Orpiano v. Johnson, No. 81-6584

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before WIDENER, ERVIN and CHAPMAN; ERVIN
• Citation: 687 F.2d 44
• Parties: Quintin ORPIANO, Appellant, v. Gene M. JOHNSON, Warden; W. P. Rodgers, Asst. Warden (Security); R. A. Clendenen Correctional Corporal, Appellees.
• Docket Number: No. 81-6584
• Decision Date: 10 September 1982

Page 44

687 F.2d 44 Quintin ORPIANO, Appellant,
v.
Gene M. JOHNSON, Warden; W. P. Rodgers, Asst. Warden
(Security); R. A. Clendenen Correctional Corporal,
Appellees. No. 81-6584. United States Court of Appeals,
Fourth Circuit. Argued June 7, 1982.
Decided Sept. 10, 1982.

Page 45

Robert L. Flax, Richmond, Va., for appellant.

Richard F. Gorman, III, Asst. Atty. Gen., Richmond, Va. (Gerald L. Baliles, Atty. Gen. of Va., Richmond, Va., on brief), for appellees.

Before WIDENER, ERVIN and CHAPMAN, Circuit Judges.

ERVIN, Circuit Judge:

This appeal raises the issues whether a prisoner's § 1983 action was properly referred to a magistrate under 28 U.S.C. § 636(b)(1)(B) without the prisoner's consent, and whether the district court made a proper review of the record before accepting the magistrate's recommendations. We hold that consent from the prisoner was not necessary to refer this case to a magistrate, but that the district court failed to make the required review of the evidence before accepting the magistrate's recommendations. Accordingly, we reverse and remand.

I.

Mr. Quintin Orpiano was an inmate at the Powhatan Correctional Center in Virginia when he brought this action under 42 U.S.C. § 1983 alleging that the warden, assistant warden and the corrections corporal conspired to mislead him to believe that charges of assaulting a corrections officer, setting a fire and destroying public property would be dropped and would not affect his prospects for a transfer. The district court referred the case to a magistrate over Orpiano's objection. After conducting an evidentiary hearing, the magistrate concluded that there had been no conspiracy against him and, therefore, no damages should be awarded. The magistrate did find, however, that the prison officials failed to communicate clearly to Orpiano what actions were to be taken concerning the charges. This failure violated Orpiano's right to due process, the magistrate concluded, because it prevented him from exercising his rights to defend himself. To remedy this deprivation, the magistrate recommended that the district court order the prison officials to expunge from Orpiano's records three convictions resulting from the charges and restore to him any good conduct time lost as a result of those convictions.

The magistrate's hearing was recorded but apparently no transcript was made and no transcript accompanied the magistrate's recommendations. Orpiano filed timely objections to the report including an objection that the magistrate erred in finding that Orpiano had not served any time in isolation as a result of the charges. The district court described Orpiano's objections as

Page 46

"conclusory and general" and accepted the magistrate's findings and recommendations without reviewing the evidence.

II.

District courts are empowered by the Magistrate's Act to refer several types of cases to magistrates. Under 28 U.S.C. § 636(b)(2), a district court may "designate a magistrate to serve as a special master in any civil case; upon consent of the parties...." Under 28 U.S.C. § 636(b)(1)(B),

a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition by a judge of the court, of any motion excepted in paragraph (4) of applications for post-trial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.

(emphasis added). Designation of a magistrate to serve as a special master under § 636(b)(2), of course, requires the parties' consent, whereas referral of a prisoner petition challenging the conditions of confinement under § 636(b) (1)(B) does not. See generally Matthews v. Weber, 423 U.S. 261, 272, 96 S.Ct. 549, 555, 46 L.Ed.2d 483 (1976).

Orpiano's § 1983 claim that he was intentionally misled into believing that the charges would be dropped and would not endanger his prospects for a transfer from Powhatan appears to be one challenging the conditions of his confinement, and thus falls within the express language of § 636(b)(1)(B). Further, relevant legislative history and caselaw convinces us that Orpiano's action was properly referred to a magistrate under § 636(b)(1)(B) without his consent.

The House Report accompanying the Magistrate's Act...