Wimmer v. Cook, 84-6430

• Citation: 774 F.2d 68
• Decision Date: 19 September 1985
• Docket Number: No. 84-6430,84-6430
• Parties: Dickie Freling WIMMER, Appellant, v. County Commission President Woodrow COOK; Chief Sheriff Harold L. Hatfield; Chief Deputy Sheriff Jimmy Craft; Jailer Dorthe Bolt; Jailer Nancy Rust; Jailer Brenda Perdue, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 68

774 F.2d 68

Dickie Freling WIMMER, Appellant, v. County Commission President Woodrow COOK; Chief Sheriff

Harold L. Hatfield; Chief Deputy Sheriff Jimmy

Craft; Jailer Dorthe Bolt; Jailer

Nancy Rust; Jailer Brenda

Perdue, Appellees.

No. 84-6430.

United States Court of Appeals, Fourth Circuit.

Argued July 15, 1985.

Decided Sept. 19, 1985.

Steven H. Goldblatt, Washington, D.C. (Susan L. Siegal, Washington, D.C., Elizabeth Jordan Gianturco, Jon Edwards, Appellate Litigation Clinical Program, Georgetown University, Washington, D.C., on brief), for appellant.

Harlen Ray Tiller, Asst. Prosecuting Atty., Oceana W. Va., (Paul R. Goode, Jr., Prosecuting Atty., Mullens, W. Va., on brief), for appellee.

Before RUSSELL, SPROUSE and WILKINSON, Circuit Judges.

DONALD RUSSELL, Circuit Judge.

This action involves the construction of the Magistrate Act of 1968, as revised in 1976 and 1979. The issue arises in connection with a pro se suit filed by the plaintiff, a pre-trial detainee, challenging under 42 U.S.C. Sec. 1983, the conditions under which he was detained in the Wyoming (West Virginia) jail as violative of his constitutional rights. The defendants are the president of the Wyoming County Commission (Cook), with general or supervisory responsibility for the jail, and several members of the County Sheriff's department who have the direct responsibility for the operation of the jail. The plaintiff sought actual and exemplary damages as well as declaratory judgment and injunctive relief in connection with what he alleged to be unsanitary and unhealthy conditions in the jail. In his complaint he included a request for "[t]rial by jury on all triable issues contained herein."

Following joinder of issues and after some discovery, the district judge entered "pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B) and the Magistrate's Local Rules of Practice and Procedure," ¹ an order referring the cause to the United States Magistrate "to review and consider the allegations thereof ... [and] if the same be indicated, ... [to] conduct any required hearings, including evidentiary hearings on factual issues raised" and "to submit his proposed findings of fact and recommendations for the disposition thereof to this court." This order of reference by the district judge was entered sua sponte, without notice to or consent by the parties.

The magistrate, acting under this reference, recommended, after reviewing the complaint and certain affidavits in the proceedings, that four of the plaintiff's fourteen causes of action be dismissed. Over the plaintiff's objection, the district judge sustained the recommendation of the magistrate and dismissed the four causes of action.

The magistrate, without obtaining the consent of the plaintiff, impaneled a jury for the trial of the plaintiff's remaining ten claims. Prior to such impaneling, the plaintiff, pleading his inability as one proceeding pro se to "adequately represent himself," sought the appointment of counsel to represent him. ² The record indicates no action by the court on such request. At the close of plaintiff's case, the magistrate granted the motion of the defendant president of the County Commission (Cook) for a directed verdict but denied a like motion on behalf of the other defendants. The cause was thereafter submitted to a jury, under instructions, and the jury returned a general verdict in favor of the defendants. The magistrate thereupon submitted to the district court on April 13, 1984, his "Report-Recommendation." In this report he reviewed the proceedings before trial, set forth a short account of the evidence at the jury trial, observed that he had given "an appropriate charge which encompassed jury instructions offered by the plaintiff," and concluded by recommending that his directed verdict in favor of the defendant Cook "be adopted by the court" and "that judgment in favor of the remaining defendants be entered in accordance with the jury verdict in favor of said defendants." To this "Report-Recommendation" the plaintiff filed general objections within ten days after the filing of such "Report-Recommendation." At the same time he petitioned the district court for a transcript of the trial before the magistrate.

On May 4, 1984, the district judge, "[a]fter a de novo review of the record in this case, including plaintiff's complaint, the Report-Recommendation of the United States Magistrate, together with plaintiff's objections to the Report-Recommendation," approved the "Report-Recommendation of the United States Magistrate," found the plaintiff's objections "without merit," and ordered the action "dismissed and stricken from the docket of this court." Approximately two weeks later, the plaintiff renewed his motion for a transcript of the trial and for the appointment of counsel to assist him on appeal. The district court granted the motion for a transcript and ordered the preparation of such transcript but denied the motion for appointment of counsel. This appeal followed.

On appeal the plaintiff raises two issues: The first addresses the authority of the magistrate under section 636(b)(1)(B) to conduct a non-consensual jury trial of plaintiff's cause of action, and the second whether the district judge was clearly erroneous in denying plaintiff's request for the appointment of counsel. We turn first to the challenge to the magistrate's power under section 636(b)(1)(B).

The power and authority of United States Magistrates under the Magistrate Act, 28 U.S.C. Sec. 636, have been developed in three legislative steps, beginning with the original enactment of the statute in 1968, followed by its extension of authority in the amendments of 1976 and concluding with the amendments included in the Magistrate Act of 1979. Each step in this growth in the jurisdiction of the magistrate was prompted by an expressed Congressional desire to reduce the burden on the federal courts caused by the tremendous increase in the caseload in those courts. However, the Congress was conscious at all times of the need to restrict any enlargement of the magistrate's jurisdiction or authority so as not to violate the purposes and intent of Article III, with its strict identification of those who may be authorized to exercise final judicial power. The Act is divided broadly into three subsections. ³ The first covers generally the duties performed previously by United States Commissioners together with the authority to try certain minor criminal offenses, as provided in 18 U.S.C. Sec. 3401. ⁴ It has no relationship to this case and we do not for that reason further discuss it. The challenge of the plaintiff centers entirely on the second (b) and third (c) subsections of the statute.

As originally enacted in 1968, subsection (b) of the Act authorized the assignment to a magistrate of "such additional duties as are not inconsistent with the Constitution and laws of the United States," including but not restricted to "service as a special master, ... assistance ... in the conduct of pretrial or discovery proceedings in civil and criminal actions, and preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendation to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing." See Federal Magistrate Act, Pub.L. No. 90-578, 1968 U.S.Code Cong & Ad.News (82 Stat. 1107) p. 1280, 1286-87 (current version at 28 U.S.C. Sec. 636 (1983)).

This section, though broad in language, came under attack in a habeas proceeding in Wedding v. Wingo, 483 F.2d 1131 (6th Cir.1973), it being the position of the petitioner in that case that a magistrate was not empowered to hold an evidentiary hearing in a habeas proceeding. The circuit court in its decision in that case noted that the Judicial Conference had filed with the Senate Committee while that Committee was considering the enactment of the Act a report stating that, as originally drafted the proposed section, was "so general as to make [the] subsection vulnerable to possible constitutional attack," and observed that, in response to such warning, (b) had been amended by the Congress "and the phrase, 'preliminary consideration of applications for post-trial relief' in the Bill was narrowed to 'preliminary review' of the applications and the power and authority of the Magistrate was restricted to 'submission of a report and recommendations to facilitate the decision of the district judge' only as to 'whether there should be a hearing.' " 483 F.2d at 1136. The circuit court held that under its construction of this language of the subsection, the power to conduct an evidentiary hearing in a habeas proceeding was not conferred on a magistrate. That decision of the circuit court was affirmed by the Supreme Court. Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974). In its decision, however, the Supreme Court added this footnote: "We indicate no views as to the validity of investing such authority in a magistrate or other officer 'outside the pale of Article III of the Constitution.' " 418 U.S at 467 n. 4, 94 S.Ct. at 2847 n. 4 (quoting Wedding v. Wingo, 413 F.2d at 1133 n. 1).

In early 1976, some two years after Wingo, the Supreme Court sustained in Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976), the authority of a magistrate under subsection (b) to review an award of Social Security benefits, subject however, to this important qualification that "[t]he magistrate may do no more than propose a recommendation, and neither Sec. 636(b) nor the General Order gives such recommendation presumptive weight.... The authority--and the responsibility--to make an informed, final determination, we emphasize, remains with the judge." 423 U.S. at 270-71, 96 S.Ct. at 554.

Finding guidance in Wingo and Mathews for relieving further the burden on...