United States District Court, S.D. Indiana, New Albany Division
ORDER ON DEFENDANT'S OBJECTION (DKT. 84) TO
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DKT. 83) ON
PLAINTIFF'S MOTION TO CERTIFY CLASS (DKT. 22), AND ON
PLAINTIFF'S MOTION FOR LEAVE TO FILE SURREPLY (DKT.
EVANS BARKER, JUDGE
putative class action under 42 U.S.C. § 1983 seeks to
recover for injuries resulting from the overdetention of
pretrial detainees at the Jackson County, Indiana, jail,
allegedly caused by the policies of Defendant Jackson County
Sheriff, contrary to County of Riverside v.
McLaughlin, 500 U.S. 44 (1991), and Gerstein v.
Pugh, 420 U.S. 103 (1975).
8, 2016, Plaintiff filed a class certification motion. Dkt.
22. We referred the motion to Magistrate Judge Debra McVicker
Lynch for a report and recommendation. Dkt. 48. Judge Lynch
recommended that the proposed class be certified, as
modified, Dkt. 51, a recommendation we adopted on March 31,
2017, Dkt. 61, over Defendant's objection. Dkt. 54.
time later, Defendant moved for reconsideration of that
ruling or for decertification of the class in light of
Ewell v. Toney, 853 F.3d 911 (7th Cir. 2017). Dkt.
72. We granted the motion for reconsideration and remanded
the class certification motion to Judge Lynch for a report
and recommendation on the effect of Ewell. Dkt. 78.
On July 10, 2018, Judge Lynch renewed her recommendation that
Plaintiff's proposed class be certified, Ewell
notwithstanding, to which Defendant timely filed the instant
objections. Dkt. 84. In the course of briefing, Plaintiff
moved for leave to file a surreply to Defendant's reply
in support of its objections. Dkt. 89.
facts of the case have been recited in the rulings described
above, so we assume the parties' familiarity with them.
For the reasons explained below, Defendant's objections
class certification motions are “[n]ondispositive
[m]atters, ” Fed.R.Civ.P. 72(a), they have been
expressly exempted by Congress from a magistrate judge's
power to “hear and determine.” 28 U.S.C. §
636(b)(1)(A). Accordingly, we must “make a de novo
determination of those portions of the report . . . or
recommendations to which objection is made.”
Id. § 636(b)(1).
Ewell, relying on Bridewell v. Eberle, 730
F.3d 672 (7th Cir. 2013), and Ramos v. City of
Chicago, 716 F.3d 1013 (7th Cir. 2013), the Seventh
Circuit stated, “[A] section 1983 plaintiff may not
receive damages for time spent in custody, if that time was
credited to a valid and lawful sentence.” 853 F.3d at
917. The question is whether this statement in its maximal
form is a holding, as Defendant contends, or dictum,
as Plaintiff contends and Judge Lynch held.
agree with Judge Lynch. Defendant's objections have not
persuaded us to set aside Judge Lynch's careful and
thoughtful analysis of Ewell, Bridewell,
analysis revealed that
none of these three decisions of the Seventh Circuit-nor any
other of which this court is aware-has foreclosed a damages
remedy for provable constitutional injury caused by named
defendants. [Plaintiff's] allegations, supported by
evidence of record, are that but for [Defendant's]
failure to present his case for a probable cause
determination in a timely manner, he would have been free (or
had a bail opportunity) rather than in custody. Applying as
an expansive principle- unmoored from the pivotal facts that
gave rise to it-that credit at sentencing for time served
always erases an otherwise proven constitutional injury,
would in this judge's view create an unwarranted
extension of [a proposition never] squarely presented to the
Seventh Circuit and never squarely decided by it.
R. & R. 13-14 (footnote omitted).
Judge Lynch observed that “the Seventh Circuit noted in
[Ramos and Bridewell] that the plaintiff
had failed to respond to the defendants' ‘no
damages' arguments.” R. & R. 14 n.6. Defendant
objects he “cannot be faulted for presenting an issue
that Ramos did not.” Br. Supp. 2. True enough,
but Judge Lynch did not fault Defendant for anything; she
correctly pointed out that waiver is relevant in
distinguishing holding from dicta, that is, is