Abuse of Discretion – Reconsideration Motion Denied

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7^th Circuit Court of Appeals

Case Name: Damien G. Terry v. Mark Spencer, et al.,

Case No.: 17-2331

Officials: FLAUM, SYKES, and HAMILTON, Circuit Judges.

Focus: Abuse of Discretion – Reconsideration Motion Denied

Damien Terry, an Illinois prisoner proceeding pro se, sued prison officials and corrections administrators under 42 U.S.C. § 1983 claiming that they were deliberately indifferent to a painful tumor on his neck and prevented him from timely filing suit on that claim. A district judge screened the case, see 28 U.S.C. § 1915A, held a “merit-review hearing,” see Hughes v. Farris, 809 F.3d 330, 334– 35 (7th Cir. 2015), and dismissed the complaint, ruling that it impermissibly joined two unrelated sets of claims against different defendants. The judge gave Terry 30 days to replead. Terry instead moved for reconsideration, citing Rule 59(e) of the Federal Rules of Civil Procedure. He explained that his claims were not unrelated and his complaint should not have been dismissed on that ground. The judge denied the motion, observing that Rule 59(e) does not permit reconsideration of a non-final order of dismissal. The judge then entered judgment ending the case, and Terry appealed.

We reverse. The judge misunderstood his discretion to entertain Terry’s reconsideration motion. Though Rule 59(e) did not apply, a district judge may reconsider an interlocutory order at any time before final judgment. And the judge should have done so here; reading the complaint generously, Terry’s claims are related.

We also note an anomaly in this record and invoke our supervisory authority to guard against its recurrence. We have upheld the use of so-called merit-review hearings at § 1915A screening, but we’ve cautioned that this unusual procedure must be strictly limited to “enabling a pro se plaintiff to clarify and amplify his complaint.” Id. at 335. We have also explained that a transcript or other recording must be made. Henderson v. Wilcoxen, 802 F.3d 930, 932–33 (7th Cir. 2015). This record contains no transcript or digital recording of the judge’s merit-review hearing; indeed, it’s unclear from the docket whether it was recorded at all. We now require district judges who use this procedure to docket a transcript or a digital recording of the hearing.

Reversed and Remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.