                             NONPRECEDENTIAL DISPOSITION
                              To be cited only in accordance with
                                       Fed. R. App. P. 32.1




              United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604

                                 Submitted September 19, 2012*
                                  Decided September 20, 2012

                                            Before

                              FRANK H. EASTERBROOK, Chief Judge

                              ANN CLAIRE WILLIAMS, Circuit Judge

                              DAVID F. HAMILTON, Circuit Judge

No. 11-1538

CECIL O. SHAW,                                       Appeal from the United States District
      Plaintiff-Appellant,                           Court for the Northern District of Illinois,
                                                     Eastern Division.
       v.
                                                     No. 06 C 5906
WAYNE GERMAIN, et al.,
    Defendants-Appellees.                            George M. Marovich,
                                                     Judge.


                                          ORDER

       Cecil Shaw was sent to prison for attempting to hijack a vehicle. The paperwork
delivered by the state court to the Illinois Department of Corrections incorrectly described
Shaw’s crime as a Class X felony, when instead the offense was a Class 1 felony. Shaw
suspected a mistake and alerted prison administrators, but the discrepancy was not


       *
         After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 11-1538                                                                             Page 2

resolved. The error did not affect Shaw’s initial term of incarceration, but when he was
released from prison in December 2002, he was placed on three years of mandatory
supervised release, not two years, because a Class X felony carries the longer term. Shaw
was arrested in June 2004 for stealing a car. His release was revoked, he was sent back to
prison, and in June 2005 he received a new, six-year prison term for auto theft. By then the
state court had caught its mistake concerning Shaw’s earlier felony, and although his
imprisonment for violating his supervised release would have ended before his sentencing
for the auto theft if the error had been corrected sooner, he received credit against his new
sentence for the entire period after his arrest in June 2004. In effect, then, Shaw served no
additional time for violating his supervised release, and thus the misclassification of his
2000 crime as a Class X felony did not harm him. Nonetheless, Shaw sued four DOC
employees under 42 U.S.C. § 1983, claiming that they had violated his rights under the
Eighth Amendment by not correcting the error in the documents originally received from
the state court. In this appeal Shaw seeks to challenge the district court’s grant of summary
judgment for the defendants. That decision is unassailable—Shaw’s lawsuit is
frivolous—but our jurisdiction does not extend to the merits of that ruling.

        The scope of our review turns on the characterization of Shaw’s postjudgment
motions. The district court entered judgment for the defendants in September 2010, but
instead of filing a notice of appeal, Shaw filed a motion for reconsideration, which cites
Federal Rule of Civil Procedure 59(e). But that submission was not received by the court
until December 2010. Shaw attached two different certificates of service: The first attests
that he had placed the document in his prison’s “institutional mail” 23 days after entry of
judgment, but the second certificate states that his December motion had been placed in the
institutional mail a few days before it was received by the court. Looking to the second
certificate, the district court concluded that the motion was untimely under Rule 59(e)
because Shaw had mailed it more than 28 days after the judgment. In its January 2011
ruling the court also considered whether Shaw might be entitled to relief under Federal
Rule of Civil Procedure 60(b), see Justice v. Town of Cicero, Ill., 682 F.3d 662, 665 (7th Cir.
2012), but decided that he was not because his postjudgment motion raises only arguments
that he could have made on appeal.

        Three weeks later, near the end of January, Shaw filed a second postjudgment
motion. This time he cited Rule 60(b), but his submission challenged the denial of the
postjudgment motion received by the district court in December, not the grant of summary
judgment. Shaw principally argued that, under the “mailbox rule,” his earlier motion was
timely as a Rule 59(e) motion because he had placed the original of that document in the
institutional mail within 28 days of the judgment, though, as he later discovered, it had
never been received by the district court. At that point, Shaw continued, he sent a duplicate
No. 11-1538                                                                                  Page 3

of his motion, which is what the court received in December with the two certificates of
service, one pertaining to the original and the other to the duplicate. In late February the
district court denied Shaw’s second postjudgment motion. The court again ruled that his
earlier motion had not been timely under Rule 59(e). But the court added that the
document would have lacked merit even as a Rule 59(e) motion because Shaw had“made
arguments that he made or could have made before.” Shaw filed a notice of appeal 16 days
later on March 7, 2011.

        In a prior order we interpreted that notice of appeal as conferring jurisdiction to
review only the denial of Shaw’s second postjudgment motion, but that understanding was
mistaken. We drew that conclusion because Shaw filed his notice of appeal more than 30
days after both the entry of the September 2010 judgment and the denial of his first
postjudgment motion in January 2011, see FED. R. APP. P. 4(a)(1)(A), and our assessment
tracked the parties’ belief that Shaw’s second motion, like the first, operated under
Rule 60(b). We did not consider that the second motion could be a timely Rule 59(e) motion
challenging the denial of a Rule 60(b) motion, see York Grp., Inc. v. Wuxi Taihu Tractor Co.,
632 F.3d 399, 401 (7th Cir. 2011); Berwick Grain Co. v. Ill. Dep’t of Agric., 189 F.3d 556, 558 (7th
Cir. 1999); Inryco, Inc. v. Metro. Eng’g Co., 708 F.2d 1225, 1232 (7th Cir. 1983), and yet that is
what happened here. Because the denial of a Rule 59(e) motion and the decision it seeks to
alter “merge” on appeal, Martinez v. City of Chicago, 499 F.3d 721, 727 (7th Cir. 2007); Borrero
v. City of Chicago, 456 F.3d 698, 700 (7th Cir. 2006), we do have jurisdiction to review the
denial of Shaw’s first postjudgment motion if that motion initiated a separate proceeding
under Rule 60(b).

        But this outcome cannot benefit Shaw. His first motion, if deemed to be one under
Rule 60(b), was properly denied because it raises arguments that he could have made on
appeal. See Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 743 (7th Cir. 2009); Bell v.
Eastman Kodak Co., 214 F.3d 798, 800–01 (7th Cir. 2000). And if the motion actually is a
timely Rule 59(e) motion, as Shaw insists, then we do not have jurisdiction to review either
the denial of that motion or the underlying judgment because the district court ruled on the
motion in January 2011 but Shaw did not file a notice of appeal until more than two months
later on March 7. A Rule 59(e) motion is not separately appealable from the underlying
judgment. Martinez, 499 F.3d at 726–27. A timely Rule 59(e) motion does suspend the
period to appeal that judgment until the motion is decided, FED. R. APP. P. 4(a)(4)(A)(iv),
but Shaw’s period to appeal was 30 days and only his first motion (if we decided that both
were Rule 59(e) motions) could toll the deadline, see Borrero, 456 F.3d at 700; Charles v.
Daley, 799 F.2d 343, 347–48 (7th Cir. 1986).
No. 11-1538                                                                                  Page 4

        But even if we had jurisdiction to review the grant of summary judgment for the
defendants, we would not reverse. As we said at the outset, Shaw’s lawsuit is frivolous.
The defendants all worked for the Department of Corrections, and none of them had
authority to amend a sentencing order issued by an Illinois court, see 730 ILCS 5/5-4-1(e),
5/3-8-1; Evans v. Illinois, 55 Ill. Ct. Cl. 395, 2002 WL 32705308, at *2–3 (Ill. Ct. Cl. 2002). Shaw
should have sought relief from the state court. That reason alone defeats his suit, but the
defendants also submitted evidence showing that they and other prison employees had
contacted the state court and prosecutor’s office on Shaw’s behalf to verify the information
they were provided. Those actions, which exceeded the defendants’ responsibilities, would
defeat any argument that they were deliberately indifferent to Shaw’s complaint that he
was at risk of being incarcerated beyond the term of his sentence. See, e.g., Rosario v. Brawn,
670 F.3d 816, 821–22 (7th Cir. 2012). Finally, even if the error in the court’s paperwork had
been corrected before Shaw was incarcerated longer for violating his supervised release
than he should have been, his total incarceration would have been the same. See Burke v.
Johnston, 452 F.3d 665, 667 (7th Cir. 2006) (explaining that Eighth Amendment claim
requires plaintiff to be incarcerated longer than he should have been); Campbell v. Peters,
256 F.3d 695, 700 (7th Cir. 2001) (same). As we have said, the extra time that Shaw served
because of the misclassification of his 2000 crime was credited against his six-year sentence
for committing yet another crime.

                                                                                     AFFIRMED.
