Franklin, Clarence v. City of South Bend

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 24, 2005*
Decided November 2, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-2292
CLARENCE J. FRANKLIN, JR., Appeal from the United States
Plaintiff-Appellant, District Court for the Northern
District of Indiana, South Bend
v. Division.
CITY OF SOUTH BEND, ET AL, No. 04 C 307
Defendants-Appellees.
Robert L. Miller, Jr.,
Chief Judge.
ORDER
Clarence Franklin, Jr. was arrested twice in 1989 and later pleaded guilty to
dealing in cocaine. He was sentenced to consecutive terms of imprisonment of eight
and fifteen years. He then filed a 42 U.S.C. § 1983 action against two police officers
and the prosecutor involved in the first arrest and prosecution, but the district court
denied leave to proceed under 28 U.S.C. § 1915(d) and we affirmed. Mr. Franklin
unsuccessfully sought post-conviction relief through state habeas corpus
proceedings. He later filed another 42 U.S.C. § 1983 action against the City of
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-2292 Page 2
South Bend, various police officers, prosecutors and judges, as well as his previous
defense attorney, for alleged constitutional violations arising out of the 1989
arrests, his subsequent prosecutions and incarcerations, and his post-conviction
claims. The defendants filed three separate motions to dismiss the complaint under
Fed. R. Civ. P. 12(b)(6) and the district court granted their motions.
On appeal, Mr. Franklin raises only two general procedural arguments.
First, he argues that the district court denied him due process by assigning a
magistrate judge to his case without his consent in violation of Fed. R. Civ. P. 73(a).
The magistrate judge’s involvement here, however, was limited to nondispositive
matters such as granting a motion for extension of time to file an answer, directing
the parties to submit written status reports, and issuing a scheduling order; these
pretrial matters are the sort of tasks that Congress has authorized magistrate
judges to make without the parties’ consent. See 28 U.S.C. § 636(b)(1)(A); Alpern v.
Lieb, 38 F.3d 933, 934 (7th Cir. 1994).
Mr. Franklin next argues that his due process rights were violated when the
district court failed to timely issue a scheduling order, in violation of Fed. R. Civ. P.
16(b). Rule 16(b) provides that a scheduling order “shall issue as soon as practicable
but in any event within 90 days after the appearance of a defendant and within 120
days after the complaint has been served on a defendant.” The defendants here
were served in May 2004, but the magistrate judge did not begin to contemplate
entering a scheduling order until late December 2004—more than seven months
later. Although such delays cannot be condoned, we note that the magistrate judge
did issue an order on June 14, 2004, advising Mr. Franklin that his failure to
respond to defendants’ motions to dismiss may result in summary dismissal of his
case. See Fed. R. Civ. P. 11 advisory committee’s notes (1983 amendment) (noting
that if a scheduling conference cannot be arranged within the 12-day period, the
court must issue the scheduling order after “some communication with the parties”).
Indeed, one circuit court faced with a similar challenge noted that a late-filed order
is not invalid. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 n.5
(9th Cir. 1992). In any event, here the court’s delay was harmless; Mr. Franklin
has not suggested—nor do we see—how the delay affected any of his “substantial
rights.” See Fed. R. Civ. P. 61; Stanciel v. Gramley, 267 F.3d 575, 580 (7th Cir.
2001).
We further note, as the district court explained, that all of the judges and
prosecutors named as defendants in this case are entitled to absolute immunity.
Smith v. Power, 346 F.3d 740, 742 (7th Cir. 2003) (recognizing absolute immunity
for prosecutors when acting as advocates for the State); Richman v. Sheahan, 270
F.3d 430, 434 (7th Cir. 2001) (recognizing that judges are entitled to absolute
immunity from damages for their judicial conduct).
The judgment of the district court is AFFIRMED.