Anderson R. D Asilva v. Robert Rymarkiewicz

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1231
A NDERSON R. D A SILVA ,
Plaintiff‐Appellant,
v.
R OBERT R YMARKIEWICZ, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 14‐CV‐812 — William E. Duffin, Magistrate Judge.
____________________
SUBMITTED FEBRUARY 9, 2018 — D ECIDED A PRIL 24, 2018
____________________
Before W OOD, Chief Judge, and EASTERBROOK and MANION,
Circuit Judges.
WOOD, Chief Judge. Plaintiff Anderson DaSilva was an in‐
mate 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 be‐
cause he was given the wrong medication. Worse, more than
three hours passed before DaSilva was taken to the hospital

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2 No. 16‐1231
(only five minutes away), where doctors stapled a deep lacer‐
ation 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 su‐
pervisor), 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 con‐
sent under 28 U.S.C. § 636(c) to have the magistrate judge con‐
duct all proceedings in his case. The magistrate judge con‐
cluded that Coby, the corrections officer who administered
the problematic medication to DaSilva, should be dismissed
from the case. Even under DaSilva’s version of the events, the
judge thought, Coby’s distribution of the medication was
nothing more than a mistake, which fails as a matter of law to
reflect deliberate indifference. The judge concluded that
DaSilva could proceed with his claims against the two other
defendants.
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 28 U.S.C. § 636(c) to proceed before the magistrate
judge. At that point, discovery proceeded. Some time later,
Rymarkiewicz and DeYoung filed a motion for summary

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No. 16‐1231 3
judgment. The judge granted that motion and entered judg‐
ment in their favor. The court (acting through the magistrate
judge) then entered a final judgment in the matter. DaSilva
filed a timely notice of appeal following the denial of his mo‐
tion for reconsideration under Federal Rule of Civil Proce‐
dure 59.
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 28 U.S.C.
§ 1291. On the surface, the answer looks easy: the magistrate
judge had the authority to resolve the case, thanks to the con‐
sents Rymarkiewicz and DeYoung filed under section 636(c)
and the grant of summary judgment in their favor. But at the
time the case was filed, they were not the only two parties.
DaSilva also had sued Coby, but the magistrate judge dis‐
missed that part of the case at the screening stage, before the
defendant had any occasion to accept (or not to accept) the
magistrate judge’s jurisdiction. The question is whether the
manner in which the claim against Coby was resolved makes
any difference. We think not.
The only reason it might cause a problem is suggested in
Coleman v. Labor & Indus. Review Comm’n, 860 F.3d 461 (7th
Cir. 2017), where we held that a magistrate judge has no au‐
thority to “resolve the case finally” at the screening stage with
the consent of only the plaintiff. Instead, we concluded, the
“district judge must enter any post‐screening orders that dis‐
pose of the entire case.” Id. at 475. But Coleman differed in cru‐
cial ways from the case before us.
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

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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 similar‐
ities 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 in‐
terlocutory 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.” Assis‐
tant 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., 825 F.2d 1180, 1185 (7th Cir. 1987) (28 U.S.C. § 636(c)
“does not require a specific form or time of consent”).
In addition, the appearance form that the Assistant Attor‐
ney 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 al‐
low the magistrate judge to resolve the case on the merits thus

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No. 16‐1231 5
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. 860 F.3d at 470 (emphasis in original). That leads to
the conclusion that all parties had consented to proceeding
before the magistrate judge by the time he entered a final
judgment dismissing the entire action (i.e. a judgment resolv‐
ing all claims against all parties). By that time, all of the “t’s”
had been crossed and “i’s” dotted, and the magistrate judge
was fully authorized to act.
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 or‐
der.
SO ORDERED.

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