Terry W. Huspon v. Michael Mitcheff

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 4, 2023 *
Decided May 12, 2023
Before
ILANA DIAMOND ROVNER, Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-1551
TERRY W. HUSPON,
Plaintiff-Appellant,
v.
MICHAEL MITCHEFF, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division.
No. 2:21-cv-00183-JRS-MG
James R. Sweeney II,
Judge.
O R D E R
Terry Huspon, incarcerated in an Indiana prison, challenges the denial of his
postjudgment motions. Because he fails to show extraordinary circumstances that
would merit Rule 60 relief, we affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-1551 Page 2
Huspon sued prison medical providers, see 42 U.S.C. § 1983, for deliberate
indifference toward his leg infection, which, he alleged, caused him to become
wheelchair-bound. The defendants moved for summary judgment on grounds that
Huspon failed to exhaust his administrative remedies. See id. § 1997e(a). The district
court later entered judgment for the defendants—reasoning that Huspon had failed to
follow the three-step grievance process available to Indiana Department of Corrections
prisoners before he filed suit.
Several months later, after the time to appeal the judgment had lapsed, Huspon
filed two successive motions under Rule 60(b) of the Federal Rules of Civil Procedure.
He argued that exhaustion was not required because the prison had refused to give him
the grievance forms; in support, he attached grievances that he filed after judgment had
been entered in this case. The district court denied the motions, ruling that Huspon
failed to show why the summary judgment ruling was incorrect.
Huspon then appealed, but his notice of appeal was not timely as to the district
court’s entry of judgment, see FED. R. A PP. P. 4(a)(1)(A), so we limited his appeal to only
the order denying his postjudgment motions. The practical effect is that Huspon faces
an uphill battle: Relief is available under Rule 60(b) only when the moving party shows
“special circumstances” that justify this extraordinary remedy, such as excusable
neglect or newly discovered evidence. Jones v. Ramos, 12 F.4th 745, 749 (7th Cir. 2021);
see FED. R. C IV. P. 60(b).
Huspon now contends that he found himself in such a situation after the case
closed, when he was away from the prison without access to his legal materials. (He
supplies no further details.) But Huspon did not raise this contention in either of his
postjudgment motions, and therefore has forfeited or waived this argument. See Cooper
v. Retrieval-Masters Creditors Bureau, Inc., 42 F.4th 675, 688 (7th Cir. 2022). In any event,
this argument is not supported by the record. Huspon says he was away from prison in
early 2022, but the timing of this absence postdated the 30-day period in which Huspon
was required to appeal the court’s entry of judgment in late 2021.
Huspon devotes much of his brief to challenging the court’s exhaustion ruling
and arguing that the defendants were deliberately indifferent to his medical needs. But
an appeal from the denial of a Rule 60(b) motion does not allow us to consider the
propriety of the original judgment. Bell v. McAdory, 820 F.3d 880, 883 (7th Cir. 2016).
AFFIRMED

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