Penland v. Warren County Jail

• Decision Date: 10 April 1985
• Docket Number: No. 84-8514,84-8514
• Citation: 759 F.2d 524
• Parties: George E. PENLAND, Jr., et al., Plaintiffs, Vernon Ward, Plaintiff-Appellant, v. WARREN COUNTY JAIL, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 524

759 F.2d 524

2 Fed.R.Serv.3d 209

George E. PENLAND, Jr., et al., Plaintiffs Vernon Ward, Plaintiff-Appellant, v. WARREN COUNTY JAIL, et al., Defendants-Appellees.

No. 84-8514.

United States Court of Appeals Sixth Circuit.

Argued Jan. 14, 1985.

Decided April 10, 1985.

David Kozlowski (argued), Legal Services of South Central Tenn., Inc., Tullahoma, Tenn., for plaintiff-appellant.

Robert W. Boyd, Jr., McMinnville, Tenn., for defendants-appellees.

Before LIVELY, Chief Judge, and EDWARDS, ^* ENGEL, KEITH, MERRITT, KENNEDY, MARTIN, JONES, CONTIE, KRUPANSKY, WELLFORD and MILBURN, Circuit Judges.

CONTIE, Circuit Judge.

Plaintiff Vernon Ward, a prisoner at the Warren County Jail in Tennessee, ¹ petitions this court under 28 U.S.C. Sec. 636(c)(5) for leave to appeal from a district court judgment, entered under 28 U.S.C. Sec. 636(c)(4), affirming the judgment of a United States magistrate. For the reasons set forth below, the petition on all three issues raised by Ward is granted. ²

I.

As are a majority of the inmates at the Warren County Jail, Ward is a convicted felon serving his sentence in the facility under Tenn.Code Ann. Sec. 40-23-104(a). The jail houses between forty and sixty inmates at any given time. In the proceedings below, Ward sought declaratory and injunctive relief against several alleged conditions of confinement at the jail: lack of exercise, inadequate health care, inadequate conditions during visitation, improper inspection of inmate mail, imposition of discipline without due process, use of an inhumane solitary confinement cell, inadequate precautions against fire, denial of access to the courts and inadequate nutrition. The district court denied class certification on November 1, 1982.

On February 3, 1983, the parties consented to having the case tried before a magistrate and to having the appeal as of right lie to the district court. See 28 U.S.C. Sec. 636(c)(1), (4). Relying upon the district court's prior order, the magistrate again denied class certification on March 10, 1983. Following a three-day trial, the magistrate issued findings of fact and conclusions of law on June 21, 1983. The magistrate granted partial relief on the exercise, health care, conditions of solitary confinement and fire safety claims. Relief on the remaining claims was denied. Although the complaint had requested attorney's fees, they were denied.

Within ten days after the judgment, the plaintiff filed a motion to amend the judgment in order to obtain attorney's fees. On July 29, 1983, the magistrate agreed to award attorney's fees and ordered appropriate documentation. After the requested information was provided, the magistrate awarded attorney's fees on October 21, 1983. The plaintiff filed his notice of appeal in the district court on October 31, 1983.

On the appeal as of right, Ward raised the visitation, access to the courts and due process issues. The district court affirmed the judgment of the magistrate on February 2, 1984. Ward filed the instant petition on March 2, 1984. Although Ward again raises the visitation and access to the courts issues, he has abandoned the due process claim. Moreover, the petition asserts that the magistrate and the district court erred in refusing to certify a class action.

II.

Before moving to the substantive questions presented by this case, we address the jurisdictional issue of whether Ward timely initiated the appellate process. Although the magistrate entered judgment on June 21, 1983, Ward did not appeal to the district court until October 31, 1983. Ward did appeal, however, ten days after the magistrate disposed of the motion for attorney's fees. The question, therefore, is whether the post-judgment motion for attorney's fees tolled the time period for filing a notice of appeal. See Federal Rule of Appellate Procedure (F.R.A.P.) 4(a)(4)(iii) (referring to Federal Rule of Civil Procedure (F.R.C.P.) 59 motions to alter or amend the judgment).

We hold that the time period was tolled. Although a post-judgment motion containing an initial request for attorney's fees will not toll the appeals period, White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982); Smillie v. Park Chemical Co., 710 F.2d 271 (6th Cir. 1983), the plaintiff initially requested attorney's fees in the complaint rather than in his post-judgment motion. Moreover, the magistrate ruled against Ward on the attorney's fee issue in the written opinion rather than deferring the question. This court has previously distinguished between requests for attorney's fees made in the complaint, and similar requests made only after judgment. See Smillie, 710 F.2d at 274. Since Ward's post-judgment motion was properly filed under F.R.C.P. 59(e), it tolled the period for filing the notice of appeal.

Furthermore, we hold that Ward timely filed the instant petition for leave to appeal. Although F.R.A.P. 4(a) by its terms applies only to appeals as of right from district court judgments, we apply the time period specified therein under our supervisory power. See Rule 28(b) of the Rules of the Eighth Circuit. Since Ward filed the petition for leave to appeal on the twenty-ninth day after the district court entered judgment, the petition is timely.

III.

As has been indicated, Ward filed his petition for leave to appeal under 28 U.S.C. Sec. 636(c)(5). That section provides, in pertinent part, that the judgment of a district court which adjudicated an appeal from the judgment of a magistrate:

may be reviewed by the appropriate United States court of appeals upon petition for leave to appeal by a party stating specific objections to the judgment.

This language does not specify the criteria that a court of appeals must use in deciding whether or not to grant a petition for leave to appeal. Before considering Ward's petition, therefore, we enunciate standards to be used by this court in deciding all such petitions.

Section 636(c)(5) was enacted as part of the Federal Magistrate Act of 1979. Although the language of this section originated in a 1979 Senate bill, House and Senate bills on the subject were introduced in 1977. The 1977 Senate bill, as reported by the Judiciary Committee, provided that review by a court of appeals would be "limited to questions of law." S.Rep. No. 344, 95th Cong., 1st Sess. 19-20 (1977) (hereinafter S.Rep. No. 95-344). The Report stated that granting a petition for leave to appeal would be discretionary, id. at 5, and that this discretion should be exercised in the same manner as in addressing petitions for leave to appeal under 11 U.S.C. Sec. 47 (now repealed). Id. at 11. Taking appeals as of right to the district court was particularly favored in cases involving small dollar amounts and relatively easy questions of law. Id. at 5. Conversely, direct appeal to a court of appeals was intended for cases involving novel, complex or important questions of law. Id.

The 1977 House bill, as reported by the Judiciary Committee, provided that a court of appeals should decide whether to grant a petition for leave to appeal under writ of certiorari standards. H.R.Rep. No. 1364, 95th Cong., 1st Sess. 2, 14 (1978) (hereinafter H.R.Rep. No. 95-1364). This meant that a court of appeals would have "broad discretion" to determine which cases would receive additional review. Id. at 14. Although both the 1977 Senate and House bills passed, the legislation died in the Conference Committee because of a controversial rider to the House bill regarding the abolition of federal diversity jurisdiction. See, McCabe, The Federal Magistrate Act of 1979, 16 Harv.J. on Legis. 341, 344, 364 (1979).

The 1979 Senate bill contained the language that eventually became Sec. 636(c)(5). S.Rep. No. 74, 96th Cong., 1st Sess. 28 (1979), U.S.Code Cong. & Admin.News 1979, p. 1469 (hereinafter S.Rep. No. 96-74). The Report reiterated that a court of appeals should exercise discretion, id. at 5, in granting or denying petitions for leave to appeal in the "same manner that they now act on petitions to allow appeals in some bankruptcy cases under 11 U.S.C. Sec. 47." Id. at 13, U.S.Code Cong. & Admin.News 1979, p. 1482. The Report further reiterated the advantages of taking appeals as of right to the district courts in cases involving small dollar amounts or relatively easy questions of law. Id. at 5.

As had the 1977 House bill, the 1979 House bill set forth a writ of certiorari standard. H.R.Rep. No. 287, 96th Cong., 1st Sess. 12, 26 (1979) (hereinafter H.R. Rep. No. 96-287). The accompanying Report again emphasized a court of appeal's "broad discretion" to grant or deny petitions for leave to appeal. Id. at 12. In the Conference Committee, the Senate's language was adopted. The Committee's Report did not address the question of what criteria a court of appeals should use in considering petitions for leave to appeal. See S.Conf.Rep. No. 322, 96th Cong., 1st Sess. 8 (1979).

Both the language of Sec. 636(c)(5) and the legislative history clearly indicate that the decision to grant or deny a petition for leave to appeal is discretionary in nature. ³ See S.Rep. No. 96-74 at 5, 13; S.Rep. No. 95-344 at 5. Congressional rejection of the writ of certiorari standard contained in the 1977 and 1979 House bills demonstrates, however, that a court of appeal's discretion is more circumscribed than the exceedingly broad discretion exercised by the Supreme Court. We must decide, therefore, to what degree a court of appeal's discretion is limited in considering petitions for leave to appeal.

We begin, as S.Rep. No. 96-74 and S.Rep. No. 95-344 direct, with precedent governing the treatment of petitions for leave to appeal under the former 11 U.S.C. Sec. 47(a). Most of the cases construing Sec. 47(a) held that a discretionary appeal would be granted only if "special equities" or "exceptional circumstances" were present. See In re Cummings, 413 F.2d 1281, 1284 (10th Cir.1969), cert....