101 B.R. 921 (1989)
The MIDLAND MUTUAL LIFE INSURANCE COMPANY, Petitioner,
v.
The Honorable Barbara J. SELLERS, Judge, United States Bankruptcy Court, Southern District of Ohio, Eastern Division, Respondent.
Bankruptcy No. C-2-89-0522.
United States District Court, S.D. Ohio, E.D.
June 23, 1989.
*922 *923 John M. Adams, William M. Todd, Jack R. Pigman, Scott E. North, Randall W. Knutti, Teri G. Rasmussen, Polly J. Harris, Porter, Wright, Morris & Arthur, Prof. Howard P. Fink, The Ohio State University College of Law, Columbus, Ohio, for petitioners The Midland Mut. Life Ins. Co., AmeriFirst Bank, and Comerica Bank.
John M. Newman, Jr., David G. Heiman, John W. Zeiger, Jones, Day, Reavis & Pogue, Columbus, Ohio, for intervenor-respondents Cardinal Industries, Inc. and Cardinal Industries of Florida, Inc.
Russell A. Kelm, Daniel R. Swetnam, John A. Gleason: Schwartz, Kelm, Warren & Rubenstein, Columbus, Ohio, for intervenor-respondent Buckeye Federal Sav. & Loan Ass'n.
Leon Friedberg, Benesch, Friedlander, Coplan & Aronoff, Columbus, Ohio, Stuart Hirshfield, John F. Collins, Lori L. Jones, Dewey, Ballantine, Bushby, Palmer & Wood, New York City, for intervenor-respondent Official Committee of Unsecured Creditors of Cardinal Industries, Inc.

OPINION AND ORDER
KINNEARY, District Judge.
This matter comes before the Court to consider the petition of The Midland Mutual Life Insurance Company ("Mutual") for a writ of mandamus against the Honorable Barbara J. Sellers who is a judge of the United States Bankruptcy Court for the Southern District of Ohio. The Court has the authority to consider the petition pursuant to 28 U.S.C. § 1651 (1982).
Cardinal Industries, Inc. and Cardinal Industries of Florida, Inc. ("Cardinal") manufacture standardized modular housing units for use in various structures, such as apartments, motels, retirement villages, and single-family residences. Cardinal, along with several wholly-owned subsidiaries, is a vertically integrated business which plans, builds, and manages such structures. On May 15, 1989, the two Cardinal corporations filed petitions under Chapter 11 of the Bankruptcy Code. Cardinal continues to operate its businesses as a debtor-in-possession.
Cardinal or one of its affiliates serves as general partner in approximately 1000 limited partnerships. These partnerships hold title to the real property for the projects developed under its direction. Given Cardinal's desire to reorganize, it seeks to enjoin creditors from foreclosing upon the real property held by the partnerships. It hopes that injunctive relief would permit it to marshall its assets and the partnerships' *924 real property, in an effort to undertake an integrated plan of reorganization. In order to gain such relief, Cardinal filed on May 23, 1989, an adversary proceeding against a putative defendant class for relief pursuant to the automatic stay and ancillary equitable relief provisions. 11 U.S.C. §§ 105(a), 362(a) (1982 & Supp. IV 1986). The two named defendants were Buckeye Federal Savings and Loan Association ("Buckeye") and AmeriFirst Bank ("AmeriFirst").
In the action, Cardinal seeks a declaratory judgment that the section 362(a)(2) stay applies to all actions against the partnerships and the titles they hold, the violations of which the court may prohibit under section 105(a). In the alternative, Cardinal seeks an injunction under section 105(a) against actions of putative class members against the partnerships by expanding the scope of the automatic stay.
On May 23, 1989, Cardinal filed a motion for a temporary restraining order, temporarily certifying a defendant class and restraining the class from pursuing actions against the partnerships or their property. The bankruptcy court held a hearing on the motion the following day. Cardinal, one of two putative representatives, and non-party putative class members argued before the court.
On May 25, 1989 the court declined to certify a class, citing concerns over the breadth of the proposed class, but issued a temporary restraining order to bar actions against the partnerships or partnership property. It was set to expire after ten days (excluding weekend days and holidays). On June 2, Comerica filed a motion to dissolve the restraining order. On June 7, though, Cardinal filed an unopposed motion to extend the temporary restraining order, which the court granted on June 9 ("the June 9 order"). The court held no hearing and gave no notice to parties prior to the June 9 order. The extension was to last until June 23.
During the pendency of the temporary restraining order, the parties undertook negotiations to reach a settlement. On May 31, Cardinal attempted to address the court's concerns with the adequacy of the class by amending its complaint. Cardinal named Buckeye, AmeriFirst, Crossland Savings ("Crossland"), Comerica Bank ("Comerica"), Crown Savings Association ("Crown"), Florida Federal Savings Bank ("Florida Federal"), and Mutual as representatives of a narrower class than that propounded in the complaint, a class of all mortgagees and secured lenders of the partnerships.
On June 2, Cardinal met with six of seven defendants it named in the amended complaint to discuss a possible settlement. Cardinal drafted proposed settlement papers and distributed them to all named defendants on June 4.[1] On Monday, June 5, the defendants discussed the proposed terms and agreed to meet with Cardinal's attorneys the next day. Midland felt that such discussions were improper and withdrew from the negotiations. AmeriFirst's counsel spoke against settlement by telephone at the June 5 conference and did not participate at later negotiations.
On June 6, Cardinal met with the five remaining defendants to continue settlement talks. After the day's session, Comerica withdrew from the negotiations.[2] The four remaining defendants, Buckeye, Crossland, Crown, and Florida Federal, reached a compromise on the evening of June 7.[3] The non-settling defendants refused to participate in it. On June 8, lawyers for Cardinal and two of the settling defendants filed the settlement papers, see supra note 1, with the court. These attorneys gave the court a copy of the papers, summarized the contents of the papers, and asked the judge to sign an order ("the June 8 order") temporarily certifying a defendant *925 class and setting the date for a settlement hearing on June 19. The order also provided for notice to putative class members and incorporated by reference an alternative schedule to be followed if the court or the district court were to reject the settlement terms.
Midland filed this petition for a writ of mandamus and/or prohibition on June 15, 1989, seeking review of the June 8 and June 9 orders. On June 19, the Court granted temporary relief to Midland by enjoining Judge Sellers from conducting the settlement hearing scheduled for June 19. On June 20, the Court held an evidentiary hearing at which it heard testimony concerning certain allegations which Midland now lodges against Judge Sellers and the harm purportedly stemming from the June 8 and 9 orders.
Midland believes that Judge Sellers entered into a collusive scheme with Cardinal and the settling defendants to reach a compromise in the case to the detriment of other putative class members. Judge Sellers, it contends, engaged in ex parte contact with these parties pursuant to the scheme. This scheme and ex parte contact tainted the June 8 and 9 orders. Accordingly, Midland maintains that the Judge's misconduct warrants the Court's intervention to set the two orders aside.
It also argues that the June 8 and 9 orders deprive it of due process because the Judge signed them without notice or hearing. Midland states that if given an opportunity to be heard, it would have argued vigorously against extending the restraining order and certifying the class. Finally, it argues that the orders are clearly erroneous and the irreparable harm that they cause is so great that this Court must dissolve them. It notes that the lengthy course of appeal would not provide it an adequate remedy.
Cardinal denies any impropriety on the part of Judge Sellers. It claims that she did not undertake ex parte discussions of the case, nor is there any evidence of a collusive scheme among the settling parties and the judge to compromise the case to the detriment of class members who were not present. It claims that Midland had actual notice of the June 8 order, having participated in settlement negotiations at which the proposed order, among other papers, see supra note 1, was exhibited and discussed. Finally, it contends that notice of the May 25 temporary restraining order was adequate for the June 9 extension.
Having received evidence in this matter and having considered the thorough briefs filed by each interested party, the Court now considers the petition for the writ of mandamus and/or prohibition filed by Midland. The Court will consider first whether Midland can seek mandamus relief, despite possible alternative means for relief. The Court will then determine whether Midland is entitled to relief, given the facts in this case.

I.
In general, the remedy of mandamus[4] is an extreme one, to be used only in *926 extraordinary situations. Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976). It is available only when no other adequate means of relief is available. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). "Only exceptional circumstances, amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy." Id. Moreover, petitions for writs of mandamus or prohibition "may not be used in the federal courts as a substitute for readily available appeal procedure." National City Bank v. Battisti, 581 F.2d 565, 568-69 (6th Cir.1977) (citing Will v. United States, 389 U.S. 90, 97, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967); Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 30-31, 63 S.Ct. 938, 943-44, 87 L.Ed. 1185 (1943); United States v. United States District Court, 444 F.2d 651, 655 (6th Cir.1971), aff'd, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)); see In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 304 (6th Cir.1984). "It is, of course, the general rule that mandamus may not be substituted for appeal." National City Bank, 581 F.2d at 569 (quoting Roche, 444 F.2d at 655).
Given the somewhat narrow circumstances under which mandamus is available, the first threshold issue before the Court is whether the right of Midland to file a notice of appeal and a motion for leave to appeal entails that mandamus is per se unavailable to Midland. The Court holds that it is not.
To argue that Midland has available to it the remedy of appeal would be to oversimplify the matter, especially given Cardinal's argument that the orders are interlocutory and unappealable. Perhaps the bare, formal right to file a notice of appeal and motion for leave to appeal is a sufficient remedy, precluding the necessity of a petition for a writ of mandamus. Such a remedy, though, would be hollow indeed if Cardinal is correct that the orders are interlocutory and an appeal is inappropriate. Leaving Midland the remedy of the right to file an appeal may very well bar any true substantive relief for it.
The Court declines to adopt such a position. Mandamus may be necessary in some circumstances to correct abuses by lower court judges. Assuming the orders to be unreviewable interlocutory ones, the absence of mandamus would allow some corruptions to remain unchecked. The Court, then, holds that the right to file a notice of appeal and a motion for leave to appeal is not itself a sufficient remedy which would preclude mandamus review.

II.
Having held that mandamus is not per se unavailable to litigants simply due to the existence of the right to file a notice of appeal and a motion for leave to appeal, the second threshold issue is whether, under the facts of this case, Midland has available to it a remedy which it could have asserted instead of mandamus. Certainly appeal is the prime candidate. Accordingly, the Court begins its inquiry by determining whether the orders issued by Judge Sellers on June 8 and 9 are appealable.
The statute granting the Court jurisdiction to hear appeals provides "The district courts . . . shall have jurisdiction to hear appeals from final judgments, orders, and decrees, and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges." 28 U.S.C. § 158(a) (Supp IV.1986). Accordingly, the Court must consider first whether the two orders are "final." If the June 8 and 9 orders were "final" decisions, Midland would have the right to appeal and this Court would be required to entertain it. In re Sun Valley Foods Co., 801 F.2d 186, 189 (6th Cir.1986).
For civil litigation in general, a final decision is one which "ends the litigation on its merits and leaves nothing for the court to do but execute the judgment." Id. (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)).[5] The standards of finality in bankruptcy *927 cases, however, are laxer than those in other civil contexts. Given the unique cumulative nature of discrete "units of litigation" in bankruptcy, courts are willing to treat as "final," those orders which dispose of individual units. E.g., In re Saco Local Dev. Corp., 711 F.2d 441, 443-46 (1st Cir. 1983). An interlocutory order is, by contrast, one "which does not finally determine a cause of action but only decides some intervening matter pertaining to the cause, and which requires some further steps to be taken in order to enable the court to adjudicate the cause on the merits." 1 Collier on Bankruptcy, supra note 5, ¶ 3.03, at 3-181.
The orders presented here are not "final." The June 8 order, for instance, is not "final" because it does not adjudicate a claim or an aspect of the merits of the adversary proceeding. Nor does the order even provide a formal, somewhat permanent decision on the class certification issue, which would necessarily be provisional anyway, Fed.R.Civ.P. 23(c)(1). Instead, it postpones final determination until the Settlement Hearing or a class certification hearing. Accordingly, the June 8 order did not "finally determine" anything.[6]
Moreover, temporary restraining orders are not generally "final."[7] Despite the looser standard of finality under section 158 appeals, the nature of the temporary restraining order militates against expanding the concept of finality to include them. Temporary restraining orders are of brief duration, in which even expedited appellate review would be difficult. Also, preliminary and permanent injunctions often supplant them. Furthermore, bankruptcy courts should have an adequate opportunity to receive a full presentation of the issues of fact and law and to explain their decisions.[8] These factors suggest that appellate review as of right would be inappropriate, even under section 158.
Midland argues, however, that the temporary restraining order entered on May 25 extended beyond the time limit on such orders, Fed.R.Civ.P. 65(b). The label given to an injunctive order is not controlling and when a temporary injunction exceeds the Rule 65(b) limit, an appellate court would treat it as a reviewable preliminary injunction under 28 U.S.C. § 1292(a)(1) (1982).[9] Given the Court's power under section 158, Midland argues that the Court should grant it appellate review.[10]
Temporary restraining orders must expire within ten days of issuance, although the court may grant an extension for "a like period," another ten days. Fed. R.Civ.P. 65(b). When a rule prescribes a period of time is less than eleven days, intermediate Saturdays, Sundays, and legal holidays are excluded in the computation of the time prescribed. Fed.R.Civ.P. 6(a). The day of the order itself is also excluded. Id.[11]
*928 From May 25, the initial temporary restraining order was to expire after ten days. This actual time period consists of fifteen days. When the court excluded two intermediate Saturdays, the two intermediate Sundays, and Memorial Day, the expiration date of June 9 was consistent with Rule 65(b). For purposes of the rule, then, the May 25 temporary restraining order lasted only ten days. The bankruptcy court extended the temporary restraining order from June 9 until June 23. This period of time is actually fourteen days, but excluding Saturdays and Sundays again, for the purpose of the rule the extension lasted but ten days. With the May 25 order lasting ten days and the June 9 extension lasting another ten days, the court complied with Rule 65(b) and this Court sees no grounds for treating the June 9 order as a preliminary injunction.
The Court concludes, then, that the June 8 and 9 orders are not "final." Accordingly, the Court need not entertain appeals from them as a matter of right. The district court does, however, have the power to entertain appeals from interlocutory orders and decrees of bankruptcy judges with leave of the district court. 28 U.S.C. § 158(a) (Supp. IV 1986); see In re Looney, 823 F.2d 788, 790 (4th Cir.1987). Such appeals "shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts." 28 U.S.C. § 158(c) (Supp. IV 1986).
In general, a useful standard for the determination of whether a district court ought to exercise its discretion to entertain an interlocutory appeal[12] is the collateral order doctrine.[13] The doctrine may apply to interlocutory section 158(a) appeals by analogy. Under the collateral order doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in order for Midland to gain review despite the lack of finality, the order "must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment," Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978).
The collateral order doctrine here, however, would not militate in favor of an exercise of the court's discretion under section 158 to review the June 8 order. The temporary certification of a class for purposes of initiating certification proceedings[14] is not a final resolution of even the limited matter of class certification before the bankruptcy court. Moreover, although class certification itself would be of some importance, the decision to treat certain creditors as a class for purposes of sending notices has far less significance.
In short, the collateral order doctrine is one possible generally applicable standard for guidance in exercising the Court's discretion to hear an interlocutory appeal. Application of it would not warrant review of orders of the kind issued on June 8 and 9. Nonetheless, the allegations of impropriety lodged against Judge Sellers suggest another basis for the exercise of the Court's discretion. If a party alleges abuses such as collusion with some parties to the detriment of others, appellate review would provide a means of ferreting out abuses and checking them, if the Court finds them to exist.[15]
*929 Midland's allegations strike at the heart of Judge Sellers' integrity and thus would merit an exercise of this Court's discretion; if indeed the Judge conspired with parties to enter a collusive agreement to the detriment of all other creditors, Midland should not be forced to suffer a single day longer the burden of tolerating further abusive conduct on her part denying it due process. By contrast, if Judge Sellers perpetrated no harm upon Midland, then she merits quick vindication of any wrongdoing to allow a return to the orderly adjudication of the Adversary Proceeding.
Given that the facts in this case militate in favor of an exercise of appellate jurisdiction, the issue becomes whether it provides an adequate substitute for mandamus, making the mandamus remedy superfluous. The Court holds that the mere fact that discretionary appellate review of interlocutory orders is indicated does not preclude mandamus relief.
Appellate courts can resolve some disputes without factual determinations simply on the record presented. In this case, for instance, an appeal could resolve the dispute concerning the adequacy of the time Judge Sellers provided for discovery of class certification issues. Her June 8 order would be part of the record and would be open for this Court to interpret and evaluate in light of the law concerning due process. The fact of her order and the procedural history would be on the record, requiring no factual findings to resolve the dispute.
For this Court to take appellate jurisdiction in light of the allegations of ex parte contact and collusion is another matter, though. Midland would likely prefer this Court to conduct an evidentiary hearing on the claims it has lodged than to appeal, necessitating this Court to vacate the orders and remand the cause to Judge Sellers for a factual hearing; Midland would be in the difficult position of presenting evidence of Judge Sellers' misconduct at a hearing in which she herself is presiding.[16] The fundamental fairness of such a procedure might be in question, but this Court would not bar Midland's appeal on these grounds, if Midland were willing to undertake such a procedure on appeal.
In short, the district court's capabilities of gathering evidence of judicial misconduct are superior in the mandamus proceeding to those in appellate proceedings. Accordingly, the Court holds that Midland is not precluded from seeking review of an interlocutory bankruptcy court order simply because factual circumstances warrant appellate review under 28 U.S.C. § 158.
The final threshold question is whether Midland has available to it some other remedy besides appeal which provides an adequate substitute for the drastic remedy of mandamus. The Court is unaware of any administrative or judicial remedy available to check the abuses it alleges and bar Judge Sellers from conducting the Adversary Proceeding in the manner of which Midland accuses her. Therefore, the Court moves now to the merits of Midland's contentions on mandamus.

III.
The Court now considers the merits of Midland's petition for mandamus. Having held that Midland is not barred from seeking relief, despite the appellate remedy which it might have pursued, the Court must now determine whether (1) Judge Sellers' improper conduct warrants dissolution of her June 8 and 9 order and (2) if no improper conduct took place, whether her June 8 and 9 orders were nonetheless so erroneous and the immediate irreparable harm, incurable by appeal, is so great, that mandamus is warranted.
*930 A. The Alleged Misconduct of Judge Sellers
Midland contends that Cardinal and four defendants engaged in secret negotiations which culminated in a meeting with Judge Sellers to hammer out terms and procedures for a proposed settlement. After these meetings, the Judge issued a June 8 order certifying a defendant class for notice of a settlement hearing. The order also, according to Midland, barred discovery on class certification issues, depriving it of the opportunity to gather evidence before the Settlement Hearing, which Midland could marshall in opposition of class certification at the Settlement Hearing. The next day, Midland states, the Judge entered an order without notice to it extending a temporary restraining order which Judge Sellers had issued on May 25.
Midland contends that the meeting with Cardinal and the four settling defendants constituted improper ex parte contact which taints both the June 8 and June 9 orders. It states that they are the product of a collusive agreement among Cardinal, the four settling defendants, and Judge Sellers and for the Judge to sign them was an arbitrary and capricious action and an abuse of discretion.
Midland also contends that the June 8 and 9 orders are ex parte in the sense that she issued the orders without notice to all parties and without a hearing at which the bankruptcy court could entertain testimony from interested parties. For this reason as well, the two orders violate due process, and this Court must therefore dissolve them.
Cardinal, by contrast, states that all named parties met for settlement negotiations and Midland purposefully absented itself from them. Comerica and Amerifirst also withdrew from negotiations of their own volition. Given their knowledge of the course of negotiations, Cardinal states, the meetings could hardly be termed "secretive." Midland knew of the negotiations and knew of the possibility that Judge Sellers would meet with the negotiating teams in short order to arrange proper proceedings preliminary to a settlement hearing. Furthermore, the meeting with Judge Sellers was for the purpose of presenting a copy of the settlement papers, see supra note 1. Therefore, meeting with Judge Sellers was not prejudicial ex parte contact.
Cardinal contends, moreover, that the two orders were not ex parte in the sense that the Judge signed them without giving the other parties notice and an opportunity to be heard. First, the non-settling parties received actual notice of the proposal to certify a temporary class during the course of settlement negotiations. Cardinal argues that it sent copies of settlement papers, see supra note 1, to all seven named defendants on the evening of Sunday, June 4. One of the papers was a proposed order which contemplated the creation of a temporary class and the distribution of notices prior to a Settlement Hearing. The Judge signed this order on June 8. Midland, having received a copy of the order, was therefore on actual notice that the settling parties intended to present the order to Judge Sellers.
Second, although Judge Sellers heard no testimony concerning the extension of the temporary restraining order which it issued on June 9, Cardinal argues that the Judge's May 25 order granting the temporary restraining order provided that notice of that order would constitute notice of any extension of it which Judge Sellers might grant. Having received the May 25 order, and having argued on the motion for temporary restraining order, Cardinal argues that Midland is not in a position to claim that it was without notice of the extension issued on June 9.
1. Ex Parte Contact Between Counsel and Judge Sellers
With regard to judicial impropriety, the issue is whether Judge Sellers engaged in ex parte contact with counsel for Cardinal and two settling defendants which rises to the level of a due process violation, necessitating vacation of the June 8 and 9 orders. Not all ex parte contact violates due process and the issue becomes whether "the ex parte contacts unfairly *931 prejudiced" one or more of the parties. Simer v. Rios, 661 F.2d 655, 679 (7th Cir. 1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982).
Upon consideration of the evidence presented at a factual hearing on Tuesday, June 20, the Court finds that no prejudicial ex parte contact between Judge Sellers and the settling parties. Cardinal admits that one of its attorneys and lawyers representing two settling defendants met with Judge Sellers, handing her a copy of the settlement papers and telling her of the gist of the settlement. The Court finds no evidence that the parties discussed the merits of the Adversary Proceeding or the fairness of the settlement. In general, the Court finds absolutely no evidence to support allegations of collusion between the Judge, Cardinal, and the settling defendants.
2. The Lack of Notice and Hearing
The next issue is whether the bankruptcy court's failure to issue notices to interested parties and to hold a hearing prior to the June 8 and 9 orders constituted a violation of due process. Not every ex parte proceeding is violative of due process. See, e.g., Simer v. Rios, 661 F.2d 655, 679 (7th Cir.1981). The issue is, instead, whether the non-settling defendants suffered prejudice from it. In this case, the Court finds no due process violation stemming from the want of notice and opportunity to be heard in the issuance of these orders.
As for the June 8 order, the Court finds no due process violation in the bankruptcy court's lack of notice and failure to hold a hearing prior to its issuance. The issue in part here is whether notice and a hearing are required before the judge can issue an order intended to generate notice that a hearing is to take place in the future. The Court holds that it is not. If every order of the bankruptcy court setting a schedule for future hearings itself required notice and a hearing, the court would be enmeshed in endless proceedings, an infinite regression of hearings which themselves might require notice and hearings, and so on.
Other aspects of the June 8 order, however, would not elicit a similar specter of an infinite regression of notice and hearings. Specifically, the order allegedly cuts off discovery of class certification issues and bars the production of certain materials which Midland sought and arranged to receive. Moreover, the petitioner contends that the order left inadequate time to prepare for both the June 19 Settlement Hearing and the June 30 hearing. Further, the order cancelled a class certification hearing, to the termination of which Midland would have objected. Finally, Midland complains that the order did not provide the parties adequate notice of and the right to be heard in the Settlement Hearing.
The failure to give notice of and holding a hearing before the June 8 order to litigate these issues, which are of some concern, does not violate due process. For each of the issues could have been raised at the Settlement Hearing, at a motion to vacate the June 8 order, or at an appeal. See, e.g., Simer v. Rios, 661 F.2d 655, 679-80 (7th Cir.1981). The Court finds no evidence of prejudice given the then-impending Settlement Hearing at which Midland could have presented all of its concerns.
Turning to the extension of the temporary restraining order, the Court notes that the bankruptcy court held that the notice of the May 25 hearing constituted sufficient notice for any extension of it. Cardinal Industries, Inc. v. Buckeye Federal Sav. & Loan Ass'n, No. 2-89-0203, (Bankr.S.D. Ohio May 25, 1989). Moreover, the court heard arguments from all parties concerning the temporary restraining order. Furthermore, the parties were well aware that the May 25 order was set to expire on June 9[17] and expected that the Judge would extend the order. Finally, Cardinal had filed with the court a motion to extend to which no party objected. Given these facts, the Court *932 concludes that the non-settling defendants suffered no prejudice.
In short, the Court finds no grounds on the basis of ex parte contact, ex parte orders, or judicial impropriety which would justify the drastic remedy of mandamus. The evidence simply fails to show the collusion and malfeasance of which Midland accuses Judge Sellers.[18] These findings of law and fact, however, do not end the inquiry and the Court now turns to the contention that the June 8 and 9 orders are erroneous and the irreparable harm so imminent and great that mandamus is warranted.
B. Erroneous Rulings and Irreparable Harm
Midland contends finally that the orders of June 8 and 9 are erroneous. Further, appeal would be an inadequate remedy since irreparable harm could occur before the Court could hear the merits of the matters on appeal, especially if the appeals were unreviewable interlocutory rulings. Cardinal, by contrast, argues that the rulings were correct. If Midland can show (1) that it has no adequate remedy from the orders, (2) that it might incur irreparable harm which appeal could not correct, (3) that the bankruptcy court's orders were clearly erroneous, and (4) that the order raises new and important legal issues, mandamus is warranted. In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 304 (6th Cir.1984). The Court will now consider each order in turn to determine if Midland has made the showing of the existence of the items enumerated in Bendectin.
1. The Certification of a Defendant Class
On June 8, Judge Sellers ordered the creation of a defendant class in the Adversary Proceeding and ordered further that class members be given notice of a settlement hearing to be held on June 19th. Midland claims that such certification was erroneous since the putative class would not satisfy the preconditions to certification, Fed.R.Civ.P. 23(a), and would not be a proper device, Fed.R.Civ.P. 23(b)(1)(B). Cardinal claims that the June 8 order certified no class. Therefore, Judge Sellers could not have erred in rulings on the requisites of class certification.
It is somewhat misleading for Cardinal to claim that the June 8 order provided for no class certification. Indeed, Judge Sellers stated that "this action shall be maintained as a class action." Cardinal Industries, Inc. v. Buckeye Fed. Sav. & Loan Ass'n, No. 2-89-0203, slip op. at 2 (Bankr.S.D. Ohio June 8, 1989). Nevertheless, Midland failed to note that Judge Sellers provided that the defendant class certified in the June 8 order was tentative and "solely for the purposes of the Settlement Hearing." Id. In fact, the court stressed that certification would be "subject to a formal ruling on class certification at the Settlement Hearing." Id.
The Court declines to rule on the propriety of a class action generally in the Adversary Proceeding, since the issues regarding the certification of a Rule 23(b)(1)(B) class are not before the Court. Rather, Midland's petition raises as a controversy only the temporary class certified on June 9. Midland's briefs seem to put in issue the class certification itself, which would require the Court to consider these issues de novo even before Judge Sellers has had a chance to consider them. Thus, the Court declines to consider such issues, but will instead confine its review to that which Judge Sellers has already held.
The Judge's certification of the temporary class was not arbitrary, capricious, or an abuse of discretion. Such temporary classes facilitate the distribution of notice *933 to those whom the bankruptcy court might include in a class when ruling on the class certification issues at the Settlement Hearing. In re Mid-Atlantic Toyota Antitrust Litig., 564 F.Supp. 1379, 1388 n. 13 (D.Md. 1983). Also, it is unnecessary for the judge to rule on the certification issues before arranging such a temporary class for the purpose of notice of a timely certification hearing. Philadelphia Elec. Co. v. Anaconda Am. Brass Co., 42 F.R.D. 324 (E.D. Pa.1967).
Philadelphia Electric held that in a suit commenced as a class action, the class must be presumed to be proper for the purpose of Rule 23(e) prior to the court's decision on the certification issues pursuant to Rule 23(c)(1). Id. at 326-27. Here, treating the class as valid pending the settlement, instead of prejudicing unnamed defendants, actually protects their interests by barring collusion between Cardinal and defendants to achieve settlements detrimental to the interests of putative class members not before the court. 7B C. Wright, A. Miller, M. Kane, Federal Practice and Procedure § 1797, at 347 (2d ed. 1986). If the tentative class could not be considered valid, then, the protections of Rule 23(e) could not be asserted by defendants not present.[19]
Given the valid purpose for which Judge Sellers certified the temporary class, the Court declines to hold that the June 8 order warrants dissolution by mandate of a writ of mandamus. The tentative "class" established in the June 8 order did not violate Rule 23 and until certification, the Court may not presume the June 8 Order to be erroneous.
2. The Temporary Restraining Order
The Court must now consider whether Judge Sellers erred in issuing the extension of her May 25 temporary restraining order on June 9. Midland claims that the bankruptcy court has no jurisdiction to enjoin creditors of certain limited partnerships in which Cardinal is a general partner, because the limited partnerships themselves are not in bankruptcy. Cardinal disagrees.
In general, a temporary restraining order "is designed to preserve the status quo until there is an opportunity to hold a hearing on the application for a preliminary injunction." 11 C. Wright and A. Miller, Federal Practice and Procedure § 2951, at 498 (1973). Although the party seeking the order "must demonstrate at least a reasonable probability of prevailing on the merits," id. at 507, the rule requires a lesser showing when the harm alleged is very great, id. at 508. In general, this balancing is left to the sound discretion of the court.
In reviewing the June 9 extension on the petition for mandamus, the Court finds no abuse of discretion on the part of the bankruptcy court. The harm alleged by Cardinal in case the extension were not granted was weighty. Moreover, with the complex jurisdictional issues involved, and with colorable arguments to be made on both sides of the controversy, the Court cannot say that the bankruptcy court's decision was plain error, to the extent which would justify the drastic remedy of mandamus.[20]

IV.
Midland filed this action in an apparent attempt to disgorge the Cardinal bankruptcy from the United States Bankruptcy Court and place it in what it believes is a more favorable forum, the United States District Court. It asks this Court to utilize two unusual procedural devices, the writs of mandamus and prohibition. Such writs, *934 if issued, would stop Judge Barbara J. Sellers from continuing her administration of the Cardinal case. In effect, granting the writs would require this Court to substitute itself for Judge Sellers as the court which would decide the lawsuit.
The United States Bankruptcy Court has the resources and specialized administrative expertise to handle lawsuits of the size seen in this bankruptcy, but the United States District Court does not. Unless Midland had shown a conspiracy between Sellers, Cardinal, and the defendants attempting to settle, or had shown irreparable, massive harm from orders which were clearly erroneous, mandamus would be inappropriate. Midland has failed to make this showing. Thus, the Court cannot allow the monumental waste of the bankruptcy court's judicial resources, amassed specifically to handle suits like this, by asserting control over the case. Further, the Court will not permit the district court to be caught up in the quagmire of creditors, claims, and controversies sure to face it if it takes control of the suit.
WHEREUPON, consideration and being duly advised, the Court finds the petition of The Midland Mutual Life Insurance Company for a writ of mandamus and/or prohibition to be without merit, and it is, therefore, DENIED. This case is hereby DISMISSED in its entirety.
IT IS SO ORDERED.
NOTES
[1]  The settlement papers consisted of a proposed Settlement Agreement, a scheduling order which the judge signed on June 8, a proposed form of notice to be sent to putative class members, and a proposed final order and injunction.
[2]  The Court will refer to Midland, AmeriFirst, and Comerica as "the non-settling defendants."
[3]  The Court will refer to these defendants as "settling defendants."
[4]

Mandamus had its origin in England in the control assumed by the King's judges over the autonomous organs of local government, usually to remedy the loss of some position or office. By the time of Blackstone the writ was in wide use in these areas and in the supervision by the Court of King's Bench over inferior courts, usually in matters more akin to judicial administration than to judicial review. In these circumstances, therefore, no difficulty arose in requiring a judge to make return to the application for the writ.
In the United States the use of mandamus has continually expanded. It was early given a statutory basis by the All Writs Act, which now authorizes the courts to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Under the statute the "traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise authority when it is its duty to do so." It was accordingly said to be limited to cases where no discretion was involved. Its modern use has been extended to include cases of clear abuse of discretion, as well as the "supervisory control of the District Courts by the Courts of Appeals [which] is necessary to proper judicial administration in the federal system."
Rapp v. Van Dusen, 350 F.2d 806, 811-12 (3d Cir.1965) (footnotes omitted).
[5]  See, e.g., 1 G. Ayers, R. Broude, T. Gerwitz, D. Lynn, H. Sommer & B. Zaretsky, Collier on Bankruptcy ¶ 3.03, at 3-172 (15th ed.1988) [hereinafter "1 Collier on Bankruptcy"].
[6]  Midland argues that the June 8 order does, in fact, certify a class, but such a "class" is but a categorization of parties to whom notice will be sent for the purpose of determining whether a class can be certified and whether a possible settlement is fair. Such a class is proper and desirable, since it prevents the kind of action about which Midland complains: collusive settlements to the detriment of potential class members who have no notice of the arrangements. Instead, this temporary certification means that the protections of Rule 23(e) bar collusive settlements prior to class certification. In the event that the class is not certified, little harm is caused by a court's exercise of Rule 23(e) supervision.
[7]  See, e.g., 11 C. Wright & A. Miller, Federal Practice and Procedure § 2962, at 616 (1973).
[8]  Id. at 618-19 (quoting Connell v. Dulien Steel Prods., Inc., 240 F.2d 414, 418 (5th Cir.1957), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1074 (1958)).
[9]  11 Wright & Miller, supra n. 7, § 2962, at 619-21.
[10]  The Court agrees that if the June 9 order were, in fact, a preliminary injunction, then 28 U.S.C. § 1292(a)(1) might be instructive in the Court's decision to exercise its discretion to hear interlocutory appeals under section 158, but section 1292 does not mandate review in this case, since appeals are governed by section 158, not section 1292.
[11]  Given the application of Rule 6(a) to Rule 65(b) in proceedings in the district court, since Rule 7065 applies Rule 65(b) to bankruptcy adversary proceedings, Rule 6(a) also applies in adversary proceedings.
[12]  The Court does not hold now that this standard is the only applicable one.
[13]  1 Collier on Bankruptcy, supra note 5, ¶ 3.03, at 3-186.
[14]  The Court is not faced with the issue of whether the collateral order doctrine applies to a formal class certification order under Rule 23(c)(1), cf. Coopers & Lybrand, 437 U.S. at 469, 98 S.Ct. at 2458 (decided under 28 U.S.C. § 1291 (1982)).
[15]  See 1 Collier on Bankruptcy, supra p. 9, ¶ 3.03, at 3-186 (arbitrary or capricious action warrants review); supra note 1 ("proper judicial administration").

Given this discretion actions which a court of appeals could only consider on mandamus can be considered by the district court under its section 158 discretion, reducing the necessity for the extreme remedy of mandamus.
[16]  In Price Bros. Co. v. Philadelphia Gear Corp., 629 F.2d 444, 447 (6th Cir.1980), for instance, the court heard allegations that a district judge's law clerk had ex parte contact with a party. It remanded the case to the district court for an evidentiary hearing and report because the court of appeals had no record on which to base a judgment concerning these issues. The inadequacy of the record necessitated a remand to the factfinder of first instance, the district court. Unfortunately, the remand has the unfortunate effect of permitting the accused district judge to preside over a factual hearing the purpose of which is to elicit evidence concerning his own impropriety.
[17]  Although a temporary restraining order lasts but ten days, Fed.R.Civ.P. 65, the weekend days and Memorial Day do not count in the ten day total, Fed.R.Civ.P. 6. Since May 25 itself is not counted, ten days from May 25 under the Rules would be June 9.
[18]  Given the Court's findings here, the Court must note in dictum that discretionary review by appellate consideration of the interlocutory orders would not be necessary. After hearing the merits of Midland's contentions after a factual hearing, full briefing, and oral argument, the Court notes that an exercise of discretion to hear an appeal on the same issues would serve no purpose. In short, the full and fair litigation of all issues in the mandamus proceedings here militate strongly against granting leave to appeal under the Court's discretion to hear interlocutory appeals.
[19]  Given the protections of Rule 23(e), it is ironic that Midland seeks this relief. It strives to dissolve the very order which is capable of barring a collusive "sweetheart deal" between Cardinal and some of the defendants prior to the certification of the class.
[20]  The Court declines to reach the merits of the issues surrounding the assertion of the bankruptcy court's jurisdiction at this juncture given that the Court's review is only of the bankruptcy court's exercise of discretion in issuing the temporary restraining order. For this Court to grapple with such issues, in effect it would require the Court to arrogate for itself the right to decide the preliminary injunction motion and ultimately the merits of the entire adversary proceedings in the first instance.


940 F.2d 1386
Fred A. HINTERGARDT;  Melody Ann Hintergardt, Plaintiffs-Appellants,v.OPERATORS, INC., Defendant-Appellee.
No. 90-6080.
United States Court of Appeals,Tenth Circuit.
Aug. 7, 1991.

Roy S. Dickinson, Robert G. Grove, and Cherri Farrar of Robert G. Grove & Associates, Oklahoma City, Okl., for plaintiffs-appellants.
Kenneth R. Webster and Victor F. Albert of McKinney, Stringer & Webster, Oklahoma City, Okl., for defendant-appellee.
Before McKAY and LOGAN, Circuit Judges, and WINDER, District Judge.*
LOGAN, Circuit Judge.

1
This diversity case arises out of a traffic accident between plaintiff Fred A. Hintergardt's truck and defendant Operators Inc.'s truck, which was driven by an Operators' employee.  A jury found that Operators' employee was acting outside the scope of his employment.  Therefore, the district court entered judgment for Operators.  Hintergardt now appeals.1

2
On the day of the collision, Steven Riley was driving a pickup truck that was owned and issued to him by his employer, Operators.  Kerry Culver, another Operators' employee, was riding with Riley to Riley's home.  Operators had a policy that employees were "absolutely required" to take the company's trucks home.  II R. at 19.  Employees were not to use the company trucks for personal matters except in emergencies.

3
On the way home, Riley met his wife, who was taking a sick cat to the veterinarian.  Riley and Culver turned the truck around and took the cat to the veterinarian.  At the veterinary clinic, Riley began to feel ill, so Culver assumed the driving responsibilities.  Culver first drove to his own house and then set out to take Riley home.

4
About a mile short of the point of the employees' original deviation, Culver failed to yield the right-of-way and struck Hintergardt's pickup truck.  Hintergardt suffered injuries and sued Operators.  The jury found that Culver was acting outside the scope of his employment and therefore Operators was not liable.  On appeal, Hintergardt asserts that the court erroneously instructed the jury on (1) the amount of proof required to rebut the presumption on the scope of employment, and (2) the applicable law on an employee's departure from and return to the scope of employment.

5
Hintergardt first argues that Operators should have been required to present clear and convincing evidence to rebut the presumption that Culver was acting within the scope of his employment.  The district court instructed the jury that a preponderance of evidence would rebut the presumption.  I R. tab 63, instr. 15.

6
In Oklahoma, evidence that the defendant's employee was driving the defendant's vehicle at the time of the accident establishes a rebuttable presumption that the employee was acting within the scope of his employment.  Pollard v. Grimes, 202 Okl. 118, 210 P.2d 778, 780-81 (1949).  The employer must then come forward with evidence to the contrary to overcome this presumption of law and create an issue of fact for the jury.  Stumpf v. Montgomery, 101 Okl. 257, 226 P. 65, 68-69 (1924).  The Oklahoma Supreme Court has characterized the level of evidence necessary to dispel the presumption as " 'some evidence.' "    Id. 226 P. at 69 (quoting Wigmore on Evidence Sec. 2491).  In light of these cases, we believe the district court's instruction is a correct statement of the law, see United States v. Pack, 773 F.2d 261, 267 (10th Cir.1985), as well as consistent with the general rule that "[r]ebuttable presumptions in the civil law are normally overcome by a preponderance of the evidence," Tafoya v. Sears Roebuck & Co., 884 F.2d 1330, 1337 (10th Cir.1989).

7
Hintergardt's reliance on Pollard is misplaced.  The Pollard court held that the trial court erred in failing to direct a verdict for the employer when the evidence that the employee was not acting within the scope of his employment was clear and convincing.  Pollard, 210 P.2d at 781.    The Pollard court did not address the sufficiency of a lesser weight of evidence or the legal standard by which the jury is to determine if the employer has dispelled the presumption.

8
" 'It is ... well settled that, where the evidence offered to establish facts which would rebut [the] presumption is contradictory, the question is one for the jury;  but, where the facts so offered are undisputed and uncontradicted, it becomes properly a question for the court.' "

9
Morris v. Cartwright, 57 N.M. 328, 258 P.2d 719, 723 (1953) (quoting Manion v. Waybright, 59 Idaho 643, 86 P.2d 181, 186 (1938), and citing, inter alia, Pollard ).    Pollard exemplifies the uncontradicted facts situation.

10
Hintergardt also challenges the district court's instructions to the jury on the scope of employment.  He first attacks Instruction No. 15, which states in pertinent part:

11
"You are further instructed that when an employer furnishes a vehicle for use to an employee, the employee is considered to be in the scope of his employment in going from home to work and from work to home.  Once the employee arrives at home, he is no longer considered to be acting within the scope of his employment."

12
I R. tab 63, instr. 15.  Hintergardt argues that this instruction forced the jury to find that Culver was no longer acting in the scope of his employment because he had already arrived at his house and foreclosed the jury's consideration of Culver's intent to serve Operators by taking Riley home.

13
Hintergardt's argument lacks merit.  Instruction No. 15 plainly addresses legal presumptions and is a correct statement of the law, see Tidal Pipe Line Co. v. Black, 161 Okl. 136, 17 P.2d 388 (1932).  Under Instruction No. 15, if the jury found that Culver had returned home from work, it could not presume that he was acting within the scope of his employment.  The jury could, however, find that he was acting within the scope of his employment, based on other facts, including his intent to serve Operators.  The court properly instructed the jury on other theories by which they could reach such a finding.  See I R. tab 63, instrs. 11 (incidental authority;  implied authority) & 14 (abandonment from and return to employment;  dual purpose/mixed mission).

14
Hintergardt next complains that the court's instruction on return to the scope of employment prejudicially limited the jury's inquiry to whether Culver had returned to the exact geographical point of departure.  The court stated:

15
"An employee is acting outside the scope of his employment when he substantially departs from his employer's business by doing an act intended to accomplish an independent purpose of his own or for some other purpose which is unrelated to the business of his employer.  During such a departure, the employee is outside the scope of his employment.  However, when the employee returns to the place where he abandoned his employer's business, and resumes the employer's business, he is acting again within the scope of his employment."

16
I R. tab 63, instr. 14 (emphasis added).  The instruction correctly states the law.  See Heard v. McDonald, 172 Okl. 180, 43 P.2d 1026, 1027 (1935) (master not responsible for servant's acts until servant returned to the place where he abandoned the master's mission).  Moreover, the court's instruction is virtually identical to the instruction that Hintergardt requested, see I R. tab 66, prop. instr. 10,2 and did not preclude the jury from finding that Culver was on a "mixed mission," see I R. tab 63, instr. 14, p 2 (mixed mission instruction).

17
AFFIRMED.

*
 The Honorable David K. Winder, United States District Judge for the District of Utah, sitting by designation

1
 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed.R.App.P. 34(a);  10th Cir.R. 34.1.9.  The case is therefore ordered submitted without oral argument

2
 Hintergardt requested the jury to be instructed "that an employee that deviates or departs from the employer's service and pursues an independent mission of his own, can return to the point of departure and resume service for his employer."    I R. tab 66, prop. instr. 10 (emphasis added)


                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                             No. 11-7231

MATTHEW DAVIS,

                 Petitioner - Appellant,

          v.

TRACY W. JOHNS, Warden,

                 Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:10-hc-02189-FL)

Submitted:   December 15, 2011             Decided:   December 20, 2011

Before GREGORY, SHEDD, and DAVIS, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Matthew Davis, Appellant Pro Se. William Ellis Boyle, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Matthew        Davis    seeks       to    appeal       the   district       court’s

order dismissing without prejudice his 28 U.S.C. § 2241 (2006)

petition.           We    dismiss      the    appeal          for   lack     of       jurisdiction

because the notice of appeal was not timely filed.

               When the United States or its officer or agency is a

party, the notice of appeal must be filed no more than sixty

days after the entry of the district court’s final judgment or

order, Fed. R. App. P. 4(a)(1)(B), unless the district court

extends the appeal period under Fed. R. App. P. 4(a)(5), or

reopens the appeal period under Fed. R. App. P. 4(a)(6).                                      “[T]he

timely    filing         of   a    notice     of       appeal    in    a    civil      case    is    a

jurisdictional requirement.”                   Bowles v. Russell, 551 U.S. 205,

214 (2007).

               The district court’s order was entered on the docket

on July 7, 2011.              The notice of appeal was filed on September 7,

2011, one day outside of the appeal period. *                                     Because Davis

failed    to    file      a       timely    notice       of     appeal      or    to    obtain      an

extension      or    reopening        of     the       appeal    period,         we   dismiss    the

appeal.     We dispense with oral argument because the facts and

     *
       The record indicates that Davis delivered the notice of
appeal to prison officials for mailing to the court on September
7, 2011.   See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S.
266 (1988).

                                                   2
legal    contentions   are   adequately   presented    in   the    materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                   DISMISSED

                                    3


504 F.Supp. 187 (1980)
Stanley J. SOCHANSKI
v.
SEARS, ROEBUCK & COMPANY.
Civ. A. No. 75-2903.
United States District Court, E. D. Pennsylvania.
December 30, 1980.
August J. Lacko, Barry S. Lyons, Philadelphia, Pa., for plaintiff.
John J. O'Brien, Jr., Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER
HANNUM, District Judge.
This case involves a product liability personal injury claim wherein a jury awarded the plaintiff the amount of $395,000.00 in damages. On May 15, 1979, however, the Court granted the defendants' Motion For Judgment N.O.V. and thereafter an appeal was taken. During the pendency of the appeal, one (1) of the original defendants, Goodyear Tire & Rubber Company [hereinafter "Goodyear"], negotiated and entered into a settlement with the plaintiff wherein a joint tortfeasor release was executed. A non-party,[1] Geneva Metal Wheels Company [hereinafter "Geneva"], was also apparently involved in settlement discussions and additionally enjoyed the benefits of a release executed in its favor. The Court of Appeals for the Third Circuit reversed and remanded the case for the reinstatement of the jury's verdict on May 2, 1980. Upon reinstatement of the verdict, the Court was eventually requested to resolve an issue concerning the status of Sears and Goodyear; i. e., whether they were joint tortfeasors or were primarily and secondarily liable, respectively. After the issues were *188 briefed in the context of a defendant's Motion For Judgment N.O.V., the Court held that the two (2) companies were joint tortfeasors at the time of judgment and, thus, the defendant's motion was denied. Sochanski v. Sears, Roebuck & Company, 504 F.Supp. 182 (E.D.Pa.1980). This decision has been appealed and the defendant has been permitted to post a supersedeas bond in an unspecified amount. Presently before the Court are two (2) applications, considered as made in the alternative, concerning bond procedures and bond amounts.
When the plaintiff was originally contesting whether the defendant Sears should be permitted to post a supersedeas bond at all, an alternative was proposed wherein the plaintiff would post a bond in the amount of judgment payable to the defendant Sears in the event its appeal was successful thus permitting the plaintiff to execute on the judgment.[2] The Court rejects the plaintiff's position because it is obviously beyond the comprehension of F.R.Civ.P. 62 which provides in pertinent part as follows:
(d) Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the court. (Emphasis added).
The clear language of the rule makes cognizable the posting of a supersedeas bond by only a party taking an appeal"the appellant." Courts have consistently recognized this manifested intent of the rule when enunciating the principle that the procedure envisions maintenance of the status quo. See generally Teleflex Industrial Products, Inc. v. Brunswick, 294 F.Supp. 256 (E.D.Pa. 1968). The only viable deviation from this perceived mandate would occur when an appeal is either spurious or dilatory. In that event, permission to post a supersedeas bond would be denied at the onset. Although the Court will not divulge any opinion concerning the merits of the appeal, a conclusion that it is neither spurious nor dilatory is warranted.
The denial of the plaintiff's first application requires the Court to proceed to the merits of the second or alternative application in which a unique issue is presented. The issue arises from a peculiar set of factual circumstances that essentially makes it incumbent upon the Court to decide whether or when a party may be characterized a joint tortfeasor as it relates to the ultimate satisfaction of a judgment.[3] The number of original parties which may be considered joint tortfeasors is extremely important to the final resolution of this case as well as to the resolution concerning the proper amount of the supersedeas bond.
For purposes of this case, a joint tortfeasor "means two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them." Uniform Contribution Among Tort-feasors Act, Pa.Cons.Stat. Ann. tit. 42, § 8321 (Purdon 1980). In the present case, the following occurred procedurally. The plaintiff's Complaint named Sears and Goodyear as original defendants. Thereafter, Sears filed a Third-Party Complaint against Geneva. The eventual trial was bifurcated and a jury returned a verdict finding Sears, Goodyear and Geneva liable. On April 14, 1978, the trial resumed for consideration of the damages portion of the case. Additionally and most importantly, Sears withdrew its Third-Party Complaint *189 against Geneva.[4] A judgment in the amount of $395,000.00 was ultimately recorded against Goodyear and Sears. The question thus presented forefront is whether the withdrawal of a claim against a third party already declared liable (but before judgment) permits the characterization of that party as a joint tortfeasor. For the reasons that follow, the Court holds that such a characterization is proper.[5]
In Davis v. Miller, 385 Pa. 348, 123 A.2d 422 (1956), the Pennsylvania Supreme Court was confronted with the issue whether an additional defendant was entitled to be eliminated from trial before it was determined whether she was a joint tortfeasor. The additional defendant had argued that a release was executed in her behalf as consideration for settlement and thus that the plaintiff no longer had an assertable claim. The original defendant, however, contended that the additional defendant should be retained in the case until the jury could determine joint tortfeasor status via a liability verdict. The Supreme Court held that a definite interest vested with the original defendant as respects a determination of joint tortfeasor status inasmuch as his ultimate payment of damages would be guided by a pro rata assessment. See also Hanahan v. McClatchy, 384 F.Supp. 16, 18 n.1 (E.D.Pa.1974); Dice v. Marsolino, 14 D. & C.2d 457 (Pa.C.P.Fay.1958). By analogous application to the present case, a party may be determined to be a joint tortfeasor through a verdict of liability notwithstanding the fact that it was not considered in the determination of the amount of damages. In Davis and its progeny, the elimination from consideration in arriving at an amount of damages only occurred as a result of the execution of a release before trial. In the present case, the elimination occurred as a result of the withdrawal of the Third-Party Complaint against Geneva. The Court thus determines that Geneva is a joint tort-feasor along with Sears and Goodyear.
The determination of the existence of three (3) joint tortfeasors specially guides the Court's assessment of an eventual damages payment plan. For the present, it also aids the Court in its determination of the proper amount of the supersedeas bond. On November 3, 1980, Sears posted a $237,000.00 bond in favor of the plaintiff which reflects approximately one-half of the verdict, plus interest. The Court finds this amount entirely sufficient but unnecessarily excessive.
The Uniform Contribution Among Tort-feasors Act, Pa.Cons.Stat.Ann. tit. 42, § 8326 (Purdon 1980), provides:

A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides, but reduces the claim against the other tort-feasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid. (Emphasis added).
According to the statute, Sears would thus be liable to the plaintiff for the amount of the verdict less $100,000.00 paid in settlement by Goodyear and Geneva or its one-third pro rata share of the verdict, whichever is less. The Court is cognizant that had the language of the Joint Tort Feasor Release provided otherwise, Sears may have been liable to the plaintiff for the amount of the verdict, less $100,000.00 paid in settlement *190 by Goodyear and Geneva. Sears would have thus had to institute a separate action for contribution against Goodyear and Geneva for the balance of each of their one-third pro rata shares.[6]See, e. g., Nationwide Mutual Insurance Company v. Philadelphia Electric Company, 443 F.Supp. 1140 (E.D.Pa.1977). In the present case, the clear language of the settlement manifests the intent that the $100,000.00 paid by Goodyear and Geneva was in settlement for a release from liability for each of their one-third pro rata shares.[7] Inasmuch as Sears' one-third pro rata share is far less than the amount of judgment less $100,000.00 paid in settlement by Goodyear and Geneva, the amount mathematically determined from the former schedule is the extent of its liability to the plaintiff for damages. See Smith v. Fenner, 399 Pa. 633, 161 A.2d 150 (1960).
An appropriate Order will be entered.
NOTES
[1]  Geneva was once a party to this action at the behest of the defendant Sears and via a Third-Party Complaint filed on March 10, 1976. A default was entered against Geneva on May 21, 1976 for its failure to plead, appear or otherwise defend. Subsequently, the default was opened or removed and Geneva actively participated in the case until April 13, 1978 when the Third-Party Complaint was withdrawn. See generally Sochanski v. Sears, Roebuck & Company, et al., No. 75-2903 (E.D.Pa., June 12, 1980); Docket Entry No. 148.
[2]  Neither case precedent nor determined logical reasoning was advanced in support of this alternative procedure. Indeed, after a cursory inspection of case law, the Court was unable to locate anything of precedential value supportive of the plaintiff's position.
[3]  The issue as phrased bears a direct relationship to the proper amount of the supersedeas bond required to be posted by the defendant Sears. The amount of the bond is the focus of the dispute presently before the Court. See note 4 and accompanying text infra.
[4]  The Court is presently unsure of the reasoning or purpose behind the dismissal of Geneva but speculates that some corporate connection existed between Goodyear and Geneva. To carry the hypothesis one step further, the Court would consider it possible that the defendant Sears saw no necessity in holding Geneva because of the continued presence of Goodyear the primary "pocket" so to speak representing itself and possibly Geneva. This conjecture engaged in by the Court bears no relation to the ultimate disposition of the case. The pertinent fact is that Geneva was no longer a party in the case at the time of judgment but was, however, determined to be a liable party.
[5]  The term "joint tortfeasor," as defined in the Uniform Contribution Among Tort-feasors Act, Pa.Cons.Stat.Ann. tit. 42, § 8322 (Purdon 1980), is to be defined "quite broadly." Rutherford v. Gray Line, Inc., 615 F.2d 944, 948 (2d Cir. 1980). See also Little v. Dresser Industries, Inc., 599 F.2d 1274, 1277-78 n.5 (3d Cir. 1979).
[6]  Two (2) conditions must exist before the right to contribution arises: 1. One (1) joint tortfeasor has discharged the common liability or paid more than his pro rata share and 2. that the liability of the other joint tortfeasor(s) to the injured person(s) has been extinguished by the settlement. Swartz v. Sunderland, 403 Pa. 222, 225, 169 A.2d 280 (1961).
[7]  The Joint Tort Feasor Release provides, in pertinent part, as follows:

Stanley Sochanski agrees that in the event that other parties are responsible to him as joint tort feasors with Goodyear, Geneva and/or Travelers as the result of the incident above described, the damages recovered against all other joint tort feasors in any pending or future cause of action or lawsuit arising out of the same incident shall be and are reduced to the extent of the pro rata share of said damages which Goodyear, Geneva and/or Travelers, except for this Release, would otherwise be liable to pay.
If it should appear or be adjudicated in any suit, action or proceeding that Goodyear and/or Geneva and/or Travelers and others were jointly liable with respect to the aforesaid injuries and damages, in order to save Goodyear, Geneva and Travelers harmless, Stanley Sochanski, as further consideration for the payment recited above will satisfy any judgment, award or decree in which there is such a finding of adjudication to the extent of the liability of Goodyear and/or Geneva and/or Travelers for contribution should it be determined that such liability exists. The parties to this Release recognize that as the result of the accident involving Stanley Sochanski that there exist potential claims or other persons and entities against Goodyear and/or Geneva and/or Travelers including the claims of Sears, Roebuck & Company, Palmer Tire Company and the Chubb Pacific Indemnity Group.
.   .   .   .   .
In view of the express objective of this Release, Stanley Sochanski agrees that in the event that he secures a verdict and/or judgment against Sears, Roebuck & Company or any other person or entity for which Sears, Roebuck & Company or any other person or entity secures a verdict and/or judgment of indemnity against Goodyear, and/or Geneva, and/or Travelers that he will mark the verdict and/or judgment in his favor satisfied as to the person or entity against whom he obtains the verdict or judgment so as not to expose Goodyear, Geneva nor Travelers to any verdict or judgment in the excess of the amount agreed upon as the consideration for the execution of this Release.


       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          DAVID L. HARRIS,
                             Appellant,

                                     v.

                         STATE OF FLORIDA,
                              Appellee.

                              No. 4D19-3576

                              [June 25, 2020]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Sherwood Bauer, Jr., Judge; L.T. Case No.
432018CF1494A.

  Antony P. Ryan, Director, and Paul O'Neil, Office of Criminal Conflict
and Civil Regional Counsel, Fourth District, West Palm Beach, for
appellant.

   Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Affirmed.

GROSS, MAY and KUNTZ, JJ., concur.

                          *          *          *

   Not final until disposition of timely filed motion for rehearing.


                                                                                Opinions of the United
2002 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

7-30-2002

In Re: Vegliante
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3972

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Recommended Citation
"In Re: Vegliante " (2002). 2002 Decisions. Paper 463.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/463

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                                                                             NOT PRECEDENTIAL

                        IN THE UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT

                                            No. 01-3972

                               In Re:
                                        Rudolph Vegliante, Jr.
                                                     Debtor

                                        Rudolph Vegliante, Jr.,
                                                      Appellant

                                                  v.

                           STATE OF NEW JERSEY, DEPARTMENT
                          OF TREASURY, DIVISION OF TAXATION

                            Appeal from the United States District Court
                               for the Middle District of Pennsylvania
                                    (D.C. Civil No. 01-cv-00788)
                            District Judge: Honorable James M. Munley

                                        Argued June 27, 2002

                        Before: AMBRO and STAPLETON, Circuit Judges
                                  O’NEILL*, District Judge

                                        (Filed: July 30, 2002 )

        * Honorable Thomas N. O’Neill, Senior United States District Court Judge for the
Eastern District of Pennsylvania, sitting by designation.

                                               Brett J. Riegel, Esquire (Argued)
                                                 Amori & Riegel
                                                 717 Sarah Street
                                                 Stroudsburg, PA 18360
                                                        Attorney for Appellant

                                                 David Samson
                                                 Attorney General of New Jersey
                                                 Patrick DeAlmeida
                                                 Deputy Attorney General of Counsel
                                                 Tracey E. Richardson (Argued)
                                                 Deputy Attorney General on the Brief
                                                 Office of Attorney General of New Jersey
                                                 Department of Treasury, Division of Taxation
                                                 25 Market Street, P.O. Box 106
                                                 Trenton, NJ 08625
                                                         Attorneys for Appellee

           Transcribed by: Geraldine C. Laws, CET

                (Proceedings recorded by electronic sound recording;
                transcript prepared by AAERT-certified transcriber.)

                        (The following bench opinion was delivered in open court:)

                                           BENCH OPINION

AMBRO, Circuit Judge

        (The following bench opinion was delivered in open court:)

                THE HONORABLE JUDGE AMBRO: The Supreme Court stated in

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72-73 (1996), that "the 11th Amendment

restricts the judicial power under Article III, and Article I cannot be used to circumvent the

constitutional limitations placed upon federal jurisdiction." In In Re: Sacred Heart Hospital

                                                     2
of Norristown, 133 F.3d 237 (3d Cir. 1998), we observed that "since Seminole Tribe,

Section 5 of the 14th Amendment has been the sole basis for Congress to abrogate the

States' immunity under the 11th Amendment." Id. at 242 (quoting College Savings Bank v.

Florida Prepaid Post-Secondary Education Expense Board, 131 F.3d 353, 358 (3d

Cir.1997)). We held in Sacred Heart that the bankruptcy clause is not a valid source of

abrogation power. Sacred Heart, 133 F.3d at 243.

        In this case, Vegliante asks us to allow him to pursue an adversary proceeding in

bankruptcy against the State of New Jersey. The adversary proceeding at issue is plainly a

suit within the meaning of the 11th Amendment. Missouri v. Fiske, 290 U.S. 18, 26 (1993)

(quoting Cullens v. Virginia, 19 U.S. 264 (1821)). The State of New Jersey received a

summons requiring it to appear in court or face a default judgment against it. That qualifies

as a suit. See id.

        Vegliante seeks to prosecute a suit against the State of New Jersey without its

consent. We cannot oblige that request in light of Sacred Heart's ruling on state sovereign

immunity. Therefore, the District Court's order is affirmed.

                                                    3
TO THE CLERK:

          Please file the foregoing Bench Opinion.

                                          By the Court,

                                          /s/ Thomas L. Ambro
                                         Circuit Judge

                                     4


                            NONPRECEDENTIAL DISPOSITION
                    To be cited only in accordance with Fed. R. App. P. 32.1

                    United States Court of Appeals
                                        For the Seventh Circuit
                                        Chicago, Illinois 60604

                                        Submitted May 15, 2015*
                                         Decided May 28, 2015

                                                 Before

                               DIANE P. WOOD, Chief Judge

                               RICHARD D. CUDAHY, Circuit Judge

                               KENNETH F. RIPPLE, Circuit Judge

No. 14‐2833

CARL J. MCDANIEL,                                            Appeal from the United States District
      Plaintiff‐Appellant,                                   Court for the Eastern District of Wisconsin.

      v.                                                     No. 12‐CV‐1178

MICHAEL MEISNER, et al.,                                     Nancy Joseph,
      Defendants‐Appellees.                                  Magistrate Judge.

                                                 O R D E R

            Carl  McDaniel,  a  Wisconsin  inmate,  was  assaulted  by  his  cellmate  at  Columbia
Correctional  Institution  (“Columbia”).  He  was  immediately  transferred  to  Wisconsin
Resource  Center  (“WRC”),  a  secure  treatment  facility.  McDaniel  later  filed  this  action
under 42 U.S.C. § 1983 and state law claiming that six defendants at Columbia failed to
protect him from an assault and that two more defendants at WRC withheld necessary
medical  care.  The  district  court  (a  magistrate  judge  presiding  by  consent)  screened
McDaniel’s  complaint,  see 28  U.S.C.  § 1915A,  and  permitted  him  to  proceed  with  his
Eighth  Amendment  and  state  tort  claims.  On  the  defendants’  motion,  the  court

        *
         After  examining  the  briefs  and  record,  we  have  concluded  that  oral  argument  is  unnecessary.
Thus the appeal is submitted on the briefs and record. See FED. R. APP. P. 34(a)(2)(C).
No. 14‐2833                                                                           Page 2

dismissed  the  entire  action  on  the  ground  that  McDaniel  had  not  complied  with  the
exhaustion  requirement  of  42  U.S.C.  § 1997e(a).  Because  we  hold  that  McDaniel
exhausted his failure‐to‐protect claims, we remand those claims for further proceedings.
        For  purposes  of  this  appeal,  we  accept  as  true  the  allegations  in  McDaniel’s
complaint.  McDaniel  was  assaulted  by  his  cellmate,  Ryan Olson,  at  Columbia  on
March 8,  2012.  Olson  was  known  to  be  dangerous;  he  already  had  assaulted  other
inmates and staff at Columbia. A week before the March 8 incident, McDaniel alerted a
prison psychiatrist that he feared for his safety because Olson was threatening him. The
psychiatrist asked several Columbia administrators to move McDaniel into a single cell
or  to  protective  custody.  McDaniel  also  wrote  to  the  warden,  deputy  warden,  and
security director at Columbia, informing them of his concerns. His requests to be moved
were  denied.  Olson  severely  beat  McDaniel  about  the  face,  arms,  ribs,  and  stomach
when,  at  3:30  a.m.  on  March 8,  McDaniel  asked  Olson  to  lower  the  volume  on  his
television.  That  same  day,  McDaniel  was  transferred  to  WRC.  A physician  and  the
infirmary manager at that facility refused to provide medical treatment for his injuries,
including damage to his inner ear, which has left McDaniel with permanent hearing loss.
        After  his  transfer  to  WRC,  McDaniel  submitted  multiple  grievances,  four  of
which  addressed  the  March  8  assault.  In  offender  complaint  number  WRC‐2012‐5881,
submitted  on  March 18,  2012,  McDaniel  complained  about  a  history  of  abuse  from
inmates  culminating  in  Olson’s  assault  on  March  8.  McDaniel  explained  that  his
previous  cellmate  had  assaulted  him  on  December 13,  2011,  and  that  he  had  been
granted  “pair  with  care”  status.  McDaniel  then  recounted  that,  at  the  beginning  of
March, he had been assigned to share a cell with Olson, whose history of violence was
known to staff. The grievance states that McDaniel told a female physician, who visited
him  six  days  in  a  row,  including  the  day  before  the  assault,  that  Olson  was  a
“‘firecracker’ with the fuse lit,” and that he “needed out.” The physician told McDaniel
that psychological services could not give him the relief that he requested. The grievance
then details his assault, alleging that he “suffered a beating so bad I can’t remember the
actual beating.” At the top of the grievance form, McDaniel wrote “December 13, 2011”
in the space marked “Date of Incident.” The inmate complaint examiner (or “examiner”)
rejected the grievance with the explanation that McDaniel previously had submitted a
grievance about  the December 2011 assault.  The reviewing  authority  characterized  the
examiner’s decision as “appropriate.”
      McDaniel  submitted  offender  complaint  number  WRC‐2012‐6510,  his  second
grievance, on March 25, 2012. This grievance similarly recounts that McDaniel had been
beaten  by  Olson  after  repeated  requests  to  be  moved  for  his  safety.  McDaniel  wrote,
No. 14‐2833                                                                                Page 3

“Considering all the proper steps I took to prevent this[,] Staff still left me in a violent &
‘Hands‐Tied’…position.”  He  stated  that  he  “would  like  single  (cell  status)  till  further
notice.”  The examiner rejected the grievance,  stating:  “Cell  assignments [sic]  decisions
are  made  by  the  IUS  and  Treatment  Team.  Cell  assignment  is  not  within  the  scope  of
institution  Complaint  System.”  The  examiner  said  nothing  about  the  timeliness  of  the
grievance.  McDaniel  promptly  filed  an  administrative  appeal  emphasizing  that  the
grievance  “wasn’t  simply  a  complaint  requesting  a  single  cell”  and  that,  instead,  it
“complained that I had been assaulted.” Prison staff, he asserted, had been “very aware
of the immediate threat to my safety and failed to reasonably respond.” Their “level of
deliberate  indifference  and  reckless  and  hazardous  negligence,”  he  added,  had
constituted  “an  8th  Amendment  violation”  that  should  be  “investigated  fully.”  The
reviewing authority upheld the rejection, stating that it was “appropriately rejected” as
outside the scope of the complaint system.1
        McDaniel’s two remaining grievances alleged that he was denied medical care. In
offender complaint number WRC‐2012‐14356, submitted on July 4, 2012, he stated that
“[t]he  health  care  [that  he]  received  since  arriving  at  WRC  has  been  systematically
inadequate  at  best.”  He  references  the  “numerous  health  care  requests  [that  he]
submitted.”  The  examiner  rejected  his  grievance  for  failing  to  allege  sufficient  facts  to
indicate  “how  the  treatment  provided  has  effected  [sic]  his  health,”  or  to  identify  a
specific  incident.  In  offender  complaint  number  WRC‐2012‐19687,  submitted  two
months later, McDaniel specifically alleged that he did not receive appropriate medical
care following the March 8 assault. The examiner rejected the grievance as untimely. The
examiners’ rejections of McDaniel’s medical‐care grievances were found appropriate by
the reviewing authority.
        The defendants moved for summary judgment on the sole ground that McDaniel
had  not  exhausted  his  administrative  remedies.  The  defendants  maintained  that
McDaniel  failed  to  exhaust  the  remedies  for  his  failure‐to‐protect  claims  because  the
March  18  grievance  listed  December  13,  2011,  as  the  “date  of  incident,”  and  the
remaining  grievances  were  untimely.  See WIS.  ADMIN.  CODE  DOC  §  310.09(6)  (unless
excused for good cause, inmate “shall file a complaint within 14 calendar days after the
occurrence  giving  rise  to  the  complaint”).  The  defendants  submitted  that  McDaniel
failed  to  exhaust  his  medical‐care  claims  because  he  failed  to  allege  sufficient  facts  in

          McDaniel  also  filed  offender  complaint  number  WRC‐2012‐6539,  which  was  received  on  the
            1

same  day as complaint  number  6510.  The  grievance was  denied  because  the  issue  previously  had  been
addressed in complaints 6510 and 5881. On September 17, 2012, McDaniel submitted a fourth grievance,
offender complaint number WRC‐2012‐19685, addressing his March 8 assault. The grievance was rejected
as untimely.
No. 14‐2833                                                                 Page 4

complaint number 14356 and he filed complaint number 19687 more than fourteen days
after the incident.
       In  granting  summary  judgment  for  the  defendants,  the  district  court  accepted
their contention that McDaniel failed to exhaust his claims. The district court reasoned
that the examiner could not have been expected to associate the March 18 grievance with
the  assault  by  Olson  on  March 8,  2012,  because  it  gives  the  date  of  incident  as
December 13.  The  court  continued  by  explaining  that,  even  if  it  were  to  look  past  the
incorrect  date,  it  could  not  “conclude  that  this  offender  complaint  presented  only  one
issue  or  that  any  one  issue  was  clearly  identified,”  as  required  by  the  Wisconsin
Administrative  Code.  See WIS.  ADMIN.  CODE  DOC  § 310.09(1)(e).  The  court  then
concluded  that  the  remainder  of  McDaniel’s  grievances  “were  indisputably  submitted
outside the 14 calendar day time limit and were rejected as untimely or as having been
previously  addressed.”2  The  district  court  dismissed  McDaniel’s  claims  and  the  case
without prejudice.3
       On  appeal,  the  defendants  present  substantially  the  same  arguments.  They
submit that McDaniel failed to exhaust his administrative remedies and that his claims
therefore  are  barred.  McDaniel  primarily  maintains  that  the  defendants  withheld  the
reviewing authority’s decision addressing his appeal of the March 18 grievance and that,
because they prevented him from pursuing his appeal, the defendants are unable to rely
on his failure to exhaust under 42 U.S.C. § 1997e(a). He also submits, however, that the
examiners  overlooked  any  procedural  defects  in  his  grievances  and  addressed  their
merits.

             Although  it  is  not  immediately  clear  from  its  order,  we  presume  that  the  court  included
           2

McDaniel’s  medical‐care  claims  in  its  decision  rejecting  “the  rest  of  McDaniel’s  offender  complaints
regarding his claims in this case.” As previously discussed, McDaniel filed two grievances alleging that he
did  not  receive  adequate  medical  treatment  at  WRC  (numbers  14356  and  19687).  We  agree  with  the
defendants that complaint number 14356, which alleged an “ongoing” incident, was insufficient to alert
the examiner to the nature of the wrong for which redress was sought. See Strong v. David, 297 F.3d 646, 650
(7th Cir. 2002). Furthermore, the examiner rejected complaint number 19687, which referenced the March
8  assault,  as  untimely.  Complaint  number  6539,  which  the  examiner  rejected  for  raising  an  issue
previously  raised,  did  allege  that  a  defendant  “made  medical  judgments  beyond  his  capacity  causing
undue  pain  &  suffering.”  However,  McDaniel  does  not  name  that  defendant  under  his  medical‐care
claims. Accordingly, the district court did not err by dismissing those claims based on McDaniel’s failure
to exhaust his administrative remedies.
         3   The  district  court  did  not  address  directly  McDaniel’s  state‐law  claims.  We  note  that  the

exhaustion  requirements  of  the  Prison  Litigation  Reform  Act  do  not  apply  to  state‐law  claims.  See  42
U.S.C. § 1997e(a) (requiring exhaustion for actions brought under “section 1983 of this title, or any other
Federal law” (emphasis added)). On remand, the district court will have the opportunity to consider those
claims.
No. 14‐2833                                                                             Page 5

        The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), provides that “[n]o action
shall be brought with respect to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.” We have adopted a
“strict  compliance  approach”  to  the  exhaustion  requirement.  See  Dole  v.  Chandler,  438
F.3d 804, 809 (7th Cir. 2006); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002) (“To
exhaust remedies, a prisoner must file complaints and appeals in the place, and at the
time,  the  prison’s  administrative  rules  require.”).  We  have  explained,  however,  that  a
defendant’s  failure  to  exhaust  his  administrative  remedies  is  forgiven,  i.e.,  the
exhaustion requirement is satisfied, if prison officials ignore a grievance’s administrative
failings  and  address  its  merits. 4   With  these  principles  in  mind,  we  now  address
McDaniel’s  administrative  grievances  in  turn  to  determine  whether  he  exhausted  the
available administrative remedies.
        The  district  court  decided  that,  by  listing  December  13,  2011,  as  the  date  of  the
incident,  the  March  18  grievance  failed  to  adequately  apprise  the  examiner  of
McDaniel’s failure‐to‐protect claim related to the March 8 assault. Although Wisconsin
requires that an inmate’s grievance “clearly identify the issue,” WIS. ADMIN. CODE DOC
§ 310.09(1)(e), the governing regulations do not require that the date of the incident be
specified at the top of the grievance form. Where the regulations are silent, “a grievance
suffices  if  it  alerts  the  prison  to  the  nature  of  the  wrong  for  which  redress  is  sought.”
See Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). It is clear that McDaniel’s grievance
satisfies  that  standard,  and  we  cannot  accept  the  district  court’s  conclusion  that  an
examiner would not have understood the March 18 grievance as addressing the March 8
assault.  The  grievance  identified  a  history  of  abuse  at  the  hands  of  cellmates  and
culminated by describing the March 8 assault. McDaniel explained that the defendants
did nothing to protect him after he alerted them that Olson, his newly assigned cellmate,
was  dangerous.  We  are  not  persuaded  by  the  defendants’  argument  that  McDaniel’s
mistake  in  listing  December  13,  2011,  at  the  top  of  the  form  prevented  them  from
understanding  that  McDaniel  was  seeking  relief  for  the  March  8  assault.  Nor  can  we

            See, e.g., Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir. 2005) (“Failure to comply with administrative
            4

deadlines dooms the claim except where the institution treats the filing as timely and resolves it on the
merits.”);  Pozo v. McCaughtry,  286  F.3d  1022,  1025  (7th  Cir.  2002)  (“Consider  once  more  the  analogy  to
collateral attack: if a state court accepts a belated filing, and considers it on the merits, that step makes the
filing ‘proper’ for purposes of state law and avoids exhaustion, default, and timeliness hurdles in federal
court.”). “[W]hen a state treats a filing as timely and resolves it on the merits, the federal judiciary will not
second‐guess  that  action,  for  the  grievance  has  served  its  function  of  alerting  the  state  and  inviting
corrective action.” Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004).
No. 14‐2833                                                                             Page 6

accept the defendants’ contention, made for the first time on appeal, that McDaniel did
not  timely  appeal  the  rejection  of  this  grievance.  The  record  demonstrates  that  the
reviewing authority addressed McDaniel’s administrative appeal on the merits and said
nothing about its being untimely.
        The district court also determined that McDaniel failed to exhaust his March 18
grievance because it improperly included multiple issues. The examiner, however, did
not reject the grievance on that ground. Instead, it rejected the grievance for raising an
issue  that  it  believed  was  “previously  addressed.”  Although  the  examiner’s  decision
may appear procedural at first blush, it was a merits‐based determination premised on
the  examiner’s  interpretation  of  the  grievance.  It  therefore  was  inappropriate  for  the
court  to  enforce  an  administrative  requirement  not  relied  upon  by  the  examiner.
Accordingly, McDaniel sufficiently exhausted the available administrative remedies for
his March 18 grievance.
        McDaniel  likewise  exhausted  the  available  remedies  for  his  March  25
administrative  grievance.  Although  McDaniel  submitted  the  grievance  more  than
fourteen days  after  the  assault,  the  examiner  passed  over  the  question  of  timeliness.
Instead,  the  examiner  looked  to  the  substance  of  the  grievance  and  rejected  it  after
determining that it requested relief that was outside the scope of the grievance system.
McDaniel  unsuccessfully  appealed  the  grievance  to  the  reviewing  authority.  He  thus
satisfied  the  requirement  that  he  exhaust  his  administrative  remedies,  and  the  district
court erred by determining independently that the grievance was untimely.
         By providing prison officials with enough information to address the wrong for
which  he  sought  relief,  McDaniel  exhausted  the  administrative  remedies  available  to
him  under  Wisconsin’s  administrative  procedures.  Because  neither  the  examiners  nor
the reviewing authority rejected McDaniel’s grievances addressing the March 8 assault
for  failing  to  comply  with  the  governing  administrative  procedures,  the  district  court
erred by failing to address the merits of McDaniel’s claims. We VACATE the dismissal of
McDaniel’s  claims  that  the  defendants  failed  to  protect  him  from  the  assault  and
REMAND for further proceedings.


                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                             No. 98-6365

UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus

R. B. BOYD,

                                             Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert D. Potter, Senior
District Judge. (CR-92-30-P, CA-97-264-3-P)

Submitted:    November 5, 1998          Decided:    November 19, 1998

Before ERVIN, LUTTIG, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

R. B. Boyd, Appellant Pro Se. Kenneth Davis Bell, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     R. B. Boyd seeks to appeal the district court’s order denying

his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998).

We have reviewed the record and the district court’s opinion and

find no reversible error. Accordingly, we deny a certificate of ap-

pealability and dismiss the appeal on the reasoning of the district

court. See United States v. Boyd, Nos. CR-92-30-P; CA-97-264-3-P

(W.D.N.C. Sept. 5, 1997). We dispense with oral argument because

the facts and legal contentions are adequately presented in the ma-

terials before the court and argument would not aid the decisional

process.

                                                         DISMISSED

                                2