Œ Judge Herndon, of the United States District Court for the

Southern District of Illinois, sitting by designation.

1 Judge Herndon, in his July 21, 2005, decision, says the no

contest plea was offered to two counts of third degree sexual

assault and one count of false imprisonment. The judge may

very well be right, but Burke’s brief says it was one count each

(continued...)

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3287

REGINALD D. BURKE, SR.,

Plaintiff-Appellant,

v.

JANET JOHNSTON, PAMELA S. KNICK,

VICKI BENJAMIN, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02 C 503—David R. Herndon,

Œ Judge.

____________

ARGUED MAY 10, 2006—DECIDED JUNE 27, 2006

____________

Before FLAUM, Chief Judge, and BAUER and EVANS,

Circuit Judges.

EVANS, Circuit Judge. In 1997, Reginald Burke pleaded

no contest to two counts:1

 third degree sexual assault and
2 No. 05-3287

1 (...continued)

of sexual assault and false imprisonment. The State, in a sign

of things to come, ignores this difference in its brief. For that

reason we accept, as uncontradicted, Burke’s statement.

2 Like a number of matters that are bollixed up in this case, the

8-month-plus credit grant appears to be a bit of a windfall for

Mr. Burke. When he was taken into custody on the sexual assault

and false imprisonment charges on July 12, 1996, he tells us in his

brief he was also charged with, and detained in custody for, a

“violation of his parole” from a previous offense. That parole,

according to Burke’s brief, was granted on October 4, 1993, after

he served only 8 months of a 4-year sentence. When he went

into custody in 1996, he “owed” the State a little more than

3 years on his 1993 conviction. While the 1996 charges were

pending, Burke’s parole was revoked (on October 24, 1996, we are

told) by an administrative law judge. Burke was ordered to serve

(continued...)

false imprisonment. A Wisconsin circuit court in Walworth

County sentenced him to 5 years for the sexual assault

conviction and 2 years on the false imprisonment count. The

sentences were to run consecutively and also consecutive to

a separate sentence Burke was serving for a parole violation. In May 1999, the Wisconsin court amended its order

so that the 1997 sentences would run concurrently.

Later that year, Burke began filing various pro se pleadings, arguing that he had not been given credit for the more

than 8 months he spent in jail between his arrest on July

12, 1996, and his sentencing on March 20, 1997. All of his

attempts to get relief from the state courts were rejected.

Burke then began writing to officials within the Wisconsin Department of Corrections (DOC), making the same

claim for jail credit. After 2 years of correspondence with

various functionaries, Burke’s sentence was administratively modified by DOC personnel in January 2002 to reflect

credit for 8 months and 8 days of jail time.2
No. 05-3287 3

2 (...continued)

3 years, until July 12, 1999, on the revocation charge. Given that

Burke was apparently subject to a parole hold from July 12, 1996,

until October 24, 1996, we think it rather odd that the

DOC apparently found he was entitled to credit for that time on

the sentence he ultimately received in March of 1997 on the new

1996 charges. At the most, he might have been able to claim a

credit for the almost 5 months he spent in custody between

October 24, 1996, and March 20, 1997, when he was sentenced on

the 1996 convictions. But that “credit” may be illusory at best, for

he would be entitled to no credit for those 5 months if the time

was being served on, and counted against, the time he owed the

State on his 1993 conviction.

Burke then filed this federal action under 42 U.S.C.

§ 1983 against the State of Wisconsin. He claims he was

detained in jail longer than he should have been due to the

“deliberate indifference and delay” of DOC officials in

granting him the jail credit. Such a claim, if proved, would

establish a violation of Burke’s Eighth Amendment right to

be free from cruel and unusual punishment. See Campbell

v. Peters, 256 F.3d 695, 700 (7th Cir. 2001); Moore v.

Tartler, 986 F.2d 682, 686 (3rd Cir. 1993). For this alleged

injury Burke seeks money damages.

This case is complicated by Burke’s various re-arrests and

parole revocations and, as we will see, by the State’s

shifting legal theories. But the question we must decide is a

straightforward one: whether Burke may proceed to litigate

the merits of his § 1983 claim in federal court. The State

has raised two objections. First, it maintains that Burke’s

case is jurisdictionally barred by the Rooker-Feldman

doctrine because (the State says) he is seeking to litigate in

federal court the same claim regarding jail time credit on

which he lost in the Wisconsin state courts. RookerFeldman was the basis on which the district court granted

the State’s motion to dismiss, from which Burke appeals,

and we review the district court’s decision on subject matter
4 No. 05-3287

jurisdiction de novo. Brokaw v. Weaver, 305 F.3d 660, 664

(7th Cir. 2002). The State also argues that Burke’s deliberate indifference claim is barred by state law issue preclusion.

The Rooker-Feldman doctrine recognizes that federal

district courts do not have subject matter jurisdiction to

hear appeals from state court decisions; only the Supreme

Court has the authority to reverse or modify a state court

judgment. Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 284 (2005); Rooker v. Fidelity Trust Co., 263

U.S. 413, 414-16 (1923). Precisely stated, the doctrine bars

“cases brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the district

court proceedings commenced and inviting district court

review and rejection of those judgments.” Exxon Mobil

Corp., 544 U.S. at 284.

The State has had difficulty making up its mind about the

applicability of Rooker-Feldman to this case. After arguing

Rooker-Feldman and winning on the issue in the district

court, the State did a cut-and-run. In its brief to this

appeal, it conceded after “very close review” that Burke’s

§ 1983 action was not jurisdictionally barred under RookerFeldman. Then, at oral argument, its counsel sheepishly

informed us that the State was flip-flopping again and was

standing by its earlier position that Rooker-Feldman did

indeed apply. One reason for the change of heart, the

State’s counsel explained, was that because the RookerFeldman bar is jurisdictional it cannot be waived. The State

appears to misunderstand the difference between waiver

and a concession that, upon better analysis, a particular

jurisdictional bar simply does not apply to a given set of

circumstances. We think the State should have stuck with

its concession because this is not a Rooker-Feldman case.

In his § 1983 claim, Burke is not seeking federal review

of the state court decisions that denied him the jail credit

he believed he was owed. It would make no sense for him to
No. 05-3287 5

do so, since he ultimately got the credit (and as we noted in

our second footnote, a generous credit indeed) he wanted by

going through the DOC. This case is about a different

claim: that the DOC officials who gave Burke the credit

took too long to do so because they were deliberately

indifferent. That claim was never presented to or decided by

the Wisconsin courts, and so Rooker-Feldman presents no

jurisdictional bar.

At oral argument, the State’s counsel asserted the view

that the DOC lacked the authority to grant Burke his

8 months and 8 days of jail time credit. The State and

Burke disagree over the meaning of a provision in the

Wisconsin statutes governing jail time credit. Wis. Stat.

§ 973.155(1)(a) provides, in pertinent part: “A convicted

offender shall be given credit toward the service of his or

her sentence for all days spent in custody in connection

with the course of conduct for which sentence was imposed.”

Normally such credits are applied by the sentencing court.

However, a bit later the statute says: “If this section has

not been applied at sentencing to any person who is in

custody . . . the person may petition the department to be

given credit under this section.” Wis. Stat. § 973.155(5).

Burke understands § 973.155(5) to mean that the DOC

enjoys independent authority—what his counsel at oral

argument called “de novo jurisdiction”—to consider and

grant jail time credit, regardless of what state courts have

previously done. And indeed, this second-bite-at-the-apple

approach appears to be the way the DOC interprets the law,

since it gave Burke his credit even though the record shows

it was aware that the sentencing judge had previously

declined to do so.

The State, on the other hand, apparently believes the

DOC can act only in the absence of a finding by a judge. In

this case, it says, the jail-time credit was “applied at sentencing,” Wis. Stat. § 973.155(5), in the sense that the judge
6 No. 05-3287

considered Burke’s request and rejected it. The State’s

counsel told us at oral argument that “upon careful review”

of the sentencing statute, it was “clear” that the DOC “had

no authority” to give Burke the credit he received. The

State believes that this position supports its RookerFeldman argument, reasoning as follows. A federal court

could not grant Burke relief on his deliberate indifference

claim without finding that he was actually entitled to jail

time credit. Since a state court had declined to grant that

credit, the DOC had no authority to do so. Therefore, in

entertaining Burke’s § 1983 suit, a federal court necessarily

would have to review the controlling state court judgment.

We cannot agree with the State’s analysis. If a federal

plaintiff “present[s] some independent claim, albeit one that

denies a legal conclusion that a state court has reached in

a case to which he was a party . . . , then there is jurisdiction and state law determines whether the defendant

prevails under principles of preclusion.” Exxon Mobil Corp.,

544 U.S. at 293 (quoting GASH Assocs. v. Village of

Rosemont, Ill., 995 F.2d 726, 728 (7th Cir. 1993)).

In any case, the state has provided us with no interpretive authority for its critical premise that the DOC lacks

power to grant jail time credit after a state court has

declined to do so. (Nor, for that matter, has Burke pointed

to any authority other than Wis. Stat. § 973.155(5) itself for

his position that the DOC has “de novo jurisdiction” to

consider jail time credit.) Late in the game, the State has

made the DOC’s independent authority to grant jail time

credit a key issue in its defense. Yet the issue appears

nowhere in the State’s brief. For present purposes, we

assume that the DOC had the authority to do what it did.

See Dovenmuehle v. Gilldorn Mortgage Midwest Corp., 871

F.2d 697, 701 n.5 (7th Cir. 1989) (issues raised for the first

time at oral argument are deemed waived). But it appears

to us that this is a pivotal question of state statutory

interpretation which requires fuller development—by
No. 05-3287 7

both parties—when the district court considers the merits

of Burke’s claim. Should the State decide to mount a proper

argument on this point when it returns to district court,

and should the district court find itself persuaded that the

DOC acted beyond the scope of its authority in granting

Burke his credit, then Burke obviously would not have a

viable claim for deliberate indifference. It is also possible

that the DOC had the statutory authority to do what it did

but simply erred in eventually concluding that Burke was

entitled to jail time credit (see our second footnote). It

would seem an off outcome, of course, for Burke to prevail

on a claim that DOC officials were deliberately indifferent

by dragging their heels in reaching a conclusion that

ultimately gave him an unjustified windfall. While we agree

that incarceration after the time specified in a sentence has

expired violates the Eighth Amendment if it is the product

of deliberate indifference, Campbell, 256 F.3d at 700, we

have not addressed the elements of a deliberate indifference

claim in this context. The Third Circuit has held that a

plaintiff must establish three elements: that a prison

official knew of the prisoner’s problem and thus of the risk

that unwarranted punishment was being inflicted; that the

official either failed to act or took only ineffectual action

under the circumstances; and that there was a causal

connection between the official’s response to the problem

and the unjustified detention. Moore, 986 F.2d at 686.

Nor is Burke’s deliberate indifference claim barred by

state law issue preclusion. Federal courts give preclusive

effect to state court judgments to the extent provided by

state law. See 28 U.S.C. § 1738; Allen v. McCurry, 449 U.S.

90, 95-96 (1980). Under Wisconsin law, to have preclusive

effect an issue must have been “actually litigated” in the

first action and must have been necessary to its outcome.

May v. Tri-County Trails Comm’n, 583 N.W.2d 878, 880

(Wis. Ct. App. 1998).

In its brief the State asserts stubbornly that with the

present federal case, “Burke is once again challenging the
8 No. 05-3287

amount of jail time with which he should be credited.” As

we have explained, Burke in fact does not challenge the

amount of the jail time credit he received. He got the

credit from the DOC, so the prior litigation of that issue

is irrelevant to his present claim. Burke alleges deliberate

indifference on the part of DOC officials whom he says did

not grant it to him as early as they should have. Since the

issue of deliberate indifference was not litigated in state

court and was not a factor in any previous judgment against

Burke, Burke’s claim is not barred by principles

of preclusion.

For all these reasons, the judgment of the district court is

REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-27-06