David Gevas v. Mike Borkowski ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1538
D AVID G EVAS,
Plaintiff-Appellant,
v.
P ARTHA G HOSH,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 4833—Martin C. Ashman, Magistrate Judge.
S UBMITTED M ARCH 18, 2009—D ECIDED M AY 28, 2009
Before P OSNER, FLAUM, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. David Gevas appeals from the
district court’s order enforcing a settlement agreement
that he denies entering into. He also argues that the
court attempted to coerce him into settling. We affirm.
Gevas filed a complaint under 42 U.S.C. § 1983 claiming
that Dr. Partha Ghosh and other prison staff members and
administrators at Stateville Correctional Center were
deliberately indifferent to his serious medical needs
2 No. 08-1538
when they refused to address his requests to treat a
painful hand injury and a lump on one of his legs. The
district judge referred the case to a magistrate judge for
a settlement conference. A telephonic conference among
all of the parties was eventually held and an agreement
supposedly reached (no court reporter was present nor
transcript made). The magistrate judge made a minute
entry stating that the case had settled during a con-
ference that day and that all matters relating to the
referral had been resolved. Two days later, all of the
parties consented to having the magistrate judge
preside over subsequent proceedings.
The following month, Gevas sent a letter to the magis-
trate judge informing him that he would not sign the
release and settlement agreement. In the letter, Gevas
complained (principally) that the magistrate judge had
summarily rejected the merits of his claims against
Dr. Ghosh without giving him a chance to present his case.
Dr. Ghosh moved to enforce the settlement agreement.
Gevas replied that the agreement was void because, he
said, the magistrate judge’s assessment of the case had
been influenced by a lie that Dr. Ghosh had made in his
court filings about the extent of his earlier treatment of
Gevas. The magistrate judge later held another hearing in
which Gevas again participated by phone. After the
hearing, the magistrate judge granted the motion to
enforce the settlement and ordered Gevas to sign the
release and settlement agreement within 30 days or his
case would be dismissed. Gevas promptly appealed.
At the outset, we address Dr. Ghosh’s contention that we
lack jurisdiction over this case because the order from
No. 08-1538 3
which Gevas appeals is not final. As Dr. Ghosh notes, we
have jurisdiction if the order based on the settlement is
a “final decision.” See 28 U.S.C. § 1291; Sims v. EGA
Prods., Inc., 475 F.3d 865, 867 (7th Cir. 2007). Here, how-
ever, once the 30 days lapsed the order became a final
decision. See Otis v. Chicago, 29 F.3d 1159, 1165 (7th Cir.
1994) (en banc). It was final because it resolved all out-
standing claims and clarified that the suit was at an end.
See Head v. Chicago Sch. Reform Bd. of Trs., 225 F.3d 794,
800 (7th Cir. 2000).
As for the merits of Gevas’s arguments, he first chal-
lenges the magistrate judge’s order enforcing the settle-
ment because, he insists, he never actually agreed to a
settlement. He acknowledges being told by the magistrate
judge that he would receive $200 from Dr. Ghosh for
dismissing his claims, but says he never actually
accepted these terms. We review de novo whether the
parties reached a settlement agreement. Newkirk v. Vill. of
Steger, 536 F.3d 771, 774 (7th Cir. 2008).
Gevas’s argument fails because we have no way in which
to substantiate his denial that he ever agreed to a settle-
ment. No writing exists to prove that the parties reached
a settlement, even though we have encouraged judges
presiding over settlement conferences to dictate to a
court reporter their understanding of settlement terms
and make sure that the parties agree on the record to
those terms. Given the fallibility of memory and the
confluence of forces that may push for settlement, the
importance of memorializing any agreement cannot be
understated. See Lynch, Inc., v. Samatamason, Inc., 279 F.3d
4 No. 08-1538
487, 490-91 (7th Cir. 2002). But a judge’s failure to
record such an understanding does not invalidate the
settlement. Id. As we explained elsewhere, both parties
assumed the risk, when neither asked that any part of the
discussion be placed on the record, that the judge would
recall the discussion differently than they did. See id.Having made no such request, Gevas has to live with
the consequences. See id. at 491. A party that has a
chance to place any part of the discussion on the record
“will not be heard to complain that the judge’s recollec-
tion is inaccurate, least of all in a case in which the
party has nothing more than its own say-so to cast doubt
on the accuracy of that recollection.” Id. at 492. This is
especially the case here, where Gevas bears the burden
of providing the court with a record permitting mean-
ingful review of the alleged error. See Piggie v. Cotton,
342 F.3d 660, 663 (7th Cir. 2003).
Gevas also asserts that the magistrate judge attempted to
coerce him into settling by telling him at the outset of the
conference that his case against Dr. Ghosh was meritless.
A judge may not coerce a party into settling. See Goss
Graphics Sys., Inc., v. Dev Indus., Inc., 267 F.3d 624, 627 (7th
Cir. 2001); G. Heileman Brewing Co., Inc., v. Joseph Oat Corp.,
871 F.2d 648, 653 (7th Cir. 1989); Newton v. A.C. & S., Inc.,
918 F.2d 1121, 1128 (3d Cir. 1990). Coercion occurs when
a judge threatens to penalize a party that refuses to
settle. See, e.g., Goss Graphics Sys., Inc., 267 F.3d at 627;
Dawson v. United States, 68 F.3d 886, 897 (5th Cir. 1995);
Newton, 918 F.2d at 1128; Kothe v. Smith, 771 F.2d 667, 669
(2d Cir. 1985). But a judge may encourage settlement, see
Higbee v. Sentry Ins. Co., 253 F.3d 994, 995 (7th Cir. 2001);
No. 08-1538 5
Dawson, 68 F.3d at 897, and he or she is not prohibited from
expressing a negative opinion of a party’s claim during
discussions as a means to foster an agreement. Even if
we accept Gevas’s account of the magistrate judge’s
conduct, he does not show that the judge coerced a settle-
ment. Gevas asserts not that the judge threatened to
penalize him if he refused to settle, but only that he
prematurely and disparagingly assessed the merits of his
claim. Gevas may disagree with that assessment, but
frank disagreement does not constitute coercion.
A FFIRMED.
5-28-09