Kent v. Johnson, 84-1578

Citation821 F.2d 1220
Decision Date07 August 1987
Docket NumberNo. 84-1578,84-1578
PartiesLawrence H. KENT, Plaintiff-Appellant, v. Perry JOHNSON and Dale Foltz, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Daniel G. Zeiser, argued, Cleveland, Ohio, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen. of Michigan, Lansing, Mich., Elaine Dierwa Eischhoff, argued, Asst. Atty. Gen., Detroit, Mich., for defendants-appellees.

Before ENGEL, JONES and KRUPANSKY, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

Plaintiff appeals the district court's dismissal of his suit brought under 42 U.S.C. Sec. 1983 (1982) for allegedly unconstitutional prison conditions in violation of the first, fourth, eighth and fourteenth amendments. For the reasons set forth below, the judgment of the district court is reversed and the case is remanded for further proceedings.

Plaintiff-appellant is incarcerated at the State Prison for Southern Michigan ("prison"). In his pro se complaint, he alleged that the defendants-appellees' policy and practice of according female prison guards full and unrestricted access to all areas of the housing unit at the prison allows the female guards to view him performing necessary bodily functions in his cell and to view his naked body in the shower area. He further alleged that he finds this policy and practice humiliating and degrading and that it violates several of his constitutional rights: his first amendment right to practice his religious beliefs (i.e., to observe the "fundamental Christian tenet of modesty"), his limited fourth amendment right to privacy, and his eighth amendment right to be free from cruel and unusual punishment. Plaintiff also argues on appeal that the district court's judgment was a violation of procedural due process.

The pertinent facts as alleged in the complaint are as follows. Plaintiff's cell is walled on both sides with open bars front and rear allowing unrestricted view. He is not allowed to hang anything on these Plaintiff alleged that he has filed a grievance over this practice and has requested the supervisory authorities to keep the female guards out of the shower area while he is showering. Reading the complaint liberally, he alleged that his grievances and requests have resulted in retaliatory surveillance of his shower activities by female guards for purposes of harassment and humiliation.

bars, even temporarily, to perform toilet functions in privacy. He further alleges that the shower facilities at the prison are open to the view of all guards, male and female alike. These shower facilities are not equipped with "modesty panels" to offer the male inmates even limited privacy. The female guards assigned to the housing unit have unrestricted access to all areas of the unit. They are permitted, and in fact, required, to make random and unannounced visual inspection (rounds) of all areas of the housing unit, including the shower area and the individual cells.

Defendants do not dispute that it is the practice of the Michigan Department of Corrections to allow female guards complete and unrestricted access to all areas of the housing unit at the prison. Rather, they claim that they are required to follow such a nondiscriminatory practice pursuant to the final order of United States District Judge Cook in Griffin v. Michigan Dept. of Corrections, 654 F.Supp. 690 (E.D.Mich.1982).

Plaintiff's complaint was filed with the district court on March 21, 1984. On April 30, defendants filed their motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The matter was referred to a United States Magistrate for Report and Recommendation (R & R) pursuant to 28 U.S.C. Sec. 636(b)(1)(B) (1982). The magistrate's R & R, recommending that defendants' motion be granted, was issued on June 29, 1984. Plaintiff alleges that he did not actually receive the R & R at the prison until July 10. Counsel for the defendants conceded at oral argument that the R & R was not received at the Michigan Attorney General's office until July 7. Plaintiff mailed his objection to the R & R on July 11; it was filed with the district court on July 13. In the interim, however, the district judge adopted the R & R and granted the defendants' motion to dismiss on July 10, without the benefit of considering plaintiff's objection. On July 26, 1984, plaintiff filed a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(1). In order to preserve his right to appeal, he filed a notice of appeal on August 7, 1984. The district court never ruled on the Rule 60(b)(1) motion.

I.

The threshold issue presented to this court is whether plaintiff waived his right to appeal the district court's judgment by failing to file timely objections to the magistrate's R & R. Section 636(b)(1) gives both parties ten days after "being served with a copy" of the R & R to "serve and file written objections" thereto. Assuming the clerk of the district court mailed the R & R to plaintiff on the date it was filed, three provisions of the federal rules of civil procedure come into play. First, three days are added to the ten day period to cover the time for mailing. Fed.R.Civ.P. 6(e). Second, service is complete upon mailing. Id. 5(b). Finally, under Rule 6(a), as it read prior to its most recent amendment in August 1985, computations of time periods exceeding seven days do not exclude intervening weekends or holidays. In other words, plaintiff had thirteen calendar days from June 29, 1984, to "serve and file" written objections to the R & R.

This circuit has held that failure to object timely to a magistrate's R & R where the party is properly notified of the time limit constitutes waiver of that party's right to appeal from the district court's entry of judgment in accord with the R & R. United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). The Walters rule was recently upheld in Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). It is a procedural rule made pursuant to the court's supervisory powers. It plainly is not a jurisdictional rule; the court of appeals retains subject matter jurisdiction over the appeal regardless of the untimely that when written objections to a magistrate's report are tendered beyond the 10 day period of 28 U.S.C. Sec. 636(b)(1), but are nevertheless filed and considered by the district court, the criteria identified in Walters in justification of the waiver rule promulgated therein dissipate and the rule will not apply to bar appellate review.

                filing or nonfiling of objections.   Id. at 470.  In Patterson v. Mintzes, 717 F.2d 284, 286 (6th Cir.1983), this court concluded
                

Likewise, the Supreme Court in Thomas v. Arn "emphasize[d] that, because the [Walters ] rule is a nonjurisdictional waiver provision, the Court of Appeals may excuse the default in the interest of justice." 106 S.Ct. at 475 (emphasis added). In a footnote to this last quote, the Court invited the reader to compare the provisions of Fed.R.Crim.P. 52(b), thereby suggesting that the interests of justice might be served by excusing the waiver of right to appeal where the judgment of the district court constitutes "plain error." 106 S.Ct. at 475 n. 15.

In the case at bar, the magistrate's R & R was filed and mailed to plaintiff on June 29, 1984. Properly computed, plaintiff had thirteen calendar days--or until July 12--to file his objections with the district court. Of course, plaintiff states in his affidavit that he did not receive the R & R until July 10, the day that the district court entered judgment. His objection was sent out the following day and filed with the court on July 13--one day late. However, even if it had been timely filed on July 12 (the thirteenth calendar day), it would not have mattered because the district court entered judgment prematurely (i.e., before the expiration of the ten statutory days plus the three days for mailing under Rule 6(e)).

Under the particular circumstances of this case, we opt to exercise the court's jurisdiction and entertain the appeal. There are a number of factors that, considered in conjunction, justify this deviation from the Walters procedural rule. Initially, plaintiff's unrebutted affidavit establishes that he did not actually receive the magistrate's R & R until the eleventh day. Counsel for the defendants also received the R & R well after the date of filing. While, under the federal rules, receipt is presumed three days after mailing, the unrefuted allegation of delayed receipt should be considered in weighing the "interests of justice." We wish to stress, however, that we do not recognize the mere allegation of delayed receipt as a formal exception to Walters for fear that the exception will swallow the rule. The interests of justice must be weighed on a case by case basis. Secondly, the district court's judgment was entered prematurely. This practice is not to be condoned. Thirdly, the objection was, in fact, filed only one day late. Under the circumstances, defendants-appellees do not take a position on the waiver issue but leave it to the discretion of the court. Finally, this case presents questions of considerable import concerning the conflict between the constitutional rights of prisoners and the Title VII rights of prison guards of the opposite sex. For the foregoing reasons, and in the interests of justice, this court will exercise its jurisdiction over the instant appeal without creating any specific exception to the Walters rule.

II.

The second aspect of this appeal deals with the merits of the district court's dismissal of the pro se complaint for failure to state a claim upon which relief can be granted. In reviewing the dismissal of a complaint under Fed.R.Civ.P. 12(b)(6), this court must construe the complaint liberally in plaintiff's favor and accept as true all factual allegations and permissible inferences therein....

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