Yongping Zhou v. Belanger

528 F. App'x 618
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 27, 2013
DocketNo. 11-2991
StatusPublished
Cited by1 cases

This text of 528 F. App'x 618 (Yongping Zhou v. Belanger) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yongping Zhou v. Belanger, 528 F. App'x 618 (7th Cir. 2013).

Opinion

ORDER

After Yongping Zhou got into a scuffle with a county deputy outside a courtroom, he was arrested and charged with several offenses. Eventually the charges were dropped, but Zhou then sued the deputy under 42 U.S.C. § 1983, asserting that he had been arrested without probable cause and that the deputy had used excessive force. On the day of the trial in his federal case, Zhou left a brief telephone message with the court; in it, he said that because he was ill, he would not attend. Treating this terse allegation of illness as unsubstantiated and noting Zhou’s failure on several other occasions to meet court deadlines, the district court dismissed the case for failure to prosecute. See Fed. R.CrvP. 41(b). Although Zhou later provided records showing that he indeed had been hospitalized on the day of trial, the court declined to vacate the judgment. See Fed.R.CivP. 59(e). We conclude that the district court acted within its discretion in so ruling, and so we affirm the judgment.

I

In May 2005 Patrick Belanger, a sheriffs officer for Marion County, Indiana, arrested Zhou outside a courtroom at the Indianapolis City-County Building, charging him with resisting arrest, battery, criminal trespass, and disorderly conduct. A jury later found Zhou not guilty on the first two counts and deadlocked on the others. After all charges were dropped, Zhou (proceeding pro se) brought this civil rights suit against Belanger in May 2007. Zhou alleges that he was speaking to an attorney in a county courtroom when Be-langer first ordered him to leave and then used excessive force to arrest him without probable cause. Because the parties disagreed on the amount of force used and the [620]*620circumstances of the arrest, the district court denied Belanger’s motion for summary judgment.

Over the course of the next four years, the case proceeded slowly, largely because of Zhou’s delays and failures to comply with the court’s scheduling orders: he missed the deadline to submit a statement of material facts in dispute, see S.D. Ind. L.R. 56.1(b); failed to respond to the defendant’s interrogatories after being granted two continuances; did not submit a certificate of readiness for trial; and failed to file his final witness and exhibit list. The last of those failings led the court to limit his witnesses to himself and Belan-ger. The court did, however, grant Zhou’s request for a trial date after February 2011. It eventually set trial for May 2011.

Two months before trial, alleging that he suffers from post-traumatic stress disorder and that his condition had worsened over the winter, Zhou sought another trial delay. He later added, with a confirming note from his doctor, that his medicine left him drowsy and unable to complete paperwork. The court held a hearing and spoke by telephone with Zhou’s physician. The district court concluded that Zhou was able to appear at trial and declined to change the date. Instead, it warned Zhou that failure to appear could result in the dismissal of his suit with prejudice.

Zhou arrived in court on the day of the trial, but he was visibly ill, leading the district judge to reschedule trial for Monday, June 27, 2011. After this second postponement of the trial date, Zhou tried to push back the date yet again; as before, he asserted that his medicine still left him sleepy and unable to prepare for trial. But unlike his requests before the second postponement, Zhou did not support his newest request with any documents. The court concluded that Zhou’s “vague statements ... did not indicate, much less establish” that he was unable to attend trial. The court reminded both parties that failure to appear could result in sanctions, including dismissal of the case.

Belanger and his lawyers came to court on June 27 to begin jury selection and trial, but Zhou was absent. The court received a call that morning stating only that Zhou was ill and would not be attending trial. The caller hung up without leaving a return number or other information to allow the court to verify the illness. Because Zhou failed to appear, the court granted Belanger’s motion to dismiss the case with prejudice for failure to prosecute. Zhou was assessed costs, including $2,000 for calling 24 potential jurors.

Zhou moved to vacate the dismissal ten days later. He explained that he had been hospitalized from three days before trial until four days after trial for post-traumatic stress disorder and severe depression. He added that he had been unable to call the court until the morning of his trial date because the hospital did not allow long distance calls. He corroborated his hospitalization with records showing that he was admitted to the Madden Mental Health Center on June 24, three days before trial, and discharged on July 1. Zhou also represented that he had just received these medical records from the hospital.

The district court interpreted the motion as a request to alter the judgment, see Fed.R.CivP. 59(e), but it denied the motion. The court noted that although Zhou called on the morning of trial to say that he was sick, he hung up without leaving a return number. After recounting Zhou’s history of missed deadlines, his earlier trial delays, and the repeated warnings from the court that failure to appear could result in dismissal with prejudice, the court concluded that Zhou had not shown an error of law or fact in the dismissal of his case for failure to prosecute. The judge’s [621]*621order does not mention the two documents Zhou provided to corroborate his week-long hospital stay.

II

On appeal, Zhou (now represented by counsel) argues that the district court should have applied Rule 59(a), not 59(e), while reviewing the motion to vacate or, alternatively, that it abused its discretion by finding that Zhou had not shown the extraordinary circumstances required under Rule 60(b)(6). Zhou argues that by arresting him, Belanger caused Zhou’s post-traumatic stress disorder, and its symptoms were triggered while he was preparing for trial. This, he says, is what necessitated the treatment that left him drowsy. Belanger responds that Zhou’s claims are so undeveloped that they are waived, but we do not find them quite so perfunctory. Zhou cites pertinent procedural rules and attempts to construct an argument based on the text of these rules. See Fed. R.App. P. 28(a)(9)(A); Cole v. Comm’r of Internal Revenue, 637 F.3d 767, 772-73 (7th Cir.2011); Haxhiu v. Mukasey, 519 F.3d 685, 691-92 (7th Cir.2008).

The district court appropriately interpreted Zhou’s pro se “motion to vacate” as a request to alter the judgment under Rule 59(e) because neither Rule 59(a) nor Rule 60(b)(6) apply here. First, a request for a new trial under Rule 59(a) is relevant only when there has already been a trial, see Willis v. Lepine, 687 F.3d 826, 836 (7th Cir.2012); Frizzell v. Szabo, 647 F.3d 698, 702 (7th Cir.2011), and no trial occurred in this case. Second, we have adopted the bright-line rule that district courts should treat motions filed before the deadline established in Rule 59 as arising under that rule, not Rule 60.

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