Lee v. Price

463 F. App'x 575
Court of Appeals for the Seventh Circuit·Decided June 17, 2011·No. No. 10-2859·Published

Opinion

ORDER

Christopher Lee, represented by counsel, sued two Illinois state troopers, claiming that they violated his constitutional rights during a routine traffic stop by questioning him for too long and conducting an unreasonable search. See 42 U.S.C. § 1983. The troopers moved to dismiss on the grounds that their questions did not prolong the stop unreasonably and that the search was consensual. The district court agreed and dismissed Lee’s suit.

That order was entered on April 7, 2010, and Lee had until May 7, 2010, to file a notice of appeal. See Fed. R.App. P. 4(a)(1)(A). Instead, on May 7 he filed a pro se motion under Federal Rule of Civil Procedure 60(b) asking the district court to “rehear” the case “in its entirety.” He also requested leave to amend his complaint. Four days later, on May 11, the court struck Lee’s motion because he was still represented by appointed counsel. The court did not realize, however, that counsel had moved to withdraw the day before, in part because Lee intended to file his pro se motion. Then on June 7, with appointed counsel now out of the picture, Lee refiled his Rule 60(b) motion, along with a motion requesting an extension of time to file a notice of appeal from the April 7 dismissal. The district court promptly denied the Rule 60(b) motion but on July 28 extended the deadline for Lee to file a notice of appeal. The court attributed Lee’s failure to meet the appeal deadline to a disagreement with former counsel [577] about what action, if any, to take after receiving the April 7 decision. The judge reasoned that the disagreement constituted good cause for Lee’s delay and also allowed counsel’s inaction to be characterized as excusable neglect. See Fed. R.App. P. 4(a)(5)(A)(ii).

Lee then filed a notice of appeal from the April 7 order, and in this court he contends that the district judge erred in dismissing his lawsuit. His argument, though, is premised not on the allegations in the complaint that was dismissed, but on new and contradictory facts alleged in the proposed amended complaint he tendered with his Rule 60(b) motion. One difference, for example, is that Lee alleges in his proposed complaint that he consented to the search only after it was over. Lee assumes that he can rely on this proposed complaint and that we can review it. But his only notice of appeal is from the April 7 decision and does not bring up for review the order denying the Rule 60(b) motion; a second notice of appeal would have been necessary to challenge that decision. Sosebee v. Astrue, 494 F.3d 583, 590 (7th Cir.2007); Goffman v. Gross, 59 F.3d 668, 672-73 (7th Cir.1995).

Even if we could review the Rule 60(b) decision, we would not conclude that the district court abused its discretion in refusing to accept Lee’s proposed complaint. Rule 60(b) is an extraordinary remedy, not a vehicle for amending a complaint. See Fed.R.Civ.P. 60(b); Helm v. Resolution Trust Corp., 84 F.3d 874, 876-77, 879-80 (7th Cir.1996). Moreover, amendment would have been futile because Lee could not draft a complaint capable of withstanding scrutiny under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Soltys v. Costello, 520 F.3d 737, 743 (7th Cir.2008); Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 974-75 (7th Cir.2001). In his proposed complaint, he acknowledges that he was pulled over for speeding in May 2007. There is no question that the stop itself was justified by probable cause. See Arkansas v. Sullivan, 532 U.S. 769, 771, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001); Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); United States v. Willis, 61 F.3d 526, 530 (7th Cir.1995). Trooper Tyler Price, a defendant in this litigation, asked for Lee’s license and proof of insurance. Lee handed over his Texas driver’s license, a rental-car agreement as proof of insurance, and — by accident, he says — his Texas license to carry a concealed handgun. When Price returned to his squad car to check Lee’s criminal history, he was told that the rental agreement had expired two days earlier. It’s a crime in Illinois to drive' without insurance. 625 ILCS 5/3-707(b). Price told Lee that the rental agreement had expired, but Lee insisted it was good until the next day. Price went back to his car and tried calling the rental company for verification, but its offices were closed. He then approached Lee and asked if he had any weapons. Lee pointed to a green bag in the rear seat and said it contained two unloaded guns and that he had bullets in the “far back.” Price directed Lee to exit the car and patted him down. Meanwhile, Trooper Douglas Yorke, the other defendant in this litigation, arrived with a third officer. They searched Lee’s car, looked inside the green bag, and found two unloaded handguns and ammunition. Lee was arrested for unauthorized use of a weapon and ticketed for speeding.

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Lee v. Price, 463 F. App'x 575 (7th Cir. 2011).

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