Kevin Johnson v. Martin Purdue

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2478
K EVIN JOHNSON ,
Plaintiff-Appellant,
v.
M ARTIN PURDUE, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:21-cv-00201-JMS-MG — Jane Magnus-Stinson,
Judge.
____________________
A RGUED S EPTEMBER 12, 2024 — DECIDED J ANUARY 21, 2025
____________________
Before HAMILTON , S CUDDER , and L EE, Circuit Judges.
S CUDDER , Circuit Judge. Kevin Johnson alleges that he re-
ceived deficient medical care while serving his state sentence
in an Indiana prison. He turned to federal court for relief, pro-
ceeding pro se and alleging a violation of his Eighth Amend-
ment rights. The litigation came during the COVID-19 pan-
demic which, as with so many other aspects of life, created
substantial challenges for the parties and the district court.

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2 No. 23-2478
Adding to the complexity was the fact that Johnson moved
prisons on several occasions, spending time in facilities in In-
diana, Ohio, and Virginia. Relevant here is Johnson’s conten-
tion that difficulties receiving mail plagued his lawsuit and
left him in the position of never receiving the defendants’
summary judgment filings.
After Johnson failed to respond to the defendants’ mo-
tions, the district court entered summary judgment for the de-
fendants. Johnson now appeals, claiming he never received
the motions in the prison mail. We assume he is right on that
point. But Johnson’s claim fails because, under the unusual
circumstances shown here, he had sufficient constructive no-
tice of the summary judgment motions and has never chal-
lenged the merits of the district court’s decision. So, while this
case is plenty messy, in the end we affirm.
I
The underlying events occurred at Pendleton Correctional
Facility in central Indiana. Johnson’s lawsuit challenges the
dental and mental health care he received in 2019 and 2020.
He filed his initial complaint in January 2021, invoking 42
U.S.C. § 1983 and naming as defendants medical personnel,
prison officials, and Wexford of Indiana, the prison’s con-
tracted medical provider.
Following discovery, the defendants moved for summary
judgment in April and June 2022. After several months
passed, Johnson filed a “notice” on October 24, 2022 inform-
ing the district court that he had called the clerk of court and
learned that he had not received the defendants’ motions be-
cause of interruptions with the prison mail service during the
COVID-19 pandemic. He updated the district court with his

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No. 23-2478 3
new mailing address on October 17, 2022 because he had
moved facilities yet again.
Johnson’s filings got the district court’s attention. Indeed,
the district court astutely realized there was a potential mail-
ing issue: Johnson may not have received all the filings in this
case due to the address changes accompanying his many
transfers to different prisons. Our review of the record shows
that, during the two-and-a-half-year period of litigation,
Johnson filed at least five notices of change of address, with
four filings returned as undeliverable. Put most simply, the
district court lacked confidence that Johnson had received the
defendants’ original summary judgment motions.
To rectify the issue, the district court denied those motions
without prejudice on January 19, 2023. From there the court
provided the defendants 14 days to refile for summary judg-
ment and to serve Johnson at the most recent mailing address
he supplied in his filing with the district court. Attempting to
avoid a repeat of the same mailing problems, the district
judge also directed the defendants to inform the court if they
received notification that their motions went undelivered to
Johnson. The court’s order gave Johnson 28 days from receipt
of any new filings to respond and explained that “if Mr. John-
son wishes to request that the Court take some action in this
case, he is encouraged to file a Motion rather than a Notice.”
Johnson acknowledged in his subsequent motion to vacate
that he received the court’s order with these instructions and
the timeline for the new summary judgment motions.
As the district court expected, the defendants wasted no
time refiling their summary judgment motions. For his part,
though, Johnson never responded within the 28-day opposi-
tion deadline. Perhaps worried that mail troubles had

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4 No. 23-2478
resurfaced, the district court refrained from ruling for five
months. At that point, in June 2023, the district court lifted the
bookmark, granted the defendants’ motions for summary
judgment, and dismissed the case.
A few weeks later, on July 17, 2023, Johnson filed a “mo-
tion to vacate order and judgment,” explaining that he did not
respond because he never received the defendants’ new sum-
mary judgment motions. Invoking his right to notice under
the Fifth Amendment’s Due Process Clause, he asked the dis-
trict court to vacate the judgment as void. The district court
denied the motion, which it construed as one brought pursu-
ant to Federal Rule of Civil Procedure 59(e), emphasizing that
its January 2023 order provided Johnson with clear notice that
the defendants had authority to file new summary judgment
motions “and that he should file a motion if he needed the
Court to take a requested action.”
Johnson now appeals, represented by very able counsel.
II
With the case now before us, we consider Johnson’s chal-
lenge to two of the district court’s rulings—the entry of sum-
mary judgment for the defendants and the denial of his mo-
tion to vacate.
But we immediately confront a limitation on our jurisdic-
tion, as Johnson only appealed the district court’s adverse
summary judgment ruling. He failed to file an amended or
new notice of appeal, as required by Federal Rule of Appellate
Procedure 4(a)(4)(B)(ii), to challenge the district court’s denial
of his post-judgment motion. See White v. United States Dep’t
of Just., 16 F.4th 539, 543 (7th Cir. 2021) (concluding that we
cannot review district court decisions disposing of post-

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No. 23-2478 5
judgment motions based on a notice of appeal filed from the
original judgment because, in such a circumstance, Rule
4(a)(4)(B)(ii) requires a second or amended notice of appeal).
What all of this means is that Johnson’s challenge to the dis-
trict court’s construction of his post-judgment motion as one
brought pursuant to Federal Rule of Civil Procedure 59(e), ra-
ther than Rule 60(b)(4), is not before us.
The procedural complexity only compounds from there.
Even though he has (timely and properly) appealed the dis-
trict court’s summary judgment ruling, Johnson does not ded-
icate even one sentence of his brief to the merits of that ruling
(and his underlying claim alleging deficient medical care). In-
stead, Johnson devotes his entire brief to the merits of the dis-
trict court’s ruling on his post-judgment motion—yet, as we
have emphasized, he never properly appealed that ruling. So
we have a procedural mess before us.
In no way do we mean to criticize Johnson. He has no legal
training and proceeded pro se in the district court, undoubt-
edly doing the best he could. But the procedural shortcomings
add substantial complexity to sorting out the permissible
scope of our review on appeal.
In the final analysis, the only challenge before us is to the
district court’s entry of summary judgment for the defend-
ants. We see no error—no substantive error because Johnson
presses no substantive challenge, and no procedural error be-
cause the district court took care to ensure Johnson had con-
structive notice of the new round of summary judgment mo-
tions before entering judgment for the defendants.
Our reasoning requires two layers of unpacking.

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6 No. 23-2478
A
First, we are confident that Johnson’s notice of appeal
from the district court’s summary judgment order provides
us with authority to resolve whether he received adequate no-
tice of the summary judgment filings. When a party timely
appeals a district court’s grant of summary judgment, we see
no barrier to the party contesting the procedural fairness of
that ruling on appeal based on a complete lack of notice. See
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314
(1950) (describing notice as “[a]n elementary and fundamen-
tal requirement of due process in any proceeding which is to
be accorded finality”). That is Johnson’s essential contention
here, inviting us to void the district court’s entry of summary
judgment because he had no notice of the proceedings. Cf. Re-
lational, LLC v. Hodges, 627 F.3d 668, 671 (7th Cir. 2010) (ex-
plaining that “a judgment is void as to any party who was not
adequately served” and therefore lacked proper notice of the
proceedings).
To be sure, all this complexity would evaporate had John-
son appealed the district court’s denial of his post-judgment
motion, where he raised the same procedural challenge to the
judgment’s validity. But this fact does not deprive us of our
authority to consider the fundamental fairness of the district
court’s summary judgment ruling given Johnson’s timely ap-
peal of that ruling. Implicit in the district court’s entry of sum-
mary judgment for the defendants was its reasonable belief
that the notice issues had been resolved. Given Johnson’s
timely appeal of the ultimate summary judgment ruling, we
have jurisdiction to review his challenge to the fundamental
validity of the district court’s judgment.

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No. 23-2478 7
B
Second, we agree with the district court’s implicit deter-
mination that Johnson had constructive notice of the defend-
ants’ new summary judgment motions.
At the risk of belaboring the obvious, our adversarial sys-
tem of justice rests on the important assumption that parties
receive copies of their opponents’ submissions to the court
and a fair opportunity to respond. Indeed, the Federal Rules
of Civil Procedure, particularly Rules 4 and 5, are designed to
establish that basic foundation for fair civil litigation. So we
are sympathetic to Johnson’s claim that he never received the
defendants’ motions for summary judgment. He swore to this
effect in his motion to vacate, and the defendants have sub-
mitted no evidence to the contrary.
But our inquiry cannot end there because the law also per-
mits constructive notice. See Krecioch v. United States, 221 F.3d
976, 980 (7th Cir. 2000) (“The operative question is whether
notice was adequate at the time that the notice was sent[.] …
However, due process does not require actual notice, so long
as the government ‘acted reasonably in selecting means likely
to inform the persons affected.’”) (citations omitted). On the
record before us we are persuaded that Johnson had construc-
tive notice of the pending motions, so the district court’s order
granting summary judgment in favor of the defendants did
not violate his right to due process.
Due process requires “notice reasonably calculated, under
all the circumstances, to apprise interested parties of the pen-
dency of the action and afford them an opportunity to present
their objections.” Mullane, 339 U.S. at 314. Proof of actual no-
tice is not required because due process does not demand that

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8 No. 23-2478
a party use “the best possible method of notification.” Kreci-
och, 221 F.3d at 981 (quoting Towers v. City of Chicago, 173 F.3d
619, 628 (7th Cir. 1999)).
By his own admission, Johnson received the district
court’s January 2023 order resetting the summary judgment
briefing schedule. We conclude that the district court’s order
left Johnson with notice “reasonably calculated” to apprise
him of the risk of renewed summary judgment motions being
filed within the next 14 days and, by extension, a judgment
being entered against him.
The district court’s January 2023 order reflects a meaning-
ful effort to protect Johnson’s due process rights, affording
him multiple opportunities to respond or notify the court of a
mailing issue. First, the district court dismissed the original
summary judgment motions without prejudice, providing the
defendants with a firm timeline—14 days—to file anew and
serve Johnson at his new address. It also instructed them to
notify the court of any issues with the mail. Second, the dis-
trict court waited for Johnson’s response. Five months passed
with no activity—no response from Johnson and no further
filings indicating any issue with the prison mail service. Only
then did the district court enter its order granting summary
judgment.
Critically, Johnson acknowledges that he received the dis-
trict court’s January 2023 order resetting the summary judg-
ment briefing schedule. We have previously found that court
orders directing a party to respond to a pending motion suf-
fice to put the party on notice. See Trask v. Rodriguez, 854 F.3d
941, 944 (7th Cir. 2017) (holding that a pro se plaintiff had ad-
equate notice of a pending summary judgment motion, de-
spite claiming she never received it, because the court entered

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No. 23-2478 9
an order directing her to respond to the motion and she
acknowledged receiving that order).
Even assuming that Johnson did not receive actual notice
of the pending motions, the same result is appropriate here.
Johnson received the district court’s January 2023 order deny-
ing defendants’ motions without prejudice and inviting them
to refile. In these circumstances, Johnson should have known
that summary judgment motions would likely be filed within
the next 14 days. At the very least, given the history of notice
difficulties in the case, it was not unreasonable to expect John-
son to make some effort on his end to monitor or inquire
about the status of his case well before the district court ruled
several months later. Yet at no point between the district
court’s January 2023 order and its ultimate summary judg-
ment ruling on June 22, 2023 did Johnson file anything saying
his mail problems persisted or that he was in the dark about
anything with the litigation.
The prior history of undelivered mail does not cast doubt
on our conclusion. The record shows that the defendants sent
the motions to Johnson’s updated mailing address, where he
received the district court’s January 2023 order and summary
judgment order, and which has no documented history of
mailing issues. All of this is enough to show that Johnson had
constructive notice.
At oral argument defense counsel suggested that Johnson
shouldered the burden to prove he did not receive these fil-
ings, stating at one point that he could have requested prison
mail records. In our view, that is a bridge too far in these cir-
cumstances. The burden does not rest with an incarcerated
pro se litigant to prove a negative. In any event, the problem
fatal to Johnson’s appeal is not that he failed to prove he did

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10 No. 23-2478
not receive the new round of summary judgment motions. It
is instead a combination of factors: that he failed to take any
action in this case despite being put on notice that the defend-
ants’ motions would shortly be refiled, that the district court
instructed defendants to notify the court of any issues with
service, and that, from a broader perspective, Johnson has of-
fered no argument that the district court’s decision was
wrong on the merits of the summary judgment motions.
For these reasons, we AFFIRM the judgment of the district
court.

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