Lovelace v. Dall

• Decision Date: 07 May 1987
• Docket Number: No. 86-2119,86-2119
• Citation: 820 F.2d 223
• Parties: Eldridge LOVELACE, Plaintiff-Appellant, v. Linda DALL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 223

820 F.2d 223

7 Fed.R.Serv.3d 1271

Eldridge LOVELACE, Plaintiff-Appellant, v. Linda DALL, Defendant-Appellee.

No. 86-2119.

United States Court of Appeals Seventh Circuit.

Submitted May 7, 1987. ^*

Decided May 18, 1987.

Eldridge Lovalace, pro se.

Patricia Rosen, Atty. Gen., Jill A. Deutsch, Asst. Atty. Gen., Chicago, Ill., for defendant-appellee.

Before CUMMINGS, POSNER, and FLAUM, Circuit Judges.

PER CURIAM.

Plaintiff, Eldridge Lovelace, a prisoner at Centralia Correctional Center in Illinois, brought an action pursuant to 42 U.S.C. Sec. 1983 in which he alleged that defendant Linda Dall, the supervisor of Centralia's mailroom, violated his constitutional rights by intentionally interfering with his correspondence. Lovelace has proceeded without counsel throughout this litigation. Following a bench trial before a magistrate, a judgment was entered for the defendant. Plaintiff raises three issues on appeal. He argues that (a) he was improperly denied the appointment of counsel, (b) he was improperly denied his right to a jury trial, and (c) he did not consent to a final judgment by a magistrate.

I. Consent to a Trial Before a Magistrate

If plaintiff did not consent to have a magistrate enter a final judgment in this case, see 28 U.S.C. Sec. 636(c)(1)(3), the magistrate did not have jurisdiction to enter a final judgment and we do not have jurisdiction to hear this appeal. Adams v. Heckler, 794 F.2d 303, 307 (7th Cir.1986); Geaney v. Carlson, 776 F.2d 140, 142 (7th Cir.1986); Caprera v. Jacobs, 790 F.2d 442, 445 (5th Cir.1986) (per curiam). Since it is necessary to our jurisdiction, we must consider first the question of whether plaintiff validly consented to have his case referred to a magistrate. ¹

The consent required under 28 U.S.C. Sec. 636(c) must be "clear and unambiguous." The consent must be explicit and cannot be inferred from the conduct of the parties. Of course, such consent must be voluntarily given. These standards regarding the validity of the consent must be carefully observed, for as we have previously noted valid consent is the linchpin of the constitutionality of 28 U.S.C. Sec. 636(c).

Adams, 794 F.2d at 306-07 (citations omitted). See also Geaney, 776 F.2d at 142; Hall v. Sharpe, 812 F.2d 644, 646-47 (11th Cir.1987).

In the present case both parties signed the standard consent form for referring a case to a magistrate. This form is generally adequate to show that a party's consent was "clear, unambiguous, and explicit." Adams, 794 F.2d at 307. As the trial before the magistrate was about to begin, though, plaintiff stated "if it is possible I would like to make an oral motion to be tried by the Judge." The magistrate informed plaintiff that the consent could only be withdrawn for good cause, see 28 U.S.C. Sec. 636(c)(6), and also informed plaintiff that one example of such cause would be if the consent was coerced. Plaintiff responded that since he was not a lawyer, he did not understand the procedure. The magistrate then questioned him about his education and what parts of the consent form he misunderstood. Plaintiff responded by adding that the day he signed the form his "sugar was up" and he did not understand anything that was taking place. The magistrate proceeded to explain to plaintiff the differences between a magistrate and a judge and assured plaintiff that, as regards his case, the magistrate had no less power than a judge. Plaintiff responded, "Well, that sort of explains the procedures, some of the actions that take place." The magistrate then explained why he had denied appointing counsel for plaintiff (this denial having appeared to be the reason why plaintiff was objecting to being tried before the magistrate) and added that as with a judge any purported error could be appealed to the Court of Appeals. Plaintiff responded, "Okay." The case then proceeded to trial without any further objection by plaintiff and without the magistrate expressly determining if the original consent had been voluntary.

On the record before us it can not be determined whether plaintiff's "sugar was up" and therefore whether he did not have the capacity to consent at the time he signed the consent form. Compare Caldwell v. Miller, 790 F.2d 589, 594 n. 6 (7th Cir.1986). There is no requirement, though, that the consent to referral to a magistrate be in writing, only that it be express and on the record. See generally 28 U.S.C. Sec. 636(c)(1) & (2); Alaniz v. California Processors, Inc., 690 F.2d 717, 720 (9th Cir.1982) (per curiam). Therefore we will first examine the colloquy before the trial commenced to determine if it contains an unambiguous consent to have the magistrate enter a final judgment. Plaintiff expressed that he was understanding the procedures involved, but we cannot discern an unambiguous consent to the entry of final judgment by a magistrate. At the point that plaintiff said "Okay" he may have meant he was consenting to the trial before the magistrate. But he might have simply meant "okay, I understand," or "okay, I understand why you denied counsel," or "okay, I'll wait to appeal your decision not to allow me a trial before a judge." Since there are alternative meanings, it can not be found that plaintiff unambiguously consented. Additionally, the fact that he raised no further objection can not be directly considered as his consent since the necessary consent can not be inferred from conduct. Adams, 794 F.2d at 307.

We do, however, determine that the record before us contains an unambiguous consent to have the case referred to a magistrate. The signed consent form, on its face, can constitute the necessary consent. See id. The magistrate gave plaintiff the opportunity to show that that consent was not voluntary, but prior to the magistrate making a determination on the voluntariness of the consent, plaintiff dropped his objections as to the validity of the original consent. ² Therefore the signed consent form stands as is and it constitutes a valid, unambiguous, clear, and explicit consent to having this case referred to the magistrate. We note for the future, though, that in similar situations it would be advisable to obtain a second signed consent, or an express statement on the record, so as to insure there can be no ambiguity. Compare Morrison v. Murray Biscuit Co., 797 F.2d 1430, 1434 (7th Cir.1986). We have jurisdiction over the present appeal. ³

II. Appointment of Counsel

Lovelace, who had already been granted permission to proceed in forma pauperis, requested counsel on three occasions. See 28 U.S.C. Sec. 1915(d). The first motion was apparently left undecided at the time his case was transferred to a different district. The second motion was denied by the magistrate without any explanation given. The third motion, which came a day before the trial was to commence, was also summarily denied. However, in the colloquy before the trial commenced, the magistrate gave his reasons for denying the appointment of counsel. This explanation provides us with a sufficient basis for review. Compare Darden v. Illinois Bell Telephone Co., 797 F.2d 497, 502 (7th Cir.1986). It is clear that the magistrate considered all the appropriate factors for deciding whether counsel should be appointed. See Maclin v. Freake, 650 F.2d 885, 887-89 (7th Cir.1981) (per curiam). The decision of the magistrate therefore will not be overturned absent an abuse of discretion. Childs v. Duckworth, 705 F.2d 915, 923 (7th Cir.1983). The magistrate did not abuse his discretion in determining that this was a relatively simple case in which Lovelace could adequately handle both the discovery process and the trial itself. The magistrate also expressly granted plaintiff a degree of latitude in presenting evidence in the case. See generally Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). The magistrate properly declined to appoint counsel.

III. Waiver of Jury Demand

Last, we consider plaintiff's objection that he was improperly denied his right to a jury trial. Defendant initially made a timely demand for a jury trial. The minutes of the pretrial conference, though, include the following. "Jury demand may be withdrawn.... Matter to be set for non-jury trial in January." In the district court plaintiff did not object to the trial being conducted without a jury, but he raised that objection for the first time on appeal.

Once any party submits a jury demand, the demand can not be withdrawn without the consent of all parties. Fed.R.Civ.P. 38(d); Palmer v. United States, 652 F.2d 893, 896 (9th Cir.1981). The Federal Rules provide that a jury demand can only be withdrawn by either a written stipulation filed with the court or an oral stipulation made in open court. Fed.R.Civ.P. 39(a); Palmer, 652 F.2d at 896. Strictly read, Rule 39(a) has been interpreted as preventing the waiver of a jury demand by simply participating in a bench trial or other judicial factfinding proceeding without objecting. See id.; DeGioia v. United States Line Co., 304 F.2d 421, 424 n. 1 (2d Cir.1962). However, this circuit is in the majority of circuits that hold that failure to object to a non-jury factfinding proceeding waives a valid jury demand as to any claims decided in that proceeding, at least where it was clear that the court intended to make fact determinations. National Family Insurance Co. v. Exchange National Bank of Chicago, 474 F.2d 237, 241 (7th Cir.), cert. denied, 414 U.S. 825, 94 S.Ct. 129, 38 L.Ed.2d 59 (1973); United States v. 1966 Beechcraft Aircraft, 777 F.2d 947, 951 (4th Cir.1985) (collecting cases). We, though, found only one such case involving a pro se litigant; in that case this circuit declined to apply the rule of National Family Insurance and instead held that the jury demand was not waived. Chapman v. Kleindienst, 507 F.2d 1246, 1253 (7th Cir.1974) (per curiam). As regards the present case, we must first decide whether the minutes of the pretrial...