United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted September 19, 2012

*

Decided September 20, 2012

Before

FRANK H. EASTERBROOK, Chief Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 11-1538

CECIL O. SHAW,

Plaintiff-Appellant,

v.

WAYNE GERMAIN, et al.,

Defendants-Appellees.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 06 C 5906

George M. Marovich,

Judge.

O R D E R

Cecil Shaw was sent to prison for attempting to hijack a vehicle. The paperwork

delivered by the state court to the Illinois Department of Corrections incorrectly described

Shaw’s crime as a Class X felony, when instead the offense was a Class 1 felony. Shaw

suspected a mistake and alerted prison administrators, but the discrepancy was not

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

After examining the briefs and record, we have concluded that oral argument is

*

unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.

34(a)(2)(C).
No. 11-1538 Page 2

resolved. The error did not affect Shaw’s initial term of incarceration, but when he was

released from prison in December 2002, he was placed on three years of mandatory

supervised release, not two years, because a Class X felony carries the longer term. Shaw

was arrested in June 2004 for stealing a car. His release was revoked, he was sent back to

prison, and in June 2005 he received a new, six-year prison term for auto theft. By then the

state court had caught its mistake concerning Shaw’s earlier felony, and although his

imprisonment for violating his supervised release would have ended before his sentencing

for the auto theft if the error had been corrected sooner, he received credit against his new

sentence for the entire period after his arrest in June 2004. In effect, then, Shaw served no

additional time for violating his supervised release, and thus the misclassification of his

2000 crime as a Class X felony did not harm him. Nonetheless, Shaw sued four DOC

employees under 42 U.S.C. § 1983, claiming that they had violated his rights under the

Eighth Amendment by not correcting the error in the documents originally received from

the state court. In this appeal Shaw seeks to challenge the district court’s grant of summary

judgment for the defendants. That decision is unassailable—Shaw’s lawsuit is

frivolous—but our jurisdiction does not extend to the merits of that ruling.

The scope of our review turns on the characterization of Shaw’s postjudgment

motions. The district court entered judgment for the defendants in September 2010, but

instead of filing a notice of appeal, Shaw filed a motion for reconsideration, which cites

Federal Rule of Civil Procedure 59(e). But that submission was not received by the court

until December 2010. Shaw attached two different certificates of service: The first attests

that he had placed the document in his prison’s “institutional mail” 23 days after entry of

judgment, but the second certificate states that his December motion had been placed in the

institutional mail a few days before it was received by the court. Looking to the second

certificate, the district court concluded that the motion was untimely under Rule 59(e)

because Shaw had mailed it more than 28 days after the judgment. In its January 2011

ruling the court also considered whether Shaw might be entitled to relief under Federal

Rule of Civil Procedure 60(b), see Justice v. Town of Cicero, Ill., 682 F.3d 662, 665 (7th Cir.

2012), but decided that he was not because his postjudgment motion raises only arguments

that he could have made on appeal.

Three weeks later, near the end of January, Shaw filed a second postjudgment

motion. This time he cited Rule 60(b), but his submission challenged the denial of the

postjudgment motion received by the district court in December, not the grant of summary

judgment. Shaw principally argued that, under the “mailbox rule,” his earlier motion was

timely as a Rule 59(e) motion because he had placed the original of that document in the

institutional mail within 28 days of the judgment, though, as he later discovered, it had

never been received by the district court. At that point, Shaw continued, he sent a duplicate
No. 11-1538 Page 3

of his motion, which is what the court received in December with the two certificates of

service, one pertaining to the original and the other to the duplicate. In late February the

district court denied Shaw’s second postjudgment motion. The court again ruled that his

earlier motion had not been timely under Rule 59(e). But the court added that the

document would have lacked merit even as a Rule 59(e) motion because Shaw had“made

arguments that he made or could have made before.” Shaw filed a notice of appeal 16 days

later on March 7, 2011.

In a prior order we interpreted that notice of appeal as conferring jurisdiction to

review only the denial of Shaw’s second postjudgment motion, but that understanding was

mistaken. We drew that conclusion because Shaw filed his notice of appeal more than 30

days after both the entry of the September 2010 judgment and the denial of his first

postjudgment motion in January 2011, see FED. R. APP. P. 4(a)(1)(A), and our assessment

tracked the parties’ belief that Shaw’s second motion, like the first, operated under

Rule 60(b). We did not consider that the second motion could be a timely Rule 59(e) motion

challenging the denial of a Rule 60(b) motion, see York Grp., Inc. v. Wuxi Taihu Tractor Co.,

632 F.3d 399, 401 (7th Cir. 2011); Berwick Grain Co. v. Ill. Dep’t of Agric., 189 F.3d 556, 558 (7th

Cir. 1999); Inryco, Inc. v. Metro. Eng’g Co., 708 F.2d 1225, 1232 (7th Cir. 1983), and yet that is

what happened here. Because the denial of a Rule 59(e) motion and the decision it seeks to

alter “merge” on appeal, Martinez v. City of Chicago, 499 F.3d 721, 727 (7th Cir. 2007); Borrero

v. City of Chicago, 456 F.3d 698, 700 (7th Cir. 2006), we do have jurisdiction to review the

denial of Shaw’s first postjudgment motion if that motion initiated a separate proceeding

under Rule 60(b).

But this outcome cannot benefit Shaw. His first motion, if deemed to be one under

Rule 60(b), was properly denied because it raises arguments that he could have made on

appeal. See Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 743 (7th Cir. 2009); Bell v.

Eastman Kodak Co., 214 F.3d 798, 800–01 (7th Cir. 2000). And if the motion actually is a

timely Rule 59(e) motion, as Shaw insists, then we do not have jurisdiction to review either

the denial of that motion or the underlying judgment because the district court ruled on the

motion in January 2011 but Shaw did not file a notice of appeal until more than two months

later on March 7. A Rule 59(e) motion is not separately appealable from the underlying

judgment. Martinez, 499 F.3d at 726–27. A timely Rule 59(e) motion does suspend the

period to appeal that judgment until the motion is decided, FED. R. APP. P. 4(a)(4)(A)(iv),

but Shaw’s period to appeal was 30 days and only his first motion (if we decided that both

were Rule 59(e) motions) could toll the deadline, see Borrero, 456 F.3d at 700; Charles v.

Daley, 799 F.2d 343, 347–48 (7th Cir. 1986).
No. 11-1538 Page 4

But even if we had jurisdiction to review the grant of summary judgment for the

defendants, we would not reverse. As we said at the outset, Shaw’s lawsuit is frivolous.

The defendants all worked for the Department of Corrections, and none of them had

authority to amend a sentencing order issued by an Illinois court, see 730 ILCS 5/5-4-1(e),

5/3-8-1; Evans v. Illinois, 55 Ill. Ct. Cl. 395, 2002 WL 32705308, at *2–3 (Ill. Ct. Cl. 2002). Shaw

should have sought relief from the state court. That reason alone defeats his suit, but the

defendants also submitted evidence showing that they and other prison employees had

contacted the state court and prosecutor’s office on Shaw’s behalf to verify the information

they were provided. Those actions, which exceeded the defendants’ responsibilities, would

defeat any argument that they were deliberately indifferent to Shaw’s complaint that he

was at risk of being incarcerated beyond the term of his sentence. See, e.g., Rosario v. Brawn,

670 F.3d 816, 821–22 (7th Cir. 2012). Finally, even if the error in the court’s paperwork had

been corrected before Shaw was incarcerated longer for violating his supervised release

than he should have been, his total incarceration would have been the same. See Burke v.

Johnston, 452 F.3d 665, 667 (7th Cir. 2006) (explaining that Eighth Amendment claim

requires plaintiff to be incarcerated longer than he should have been); Campbell v. Peters,

256 F.3d 695, 700 (7th Cir. 2001) (same). As we have said, the extra time that Shaw served

because of the misclassification of his 2000 crime was credited against his six-year sentence

for committing yet another crime.

AFFIRMED.