Melvin Reed v. PF of Milwaukee Midtown

In the

United States Court of Appeals For the Seventh Circuit ____________________

No. 20-3057 MELVIN D. REED, Plaintiff-Appellant,

v.

PF OF MILWAUKEE MIDTOWN, LLC, doing business as Planet Fitness, Defendant-Appellee. ____________________

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 19-cv-1609 — Lynn Adelman, Judge. ____________________

ARGUED OCTOBER 5, 2021 — DECIDED OCTOBER 28, 2021 ____________________

Before EASTERBROOK, KANNE, and ST. EVE, Circuit Judges. EASTERBROOK, Circuit Judge. Melvin Reed applied for a job at Planet Fitness of Milwaukee. When it did not hire him, he filed with the EEOC a charge of age discrimination. After the agency found a lack of support for that charge, Reed sued un- der the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–34.

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The clerk of court returned Reed’s complaint, unfiled. In 2012 the district court had issued a litigation-bar order based on Reed’s history of frivolous suits. Reed v. Lincare, Inc., No. 11-C-221 (E.D. Wis. Nov. 21, 2012). The judge concluded that Reed sent off many employment applications every year. If hired, he worked for a short time before giving the employer cause to fire him, then asserted discrimination. If not hired, he asserted that this, too, was discriminatory. After suing, Reed made sealement demands based on the cost to defendants of defending the suit rather than a plausible estimate of the like- lihood that he would prevail. The judge directed Reed to pay a sanction of $5,000 and enforced it by preventing further liti- gation in federal court until the money had been paid. We af- firmed both the order dismissing the suit and the sanction. Reed v. Lincare, Inc., No. 12-3782 (7th Cir. July 30, 2013) (non- precedential disposition). An earlier decision of this court tal- lied at least 16 of Reed’s frivolous suits. Reed v. Ewald Automo- tive Group, Inc., No. 10-3186 (7th Cir. May 11, 2011) (nonprec- edential disposition). Less-extensive records of abusive litiga- tion have led to bar orders. See, e.g., Support Systems Interna- tional, Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995). The bar order entered in Lincare, modeled on the one in Mack, provided that the court would entertain an application to lift it after two years. Instead of doing that, however, Reed tried to file this suit as if the bar order did not exist. He cannot have been surprised when the clerk returned the papers. At this point the clock to sue had been ticking for weeks—and it was a fast-running clock. The EEOC’s right-to-sue leaer started a 90-day period for filing a timely action. On day 46 of this period Reed asked the district court to vacate the bar or- der. He gave a single reason: that Judge Randa, who entered the bar order, had been biased against him. This request was

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frivolous, because an assertion that Judge Randa had been bi- ased was advanced on appeal in 2013 and rejected. Just as Reed initially ignored the bar order, his motion to vacate the bar order ignored the fact that it had been affirmed and that the bias argument had failed. This exemplifies the paaern of frivolous acts and contentions that led to the bar order in the first place. Predictably, Reed’s motion to vacate the bar order was denied—this time by Judge Adelman, who had been as- signed both to Reed’s new suit and to replace Judge Randa in Lincare after the laaer’s death. Reed soon filed another motion to vacate, and in response Judge Adelman observed that such orders should not last for- ever and that sustained inability to pay might support relief. He invited Reed to file an affidavit detailing the state of his finances since 2012, when the bar order was entered. Unfortu- nately, the clerk of court sent this order to an outdated ad- dress from the Lincare case rather than Reed’s current address. The order was dated and mailed on September 16, 2019, but not received until October 16. By then the 90-day period for suit had expired. (The deadline was October 7.) Two days after receiving the September 16 order, Reed filed an affidavit of indigence. The district judge accepted the affidavit in Lincare and vacated the filing bar, but in Planet Fit- ness (filed on November 1, after the bar was lifted) the judge denied Reed’s request for equitable tolling and dismissed the suit as untimely. Reed v. PF of Milwaukee Midtown, 2020 U.S. Dist. LEXIS 177370 (E.D. Wis. Sept. 25, 2020). The judge ob- served that tolling requires both some extrinsic obstacle and diligence to surmount it. Yet the obstacle—the bar order—was of Reed’s own making, the result of tactics lasting more than a decade, and his efforts to avoid the order cannot be called

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diligent. Even if the judiciary were to ignore all time between 2012 and 2019, Reed defied the bar order rather than asking for vacatur. And when, halfway through the 90 days, Reed asked for vacatur, he advanced only a frivolous argument (Judge Randa’s supposed bias). Meanwhile he bypassed a self-help remedy: suit in state court, to which the bar order did not apply. Both state and federal courts entertain ADEA suits. Judge Adelman observed that Reed’s professed greater familiarity with federal court does not justify adding time to the statutory 90 days; many a would-be litigant must spend a liale effort to learn how to file suit in state court. The clerk’s use of an outdated address on September 16 was unfortunate, but by then the 90 days was almost gone— and Reed had friaered away most of the period with misbe- goaen acts (ignoring the bar order) and arguments (judicial bias), making it impossible for him to demonstrate diligence. It is a litigant’s responsibility to act diligently throughout a pe- riod of limitations, in order to avoid the risk that a clerical er- ror will eat up the last few days or weeks. See, e.g., Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010); Johnson v. McCaughtry, 265 F.3d 559, 565–66 (7th Cir. 2001). We agree with the district court and need not add to its analysis of these subjects. An amicus curiae contends that the litigation-control order entered in Lincare is invalid and could be ignored (rendering the initial complaint timely) because Judge Randa did not tell Reed that indigence will lead to the order’s vacatur. That’s wrong for two reasons. First, it is an argument that could have been raised on ap- peal in 2013 but was not. Our decision affirming the bar order is not subject to collateral aaack.

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Second, the argument is mistaken on the merits. Indigent persons are not entitled to file an endless string of frivolous suits. A court may halt the abuse of the judicial process, which imposes substantial costs on people and businesses that have done no wrong. Everyone has a duty to avoid frivolous suits and arguments, and a person who cannot or will not abide by that rule must be stopped. If a need to pay money won’t work as a deterrent (and it won’t for indigent litigants), then some form of bar order becomes essential. When administering Mack orders, this court does not au- tomatically vacate a bar after two years. We require two demonstrations. (1) The litigant must have paid what he or she could, even if not the whole amount. (2) The litigant must demonstrate that he or she will desist from frivolous suits and contentions. See In re Chicago, 500 F.3d 582, 585–86 (7th Cir. 2007). Reed did not satisfy either requirement. We accept his assertion that he was unable to pay the whole $5,000. But he did not pay, say, $10 a week for several years and then ask for relief. He paid nothing for seven years. He was working dur- ing some of this time; surely he was able to afford more than $0. But instead of making a good-faith effort to satisfy as much of his obligation as he could, he thumbed his nose at the judi- cial system. And then, far from demonstrating a resolve to avoid frivolous litigation, Reed made a frivolous aaack on the Lincare order itself. The district court’s willingness to vacate the Lincare order under these circumstances is surprising. Reed must understand that continued frivolous suits and contentions will lead to a new bar order. In the meantime, we conclude that his history of frivolous litigation—including frivolous arguments in this very suit—justifies an order that he prepay all fees to file new suits in the district court and

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appeals to this court. In other words, by a sustained course of conduct, Reed has forfeited the privilege of litigating in forma pauperis under 28 U.S.C. §1915. AFFIRMED