Clark v. Poulton

• Decision Date: 11 May 1992
• Docket Number: No. 88-1177,88-1177
• Citation: 963 F.2d 1361
• Parties: James Edward CLARK, Plaintiff-Appellant, v. Robert POULTON, Utah State Corrections Department, David Jorgensen, Salt Lake County Sheriff's Office, and John Does I through X, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1361

963 F.2d 1361

James Edward CLARK, Plaintiff-Appellant, v. Robert POULTON, Utah State Corrections Department, David

Jorgensen, Salt Lake County Sheriff's Office, and

John Does I through X, Defendants-Appellees.

No. 88-1177.

United States Court of Appeals, Tenth Circuit.

May 11, 1992.

Jeffrey A. Chase and Edwin P. Aro of Holme Roberts & Owen, Denver, Colo., for plaintiff-appellant.

David E. Yocom, Salt Lake County Atty., and Jerry G. Campbell, Deputy County Atty., Salt Lake City, Utah, for defendants-appellees, Salt Lake County Sheriff's Office and David Jorgensen.

R. Paul Van Dam, Atty. Gen., and Brent A. Burnett, Assistant Atty. Gen., Salt Lake City, Utah, for defendants-appellees, Robert Poulton and Utah State Corrections Dept.

Before HOLLOWAY, SEYMOUR, and ANDERSON, Circuit Judges.

ON PETITION FOR REHEARING

STEPHEN H. ANDERSON, Circuit Judge.

This case is before us on rehearing to consider the application of two decisions by the United States Supreme Court, McCarthy v. Bronson, --- U.S. ----, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991), and Peretz v. United States, --- U.S. ----, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991), issued since the previous opinion by the panel in this case. Clark v. Poulton, 914 F.2d 1426 (10th Cir.1990). Upon review of those authorities, we grant the petition for rehearing, withdraw our previous opinion and substitute the following opinion.

James E. Clark brought this suit under 42 U.S.C. § 1983 against the Adult Parole Division of the Utah State Corrections Department, parole officer Robert Poulton, the Salt Lake County jail, and David Jorgensen, 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. ¹ The district court referred the case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge held an evidentiary hearing and submitted a report recommending that Clark's claims be dismissed. The district court made a de novo review of the record, adopted the magistrate judge's report and entered judgment accordingly. Clark appeals, asserting that the magistrate judge 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 judge erred in his application of the law. We hold that (1) the referral was authorized by statute; (2) in any event Clark waived his right to object to the magistrate judge's authority by failing to object below; and (3) the district court conducted a proper review of the magistrate judge's report. We therefore affirm the dismissal of Clark's claims.

BACKGROUND

The relevant facts are undisputed. While on parole following state court convictions, Clark returned to Salt Lake City after an out-of-state visit approved by his parole officer, defendant 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 then 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 While detained in the jail, Clark and several other inmates were transported to court by defendant Jorgensen. On leaving the courtroom, Clark asked to use the restroom and Jorgensen told him he would have to wait. Because of previous surgery, waiting was apparently difficult and uncomfortable for Clark and he later doubled over in the courthouse elevator. Jorgensen 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.

                Clark against the wall and lifted his handcuffed arms over his head, aggravating a previous back injury.   Following his transportation to the Salt Lake County jail, Clark purportedly did not receive requested medical treatment for his back for several weeks
                

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. § 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.

R.Vol. I, doc. 2. Pursuant to the order, the magistrate judge 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 adopted in all respects, after reviewing the record.

DISCUSSION

I. Propriety of Reference to Magistrate Judge

Clark first asserts that the magistrate judge had no jurisdiction over his case because the referral was not authorized by the relevant statute, 28 U.S.C. § 636(b)(1)(B). Our analysis of this issue necessitates a review of the jurisdiction and authority of a federal magistrate judge under section 636.

Section 636(b)(1)(A) authorizes a judge to designate a magistrate judge to hear and determine any pretrial matter except for certain dispositive motions listed therein. ² The district court reviews a section 636(b)(1)(A) determination to determine whether the "magistrate's order is clearly erroneous or contrary to law." Id.

Section 636(b)(1)(B) authorizes a judge to designate a magistrate judge to conduct evidentiary hearings and submit proposed findings and recommendations in three types of proceedings: (1) those dispositive motions excepted in section 636(b)(1)(A); (2) applications for post-trial relief by criminal defendants; and (3) prisoner petitions challenging conditions of confinement. ³ If a party objects to the magistrate judge's proposed findings and recommendations, the district court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1).

Section 636(b)(2) authorizes designation of a magistrate judge 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) 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." The parameters of this "catch-all" provision are relevant to our decision in this case.

Finally, section 636(c)(1) provides that "[u]pon the consent of the parties, a ... magistrate ... 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. § 636(c)(1). ⁴ A party may appeal a judgment entered under this section to either the district court or a court of appeals, in the same way in which a district court judgment is appealed to the court of appeals. 28 U.S.C. § 636(c)(3), (4).

At issue in this case are Clark's two claims based on excessive force, one of which occurred at the Salt Lake County Parole Office after Clark's parole officer arrested him and while he was being booked, and the other which occurred during Clark's pretrial detention in jail. As indicated, the district court referred the matter to the magistrate judge under section 636(b)(1)(B), evidently treating this case as a conditions-of-confinement case.

A. Section 636(b)(1)(B)--Conditions of Confinement:

Section 636(b)(1)(B) authorizes referral to a magistrate judge of "prisoner petitions challenging conditions of confinement." The propriety of such a referral therefore involves two subsidiary questions: (1) whether "conditions of confinement" encompasses only ongoing prison conditions or whether it extends to isolated instances of alleged mistreatment; and (2) whether "confinement" is present--that is, whether the challenged incident occurred while the prisoner was in "confinement." We address each question in turn.

1. Isolated Incidents.

The propriety of the referral to the magistrate judge of Clark's two individual and isolated claims of excessive force is controlled by McCarthy v. Bronson, --- U.S. ----, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991). The Supreme Court in McCarthy granted certiorari "to decide whether ... authorization [under 28 U.S.C. § 636(b)(1)(B) ] includes cases alleging a specific episode of unconstitutional conduct by prison administrators or encompasses only challenges to ongoing prison conditions." 111 S.Ct. at 1739. The Court concluded that "conditions of confinement" cases under section 636(b)(1)(B) include suits alleging that prison administrators acted unconstitutionally in an isolated incident or incidents. Clark's claims therefore challenged "conditions" of confinement under McCarthy. We turn now to the question of whether Clark was in "confinement" when each incident occurred.

2. Confinement.

One of the incidents in this case occurred while Clark was detained, in handcuffs, at the Salt Lake County Parole Office shortly after he was arrested. The other took place while he was in pretrial detention. There is no doubt that...