Dasilva v. Rymarkiewicz
Dasilva v. Rymarkiewicz
Opinion of the Court
*322Plaintiff Anderson DaSilva was an inmate at Wisconsin's Waupan Correctional Institution. One evening, after receiving his medication, he became dizzy, vomited, lost consciousness, and fell, hitting his head on the way down. DaSilva believes that this accident occurred because he was given the wrong medication. Worse, more than three hours passed before DaSilva was taken to the hospital (only five minutes away), where doctors stapled a deep laceration and diagnosed a serious concussion.
DaSilva sued three correctional employees involved in the incident: the officer who gave him the medication (known only as "CO Coby"), Captain Rymarkiewicz (a corrections supervisor), and Nurse DeYoung. He accused each of them of violating the Eighth Amendment to the U.S. Constitution (made applicable to the states through the Fourteenth Amendment) by mishandling his injury and failing to get him to the hospital within a reasonable time. A magistrate judge screened DaSilva's complaint after he filed his written consent under
Pursuant to an informal agreement between the court and the Wisconsin Department of Justice, DaSilva's complaint and the court's initial screening order were sent to the Department for service on Rymarkiewicz and DeYoung. After service was accomplished, the Wisconsin Attorney General appeared on behalf of those two defendants and filed the state's consent under
Before proceeding with DaSilva's appeal, we must assure ourselves that the district court has issued a final judgment, and thus that our appellate jurisdiction is secure. See
The only reason it might cause a problem is suggested in Coleman v. Labor & Indus. Review Comm'n ,
That is not to say that there are no similarities between the two cases. Like the defendants in Coleman , none of the three defendants named in DaSilva's complaint had been served with process as of the time when the magistrate judge initially screened the complaint. Also as in Coleman , the magistrate judge in DaSilva's case conducted the initial screening acting with only the plaintiff's consent. But that is where the similarities end. In Coleman, there was never a time when adverse parties had consented to the magistrate judge's disposition of the case, whereas here, there was no final judgment in the case until after the state filed its consent under section 636(c). The magistrate judge's dismissal of Coby on screening was an interlocutory order. After the other two defendants were properly served, the state consented to proceeding before the magistrate judge.
It is also significant that Coby was a prison employee who stood in exactly the same position as the other two defendants for purposes of legal representation. The form relating to magistrate-judge authority that was filed by the lawyer from the office of the Wisconsin Attorney General was labeled "Consent to Proceed Before a U.S. Magistrate Judge." Assistant Attorney General Chad Gendreau signed that form as "Attorney for defendant," without any notation that DaSilva had sued more than one defendant. See King v. Ionization Int'l, Inc. ,
In addition, the appearance form that the Assistant Attorney General filed with this court says only that she "appears as counsel for Defendants in the ... action." She did not name any individual defendants. This is enough not only to show that Rymarkiewicz and DeYoung were represented by the state attorney general, but also to show that Coby fell within the scope of that representation. The state's agreement to allow the magistrate judge to resolve the case on the merits thus covered Coby too, and allowed it to ratify the interlocutory order dismissing him. In other words, this is "some action from the party whose consent must be found," as required by Coleman .
There is therefore no need to return this case to a district court judge for any further proceedings. This appeal shall proceed to briefing with a schedule set by separate court order.
SO ORDERED.
Reference
- Full Case Name
- Anderson R. DASILVA v. Robert RYMARKIEWICZ
- Cited By
- 6 cases
- Status
- Published