Victor Brown v. Jane Doe

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-1420

VICTOR BROWN,

Plaintiff-Appellant,

v.

SUE PETERS, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 18-CV-1957 — William E. Duffin, Magistrate Judge.

____________________

SUBMITTED AUGUST 29, 2019 * — DECIDED OCTOBER 10, 2019

____________________

Before WOOD, Chief Judge, and SCUDDER and ST. EVE, Cir-

cuit Judges.

* The defendants were not served with process in the district court

and are not participating on appeal. We have agreed to decide this case

without oral argument, because the brief and record adequately present

the facts and legal arguments, and oral argument would not significantly

aid the court. FED. R. APP. P. 34(a)(2)(C).

2 No. 19-1420

WOOD, Chief Judge. In Coleman v. Labor & Industry Review

Commission, 860 F.3d 461 (7th Cir. 2017), we held that a mag-

istrate judge does not have the authority to enter a final judg-

ment in a case when only one party—in that case, the plain-

tiff—has consented to the magistrate judge’s jurisdiction. See

28 U.S.C. § 636(c). That rule holds, we said, even if the magis-

trate judge is engaged in nothing more than the screening pro-

cess required for a case brought by a prisoner who wishes to

proceed in forma pauperis. See 28 U.S.C. §§ 1915(e)(2)(B)(ii),

1915A. If the magistrate judge concludes that the case must be

dismissed for failure to state a claim upon which relief can be

granted, FED. R. CIV. P. 12(b)(6), that is a disposition on the

merits, and therefore, in the absence of valid consents, the

judge is empowered to do no more than submit a report and

recommendation to an Article III judge for final resolution.

Coleman, 860 F.3d at 475.

The present appeal presents a new wrinkle for cases at the

screening stage: is it possible for the state defendant to con-

sent in advance to the magistrate judge’s jurisdiction to con-

duct the initial case screening and, if the plaintiff has also filed

his consent, to enter a final judgment dismissing the case with

prejudice? That is exactly what the Wisconsin Department of

Justice and the U.S. District Court for the Eastern District of

Wisconsin have attempted to accomplish through a Memo-

randum of Understanding (MOU) that became effective in

2018, apparently in response to Coleman.

We reproduce the MOU in its entirety in the Appendix to

this opinion. For present purposes, however, it is enough to

say that it covers civil cases brought under 42 U.S.C. § 1983 by

an incarcerated person, when those cases must undergo initial

screening by the district court under 28 U.S.C. § 1915A. MOU

No. 19-1420 3

¶ 2. In the MOU, the state Department of Justice has entered

“a limited consent to the exercise of jurisdiction by United

States Magistrate Judges” to do a number of things. In para-

graph 3(1), the state consents without qualification to the

magistrate judge’s conduct of the initial screening described

by sections 1915A and 1915(a) and (e)(2)(B). That logically in-

cludes the authority either to dismiss the case after screening,

or to allow it to move forward. Paragraph 3(4) addresses the

situation in which the judge may conclude that the case

should be dismissed before screening for administrative rea-

sons, such as a failure to pay the filing fee, the failure to sub-

mit a proper application to proceed in forma pauperis, or the

existence of a filing bar. In those cases, the state consents to

involuntary dismissal before the initial screen. Finally, the

MOU addresses the situation in which “any part of the case

survives initial screening.” MOU ¶ 4. At that point, “the ap-

propriate entity within the Department of Justice will be

served with the complaint and will be provided the oppor-

tunity either to consent to the continued exercise of jurisdic-

tion by the Magistrate Judge who conducted the initial screen

or to refuse consent … .” Id. In the case of a refusal, the MOU

states that the case will go back for random assignment to a

district judge. Id.

We turn in a moment to the way in which those proce-

dures were applied in this case and whether they are con-

sistent with the Magistrate Judge’s Act and the Coleman deci-

sion. The MOU applies only to certain types of cases, how-

ever, and so we must take a look at the facts before us to en-

sure that this is one of them.

Our case arose when Victor Brown, a Wisconsin prisoner

housed in the Green Bay Correctional Institution (GBCI), cut

4 No. 19-1420

himself severely while he was in the restrictive housing unit.

He bled all over the floor as a result. Later he notified a cor-

rectional officer about his injury. Someone put him in a wheel-

chair and took him to the health services unit, where an un-

known nurse assessed him. The nurse could see from his chart

that this was not his first self-inflicted wound. She found that

his vital signs were stable and arranged for him to be placed

under observation.

The next day, two more nurses (neither of whose identity

Brown knows) assessed Brown again. Initially they found that

he was stable, but later that day he told the staff that he was

having chest pains and feeling very weak. Nurse Shane or-

dered him to be taken to a local hospital’s emergency room,

where he was assessed. The ER personnel determined that he

had suffered a blood loss requiring a transfusion of three units

of blood (approximately three pints—about a quarter of the

total blood supply of an average male adult,

https://www.medicalnewstoday.com/articles/321122.php).

He received the necessary transfusion, and for all that this rec-

ord shows, that was the end of the story—he lodged no fur-

ther complaints. In time, however, Brown sued the prison

nurses, asserting that they had exhibited deliberate indiffer-

ence to his serious medical needs by not sending him to the

ER sooner.

Following its routine procedures and the MOU, the dis-

trict court sent the case to Magistrate Judge Duffin for initial

screening. On December 28, 2018, Brown consented pursuant

to 28 U.S.C. § 636(c) to the authority of the magistrate judge

to resolve the entire case. Magistrate Judge Duffin accordingly

noted in his order that “the court has jurisdiction to resolve

Brown’s motions and to screen his complaint in light of his

No. 19-1420 5

consent to the full jurisdiction of a magistrate judge and the

Wisconsin Department of Justice’s limited consent to the ex-

ercise of magistrate judge jurisdiction as set forth in the Mem-

orandum of Understanding between the Wisconsin Depart-

ment of Justice and this court.” With those consents secure,

the magistrate judge went on to conclude that Brown failed to

state a claim on which relief could be granted, because none

of his allegations supported a finding that any of the nurses

was deliberately indifferent toward his medical needs. The or-

der ends by stating that “[t]his order and the judgment to fol-

low are final. A dissatisfied party may appeal this court’s de-

cision to the Court of Appeals for the Seventh Circuit … .”

Were it not for the MOU, we would be compelled to vacate

the magistrate judge’s order and remand for proceedings con-

sistent with Coleman. Typically, that would involve the con-

version of the final disposition to a report and recommenda-

tion from the magistrate judge to a district court judge, and

then a final determination by the district court. Those steps

are necessary even for named defendants who have never

been served. Coleman, 860 F.3d at 475; see also Williams v. King,

875 F.3d 500, 504 (9th Cir. 2017) (agreeing with Coleman).

Brown named four defendants, two identified by name,

and two only by pseudonym. Neither of the named defend-

ants was served with process. But, given the MOU, that is not

the end of the story. The two named defendants, Sue Peters

(identified elsewhere as a nurse practitioner at GBCI) and Jean

Lutsey (the GBCI Health Service Manager, according to the

website), both appear to be state employees, and thus within

the scope of MOU ¶ 2. If the case were to proceed beyond

screening, then they would be entitled to notice from the De-

partment inquiring about their interest in having the

6 No. 19-1420

Department accept service of process on their behalf. See

Memorandum of Understanding (Service of Process) ¶ 3

(March 24, 2010), U.S. District Court for the Eastern District of

Wisconsin, Local Rules and Orders, Standing Order (number

13 in list), https://www.wied.uscourts.gov/local-rules-and-or-

ders.

The question is whether the consent on behalf of the two

state employees to have the magistrate judge perform the ini-

tial screening of Brown’s complaint is enough to satisfy the

Magistrate Judge’s Act, 28 U.S.C. § 636(c). We see no reason

why it should not be. Cf. National Equip. Rental, Ltd. v. Szu-

khent, 375 U.S. 311 (1964) (upholding advance agreement to

the personal jurisdiction of a court). During the stage of liti-

gation between the filing of the complaint and formal service

of process on the defendant(s), counsel for the defendants is

entitled to speak for her clients. The defendant has some role

in the case even before service is complete. For example, the

defendant must respond to a notification that the action has

been filed and a request for waiver of service, FED. R. CIV. P.

4(d)(1). Screening of cases brought by prisoners who want to

proceed in forma pauperis against “a governmental entity or

officer or employee of a governmental entity” is another ac-

tivity that, by design, takes place before service. 28 U.S.C.

§§ 1915A (screening); 1915(d) (service of process after screen-

ing). If the state wishes to take the position, as Wisconsin has

done, that its entities, officers, and employees are represented

by the state Department of Justice during that period, that is

its business. Moreover, it seems exceedingly unlikely that a

state entity, officer, or employee would object to that term of

employment. And if it did object, nothing in the MOU pre-

vents anyone from retaining personal counsel.

No. 19-1420 7

There is one more aspect of the MOU that deserves atten-

tion. Paragraphs 3 and 4 stipulate that the MOU creates only

a limited consent for the preliminary phases of the case—that

is, the phase that deals with screening. If the case is resolved

at that point, nothing else need be done. But if “any part” of

the case survives screening, then paragraph 4 provides that

the appropriate entity will then be served with process and

will have the opportunity either to consent to the magistrate

judge’s continuing authority to resolve the case, or to object

and have the case transferred to an Article III district judge.

That raises the question whether this part of the process is

consistent with 28 U.S.C. § 636(c)(4), which provides as fol-

lows:

The court may, for good cause shown on its own

motion, or under extraordinary circumstances shown

by any party, vacate a reference of a civil matter to a

magistrate judge under this subsection.

In order to implement subpart (c)(4) “by the book,” it appears

that it would be necessary for the party wishing to revoke

consent to the magistrate judge’s authority to file a motion

with “the court” to vacate the reference. (There is some ques-

tion whether the magistrate judge is authorized to rule on a

motion to withdraw consent or if only a district court judge

may do so. Compare Lorenz v. Valley Forge Ins. Co., 815 F.2d

1095, 1097 (7th Cir. 1987) (accepting the magistrate judge’s de-

cision not to vacate consent without any discussion of this is-

sue), with Branch v. Umphenour, 936 F.3d 994, 1002 (9th Cir.

2019) (holding that only the district judge may vacate a refer-

ence to a magistrate judge). We need not resolve that question

here, as it does not appear that anyone has tried to revoke

consent.) When a motion to revoke consent has been filed, the

8 No. 19-1420

court must decide whether the progression of the case from

screening to the ordinary pretrial stage, perhaps along with

other factors, amounts to either “good cause” or “extraordi-

nary circumstances” as the Act uses those terms.

Sound judicial management of these cases might well fac-

tor into the determination of good cause. So too should the

effort of the Wisconsin Department of Justice to respect the

strictures of the Magistrate Judge’s Act and at the same time

ensure the autonomy of the parties it represents. Other facts

may also deserve consideration. This is not the case in which

to test the limits of “good cause” in this unique setting, and so

we refrain from doing so.

We hold that the “Limited Consent to Magistrate Judge Ju-

risdiction To Conduct Initial Case Screening” adopted by the

U.S. District Court for the Eastern District of Wisconsin and

the Wisconsin Department of Justice satisfies the requirement

in 28 U.S.C. § 636(c) that both parties consent to magistrate

judge authority to resolve a case with a final judgment. That

includes the authority to decide that a prisoner’s complaint

fails to state a claim upon which relief can be granted. In the

present case, that is exactly what Magistrate Judge Duffin con-

cluded. Only two named defendants were before him, and he

had this to say about them:

[T]he court notes that [Brown] names Sue Peters

and Jean Lutsey as defendants but does not allege any

facts supporting a claim that either of them violated his

constitutional rights. Under section 1983, an individual

can be liable only if that individual is personally re-

sponsible for a constitutional deprivation. … There is

no supervisory liability, collective liability or vicarious

liability under 42 U.S.C. § 1983. In other words, there

No. 19-1420 9

is no liability unless the defendant is personally in-

volved in the violation of plaintiff’s rights. … There-

fore, Brown may not proceed against Sue Peters or Jean

Lutsey.

(Citations omitted.) With respect to the Doe defendants, the

court added that it saw nothing in Brown’s allegations that

would amount to deliberate indifference.

We agree with this assessment of Brown’s case. To state a

claim, Brown needed to allege that the nurses were deliber-

ately indifferent to his medical needs after he engaged in self-

harm. See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976); Palmer

v. Franz, 928 F.3d 560, 563 (7th Cir. 2019). But no trier of fact

could so find in light of Brown’s allegations. After he cut him-

self, a nurse saw him, checked his vital signs appropriately

and found nothing amiss, verified how much blood was in the

cell, and placed him on observation. The next morning, he

was again examined by a nurse who checked his vitals, which

were normal. When he later developed chest pain, he was sent

to the emergency room. By Brown’s own account, the nurses

used their medical judgment and thus did not act with delib-

erate indifference. See Jackson v. Kotter, 541 F.3d 688, 697 (7th

Cir. 2008); Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir.

1997) (holding plaintiff pleaded himself out of court when

complaint showed he has no claim for deliberate indiffer-

ence). At most (and even this is a stretch), Brown alleged facts

that show negligence, which is not enough to support an

Eighth Amendment claim. See Estelle, 429 U.S. at 106; Guzman

v. Sheahan, 495 F.3d 852, 857 (7th Cir. 2007).

We AFFIRM the judgment of the district court.

10 No. 19-1420

APPENDIX: Limited Consent to Magistrate Judge

Jurisdiction (March 14, 2018)

MEMORANDUM OF UNDERSTANDING

U.S. District Court for the Eastern District of Wisconsin, Local

Rules and Orders, Standing Order (number 15 in list),

https://www.wied.uscourts.gov/local-rules-and-orders.