                            In the
    United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 05-3287
REGINALD D. BURKE, SR.,
                                            Plaintiff-Appellant,
                               v.

JANET JOHNSTON, PAMELA S. KNICK,
VICKI BENJAMIN, et al.,
                                   Defendants-Appellees.
                      ____________
           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
           No. 02 C 503—David R. Herndon,Œ Judge.
                         ____________
       ARGUED MAY 10, 2006—DECIDED JUNE 27, 2006
                     ____________


  Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
  EVANS, Circuit Judge. In 1997, Reginald Burke pleaded
no contest to two counts:1 third degree sexual assault and


Œ
  Judge Herndon, of the United States District Court for the
Southern District of Illinois, sitting by designation.
1
  Judge Herndon, in his July 21, 2005, decision, says the no
contest plea was offered to two counts of third degree sexual
assault and one count of false imprisonment. The judge may
very well be right, but Burke’s brief says it was one count each
                                                   (continued...)
2                                                    No. 05-3287

false imprisonment. A Wisconsin circuit court in Walworth
County sentenced him to 5 years for the sexual assault
conviction and 2 years on the false imprisonment count. The
sentences were to run consecutively and also consecutive to
a separate sentence Burke was serving for a parole viola-
tion. In May 1999, the Wisconsin court amended its order
so that the 1997 sentences would run concurrently.
  Later that year, Burke began filing various pro se plead-
ings, arguing that he had not been given credit for the more
than 8 months he spent in jail between his arrest on July
12, 1996, and his sentencing on March 20, 1997. All of his
attempts to get relief from the state courts were rejected.
  Burke then began writing to officials within the Wiscon-
sin Department of Corrections (DOC), making the same
claim for jail credit. After 2 years of correspondence with
various functionaries, Burke’s sentence was administra-
tively modified by DOC personnel in January 2002 to reflect
credit for 8 months and 8 days of jail time.2


1
  (...continued)
of sexual assault and false imprisonment. The State, in a sign
of things to come, ignores this difference in its brief. For that
reason we accept, as uncontradicted, Burke’s statement.
2
  Like a number of matters that are bollixed up in this case, the
8-month-plus credit grant appears to be a bit of a windfall for
Mr. Burke. When he was taken into custody on the sexual assault
and false imprisonment charges on July 12, 1996, he tells us in his
brief he was also charged with, and detained in custody for, a
“violation of his parole” from a previous offense. That parole,
according to Burke’s brief, was granted on October 4, 1993, after
he served only 8 months of a 4-year sentence. When he went
into custody in 1996, he “owed” the State a little more than
3 years on his 1993 conviction. While the 1996 charges were
pending, Burke’s parole was revoked (on October 24, 1996, we are
told) by an administrative law judge. Burke was ordered to serve
                                                   (continued...)
No. 05-3287                                                       3

  Burke then filed this federal action under 42 U.S.C.
§ 1983 against the State of Wisconsin. He claims he was
detained in jail longer than he should have been due to the
“deliberate indifference and delay” of DOC officials in
granting him the jail credit. Such a claim, if proved, would
establish a violation of Burke’s Eighth Amendment right to
be free from cruel and unusual punishment. See Campbell
v. Peters, 256 F.3d 695, 700 (7th Cir. 2001); Moore v.
Tartler, 986 F.2d 682, 686 (3rd Cir. 1993). For this alleged
injury Burke seeks money damages.
  This case is complicated by Burke’s various re-arrests and
parole revocations and, as we will see, by the State’s
shifting legal theories. But the question we must decide is a
straightforward one: whether Burke may proceed to litigate
the merits of his § 1983 claim in federal court. The State
has raised two objections. First, it maintains that Burke’s
case is jurisdictionally barred by the Rooker-Feldman
doctrine because (the State says) he is seeking to litigate in
federal court the same claim regarding jail time credit on
which he lost in the Wisconsin state courts. Rooker-
Feldman was the basis on which the district court granted
the State’s motion to dismiss, from which Burke appeals,
and we review the district court’s decision on subject matter


2
  (...continued)
3 years, until July 12, 1999, on the revocation charge. Given that
Burke was apparently subject to a parole hold from July 12, 1996,
until October 24, 1996, we think it rather odd that the
DOC apparently found he was entitled to credit for that time on
the sentence he ultimately received in March of 1997 on the new
1996 charges. At the most, he might have been able to claim a
credit for the almost 5 months he spent in custody between
October 24, 1996, and March 20, 1997, when he was sentenced on
the 1996 convictions. But that “credit” may be illusory at best, for
he would be entitled to no credit for those 5 months if the time
was being served on, and counted against, the time he owed the
State on his 1993 conviction.
4                                              No. 05-3287

jurisdiction de novo. Brokaw v. Weaver, 305 F.3d 660, 664
(7th Cir. 2002). The State also argues that Burke’s deliber-
ate indifference claim is barred by state law issue preclu-
sion.
  The Rooker-Feldman doctrine recognizes that federal
district courts do not have subject matter jurisdiction to
hear appeals from state court decisions; only the Supreme
Court has the authority to reverse or modify a state court
judgment. Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284 (2005); Rooker v. Fidelity Trust Co., 263
U.S. 413, 414-16 (1923). Precisely stated, the doctrine bars
“cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court
review and rejection of those judgments.” Exxon Mobil
Corp., 544 U.S. at 284.
  The State has had difficulty making up its mind about the
applicability of Rooker-Feldman to this case. After arguing
Rooker-Feldman and winning on the issue in the district
court, the State did a cut-and-run. In its brief to this
appeal, it conceded after “very close review” that Burke’s
§ 1983 action was not jurisdictionally barred under Rooker-
Feldman. Then, at oral argument, its counsel sheepishly
informed us that the State was flip-flopping again and was
standing by its earlier position that Rooker-Feldman did
indeed apply. One reason for the change of heart, the
State’s counsel explained, was that because the Rooker-
Feldman bar is jurisdictional it cannot be waived. The State
appears to misunderstand the difference between waiver
and a concession that, upon better analysis, a particular
jurisdictional bar simply does not apply to a given set of
circumstances. We think the State should have stuck with
its concession because this is not a Rooker-Feldman case.
  In his § 1983 claim, Burke is not seeking federal review
of the state court decisions that denied him the jail credit
he believed he was owed. It would make no sense for him to
No. 05-3287                                                 5

do so, since he ultimately got the credit (and as we noted in
our second footnote, a generous credit indeed) he wanted by
going through the DOC. This case is about a different
claim: that the DOC officials who gave Burke the credit
took too long to do so because they were deliberately
indifferent. That claim was never presented to or decided by
the Wisconsin courts, and so Rooker-Feldman presents no
jurisdictional bar.
  At oral argument, the State’s counsel asserted the view
that the DOC lacked the authority to grant Burke his
8 months and 8 days of jail time credit. The State and
Burke disagree over the meaning of a provision in the
Wisconsin statutes governing jail time credit. Wis. Stat.
§ 973.155(1)(a) provides, in pertinent part: “A convicted
offender shall be given credit toward the service of his or
her sentence for all days spent in custody in connection
with the course of conduct for which sentence was imposed.”
Normally such credits are applied by the sentencing court.
However, a bit later the statute says: “If this section has
not been applied at sentencing to any person who is in
custody . . . the person may petition the department to be
given credit under this section.” Wis. Stat. § 973.155(5).
  Burke understands § 973.155(5) to mean that the DOC
enjoys independent authority—what his counsel at oral
argument called “de novo jurisdiction”—to consider and
grant jail time credit, regardless of what state courts have
previously done. And indeed, this second-bite-at-the-apple
approach appears to be the way the DOC interprets the law,
since it gave Burke his credit even though the record shows
it was aware that the sentencing judge had previously
declined to do so.
  The State, on the other hand, apparently believes the
DOC can act only in the absence of a finding by a judge. In
this case, it says, the jail-time credit was “applied at sen-
tencing,” Wis. Stat. § 973.155(5), in the sense that the judge
6                                                No. 05-3287

considered Burke’s request and rejected it. The State’s
counsel told us at oral argument that “upon careful review”
of the sentencing statute, it was “clear” that the DOC “had
no authority” to give Burke the credit he received. The
State believes that this position supports its Rooker-
Feldman argument, reasoning as follows. A federal court
could not grant Burke relief on his deliberate indifference
claim without finding that he was actually entitled to jail
time credit. Since a state court had declined to grant that
credit, the DOC had no authority to do so. Therefore, in
entertaining Burke’s § 1983 suit, a federal court necessarily
would have to review the controlling state court judgment.
  We cannot agree with the State’s analysis. If a federal
plaintiff “present[s] some independent claim, albeit one that
denies a legal conclusion that a state court has reached in
a case to which he was a party . . . , then there is jurisdic-
tion and state law determines whether the defendant
prevails under principles of preclusion.” Exxon Mobil Corp.,
544 U.S. at 293 (quoting GASH Assocs. v. Village of
Rosemont, Ill., 995 F.2d 726, 728 (7th Cir. 1993)).
  In any case, the state has provided us with no interpre-
tive authority for its critical premise that the DOC lacks
power to grant jail time credit after a state court has
declined to do so. (Nor, for that matter, has Burke pointed
to any authority other than Wis. Stat. § 973.155(5) itself for
his position that the DOC has “de novo jurisdiction” to
consider jail time credit.) Late in the game, the State has
made the DOC’s independent authority to grant jail time
credit a key issue in its defense. Yet the issue appears
nowhere in the State’s brief. For present purposes, we
assume that the DOC had the authority to do what it did.
See Dovenmuehle v. Gilldorn Mortgage Midwest Corp., 871
F.2d 697, 701 n.5 (7th Cir. 1989) (issues raised for the first
time at oral argument are deemed waived). But it appears
to us that this is a pivotal question of state statutory
interpretation which requires fuller development—by
No. 05-3287                                                7

both parties—when the district court considers the merits
of Burke’s claim. Should the State decide to mount a proper
argument on this point when it returns to district court,
and should the district court find itself persuaded that the
DOC acted beyond the scope of its authority in granting
Burke his credit, then Burke obviously would not have a
viable claim for deliberate indifference. It is also possible
that the DOC had the statutory authority to do what it did
but simply erred in eventually concluding that Burke was
entitled to jail time credit (see our second footnote). It
would seem an off outcome, of course, for Burke to prevail
on a claim that DOC officials were deliberately indifferent
by dragging their heels in reaching a conclusion that
ultimately gave him an unjustified windfall. While we agree
that incarceration after the time specified in a sentence has
expired violates the Eighth Amendment if it is the product
of deliberate indifference, Campbell, 256 F.3d at 700, we
have not addressed the elements of a deliberate indifference
claim in this context. The Third Circuit has held that a
plaintiff must establish three elements: that a prison
official knew of the prisoner’s problem and thus of the risk
that unwarranted punishment was being inflicted; that the
official either failed to act or took only ineffectual action
under the circumstances; and that there was a causal
connection between the official’s response to the problem
and the unjustified detention. Moore, 986 F.2d at 686.
   Nor is Burke’s deliberate indifference claim barred by
state law issue preclusion. Federal courts give preclusive
effect to state court judgments to the extent provided by
state law. See 28 U.S.C. § 1738; Allen v. McCurry, 449 U.S.
90, 95-96 (1980). Under Wisconsin law, to have preclusive
effect an issue must have been “actually litigated” in the
first action and must have been necessary to its outcome.
May v. Tri-County Trails Comm’n, 583 N.W.2d 878, 880
(Wis. Ct. App. 1998).
  In its brief the State asserts stubbornly that with the
present federal case, “Burke is once again challenging the
8                                                No. 05-3287

amount of jail time with which he should be credited.” As
we have explained, Burke in fact does not challenge the
amount of the jail time credit he received. He got the
credit from the DOC, so the prior litigation of that issue
is irrelevant to his present claim. Burke alleges deliberate
indifference on the part of DOC officials whom he says did
not grant it to him as early as they should have. Since the
issue of deliberate indifference was not litigated in state
court and was not a factor in any previous judgment against
Burke, Burke’s claim is not barred by principles
of preclusion.
  For all these reasons, the judgment of the district court is
REVERSED and the case is REMANDED for further proceed-
ings consistent with this opinion.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—6-27-06
