Del Raine v. Carlson
| Decision Date | 01 February 1996 |
| Docket Number | Nos. 94-2595,94-3101,s. 94-2595 |
| Citation | 77 F.3d 484 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Ronald DEL RAINE, Plaintiff-Appellant, v. Norman A. CARLSON, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before POSNER, FAIRCHILD, and RIPPLE, Circuit Judges.
This 22-year-old case is before us for the fourth time. We once again reverse the decision from which plaintiff appeals, and remand with directions.
Plaintiff Ronald Del Raine, a federal prisoner, is serving a 199-year prison sentence for murdering two police officers during a bank robbery. In April 1972, he was placed in solitary confinement without a hearing in Leavenworth, allegedly because he was the suspected ringleader of a prison strike by Mexican-American inmates and, after a transfer in 1973, he was placed in the "control unit," allegedly the equivalent of segregation, at the federal prison in Marion, Illinois, where he remained until August 1974. No hearings were held in relation to these placements. .) In 1973, Del Raine filed this suit. 2 Prior to trial, Judge Foreman ruled that service on the U.S. Attorney was sufficient service on defendants. (Service would not be raised again as a problem until 11 years later.) The U.S. Attorney was served on June 20, 1973. At the time he filed the complaint, Del Raine raised due process and eighth amendment claims, and sought release from segregation, expungement of the disciplinary sanction from his prison record, and damages for the time spent in segregation.
In 1974, after a bench trial, the district court ruled in favor of Del Raine, finding that he was entitled to a due process hearing. However, the judge ignored the issues of expungement of the disciplinary record, and monetary damages. The prison authorities at Marion thereafter chose to release Del Raine from the control unit, rather than provide a hearing.
The first remand
Del Raine appealed; he had been released from segregation, but wanted the issues of expungement and damages addressed. After an unexplained five years between trial and appellate decision, on February 21, 1979, this court agreed with Del Raine and remanded for consideration of those two issues. Del Raine v. Carlson, No. 76-1384 (7th Cir. Feb. 21, 1979) (unpublished order) ("Del Raine I ").
After another long delay, the case was referred to a magistrate judge on May 30, 1980, for trial on the issues of expungement and damages, after the parties consented to trial and entry of judgment by a magistrate judge pursuant to 28 U.S.C. § 636(c). On the eve of trial, the U.S. Attorney informed the court that he was withdrawing from representation of defendants in their individual capacities; he was only authorized to defend them in their official capacities.
The trial on the question of damages and expungement never took place. Instead, the next decade was to be spent on personal service of process questions. Between 1984 and 1986, Del Raine took various steps to serve defendants personally, as detailed below.
In 1986, the magistrate judge dismissed the case in its entirety based on: untimely service; lack of personal jurisdiction over one defendant who was served outside the state; failure to state a claim for which relief can be granted; inapplicability of respondeat superior doctrine; and qualified immunity as to certain defendants.
The second remand
After an eight year absence, Del Raine returned to this court, and on August 14, 1987, we found that the magistrate judge had not complied with our directions, had "refus[ed], in the teeth of our remand, to resolve the issue of expungement," Del Raine v. Carlson, 826 F.2d 698, 704 (7th Cir.1987) ("Del Raine II "). While a service of process issue had arisen since the last remand, we found that this was no excuse for ignoring our directions regarding the expungement issue. As we stated in Del Raine II, this service issue "could have no effect on the part of the complaint that sought relief from the defendants in their official capacities." 826 F.2d at 704. Thus, we were forced to remand the case once again. We directed the magistrate judge to order defendants to expunge the disciplinary record.
In regard to the issue of personal service on defendants, we instructed the magistrate judge to develop his analysis and include consideration of five specific factors on the issue of good cause for failure to serve defendants in a timely fashion.
On November 23, 1988, the magistrate judge, on the second remand, again dismissed the cause without prejudice for lack of timely service.
The third remand
The case returned to this court and we found that the magistrate judge had utterly failed to address the five "good cause" factors listed in our previous opinion. So, in 1990 we again were compelled to reverse and remand for a determination on whether or not Del Raine timely served defendants. Del Raine v. Carlson, No. 89-1165 (7th Cir. May 11, 1990) (unpublished order) ("Del Raine III "). 3 We wrote that the magistrate judge "certainly was not free to disregard this court's instructions on remand." Del Raine III, at 4.
District court proceedings following the third remand
Following our most recent remand in 1990, the district court entered an order on March 9, 1994, dismissing the case for failure to effectuate timely service of process on all but one defendant; for lack of personal involvement of the one defendant who was timely served; and because the doctrine of qualified immunity "applies to the issue of administrative placement of the plaintiff in the federal prison at Marion." Del Raine v. Carlson, 153 F.R.D. 622, 624 (S.D.Ill.1994). That order was docketed on March 21, 1994.
On April 15, 1994, plaintiff filed a timely notice of appeal to the district court 4 from the March 9, 1994 order, and the district court forwarded it to this court. The appeal was docketed in this court as No. 94-1881. Del Raine quickly protested, stating that he had meant to appeal "to the district court, not the seventh circuit." In a document entitled "motion to Clarify/Protect the Record," dated May 2, 1994, Del Raine explained that he was under the impression that he had 15 days to "object or appeal" to the magistrate judge's March 9, 1994 order, and therefore on March 23, 1994 he had mailed to the district court a motion for extension of time. He continues:
Upon determining that I had 60 days to appeal to the district court judge, I mailed a notice of appeal, filed on April 15, 1994 and stated, in part, "Upon receiving the court's March 31, 1994 order last night denying my extension of time, I now file this notice of appeal (to the district court judge)." I meant that I would not appeal to the Seventh Circuit but to the district court, and this was meant partly to clarify the record as to my request for a 15 day extension. Therefore, the appeal papers sent to me by the district court and the seventh circuit clerk will not be utilized.
We construed this as a motion to voluntarily dismiss the appeal, and we permitted the dismissal. Fed.R.App.P. 42(b).
On May 3, 1994, Del Raine mailed to the district court his objections to the March 9, 1994 order. On June 20, 1994, the district court granted defendants' motion to strike the objections, without explanation. On June 29, 1994, therefore, Del Raine filed another notice of appeal in this court, docketed as No. 94-2595. On July 15, 1994, this court entered an order to show cause why appeal No. 94-2595 should not be dismissed, stating:
A preliminary review of the short record indicates that this appeal is either too late or too early.... In this case, the order dismissing appellant's case was entered [docketed] on March 21, 1994, and the notice of appeal was filed on June 29, 1994, over one month late.... On the other hand, the district court has not entered a Rule 58 judgment in the case. And, of course, a party may wait for the separate judgment under Rule 58 to appeal.
On August 15, 1994, at Del Raine's request, the district court entered a Rule 58 judgment nunc pro tunc to March 9, 1994. On August 18, 1994, plaintiff filed a new notice of appeal, docketed as No. 94-3101. We consolidated the still-open appeal in No. 94-2595, and the newest appeal in No. 94-3101, for purposes of briefing and decision.
Appeal to wrong court
The problem involves the effect of filing the appeal to the wrong court, i.e., filing the appeal to the district court judge absent the requisite consents. The parties consented to having a magistrate judge enter a final decision in the case pursuant to 28 U.S.C. § 636. 5 Upon entry of judgment by the magistrate judge, "an aggrieved party may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate in the same manner as an appeal from any other judgment of a district court." 28 U.S.C. § 636(c)(3); see also Fed.R.Civ.P. 73(c); Fed.R.App.P. 3.1. If the parties prefer to have the district court hear the appeal from the magistrate judge's decision, they must "further consent to appeal on the record to a judge of the district court" at the "time of reference to a magistrate." 28 U.S.C. § 636(c)(4); see also Fed.R.Civ.P. 73(d); Fed.R.App.P. 5.1. 6
Del Raine explains that he meant the appeal not to be a Rule 59 or Rule 60 motion, but instead to be "an appeal to the district judge from the magistrate's decision." He adds:
[A]fter receiving help from a clerk in the prison law library, it would seem that I did appeal to the wrong court. I thought that it was mandatory to first appeal to the district court based on my reading of Taylor v. Oxford, 575 F.2d 152 (7th Cir.1978) which held that no appeal...
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... ... See Del Raine v. Carlson, 153 F.R.D. 622, 628 (S.D.Ill.1994), rev'd in part and vac. in part on other grounds, 77 F.3d 484, 1996 WL 47451 (7th Cir.1996). In ... ...