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Court Reverses Del Raine v. Carlson

The United States Court of Appeals for the Seventh Circuit reversed a
ruling that an Illinois Federal Prisoner was entitled to relief in form of
expungement of record of his confinement to segregation. The decision was
made without published opinion. See: Del Raine v. Carlson, 904 F.2d 38
(7th Cir. 1990).

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Related legal case

Del Raine v. Carlson

Raine v. Carlson, 904 F.2d 38 (7th Cir. 05/11/1990)


[2] No. 89-1165

[3] 904 F.2d 38, 1990

[4] May 11, 1990


[6] Appeal from the United States District Court for the Southern District of Illinois, Benton Division. No. 79 C 2340, Philip M. Frazier, Magistrate.

[7] Before Walter J. Cummings, Circuit Judge, Richard D. Cudahy, Circuit Judge, Jesse E. Eschbach, Senior Circuit Judge.

[8] Order

[9] Sadly, this prisoner's rights case now enters its seventeenth year with no end in sight. More galling, however, is the fact that the federal courts involved in the case still have not addressed the substance of the prisoner's claims. In a cruelly ironic twist -- after more than a decade and a half of legal delays -- the courts have focused on whether the prisoner effected timely service upon the defendants. We reluctantly reverse and remand the case with the hope that the lower court will resolve this issue once and for all.

[10] I.

[11] Judge Posner, writing for this court in Del Raine v. Carlson, 826 F.2d 698 (7th Cir. 1987) ("Del Raine II"), detailed the facts underlying this case. For purposes of clarity, we repeat, verbatim, that discussion here:

[12] "Ronald Del Raine murdered two policemen in the course of a bank robbery and in 1968 was sentenced to 199 years in prison. In 1972, while in the federal prison in Leavenworth, Kansas, Del Raine was placed in solitary confinement without a hearing, as a suspected ringleader of a prison strike by Mexican-American prisoners, though Del Raine is not Mexican-American. He was shortly transferred to a segregated facility at the federal prison in Springfield, Missouri, and then to the control unit' at Marion federal prison in Illinois. Marion's control unit is the highest-security facility in the United States, and its inmates live virtually in solitary confinement.

[13] "In 1973, while at Marion, Del Raine filed the present suit, in the Southern District of Illinois, against the head of the federal prison system (Norman Carlson) and a number of other prison officials. The suit asked that he be released from segregation, that the order placing him in segregation be deleted from his prison record ("expungement"), and that damages be awarded for the period that he had already spent in segregation. The district judge ruled that service on the U.S. Attorney shall constitute sufficient service on the respondents,' and the U.S. Attorney was duly served on June 20, 1973, six days after the filing of the complaint. In 1974 Del Raine's case was tried, and the judge ruled that Del Raine was entitled to a hearing on the propriety of his confinement to segregation as a disciplinary measure. The judge did not address the issues of expungement and damages. Rather than hold the hearing the prison authorities released Del Raine from segregation.

[14] "Del Raine appealed from the district judge's failure to grant him any relief on his requests for expungement and damages. For reasons unknown the processing of the appeal was long delayed, but in 1979, in an unpublished order, we remanded the case with directions that the district court consider Del Raine's request for expungement and damages. On remand the case was assigned to a magistrate. There was additional unaccountable delay but trial was finally scheduled for October 3, 1983. With only three weeks to trial, the U.S. Attorney unexpectedly moved to withdraw from representing the defendants in their personal as distinct from official capacities, on the ground that he had never been authorized to represent them in their personal capacities. It took 10 months for the magistrate to rule on the motion, but on July 18, 1984, he granted it. On July 31 he ordered Del Raine to serve his complaint on the defendants within 60 days.

[15] "Del Raine tried. He knew only Carlson's address, and he tried to serve Carlson by mail, but Carlson failed to acknowledge service. Del Raine then managed to have him served personally. He also served interrogatories on Carlson seeking the addresses of the other defendants. Carlson answered these interrogatories, but not until May 31, 1985. On June 19 Del Raine moved for an extension of time within which to serve the remaining defendants and for an order that the U.S. Marshals Service serve them. The magistrate granted the latter request but did not rule on the former. Del Raine delivered copies of the summons and complaint to the Marshals Service forthwith, but the Service took its time about serving them on the defendants. The first of the twelve remaining named defendants was not served until November 13, 1985, the sixth not till January 2, 1986. Four summonses were returned unexecuted and Del Raine apparently never requested service on the last two defendants.

[16] "In March 1986 the U.S. Attorney -- whom the seven served defendants had by now asked to defend them in their personal as well as official capacities -- filed a motion to dismiss or (alternatively) for summary judgment, which the magistrate granted, primarily on the ground that Del Raine had failed to make timely service on the defendants. Del Raine has again appealed."

[17] II.

[18] In Del Raine II, we reversed and remanded a magistrate's grant of summary judgment for the defendant prison officials, reasoning that the magistrate had not properly examined whether Del Raine showed "good cause" for his failure to serve the defendants in a timely fashion. Of course, as Judge Posner acknowledged, "[t]he determination whether a plaintiff has exercised due diligence in serving a defendant, or, what is the equivalent inquiry, has shown good cause for missing the 120-day deadline [see Fed. R. Civ. P. 4(j)], is a discretionary determination entrusted to the district court, and we are reluctant to substitute our own judgment for that court's." Del Raine II,826 F.2d at 705. But he also observed that the magistrate failed to consider several pertinent issues in determining that Del Raine had not established good cause. Among these issues, Judge Posner highlighted five to be addressed on remand:

[19] (1) Judge Foreman's erroneous ruling in 1973 that service on the U.S. Attorney would constitute service on the defendants;

[20] (2) the defendants' (and particularly Carlson's) failure to complain about late service;

[21] (3) the timely service of the defendants' lawyer of choice in 1973 before the lawyer withdrew and was later reinstated;

[22] (4) the lack of hardship on the defendants because of the delay; and

[23] (5) the absence of a correlation between delayed service and painstakingly slow judicial proceedings.

[24] Id. at 704-05. These factors were to be considered along with Del Raine's failure to exercise proper diligence in serving the defendants within sixty days of the magistrate's Order. In remanding the case, Judge Posner instructed the magistrate to "redetermine the issue of good cause in light of the discussion in this opinion." Id. at 705.

[25] Unfortunately, the magistrate did not rely upon or even consult these factors in rendering his decision. Instead, he summarily dismissed them, reasoning that they provided "little more than a background against which plaintiff's failure to comply with the July 26, 1984, Order (reduced to writing July 30, 1984) that personal service be completed on all defendants within 60 days, the "critical period" in question, must be scrutinized." Magistrate's Order at 2 (S.D. Ill. Nov. 23, 1988). Completely ignoring this "background," the magistrate focused almost entirely on Del Raine's lack of diligence during the "critical period" and concluded that Del Raine's case surely would have been dismissed were he simply "an average citizen on the street." Magistrate's Order at 6. But Del Raine is not "an average citizen on the street," nor should he be treated as such within the context of this appeal. Del Raine's "barriers" to effecting service -- including the initial designation of the U.S. Attorney's Office as a proper recipient of service and the marshals' delay in serving all the defendants -- existed primarily because he is incarcerated.

[26] More important, the magistrate's reliance upon Del Raine's failure to serve Carlson within sixty days (to the complete exclusion of the five pertinent factors) disregards our instruction to "redetermine the issue of good cause in light of the discussion in this opinion." Id. at 705. These factors are not merely abstract "background" issues: indeed, factor (3) seems to be of crucial importance. That the defendants' lawyer of choice, who withdrew but was later reinstated, was "in fact served within days of the commencement of the suit back in 1973" suggests that the defendants were well aware at all times of the pending suit (and may support Del Raine's contention that they deliberately avoided it). Id. The four other pertinent factors also lend support to Del Raine's argument that he may have had good cause for his inability to serve the defendant prison officials in a timely fashion despite his failure to do so during the "critical period."

[27] Surely, the magistrate was not required to confine his analysis to the five factors set out in Del Raine II. But he could not properly limit his discussion of good cause to Del Raine's failure to make service within sixty days of the magistrate's order, either.*fn1 And he certainly was not free to disregard this court's instructions on remand. In this regard, the magistrate should have considered the five factors supporting Del Raine's good cause argument as well as Del Raine's inability to effect service within sixty days of the magistrate's order. His failure to do so compels us, again, to reverse and remand the case for such consideration.*fn2 Circuit Rule 36 shall apply.

Opinion Footnotes

[28] *fn1 Such discussion was, to a large degree, superfluous: we acknowledged in Del Raine II that Del Raine neither served the defendants nor followed-up his later attempts at service within the period prescribed by the magistrate.826 F.2d at 705.

[29] *fn2 On remand, the district court should also consider the basis of the magistrate's decision to give Del Raine 60 days -- rather than 120 days -- in which to serve the defendants. Federal Rule of Civil Procedure 4(j), which became effective February 26, 1983, seems to allow 120 days for such service to be effected. We do not suggest that the magistrate thought the amended complaint tolled the service period, see Del Raine II,826 F.2d at 705; nonetheless, it seems that the magistrate granted the additional time because of the addition of a new process recipient. If this is the case, we are unsure how the magistrate calculated sixty days as an appropriate service period. See Fed. R. Civ. P. 4(j); cf. Excalibur Oil, Inc. v. Gable,105 F.R.D. 543, 544 n.3 (N.D. Ill. 1985) (plaintiffs are entitled to 120-day service period when new defendants are added to case).