motion for the court to

recuse itself under 28 U.S.C. § 455. The motion is denied. There is no valid basis for

recusal in this case. Dissatisfaction with the court's orders is not a valid basis for recusal,

and nothing about the court's decision not to reconsider its ruling on plaintiffs motion to

reopen "display [s] a deep-seated favoritism or antagonism that would make fair judgment

impossible." In re City of Milwaukee, 788 F.3d 717, 720 (7th Cir. 2015); see also Liteky

v. United States, 510 U.S. 540, 555 (1994) (explaining that "judicial rulings alone almost

never constitute a valid basis for a bias or partiality motion," and that "opinions formed by

the judge on the basis of facts introduced or events occurring in the course of the current

proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality

motion unless they display a deep-seated favoritism or antagonism that would make fair

judgment impossible"). There are no grounds upon which a "reasonable, well-informed

observer might question the [court�39;s] impartiality or 'entertain a significant doubt

that justice would be done in the case.'" United States v. Perez, 956 F.3d 970,975 (7th

Cir. 2020) (quoting United States v. Herrera-Valdez, 826 F.3d 912, 917 (7th Cir. 2016)).

(rao,)

Case: l:17-cv-09277 Document #: 77 Filed: 02/20/24 Page 2 of 2 PagelD #:478

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of

Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was

generated by CM/ECF, the automated docketing system used to maintain the civil and

criminal dockets of this District. If a minute order or other document is enclosed, please

refer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit our

web site at www.ilnd.uscourts.gov.

Additional material

from this filing is

available in the

Clerk's Office.