Amended Complaint

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7^th Circuit Court of Appeals

Case Name: Harry O’Neal v. James Reilly, et al.,

Case No.: 19-2981

Officials: MANION, BARRETT, and BRENNAN, Circuit Judges.

Focus: Amended Complaint

Harry O’Neal was convicted of aggravated battery of a police officer after an altercation during a traffic stop. While incarcerated and while his criminal conviction was pending on direct appeal, O’Neal filed a pro se lawsuit that asserted § 1983 claims against the police officers who had arrested him. Under Heck v. Humphrey, however, O’Neal’s § 1983 suit was barred unless his conviction was reversed or expunged. 512 U.S. 477, 486–87 (1994). Heck-barred suits are usually stayed or dismissed without prejudice, but O’Neal’s suit took a different course. After he failed to comply with court-ordered briefing deadlines, the district court issued an order directing O’Neal to show cause why his case should not be dismissed for want of prosecution. When O’Neal didn’t respond, the district court dismissed his claims with prejudice for failure to prosecute. See FED.R. CIV.P. 41(b).

Several months later, O’Neal’s conviction was overturned on appeal, lifting the Heck bar to his § 1983 suit. Another ten months after that, O’Neal went back to the district court. This time represented by counsel, he filed a “Motion to Reinstate the Case and for Leave to File an Amended Complaint Pursuant to Fed. R. Civ. P. 15.” His motion nowhere mentioned Federal Rule of Civil Procedure 60(b), which is the procedural mechanism for obtaining relief from a judgment. But the defendants raised Rule 60(b) in their response to the motion, maintaining that O’Neal was not entitled to relief under that rule. This argument caught O’Neal’s attention, and in his reply brief, he attempted to articulate why Rule 60(b) relief was warranted.

The district court denied O’Neal’s Rule 15 motion, explaining that it was procedurally improper because he could not file an amended complaint in a terminated case. O’Neal’s only procedural option was the one that the defendants had anticipated: securing relief from the judgment under Rule 60(b). But O’Neal didn’t even mention Rule 60(b) until his reply brief, so the district court held that the argument was waived. It observed, though, that O’Neal wouldn’t have been able to satisfy the requirements of Rule 60(b) anyway.

On appeal, O’Neal argues that the district court was wrong to treat his Rule 60(b) argument as waived. We review a finding of waiver de novo, Baker v. Lindgren, 856 F.3d 498, 506 (7th Cir. 2017), and we agree with the district court: O’Neal waived this argument. His motion invoked Rule 15, not Rule 60. It never mentioned Rule 60(b), referred to any of the specific grounds for relief under Rule 60(b), or cited any cases applying Rule 60(b)—in fact, the motion cited no cases at all. It’s not a close call to conclude that O’Neal failed to adequately raise or develop a Rule 60(b) argument in his initial motion. He didn’t invoke that rule until his reply brief, and we have repeatedly recognized that district courts are entitled to treat an argument raised for the first time in a reply brief as waived. See, e.g., Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009); Bodenstab v. County of Cook, 569 F.3d 651, 658 (7th Cir. 2009).

In sum, the district court correctly concluded that O’Neal waived any argument that he may have had under Rule 60(b). And because the case had been terminated on the merits, the district court was right to deny his Rule 15 motion for leave to file an amended complaint. The judgment is AFFIRMED.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.