914 F.2d 1426 (10th Cir. 1990), 88-1177, Clark v. Poulton

Docket Nº:88-1177.
Citation:914 F.2d 1426
Party Name:James Edward CLARK, Plaintiff-Appellant, v. Robert POULTON, Utah State Corrections Department, David Jorgenson, Salt Lake County Sheriff's Office, and John Does I through X, Defendants-Appellees.
Case Date:September 21, 1990
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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914 F.2d 1426 (10th Cir. 1990)

James Edward CLARK, Plaintiff-Appellant,


Robert POULTON, Utah State Corrections Department, David

Jorgenson, Salt Lake County Sheriff's Office, and

John Does I through X, Defendants-Appellees.

No. 88-1177.

United States Court of Appeals, Tenth Circuit

September 21, 1990

Stephen H. Anderson, Circuit Judge, dissented and filed opinion.

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Janice M. Church, Holme Roberts & Owen (Jeffrey A. Chase, with her on the brief), Denver, Colo., for plaintiff-appellant.

Jerry G. Campbell, Deputy County Atty. (David E. Yocom, Salt Lake County Atty., with him on the brief), Salt Lake City, Utah, for Salt Lake County defendants-appellees.

Brent A. Burnett, Asst. Atty. Gen. (R. Paul Van Dam, Atty. Gen., David L. Wilkinson, Atty. Gen., Stephen J. Sorenson, Asst. Atty. Gen., and William F. Bannon, Asst. Atty. Gen., with him on the brief), Salt Lake City, Utah, for defendants-appellees Robert Poulton and Utah State Corrections Dept.

Before HOLLOWAY, SEYMOUR and ANDERSON, Circuit Judges.

SEYMOUR, Circuit Judge.

James E. Clark brought this suit under 42 U.S.C. Sec. 1983 (1982) against the Adult Parole Division of the Utah State Corrections Department, parole officer Robert Poulton, the Salt Lake County jail, and David Jorgenson, a transportation officer employed at the jail. Clark alleged that his constitutional rights were violated by two separate incidents of excessive force, and by the denial of medical treatment and of reasonable access to the mails during his pretrial detention in the jail. The district court referred the case to a magistrate pursuant to 28 U.S.C. Sec. 636(b)(1)(B) (1988). The magistrate held an evidentiary hearing and submitted a report recommending that Clark's claims be dismissed. The district court adopted this report and entered judgment accordingly. Clark appeals, asserting that the magistrate had no jurisdiction because the referral was not authorized by statute, that in any event the district court failed to conduct a proper de novo review of the portion of the report to which Clark had objected, and that the magistrate erred in his application of the law. We conclude that the magistrate was without jurisdiction, and we therefore reverse.



The relevant facts are briefly as follows. While on parole following state court convictions, Clark returned to Salt Lake City after an out-of-state visit approved by his parole officer, Poulton, and learned that the police were looking for him in connection with two armed robberies. The day after Clark returned, he reported to Poulton at the Salt Lake County Parole office. Poulton arrested him on suspicion of the armed robberies, handcuffed him, and took him down the hall to be booked. When Clark objected during the booking to being photographed without an attorney, Poulton allegedly pushed Clark against the wall and lifted his handcuffed arms over his head, aggravating a previous back injury. Following his transportation to the jail, Clark purportedly did not receive requested medical treatment for his back for several weeks.

While detained in the jail, Clark and several other inmates were transported to court by Jorgenson. On leaving the courtroom, Clark asked to use the restroom and Jorgenson told him he would have to wait. Because of previous surgery, waiting was difficult and uncomfortable for Clark and

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he later doubled over in the courthouse elevator. Jorgenson allegedly grabbed Clark's neck and chest and pushed him into the elevator wall, again aggravating his back injury. Clark required physical therapy for a year after his release from jail and sought recovery of these medical expenses as part of his damages. 1

Clark's original complaint was filed May 12, 1986. On May 14, the district court entered an order of reference which stated:

"IT IS ORDERED that as authorized by 28 U.S.C. Sec. 636(b)(1)(B) and the rules of this court the above entitled case is referred to the magistrate. He is directed to manage the case, to receive all motions filed, hear oral arguments hereon, to conduct evidentiary hearings when proper and make proposed findings of fact, and to submit to the undersigned judge a report and recommendation for the proper resolution of dispositive matters presented."

Rec., vol. I, doc. 2. Pursuant to the order, the magistrate thereafter determined that Clark could proceed in forma pauperis, appointed him counsel, held scheduling and pretrial conferences, conducted an evidentiary hearing (described in the relevant documents as a trial), and issued a report recommending that Clark's claims be dismissed. Clark objected to the report, which the district court summarily adopted in all respects.



We begin our analysis of this issue by examining the jurisdiction and powers of a federal magistrate set out in 28 U.S.C. Sec. 636 (1988). Under section 636(b)(1)(A), a judge may designate a magistrate to hear and determine all pretrial matters except for those dispositive motions specifically listed therein. 2 The district court reviews a section 636(b)(1)(A) determination under the same standard that an appeals court applies to a district court determination, ascertaining whether the "order is clearly erroneous or contrary to law." Id.

Under section 636(b)(1)(B), the provision which the district court invoked in this case, a magistrate may be designated to conduct evidentiary hearings and submit reports and recommendations in three types of proceedings: 1) hearings on those dispositive motions excepted in section 636(b)(1)(A); 2) applications by criminal defendants for posttrial relief; and 3) prisoner petitions challenging conditions of confinement. 3 Upon the objection by a party to the magistrate's proposed findings and recommendations under this section, the district court is required to make a de novo determination. Id.

Section 636(b)(2) allows a judge to appoint a magistrate to serve as a special master, either pursuant to the Federal Rules of Civil Procedure or, upon consent of the parties, without regard to Rule 53(b)

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of the Federal Rules of Civil Procedure. Section 636(b)(3) provides that "[a] magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U.S.C. Sec. 636(b)(3).

Finally, section 636(c)(1) provides that a magistrate "[u]pon consent of the parties ... may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves." 28 U.S.C. Sec. 636(c)(1) (emphasis added). Section 636(c)(2) sets out specific requirements regarding such consent:

"If a magistrate is designated to exercise civil jurisdiction under paragraph (1) of this subsection, the clerk of court shall, at the time the action is filed, notify the parties of their right to consent to the exercise of such jurisdiction. The decision of the parties shall be communicated to the clerk of court. Thereafter, neither the district judge nor the magistrate shall attempt to persuade or induce any party to consent to reference of any civil matter to a magistrate. Rules of court for the reference of civil matters to magistrates shall include procedures to protect the voluntariness of the parties' consent."

28 U.S.C. Sec. 636(c)(2) (emphasis added). A judgment entered pursuant to Section 636(c)(1) may be appealed either to the court of appeals or to the district court, in the same manner as a district court judgment would be appealed to a court of appeals. 4

  1. Authorization

    As we have noted, the district court here stated that the order of reference was made under section 636(b)(1)(B), which applies to hearings on certain dispositive motions, applications for post-conviction relief, and prisoner petitions challenging conditions of confinement. Since no dispositive motion was filed below, and since Clark was not seeking post-conviction relief, the only arguably applicable provision is the one allowing reference of prisoner challenges to conditions of confinement.

    Conditions of confinement have been described as "ongoing prison practices and regulations with regard to matters such as placement in maximum security, deadlocks, unhealthy living conditions, unnecessary exposure to violence-prone inmates, overcrowded physical environments, and cruel or unusual punishment by prison authorities." Hill v. Jenkins, 603 F.2d 1256, 1260 (7th Cir.1979) (Swygert, J., concurring). Such ongoing practices do not include "a single incident that occurred in the prison." Id. (concurring on ground that loss of property from prison shakedown not condition of confinement). The above definition has been generally accepted by those courts addressing the issue. See, e.g., Houghton v. Osborne, 834 F.2d 745, 749 (9th Cir.1987); Hall v. Sharpe, 812 F.2d 644, 647 n. 1 (11th Cir.1987); Wimmer v. Cook, 774 F.2d 68, 74 n. 9 (4th Cir.1985); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982); but see McCarthy v. Bronson, 906 F.2d 835, 839 (2d Cir.1990). This definition, which we likewise adopt, does not encompass the two instances of the use of excessive force alleged by Clark. Those incidents, one of which occurred before Clark was even admitted to the jail, are clearly isolated events rather than part of a series of ongoing jail practices. Accordingly, the reference to the magistrate of the claims is not authorized by section 636(b)(1)(B).

    The dissent's characterization of our construction of "conditions of confinement" as unsupported by reason or authority is simply wrong. As the dissent recognizes, only two circuits have reached decisions contrary to the...

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