U.S. COURT OF APPEALS
June 27, 2008
THOMAS K. KAHN
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
D. C. Docket No. 08-00507-CV-VMC
MARK DEAN SCHWAB,
SECRETARY, DEPARTMENT OF CORRECTIONS,
OTHER UNKNOWN EMPLOYEES AND AGENTS,
Florida Department of Corrections,
Appeal from the United States District Court
for the Middle District of Florida
(June 27, 2008)
Before DUBINA, CARNES and HULL, Circuit Judges.
Mark Dean Schwab has appealed the district court’s judgment dismissing
without prejudice the 42 U.S.C. § 1983 case that he had filed challenging the lethal
injection protocols that will be used at his scheduled execution and from the order
denying his Federal Rules of Civil Procedure 59(e) and 60(b) motions to set aside
the judgment and reinstate his complaint.
Schwab has abandoned the argument he made in the district court that it had
misinterpreted its November 14, 2007 order providing that unless Schwab filed a
motion to re-open the case within 30 days after a final decision in Baze v. Rees,
___ U.S. ___, 128 S. Ct. 1520 (2008), his case would be dismissed. The State has
abandoned any argument that the district court’s alternative ruling, which denied
the Rule 59(e) motion as itself untimely because it was filed more than ten days
after the judgment, is correct.
Schwab’s argument that the district court abused its discretion by dismissing
his case and failing to reinstate it relies heavily on decisions requiring certain
predicate findings by the court. See, e.g., McKelvey v. AT&T Techs., Inc., 789
F.2d 1518 (11th Cir. 1986); Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382 (5th
Cir. 1978). Those decisions are inapplicable to dismissals without prejudice, see
Dynes v. Army Air Force Exchange Service, 720 F.2d 1495 (11th Cir. 1983), and
the district court’s order explicitly provided that this dismissal was: “WITHOUT
PREJUDICE,” (R:20:6). Trying to escape the force of that fact, Schwab argues
that his case comes within the exception for dismissals without prejudice that have
the effect of being with prejudice. The prototypical example is a dismissal without
prejudice where the refiling would be barred by the statute of limitations. See, e.g.,
Burden v. Yates, 644 F.2d 503, 505 (5th Cir. Unit B May 1981). The dismissal in
this case does not fit within that exception. Schwab’s complaint may well be
barred by the statute of limitations, see McNair v. Allen, 515 F.3d 1168 (11th Cir.
2008), but that is not because of the dismissal. If the statute of limitations would
have barred a refiled complaint, it also would have barred the complaint as initially
We are not persuaded by Schwab’s argument that the dismissal was
effectively with prejudice on the theory that during the short time remaining before
his scheduled execution he did not have time to refile and get the case going again.
Schwab could have promptly refiled the identical complaint, which would have
deprived the State of any excuse for not refiling the identical answer without delay.
As the district court pointed out, Schwab also could have filed a motion to
expedite. He even could have refiled the complaint and then moved the court to
order that the case be taken up in the same posture it was in when it was dismissed.
The district courts of this circuit are experienced in expediting matters relating to
scheduled executions, as is this Court.
To the extent that Schwab argues that he could not refile his complaint
because he had no counsel, that argument is belied by two facts. First, regardless
of whether the Office of Capital Collateral Regional Counsel (CCRC) could
lawfully participate in this § 1983 proceeding under the law of Florida, it did
participate in the proceeding. Not only did CCRC file the initial complaint but it
also filed the Rule 59(e) and Rule 60(b) motions and the notice of appeal. It could
just as easily have filed a motion to re-open the case within the period provided by
the November 14, 2007 order. There is no good reason why CCRC was not
disabled from filing the initial complaint in November 2007, and was not disabled
from filing the post-dismissal motions and the notice of appeal on June 3, 2008 and
June 16, 2008, respectively, but was disabled in filing a motion to re-open between
April 16, 2008 (the date the Baze decision was issued) and May 16, 2008 (30 days
Second, even if one assumes away CCRC, present counsel have not
satisfactorily explained why they could not have filed a timely motion to re-open
the case just as easily as they have filed the briefs in this case. Two attorneys from
the New York office of the Morrison & Foerster law firm and one from that firm’s
Los Angeles office are on the opening and reply briefs filed in this Court on behalf
We do not mean to imply that Schwab h 1 as the right to appointed counsel in this civil
case. The Morrison & Foerster firm was either “retained” or “engaged,” not appointed. We
recognize that 18 U.S.C. § 3006A(a)(2)(B) provides that counsel may be provided for any
financially eligible person who “is seeking relief under section 2241, 2254, or 2255 of title 28.”
Schwab is not seeking relief under any of those provisions, but under 42 U.S.C. § 1983. If he
were proceeding under § 2254, Schwab would be barred from doing so by 28 U.S.C. § 2244(b).
of Schwab. The reply brief states that: “[T]he undersigned was retained solely to
represent Mr. Schwab in connection with his appeal of the counsel issue,” and
“The undersigned represents to this Court both that Mr. Schwab engaged this Firm
on June 18, 2008 . . . and that the undersigned has no authority to represent Mr.
Schwab in the district court, even on remand.” (Reply Brief at 14 & 15 n.3). The
fact that Schwab delayed in retaining or engaging the law firm does not excuse his
failure to do so earlier when there was time to file a motion to re-open the case.
And the fact that Schwab has not authorized the firm to represent him in the district
court does not explain why he has not done so. A litigant who inflicts prejudice on
himself should not be heard to complain about the prejudice.1
For these reasons, we conclude that the district court’s dismissal without
prejudice was not the equivalent of a dismissal with prejudice. Schwab could, and
should, have filed another complaint and the appropriate motion or motions to
expedite consideration of it. We also conclude that the district court did not abuse
its discretion in dismissing the initial complaint because no motion to re-open the
case was filed as required by the November 14, 2007 order, or in denying the Rule
59(e) and Rule 60(b) motions.