Withrow v. Roell

• Decision Date: 08 April 2002
• Docket Number: No. 00-40627.,00-40627.
• Citation: 288 F.3d 199
• Parties: Jon Michael WITHROW, Plaintiff-Appellant, v. Joseph C. ROELL; Jerry Ballard; Petra Garibay; J. Reagan, M.D., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

288 F.3d 199

Jon Michael WITHROW, Plaintiff-Appellant, v. Joseph C. ROELL; Jerry Ballard; Petra Garibay; J. Reagan, M.D., Defendants-Appellees.

No. 00-40627.

United States Court of Appeals, Fifth Circuit.

April 8, 2002.

Jon Michael Withrow, Tennessee Colony, TX, pro se.

Charles Kenneth Eldred, Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, JONES and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

This matter having been referred to a magistrate judge pursuant to 28 U.S.C. § 636(c) (on referral and upon parties' consent, may try civil case and enter judgment), primarily at issue is whether, when all parties fail to consent pre-trial, but trial is held and judgment entered by the magistrate judge, post-judgment consent cures the pre-trial failure. Defendants contend: pre-trial, all parties consented; alternatively, their post-judgment consent confers jurisdiction on the magistrate judge. VACATED AND REMANDED.

I.

In 1997, Jon Michael Withrow, pro se, filed this 42 U.S.C. § 1983 action, claiming members of his prison's medical staff (Joseph Roell, Jerry Ballard, Danny Knutson, Petra Garibay, and Dr. James Reagan) acted deliberately indifferently to his medical needs, in violation of, inter alia, his Eighth Amendment rights. Withrow gave written consent to trial and entry of judgment by a magistrate judge.

Therefore, pursuant to 28 U.S.C. § 636(c), the district judge referred the action to a magistrate judge, but reminded that all defendants had to also consent to such participation by a magistrate judge (consent). Only Dr. Reagan did so (written).

In early 1998, the magistrate judge dismissed all claims except concerning the Eighth Amendment and dismissed Ballard. (Ballard's dismissal is reflected in the final judgment entered 16 May 2000, from which this appeal is taken.) In March 1999, the magistrate judge denied summary judgment for the remaining defendants. Pre-trial, Withrow settled with Knutson; he was dismissed.

The remaining parties proceeded to trial before the magistrate judge, with a jury finding for defendants. The magistrate judge entered final judgment in May 2000, and Withrow timely appealed.

But, sua sponte, our court questioned whether the requisite consent had been given by all parties and ordered a limited remand for "the district court [to] determine whether the parties consented ... and, if so, whether the consents were oral or written". Withrow v. Roell, No. 00-40627, at 2 (5th Cir. Nov. 21, 2000) (unpublished). Our court retained jurisdiction. Id. See, e.g., Wheeler v. City of Columbus, Miss., 686 F.2d 1144, 1154 (5th Cir.1982) (retaining jurisdiction pending district court compliance with remand).

On remand, the remaining defendants (Roell, Garibay, and Dr. Reagan (Defendants)) gave written consent. In a report and recommendation, the magistrate judge stated: pre-trial, Roell and Garibay never consented; and their post-judgment consent did not cure the jurisdictional defect. Withrow v. Roell, No. C-97-256, at 4 & n. 3 (S.D.Tex. Jan. 8, 2001) (unpublished). Over Defendants' objections, the district court adopted the report and recommendation. Withrow v. Roell, No. C-97-256 (S.D.Tex. Mar. 1, 2001) (unpublished). Defendants' motion to reconsider was denied.

II.

"Upon the consent of the parties, a ... United States magistrate [judge] ... may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment ... when specially designated to exercise such jurisdiction by the district court." 28 U.S.C. § 636(c)(1) (emphasis added); see FED. R. CIV. P. 73 (procedures for consent and referral to a magistrate judge); FED. R. CIV. P. APPENDIX OF FORMS, Official Form 33 ("Notice of Availability of Magistrate Judge to Exercise Jurisdiction"); id., Official Form 34 ("Consent to Exercise of Jurisdiction by a United States Magistrate Judge"). At issue is whether, pre-trial, Defendants consented; and, if they did not, whether their post-judgment consent is effective.

When, pursuant to § 636(c)(1), the magistrate judge enters final judgment, lack of consent and defects in the order of reference are jurisdictional errors; as such, they cannot be waived. See Hill v. City of Seven Points, 230 F.3d 167, 168-69 (5th Cir.2000); Mendes Jr. Int'l Co. v. M/V Sokai Maru, 978 F.2d 920, 923-24 (5th Cir.1992); EEOC v. W. La. Health Servs., Inc., 959 F.2d 1277, 1281-82 & nn. 3 & 4 (5th Cir.1992). In keeping with this, § 636(c) consent must be express; it cannot be implied by the parties' conduct. W. La. Health Servs., 959 F.2d at 1281; Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir.1984) ("consent must be explicit, and will not be casually inferred from the conduct of the parties").

A.

Pre-trial, only Dr. Reagan filed written consent. Defendants contend Roell and Garibay, pre-trial, gave consent orally. Whether they did involves a finding of fact, reviewed only for clear error. E.g., Walker v. City of Mesquite, 169 F.3d 973, 982 (5th Cir.1999), cert. denied, 528 U.S. 1131, 120 S.Ct. 969, 145 L.Ed.2d 840 (2000).

To show Roell and Garibay's consent, Defendants point to an April 1999 teleconference, with appearances by Withrow and Defendants' counsel, at which the magistrate judge stated to the latter: "Also, if you talk to Mr. Knutson [defendant who settled pre-trial with Withrow], ... would you tell him ... that he needs to let us know whether he's going to consent to my jurisdiction as well, because all defendants need to consent...." Defendants' counsel responded: "Good point, yes, Your Honor". According to Defendants, the import of this colloquy is that the magistrate judge "thereby stated ... she thought Roell, Garibay, and Dr. Reagan had all consented" and Defendants' counsel confirmed that assumption.

As further evidence of Roell and Garibay's claimed pre-trial consent, Defendants cite another magistrate judge teleconference (July 1999). Withrow and Defendants' counsel appeared, together with Knutson's counsel. The magistrate judge stated to the latter: "[Y]our client [Knutson] has the right to not consent ... and I don't know what your position is on that.... [A]ll of the other parties have consented...." According to Defendants, these other-parties-had-consented comments were correct.

Finally, Defendants cite to the magistrate judge's statement to the jury: "In... any civil case in which [the] parties consent to my jurisdiction, I do have civil jurisdiction to hear civil jury trials...."

Obviously, through none of these relied upon statements did Roell and Garibay consent. At best, they represent only the magistrate judge's assumption that they had. On remand, the magistrate judge found she had been mistaken in her assumption that Roell and Garibay had executed consent forms. Withrow v. Roell, No. C-97-256, at 2 & n. 2 (S.D. Tex. Jan. 8, 2001) (unpublished). Accordingly, the basis of her assumption had been that written, not oral, consent had been given.

In short, there is no evidence in the record of pre-trial consent by all parties. The corresponding finding is not clearly erroneous.

B.

Accordingly, we must determine whether, as the district court held, the post-judgment consent was not effective. We review this jurisdictional question de novo. E.g., United States v. Bustos-Useche, 273 F.3d 622, 626-27 (5th Cir. 2001).

1.

Notwithstanding the plain language of § 636(c), discussed infra, Defendants note the Seventh and Eleventh Circuits have repeatedly held post-judgment consent effective. See Rembert v. Apfel, 213 F.3d 1331, 1335 n. 1 (11th Cir.2000) ("Parties can consent even after judgment."); Drake v. Minn. Mineral & Mfg. Co., 134 F.3d 878, 883 (7th Cir.1998) (consent post-appellate oral argument sufficient); Gen. Trading, Inc. v. Yale Materials Handling Corp., 119 F.3d 1485, 1496-97 (11th Cir. 1997) (post-judgment consent effected by parties' withdrawing their new-trial motion and thereby accepting magistrate judge's judgment; such consent effective), cert. denied, 523 U.S. 1055, 118 S.Ct. 1380, 140 L.Ed.2d 526 (1998); Smith v. Shawnee Library Sys., 60 F.3d 317, 320-21 (7th Cir.1995) (post-judgment consent unequivocal representation magistrate judge acting with parties' consent); King v. Ionization Int'l, Inc., 825 F.2d 1180, 1185 (7th Cir.1987) (post-judgment consent sufficient where parties executed consent several weeks after entry of order appealed).

The Ninth Circuit, however, has held otherwise. See Hajek v. Burlington N. R.R. Co., 186 F.3d 1105, 1108 (9th Cir. 1999) (consent not effective where made in appellate brief). The district court cited Hajek in holding the post-judgment consent did not "cure the jurisdictional defect". Withrow v. Roell, No. C-97-256 (S.D. Tex. Mar. 1, 2001) (unpublished).

Our court's primary precedent is found in Archie v. Christian, 808 F.2d 1132 (5th Cir.1987) (en banc), where a prisoner's civil rights action had been referred to a magistrate judge. Although trial was held without objection by plaintiff, id. at 1133-34, defendants did object. They ceased doing so, however, upon the jury's returning a favorable verdict. Id. at 1134.

By report and recommendation, the magistrate judge in Archie recommended that defendants' objection be overruled because the referral was proper under 28 U.S.C. § 636(b). Unlike § 636(c), which, as noted, allows a magistrate judge, upon a district judge's referral and the parties' consent, to enter final judgment in a civil action, § 636(b) only authorizes a magistrate judge, upon referral, to hear and determine certain pre-trial matters and to conduct an evidentiary hearing and then submit a recommendation to the district judge for disposition of an action. Accordingly, the magistrate judge recommended that the district court adopt the jury's findings. Id. The district court did so and entered final judgment. Id.

At issue before our en banc court was whether a trial before a...