West v. Macht

• Decision Date: 23 June 1999
• Docket Number: No. 99-1169,99-1169
• Citation: 197 F.3d 1185
• Parties: (7th Cir. 1999) EDWIN C. WEST, Plaintiff-Appellant, v. PHIL MACHT, et al., Defendants-Appellees. Submitted <A HREF="#fr1-*" name="fn1-*">*
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1185

197 F.3d 1185 (7th Cir. 1999)

EDWIN C. WEST, Plaintiff-Appellant, v. PHIL MACHT, et al., Defendants-Appellees.

No. 99-1169

In the United States Court of Appeals For the Seventh Circuit

Submitted^* June 23, 1999

Decided December 1, 1999

Appeal from the United States District Court for the Western District of Wisconsin. No. 98-C-0548-C--Barbara B. Crabb, Judge.

Before Cudahy, Coffey, and Ripple, Circuit Judges.

Cudahy, Circuit Judge.

This appeal raises a question of appellate jurisdiction that has produced both inter- and intra-circuit conflict. Edwin West attempts to appeal from an order denying him in forma pauperis (IFP) status as to some of the claims that he has raised in this 42 U.S.C. sec. 1983 suit but granting him IFP status with respect to other claims. In an attempt to create a final judgment for appeal, West voluntarily dismissed his viable claims without prejudice. Some of our cases suggest that such a dismissal can create a final judgment, but our recent cases hold otherwise. Therefore, we must dismiss this appeal for lack of jurisdiction.

I.

Edwin West is currently civilly confined as a sexually violent person at the Wisconsin Resource Center in Winnebago, Wisconsin. Prior to his civil confinement he was an inmate at Kettle Moraine Correctional Institution in Plymouth, Wisconsin. West's claims on appeal relate to events surrounding a prison disciplinary proceeding brought against West toward the end of his prison stay.

In July 1995, while incarcerated at Kettle Moraine, West prepared a confidential written statement about "strong arming and drug dealing" by gang members in his cellblock. Complaint para. 5. West alleges that Sgt. Audrey Langkabel, a corrections officer, told the gang members that West was making trouble for them. Gang members then provoked him into fights and threatened him during the next few weeks. In August 1995, West sent a complaint to Captain Benjamin Barber alleging that Langkabel had imperiled West's safety by revealing his statement to gang members. Two days later, West was locked up in administrative segregation pending an investigation for lying about corrections staff. On August 29, 1995, Lt. Keith Hellwig issued a conduct report accusing West of lying about Langkabel.

West received a hearing on the conduct report in September 1995. Captain Barber presided at the hearing. The evidence presented against West included three confidential informant statements that were not sworn or notarized. West claims Barber refused to admit evidence that he tried to submit. West was found guilty of the allegations in the conduct report and sentenced to 360 days in segregation at Waupun Correctional Institution. Later in September, West was dropped from the prison's sex offender treatment program because he could no longer attend classes while in segregation.

West pursued his administrative appeals, but they were unsuccessful. He submitted one of the confidential informant statements used against him to a forensic document examiner, who determined that the statement had been written by Lt. Hellwig, the officer who investigated the allegations leading to the conduct report.

In October 1995, West sought review of the conduct report in Wisconsin Circuit Court and filed a complaint alleging errors in the disciplinary hearing. West claimed error in that confidential informant statements used against him were not sworn or notarized, the hearing officer and the investigating officer were biased, West's lay advocate refused to become involved in his case and he was denied witnesses and documentary evidence. The Circuit Court denied his petition in February 1996. West appealed to the Wisconsin Court of Appeals, which, on December 11, 1996, summarily reversed the conduct report on the issue of the unsworn confidential informant statements, restored good time taken away from him and ordered a new hearing on the conduct report. According to West, the Court of Appeals did not consider the other issues raised in his petition.

With his good time credits restored, West's mandatory release date was December 5, 1996, six days before the issuance of the appellate court decision. West was not immediately released. He was held in segregation in Waupun until his transfer to the Milwaukee County Jail on January 20, 1997. There he attended a hearing to determine whether probable cause existed to detain him until a civil commitment trial to be held under Wisconsin's Sexually Violent Persons Commitment Act. See Wis. Stat. sec. 980.04. On January 21, 1997, West was transferred to the Wisconsin Resource Center (WRC) pending trial on his civil commitment. West was then found to be a sexually violent person and civilly committed later in 1997.

West received a new hearing on his conduct report while he was at the WRC on February 14, 1997, nearly a month after he was released from prison. Captain Barber came to the WRC to preside over the hearing. West presented the evidence he had available to him from the first conduct hearing, as well as the handwriting analysis. Only the conduct report was put into evidence against him. West was found guilty of the allegations in the conduct report and given the same sentence as before.

West pursued an administrative appeal, which was denied; he then went back to the state courts to challenge the new disciplinary sanction. He raised the same arguments against the new conduct determination that he had at his first hearing. West was denied IFP status on all claims except for a claim that he had been denied witnesses at the hearing. Then the state filed a motion to quash for lack of jurisdiction, because "the respondent, Warden Cook at KMCI, is not the legal holder of plaintiff's records and that [West's] Writ of Certiorari was misdirected." Complaint para. 62. The state's motion was granted. West appealed, the jurisdictional dismissal was reversed and the case was remanded back to the Circuit Court. Apparently, after the state filed a response to West's writ, West moved to voluntarily dismiss the state court action because he could not obtain damages.

In December 1998, West filed the sec. 1983 action that is the subject of this appeal. The complaint alleged seventeen separate violations of his rights grouped into two counts. Count One deals with issues arising from West's criminal confinement; Count Two deals with issues arising from his civil confinement. On December 16, the district court granted IFP status to West on four claims arising from his civil confinement mainly relating to his failure to receive treatment while civilly committed. The district court denied IFP status as to all four of West's claims arising from his criminal confinement. The district court found that three of these four claims (denial of due process at the two prison disciplinary hearings, deliberate indifference by Langkabel to West's safety, and false imprisonment because he was held 43 days beyond his scheduled due date) were precluded by the merits determinations in the state court proceedings. The district court denied leave to proceed on the fourth claim--that West had been denied sex offender treatment after the conduct report was filed against him--because West did not have a liberty interest in receiving treatment. On January 19, 1999, West voluntarily dismissed without prejudice the four claims for which he had received IFP status, and judgment was entered that same day. West then appealed, raising five issues relating to the denial of IFP status with respect to claims relating to his criminal confinement.

II.

On January 19, 1999, the district court issued a judgment denying IFP as to the claims that are the subject of this appeal and accepting West's voluntary dismissal of the other claims for which he had been granted IFP status. West timely filed his notice of appeal on January 22, 1999, and now asserts appellate jurisdiction under 42 U.S.C. sec. 1291. West's jurisdictional statement is not correct; this court does not have jurisdiction over his claims.

The district court's judgment dismissing the four claims on which West had been permitted to proceed IFP states that "[p]ursuant to Fed. R. Civ. P. 41(a)(1), plaintiff dismisses voluntarily his claims. . . ." West's voluntary dismissal is without prejudice, because a judgment on a first voluntary dismissal that does not specify whether the judgment is to be with or without prejudice is deemed to be without prejudice. See Fed. R. Civ. P. 41(a)(1).

In this case, West wishes to challenge the district court's denial of IFP status as to claims relating to his criminal confinement. Normally, the denial of IFP status is immediately appealable under the collateral order doctrine. See Roberts v. United States District Court, 339 U.S. 844, 845 (1950). However, when IFP status is granted as to some claims against some parties and denied as to other claims against other parties, the denial of IFP is not immediately appealable in the absence of a partial final judgment under Rule 54(b). See House v. Belford, 956 F.2d 711, 716 (7th Cir. 1992). Thus, West engineered finality by voluntarily dismissing without prejudice the claims as to which he had been granted IFP status. The practical effect of the dismissal is that, if this maneuver is permitted, West may immediately appeal the district court's order insofar as it denied IFP status, and, if he loses this appeal, he may refile the claims on which he was granted IFP status.

This sort of informal attempt to confer legitimacy on an interlocutory appeal meets with mixed approval in the federal courts of appeal; some circuits (including this one) have incurred intra-circuit splits. Compare Boland v. Engle, 113 F.3d 706, 714-15 (7th Cir. 1997) (dismissing appeal); Horwitz v. Alloy Automotive Co., 957 F.2d 1431, 1433 (7th Cir. 1992) (same); Chappelle v. Beacon Communications Corp., 84 F.3d 652, 654- 55 (2d Cir. 1996) (same; collecting cases); Mesa v. United States, 61 F.3d 20,...