In the

United States Court of Appeals

For the Seventh Circuit

Nos. 07-2920 & 08-1448

VINCENT L. AMMONS,

Plaintiff-Appellant,

v.

BRUCE GERLINGER, et al.,

Defendants-Appellees.

Appeals from the United States District Court

for the Western District of Wisconsin.

No. 3:06-cv-00020-bbc—Barbara B. Crabb, Chief Judge.

SUBMITTED OCTOBER 2, 2008—DECIDED OCTOBER 27, 2008

Before EASTERBROOK, Chief Judge, and WILLIAMS and

SYKES, Circuit Judges.

PER CURIAM. Vincent Ammons, a felon serving time

in Wisconsin, sued several of his prison’s staff members

under 42 U.S.C. §1983. He proposed to litigate without

prepaying fees or costs, but the district court denied that

request because he has at least three frivolous suits or

appeals to his credit. 28 U.S.C. §1915(g). He then paid

the filing fee. The district court entered summary judgment for the defendants, and Ammons filed a notice of

appeal but did not pay the required appellate fees.
2 Nos. 07-2920 & 08-1448

For unexplained reasons, the district court deemed the

notice of appeal to include a request for leave to proceed

in forma pauperis. Having already decided that Ammons

is statutorily ineligible for that privilege unless under

imminent danger of serious physical injury, the only

exception to §1915(g), the district judge should not

have reopened this subject. Then, again without explanation, the district judge authorized Ammons to litigate

his appeal without prepaying the fees and directed him

to submit a certified copy of his trust account so that a

partial fee could be assessed under §1915(a)(2). He complied without alerting the judge to her error and has

accepted a benefit to which he knows he is not entitled.

Because Ammons has a history of frivolous suits and

appeals, he must prepay all fees unless in imminent

physical danger—which he is not. (For samples of his

frivolous litigation, see Ammons v. Radtke, No. 96-1100 (7th

Cir. Sept. 5, 1996); Ammons v. Poliak, No. 95-2069 (7th Cir.

July 5, 1995); Ammons v. Fitzpatrick, No. 94-C-806 (E.D. Wis.

July 28, 1994); Ammons v. Ames, No. 94-C-0264 (E.D. Wis.

Mar. 15, 1994).) His effort to take advantage of the

district court’s obvious error—obvious because the

judge had already told Ammons in this very suit that

§1915(g) requires payment—was deceptive if not fraudulent. A litigant who knows that he has accumulated

three or more frivolous suits or appeals must alert the

court to that fact. See Sloan v. Lesza, 181 F.3d 857, 858–59

(7th Cir. 1999). Ammons did not do that at the outset, and

later he took advantage of the district court’s oversight.

We enforce §1915(g) by terminating this appeal—not
Nos. 07-2920 & 08-1448 3

only for lack of payment but also as a sanction for misconduct. See Campbell v. Clarke, 481 F.3d 967 (7th Cir. 2007).

Filing fees remain due. The fee for each notice of appeal

is $455, and Ammons’s prison has so far remitted $42.83

toward that sum for his initial appeal. We say “initial”

appeal because he has filed two. Six months after the

district court entered judgment for the defendants,

Ammons filed a motion under Fed. R. Civ. P. 60(b) asking

the court to reopen its decision. When that motion was

denied, Ammons filed another appeal. He proposed to

have it treated as an amendment to the initial notice

of appeal, but this court’s clerk docketed it as a second

appeal and directed the district court to access and

collect the required fees. The district judge determined

that no further fee is required. That was another

mistake, and we publish this opinion to make clear that

a fee is due when a litigant appeals from an adverse

decision on a Rule 60(b) motion.

One fee is due for each notice of appeal. See Fed. R.

App. P. 3(e). Ammons can avoid paying a second fee

only if the initial notice of appeal can be amended to

contest the order denying the Rule 60(b) motion, for “[n]o

additional fee is required to file an amended notice [of

appeal].” Fed. R. App. P. 4(a)(4)(B)(iii). A notice of appeal

may be amended within the time allowed for appeal.

Rule 4(a)(4)(A) extends that time for specified motions

that suspend a judgment’s finality. If an appeal is filed

before such a motion has been resolved, then it may be

amended after the motion is denied. Fed. R. App. P.

4(a)(4)(B)(ii).
4 Nos. 07-2920 & 08-1448

A motion under Rule 60 is on the list in Rule

4(a)(4)(A)—but only when “filed no later than 10 days after

the judgment is entered.” Fed. R. App. P. 4(a)(4)(A)(vi).

The idea behind this subsection is that a motion

nominally under Rule 60, but made within the time

available for a motion under Rule 50, 52, 54, or 59, should

be treated the same as one of those motions (all of

which must be filed within 10 days, or not at all) no

matter what its caption. A Rule 60 motion filed after

10 days, however, does not affect the time to appeal, and

whether the district court grants or denies that motion

a separate notice of appeal is required if a litigant adversely affected by the decision wants appellate review.

See Martinez v. Chicago, 499 F.3d 721, 727 (7th Cir. 2007);

SEC v. Van Waeyenberghe, 284 F.3d 812, 814 (7th Cir. 2002).

Ammons’s Rule 60 motion was filed more than

10 business days after the judgment. Rule 4(a)(4)(B)(ii)

therefore did not allow him to amend his original notice

of appeal to include a challenge to the district court’s

order denying his motion. That order was independently

appealable, and a second notice of appeal—and hence

a second fee—was essential.

Newlin v. Helman, 123 F.3d 429, 436–37 (7th Cir. 1997),

holds that, when a prisoner who is subject to §1915(g)

continues filing suits or appeals without paying

required fees, this court will enter an order directing

the clerks of all courts within this circuit to return all of

the litigant’s future filings until the necessary fees have

been paid. Ammons paid the filing fee for the suit in

the district court, but he owes $867.17 for his two ap-
Nos. 07-2920 & 08-1448 5

peals. Until that sum has been received, clerks of court will

return any papers that Ammons submits (other than any

collateral attacks under 28 U.S.C. §2254 on his imprisonment). Cf. Support Systems International, Inc. v. Mack, 45

F.3d 185 (7th Cir. 1995).

The appeals are dismissed, and a Newlin order will

be entered.

10-27-08