Lauderdale-El v. Ind. Parole Bd., 21-1242

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Hamilton, Circuit Judge.
• Citation: 35 F.4th 572
• Parties: Lamone LAUDERDALE-EL, Petitioner-Appellant, v. INDIANA PAROLE BOARD, Respondent-Appellee.
• Docket Number: 21-1242
• Decision Date: 23 May 2022

35 F.4th 572

Lamone LAUDERDALE-EL, Petitioner-Appellant,
v.
INDIANA PAROLE BOARD, Respondent-Appellee.

No. 21-1242

United States Court of Appeals, Seventh Circuit.

Submitted December 22, 2021^*
Decided May 23, 2022

Lamone Lauderdale-El, Indianapolis, IN, Pro Se.

Monika Prekopa Talbot, Attorney, Office of the Attorney General, Indianapolis, IN, for Respondent - Appellee.

Before Kanne, Rovner, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

While imprisoned in Indiana, Lamone Lauderdale-El petitioned for a writ of habeas corpus challenging the loss of good-time credits resulting from a prison disciplinary conviction. His petition asserts primarily that prison officials violated his due process rights in applying an Indiana Department of Correction policy rescinding previously restored good-time credits. The district court concluded that petitioner could challenge the restoration policy in state court, so it dismissed the case without prejudice for failure to exhaust state-court remedies. See 28 U.S.C. § 2254(b)(1)(A). Petitioner Lauderdale-El has appealed. We agree with the district court that petitioner failed to exhaust available remedies, but first we must address two issues affecting our jurisdiction

35 F.4th 575

on appeal. In doing so, we follow a long line of cases holding that dismissal of a habeas corpus petition without prejudice for failure to exhaust state-court remedies is a final and appealable judgment, but we also need to overrule contrary holdings in two of our cases, Gacho v. Butler , 792 F.3d 732 (7th Cir. 2015), and Moore v. Mote , 368 F.3d 754 (7th Cir. 2004).

I. Appellate Jurisdiction

The two questions affecting our jurisdiction to decide this appeal are whether petitioner's release from prison during this appeal makes the case moot and whether a dismissal of a habeas corpus petition without prejudice for failure to exhaust available state remedies is an appealable final judgment.

A. Mootness

Respondent contends that petitioner's release from prison requires dismissal of the case as moot. We disagree because petitioner is still on parole. A case becomes moot when a court can no longer grant any redress for the alleged wrong. Eichwedel v. Curry , 700 F.3d 275, 278 (7th Cir. 2012). A challenge to a petitioner's custody becomes moot when custody ends and no collateral consequences remain. Id. Because parole is a form of custody, a case that could shorten a former prisoner's term of parole is not moot. White v. Indiana Parole Board , 266 F.3d 759, 762–63 (7th Cir. 2001).

This case is nearly identical to White , in which we held that a court could order the parole board to revise the end date of the petitioner's parole based on when he should have been released from prison with proper application of good-time credit. Under Indiana law, petitioner Lauderdale-El's parole will last two years or until his sentence expires, whichever is shorter. Ind. Code § 35-50-6-1(b). Currently, those times are the same; petitioner was released in March 2021 and is scheduled to remain on parole until March 2023. Petitioner contends that if his good-time credits had not been wrongly revoked, his earliest possible release date would have been at least three months sooner, in December 2020. If that were correct, his parole should end two years from that earlier release date. If petitioner prevailed in this case, the district court could order the parole board to release him from parole in December 2022, removing a legally meaningful form of custody. See White , 266 F.3d at 762–63. Three fewer months of parole would be meaningful relief, so the case is not moot.

B. A Final Judgment

The second jurisdictional issue is whether the district court's judgment dismissing the petition without prejudice for failure to exhaust state-court remedies is a final, appealable judgment under 28 U.S.C. § 1291. The district court's dismissal of this petition for failure to exhaust state-court remedies certainly seems final as a practical matter: the district court is done with the case. Respondent argues, however, that the dismissal is not final because the petition was dismissed without prejudice, so petitioner can file a new petition asserting the same claim after exhausting state remedies (assuming he does not win relief from the state courts).

Respondent's position finds direct support in two cases, Gacho v. Butler , 792 F.3d 732 (7th Cir. 2015), and Moore v. Mote , 368 F.3d 754 (7th Cir. 2004). Both dismissed for lack of appellate jurisdiction appeals from district court decisions dismissing habeas corpus petitions without prejudice for failure to exhaust state remedies. A closer look at the issue shows, however, that Gacho and Moore are outliers. They are out of step with our practice

35 F.4th 576

in other habeas appeals, the practice of other circuits, and more general principles of appellate jurisdiction. As Judge Easterbrook pointed out in his concurrence in Carter v. Buesgen , 10 F.4th 715, 725 (7th Cir. 2021), Gacho and Moore continue to cause confusion and mischief, wasting the time of lawyers and judges. It's time to overrule their holdings on appellate jurisdiction.

To explain how the issue arises, the phrase "without prejudice" makes jurisdictional antennae twitch for appellate judges and other mavens of appellate jurisdiction. In a civil case, a dismissal "without prejudice" can often signal that the district court is not actually done with the case but is instead leaving an opportunity for a plaintiff or petitioner to cure a problem and to continue or revive the case in the district court. The most obvious example: a district court dismisses a complaint for failure to state a claim but allows the plaintiff to amend the complaint. In most cases, such an order is not a final judgment even if the district court enters a Rule 58 judgment announcing dismissal without prejudice. See, e.g., Furnace v. Board of Trustees of Southern Illinois University , 218 F.3d 666, 669 (7th Cir. 2000) (recognizing that an order dismissing a complaint without prejudice generally "is not appealable because the plaintiff may file an amended complaint" (citation omitted)); see also Reed v. Columbia St. Mary's Hospital , 782 F.3d 331, 336 (7th Cir. 2015) ("We have emphasized that litigants may and should rely on the specific wording of a Rule 58 judgment to determine whether a judgment is final and appealable.").

Another scenario shows why appellate courts try to be vigilant about their jurisdiction when a dismissal says "without prejudice." Suppose a district court resolves the more important claim in a civil case on a motion to dismiss or for summary judgment, but leaves a less important claim pending for trial. Parties will sometimes try to manufacture an appealable final judgment by asking the district court to dismiss the remaining claim "without prejudice" and to enter a supposedly final judgment dismissing the more important claim with prejudice and the less important one without prejudice. We have held repeatedly that this tactic does not work to create an appealable final judgment. E.g., West v. Louisville Gas & Electric Co. , 920 F.3d 499, 504–05 (7th Cir. 2019) (collecting cases); Hill v. Potter , 352 F.3d 1142, 1145 (7th Cir. 2003) ("What is true is that a litigant is not permitted to obtain an immediate appeal of an interlocutory order by the facile expedient of dismissing one of his claims without prejudice so that he can continue with the case after the appeal is decided.") (collecting more cases from this and other circuits).

Other kinds of dismissals without prejudice, however, signal clearly that the district court has finished with the case but is leaving open the possibility that the parties may pursue the dispute in another forum. Such judgments, typically based on a lack of subject-matter or personal jurisdiction or improper venue, are final for purposes of appeal. The rule in such cases is so well established that we rarely even comment on appellate jurisdiction. E.g., Deb v. SIRVA, Inc. , 832 F.3d 800, 803–04 (7th Cir. 2016) (vacating dismissal without prejudice for improper venue); Milwaukee Concrete Studios, Ltd. v. Fjeld Manufacturing Co. , 8 F.3d 441, 448 (7th Cir. 1993) (affirming dismissal without prejudice for improper venue). Dismissals for lack of subject-matter jurisdiction are necessarily without prejudice, Page v. Democratic Nat'l Committee , 2 F.4th 630, 639 (7th Cir. 2021), and we routinely exercise jurisdiction over appeals from such dismissals.

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E.g., Lewert v. P.F. Chang's China Bistro, Inc. , 819 F.3d 963, 966 (7th Cir. 2016). The same is true of dismissals for lack of personal jurisdiction. E.g., Rogers v. City of Hobart , 996 F.3d 812, 817 (7th Cir. 2021).

Similarly, the Prison Litigation Reform Act includes a rigorous requirement for exhaustion of administrative remedies, 42 U.S.C. § 1997e(a), and we have exercised jurisdiction over dismissals of such cases for failure to exhaust. E.g., Hernandez v. Dart , 814 F.3d 836, 841 (7th Cir. 2016) (dismissal without prejudice for failure to exhaust was final as practical matter and was reversed on merits of that defense); Maddox v. Love , 655 F.3d 709, 716 (7th Cir. 2011) ; accord, e.g., Ray v. Kertes , 285 F.3d 287, 291 (3d Cir. 2002).

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