Carlos Bowman v. Jeffrey Korte

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2371
C ARLOS BOWMAN,
Plaintiff-Appellant,
v.
J EFFREY KORTE , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:15-cv-3215 — Sara Darrow, Chief Judge.
____________________
A RGUED A PRIL 28, 2020 — D ECIDED J UNE 25, 2020
____________________
Before EASTERBROOK , R IPPLE , and SCUDDER , Circuit Judges.
SCUDDER , Circuit Judge. The Federal Reporter is replete
with examples of prisoners losing cases because they missed
litigation deadlines and courts extended little forgiveness.
Much less common are cases where correctional officers expe-
rience the same outcome. But fairness is a two-way street.
Carlos Bowman is a prisoner who had sued for alleged
abuse in the Western Illinois Correctional Center, and as trial

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2 No. 18-2371
was fast approaching, he saw the defendant correctional of-
ficers file a surprising motion—one alleging that his case,
which had been pending for nearly three years, should be dis-
missed on summary judgment for his failure to exhaust ad-
ministrative remedies. The motion surprised Bowman not
only because the defendants had already filed a prior sum-
mary judgment motion, which the district court denied, but
also because the request to file a second motion came nearly
two years after the deadline the district court had set for any
motion based on a failure to exhaust administrative remedies.
The defendants offered no reason for the late second
motion—indeed, they said it was late “for unknown
reasons”—but the district court allowed it anyway, without
making the finding required by Federal Rule of Civil
Procedure 6(b)(1)(B) that “excusable neglect” permitted an
extension of the original deadline. We reverse, as nothing in
the record supported the district court’s allowing the second
summary judgment motion.
I
Bowman’s lawsuit arose from a so-called tactical shake-
down that occurred in the prison on April 14, 2014. Suffice it
to say he alleged troubling and demeaning abuse—guards
beating and choking him and forcing him and other inmates
to line up so closely to one another that their hands were on
or near each other’s genitals for hours.
Bowman reported the abuse in a grievance he filed within
the prison on April 20. The prison denied the complaint, and
the state’s Administrative Review Board affirmed. Bowman
then turned to federal court, invoking 42 U.S.C. § 1983 and
filing a claim against multiple correctional officers, including

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No. 18-2371 3
supervisors, for using excessive force and failing to intervene,
in violation of the Eighth Amendment. He did so without the
assistance of an attorney and, despite several requests for a
court-appointed lawyer, continued to represent himself for
the entirety of the proceedings in the district court.
Early in the proceedings, the defendants flagged the ex-
haustion issue. In their answer, the defendants asserted that
Bowman failed to properly exhaust his administrative reme-
dies before filing suit. And in March 2016, the district court
entered a scheduling order requiring that the defendants file
any summary judgment motion on exhaustion within 30 days
of the order. That deadline came and went with no such mo-
tion. The case then proceeded through discovery for almost
eight months.
Three months after discovery closed, the defendants
moved for summary judgment. Not only did they not claim
that Bowman had failed to exhaust, one of their other argu-
ments seemed to assume that he had. More specifically, the
defendants argued that Bowman’s claims against Brant
Mountain were barred by the statute of limitations that began
to run after he “made efforts to exhaust his administrative
remedies.”
The district court denied the motion in part. It found that
Bowman “exhausted his administrative remedies” when the
Administrative Review Board issued its final denial, and be-
cause Bowman added Mountain to the case more than two
years later, his claims against Mountain were untimely. But
the court allowed Bowman’s claims against the other defend-
ants and set the matter for trial in May 2018.

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4 No. 18-2371
Two months before trial, the defendants (represented by
new counsel) sought permission to file a second motion for
summary judgment on exhaustion grounds. Of course, by
then the district court’s April 2016 deadline was long past. To
overcome that obstacle, the defendants relied on Federal Rule
of Civil Procedure 6(b)(1)(B), which permits a court to extend
deadlines—even after the time to act has expired—if there is
good cause and the party “failed to act because of excusable
neglect.” They attributed their failure to timely argue exhaus-
tion to “unknown reasons.” Counsel added that she had
learned only recently that Bowman did not name the defend-
ants or allege a failure to intervene in his grievance, so he
failed to exhaust his remedies. Bowman opposed the motion,
arguing that the defendants’ submission was too late—almost
two years so—and that their bald assertion of negligence did
not amount to “excusable neglect” under Rule 6(b)(1)(B).
In a text order, the district court summarily granted the
defendants’ request to allow the late motion and a few
months later entered summary judgment for the defendants
on exhaustion grounds.
II
On appeal the parties raise multiple issues, focusing the
most attention on whether Bowman’s grievances (he says he
filed two) exhausted his administrative remedies. The ques-
tions raised are complex and include a threshold issue of
whether the defendants were precluded from even arguing
exhaustion given what they represented about that topic in
their first motion for summary judgment.
We can resolve this appeal on a simpler basis. Bowman ar-
gues that the district court should never have allowed the

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No. 18-2371 5
second motion for summary judgment in the first place be-
cause the defendants did not show “excusable neglect” under
Rule 6(b)(1)(B). He contends that their explanation for the be-
lated filing (“unknown reasons”), which came almost two
years after the court-imposed deadline, cannot support a find-
ing of “excusable neglect.” We agree.
Scheduling orders and court-imposed deadlines matter.
We could fill page after page with citations to cases brought
by prisoners that were dismissed for failing to follow court
rules or deadlines. See, e.g., Collins v. Illinois, 554 F.3d 693, 697
(7th Cir. 2009) (stating that “[a]s we have repeatedly held,
even pro se litigants must follow procedural rules”); Cady v.
Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (noting that “the
Supreme Court has made clear that even pro se litigants must
follow rules of civil procedure,” citing McNeil v. United States,
508 U.S. 106, 113 (1993)). If prisoners are held to that standard,
their opponents should be too.
To find “excusable neglect,” courts should consider all rel-
evant circumstances surrounding the party’s neglect, includ-
ing the prejudice to the non-movant, length of delay, and rea-
son for delay. See Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd.
P’ship, 507 U.S. 380, 395 (1993). Here, we do not know whether
the district court applied the proper legal standard. The court
merely repeated defense counsel’s remark that she did not
know why her predecessor had not filed a motion addressing
exhaustion, omitting any reference to excusable neglect or the
relevant factors.
Regardless, the defendants’ failure to explain counsel’s
oversight is fatal, for plain neglect is not “excusable neglect”
as Rule 6(b)(1)(B) requires. See Nestorovic v. Metro. Water Rec-
lamation Dist. of Greater Chi., 926 F.3d 427, 431–32 (7th Cir.

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6 No. 18-2371
2019) (dismissing appeal for failure to show excusable neglect
or good cause under 28 U.S.C. § 2107(a)); see also Satkar Hosp.,
Inc. v. Fox Television Holdings, 767 F.3d 701, 708 (7th Cir. 2014)
(explaining that Federal Rule of Appellate Procedure 4(a)(5)
requires “excusable neglect,” not just “plain neglect”). The de-
fendants did not offer a “meaningful explanation” for seeking
the late motion—they offered nothing. 926 F.3d at 432. Lack
of prejudice to the non-movant is often used as a reason to
excuse neglect, but even if we assume that Bowman suffered
no prejudice, it “will not suffice if no excuse at all is offered or
if the excuse is so threadbare as to make the neglect inexplica-
ble.” United States v. McLaughlin, 470 F.3d 698, 700–01 (7th Cir.
2006).
The defendants, for their part, make no effort to defend the
district court’s order under Rule 6(b)(1)(B), and instead, for
the first time, urge the application of Federal Rule of Civil Pro-
cedure 16(b)(4), which allows modifications to a scheduling
order for “good cause.” But the defendants moved in the dis-
trict court for leave under only Rule 6(b)(1)(B), so they waived
this argument. See Cty. of McHenry v. Ins. Co. of the W., 438
F.3d 813, 819–20 (7th Cir. 2006). And even if they merely for-
feited the argument, “good cause” imposes a more difficult
standard than “excusable neglect” because the former “im-
plies justification rather than excuse (negligence can be ex-
cused but not justified).” CFTC v. Lake Shore Asset Mgmt. Ltd.,
646 F.3d 401, 404 (7th Cir. 2011). So if it would be an abuse of
discretion to find that the defendants met a lower standard,
so too would a finding that they met the higher “good cause”
standard.
For these reasons, we conclude that the district court
abused its discretion in granting the defendants leave to file a

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No. 18-2371 7
belated second motion for summary judgment on exhaustion.
We VACATE the district court’s judgment and REMAND the
matter for trial where Bowman may reassert his motion for
the recruitment of counsel. Circuit Rule 36 shall apply on re-
mand.

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