author: PER CURIAM.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, Illinois Bell Telephone Company, Intervenor, v. LOCAL 399, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Respondent.
    No. 73-1293.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 14, 1974.
    Decided April 17, 1974.

      Elliott Moore, Acting Asst. Gen. Counsel and William R. Stewart, Atty., National Labor Relations Board, Washington, D. C., for petitioner.
    Robert E. Fitzgerald, Jr., Edward W. Bergmann, Chicago, 111., for respondent.
    Gordon W. Winks, Chicago, 111., for intervenor.
    Before KILEY, Senior Circuit Judge, and CUMMINGS and SPRECHER, Circuit Judges.
   PER CURIAM.

The Labor Board’s enforcement petition presents the issue whether the Board properly found that the respondent Union violated § 8(b)(2) and (1) (A) of the National Labor Relations Act by threatening and attempting to cause the discharge of employee Galka for non-payment of Union dues upon his return to the bargaining unit from which he had earlier been transferred to a supervisory position. We hold the Board’s order is supported by substantial evidence in the record as a whole, and grant enforcement.

In March, 1968, Robert Galka, an eight year employee of intervenor Illinois Bell Telephone Company (Bell) and member of respondent Union, was promoted from his position as eommunications maintenance man to a supervisory position as station installation foreman. He informed Union steward Maddox that since he “was in management and wasn’t in the Union any more,” his dues should be discontinued. This was done, and contact with the Union terminated.

In February, 1969, Galka left his supervisory position and returned to the bargaining unit. Union steward Nalefski told Galka in April that he had some cards for him to sign “in order . to get . . . Union dues started again.” Galka - agreed, but no cards were presented.

Nothing further was done until June, 1970, when Maddox told Galka that he was “in trouble” because he owed “some back dues” since he was “automatically” reinstated to Union membership in February, 1969, when he rejoined the unit. Galka disagreed and refused to sign a payroll deduction card. On July 1 the Union wrote Bell that if Galka did not pay the back dues Bell should fire him. Galka told Maddox he would pay current, but not back, dues, and Maddox said Galka’s “job was at stake.” Bell agreed with Galka and refused to fire him then, and in September, upon a renewed request by the Union. In December Union attorney Fitzgerald wrote Galka implying that the Union would insist on Bell firing him. Galka then, at Bell’s suggestion, paid back dues of $141.45 “under protest.”

On March 23, 1971, Bell filed the instant charge. After a hearing, the Administrative Law Judge found that Galka returned to the bargaining unit as a “new employee” without any obligation to rejoin the Union; that there was no evidence that Galka had been retained in the Union on “honorary withdrawal” status while he was a foreman; and that the Union committed an unfair labor practice within the meaning of § 8(b)(1)(A) and (2) of the Act by attempting to have Bell fire Galka for failure to pay Union dues he was not obligated to pay. The Judge also found Fitzgerald’s letter violative of § 8(b)(1)(A). The Judge ordered the Union to repay Galka $141.45 plus interest and to inform Bell to disregard Galka’s checkoff authorization until he executed a new one.

The Board adopted the Judge’s findings and decision and accepted his recommended order. The enforcement proceeding before us followed.

The Union contends that Galka’s status as a Bell employee continued while he was a foreman, and that that continuing status, coupled with the maintenance of membership clause in the collective bargaining agreement, obligated him to rejoin the Union and to pay the back dues upon his reentry into the bargaining unit. Furthermore, the Union contends that, pursuant to Article XXYI, §§ 3 and 4 of its constitution, during his term as foreman Galka was on “honorary withdrawal” status in the Union and was automatically reinstated to Union membership on return to the unit. Neither contention has merit.

The Board has decided in other cases that when an employee terminates his relationship with one employer and is subsequently rehired by that same employer, he is treated as a new employee for purposes of joining or not joining the Union, notwithstanding the presence of a valid maintenance of membership clause in the collective bargaining agreement. Idarado Mining Co., 77 NLRB 392 (1948); Yellow Cab Co., 148 NLRB 620 (1964).

The same is true of an employee transferred out of the bargaining unit who then returns to it. He “stands in the same shoes as one being hired by the . . . Company for the first time, who has never been a member of the . . . Union . . . .” Convair, 111 NLRB 1055, 1056 (1955). See also Kaiser Steel Corp., 125 NLRB 1039, 1041 (1959).

Galka became a “supervisor” within the meaning of § 2(11) of the Act when elevated to foreman. Section 2(3) specifically excludes “supervisors” from the definition of “employees.” Under the Board’s policy as stated in the aforementioned cases, we think that when Galka became a foreman, his statutory status as an “employee” within the bargaining unit was terminated as it would have been if he had left Bell and gone to work elsewhere, and that when he rejoined the bargaining unit, he was not obligated to rejoin the Union.

NLRB v. Industrial Towel and Uniform Service, 473 F.2d 1258 (6th Cir. 1973), on which the Union relies, is in-apposite. The employee therein executed a checkoff authorization that was self-renewing annually unless the employee took affirmative action. In 1966 the employee quit her work because of illness and did not return until 1969, at which time the employer reinstated the dues checkoff without independent authorization. Characterizing the situation as a “layoff,” the court held that the employee was not a “new” employee and therefore the checkoff authorization remained valid. The Sixth Circuit did not “specifically” reject the theory of the Board in Idarado, supra, as the Union claims.

We think too that the Administrative Law Judge was justified in finding that Galka was not on “honorary withdrawal” status while he was a foreman. The Union’s constitution provides for two methods of conferring this status on a member. The first, requiring issuance of an “honorary withdrawal card” to the individual, is clearly inapplicable here since Galka never received such a card. The second method allows the member to “be shown as on honorary withdrawal without actual issuance of the card.” This is the method the Union contends it utilized in this case.

However, the Judge did not err in finding that the second method was “permissive rather than automatic in application,” and that the Union introduced no evidence to indicate that Galka was “shown on honorary withdrawal.” The Board’s determination on this point in no way impaired the Union’s right under the proviso in § 8(b)(1)(A) “to prescribe its own rules with respect to the acquiring or retaining of membership . . . .”

Finally, although a contrary inference than that drawn by the Judge can be drawn from the “appropriate action” language of Fitzgerald’s letter to Galka (that is, that Fitzgerald would take legal action on the alleged debt rather than seek to have Galka discharged), we think there is substantial evidence in the record as a whole to support the Judge’s inference that Fitzgerald’s letter threatened Galka’s discharge and constituted an unfair labor practice.

For the reasons given, the Board’s order will be enforced.

      . Local 399, International Brotherhood of Electrical Workers, AFL-OIO.

      . 29 U.S.C. § 151 et seq.

      . Article XXVI:
      Sec. 3. Any member not desiring to maintain Ms standing, who retires from the trade or is unemployed, or in such other cases as may be decided by the L. TJ., may be issued an honorary withdrawal card provided dues are paid for the previous month or the current month if the application is made after the fifteenth of such month.
      Upon returning to the trade, or again becoming employed, and having complied with this Article, he shall deposit his withdrawal card in the L. U. that issued it and continue membership by paying the current month dues. No new initiation fee is necessary, except that any (A) member shall pay the $2 fee as required in Article X.
      Sec. 4. “B. A.” members not employed under the jurisdiction of the Local Union, for at least a month can be shown as on honorary withdrawal without actual issuance of the card, unless the L. U. Bylaws provide otherwise. Officers of the L. U. are not entitled to withdrawal status without forfeiture of their office.

      . Since the member “can be shown as on honorary withdrawal,” it follows that he need not be.


source: Caselaw Access Project

author: LEVIN H. CAMPBELL, Circuit Judge.

license: Public Domain

text:
    FEDERAL RESERVE BANK OF BOSTON, Plaintiff, Appellant, v. COMMISSIONER OF CORPORATIONS AND TAXATION OF the COMMONWEALTH OF MASSACHUSETTS, Defendant, Appellee.
    No. 74-1028.
    United States Court of Appeals, First Circuit.
    Argued May 6, 1974.
    Decided July 11, 1974.
    Daniel B. Bickford and Richard J. McCarthy, Boston, Mass., with whom Ely, Bartlett, Brown & Proctor, Boston, Mass., was on brief, for plaintiff, appellant.
    Terence P. O’Malley, Asst. Atty. Gen., Boston, Mass., with whom Robert H. Quinn, Atty. Gen., and Walter H. Mayo, III, Asst. Atty. Gen., Boston, Mass., were on brief, for defendant, appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

This appeal raises the question whether the Federal Reserve Bank of Boston may sue in federal court for a declaration concerning the legality of the Massachusetts sales tax on materials used to construct its new building. The Bank, had asked the Massachusetts Commissioner of Corporations and Taxation for a certificate of exemption pursuant to state law which exempts from tax:

“(d) Sales to the United States, the commonwealth . . ., or their respective agencies.
“(f) Sales of building materials and supplies to be used in the construction, . . . of (1) any building structure, . . . owned by or held in trust for the benefit of any governmental body or agency mentioned in paragraph (d) and used exclusively for public purposes . . . . ”

The Commissioner refused to issue a certificate, stating that “[s]ales of building materials and supplies to be used in the construction of the Federal Reserve Bank of Boston, an agency of the United States, do not qualify for exemption under [M.G.L.] Ch. 64H § 6(f)(1) since the building will not be used exclusively for public purposes.” This conclusion stemmed from the fact that the Bank was erecting a larger building than it néeded, intending, until its own requirements increased, to rent surplus space to governmental and perhaps private tenants. After the Commissioner’s adverse ruling, the Bank brought the present suit for declaratory judgment in the district court. It asserted that the Commissioner erred because the Bank was not empowered to hold property for other than public use; because rental revenues would go for a public purpose (reduction of the bonded indebtedness of the United States); and because the ruling conflicts both with 12 U.S.C. § 531, exempting federal reserve banks from state and local taxation, and with the Supremacy Clause.

Sought is either a declaration that the Commissioner’s ruling was erroneous under state law or, alternatively, if correct, that 12 U.S.C. § 531 exempts the materials and supplies purchased by the Bank from the Massachusetts sales tax.

The district court dismissed the petition, ruling that a federal reserve bank is similar to federal savings and loan associations which, under Great Lakes, we held could not on their own obtain a federal court declaration against state taxes. United States v. State Tax Comm’n, 481 F.2d 963 (1st Cir. 1973). The district court discounted 12 U.S.C. § 632, giving federal reserve banks access to the federal courts, on the ground that while it conferred “jurisdiction” it did not overcome the principals of comity, equity and federalism underlying Great Lakes. Relying upon our decision in United States v. State Tax Comm’n, supra 481 F.2d at 974, the court held that the state court .remedy to contest the taxes was adequate. The district court also determined that as federal reserve banks were not “instrumentalities” of the United States, they were without recourse to a federal forum.

The latter point stems from an apparent misunderstanding of United States v. State Tax Comm’n. We did not hold that savings and loan associations were not federal instrumentalities. To the contrary, we said that they were. But we held that Great Lakes barred even such instrumentalities from suing when not joined as co-plaintiffs with the United States. The entities we were considering had “many of the characteristics of private corporations.” Id. 481 F.2d at 975. We pointed out that the 4500 federal savings and loan associations were at the bottom of a three-tiered arrangement headed by the Home Loan Bank Board. If any such bank wished to by-páss normal state tax collection and litigation channels, we said it should persuade the Attorney General of the United States, acting on behalf of the Home Loan Bank Board, to join in its claim. We had in mind that if a sufficient threat to federal sovereignty were to arise, the Attorney General would presumably lend the umbrella of the United States, thus permitting access to the federal courts; if not (and, given the nature of savings and loan associations, such claims might well be of predominantly private commercial import) there was no reason to by-pass and possibly subvert state tax collection procedures.

Thus the present case does not turn on whether federal reserve banks are instrumentalities. Plainly they are. The question is whether there is any reason to treat them differently from instrumentalities like savings and loan associations. As was true of the associations, the Bank comes before us represented by private counsel rather than the Attorney General of the United States, and is not joined as- co-plaintiff with the United States. Is it privileged, like the United States itself, to maintain this proceeding?

We think the answer must be in the affirmative. While savings and loan associations may in many ways be analogized to private corporations, federal reserve banks, by contrast, are plainly and predominantly fiscal arms of the federal government. Their interests seem indistinguishable from those of the sovereign and there are good reasons to relieve them of any symbolic requirement of joinder with and by the United States. There are twelve such banks in the nation, of which the plaintiff is one. They were created and are operated in furtherance of the national fiscal policy. They are not operated for the profit of shareholders, and do not provide ordinary commercial banking services; their stockholders, the member banks, lack the powers and rights customarily vested in shareholders of a private corporation. Federal reserve banks act as depositories for money held in the United States Treasury and as fiscal and monetary agents of the United States. 12 U.S.C. § 391. They hold the legal reserves of members banks, issue currency, facilitate check clearance and collection, and have supervisory duties as to member banks. They also provide important services for the Treasury with respect to the public debt and the issuance, handling and redemption of government securities. The limited income generated is used to pay expenses and dividends limited to 6 percent. Any remaining earnings are paid into the surplus fund, 12 U.S.C. § 289, where they may be used by the United States Treasury to supplement the gold reserve. Should a federal reserve bank go into liquidation, any surplus becomes the property of the United States, 12 U.S.C. § 290. See generally Board of Governors, The Federal Reserve System: Purposes and Functions (5th ed. 1969).

In his dissenting opinion in First Agricultural Nat’l Bank v. State Tax Comm’n, 392 U.S. 339, 88 S.Ct. 2173, 20 L.Ed.2d 1138 (1968), Mr. Justice Marshall chronicles the transfer of governmental fiscal functions from the national banks to the federal reserve banks, pointing out that the national banks’ role as federal functionaries has correspondingly diminished to the point where the latter scarcely differ from their state chartered competitors. Id. at 356-358, 88 S.Ct. 2173. Like the national banks, federal savings and loan associations today play a relatively slight role as agencies of government, whereas the federal reserve banks, analogous to the central banks of other nations'such as the Bank of England, play a major role. Thus we think a state tax affecting one of the twelve federal reserve banks calls directly into question the sovereign interest of the United States. Such a bank lacks the Janus-faced characteristics of savings and loan associations.

Moreover, Congress has made it plain by express statute that a federal reserve bank is to have unrestricted access to the district courts. In Federal Reserve Bank v. Kalin, 77 F.2d 50, 51 (4th Cir. 1935), the court said that 12 U.S.C. § 632 is written "in the broadest possible language” and that,

“It was doubtless the intention of Congress to grant full right of recourse to the federal courts to these institutions, which had become important agencies of the federal government in its control'of banking and currency.”

Another court has concluded that 12 U. S.C. § 632 reflects a congressional policy to have any litigation affecting the Federal Reserve System centered in a federal forum to promote uniformity of decision. Bickford’s, Inc. v. Federal Reserve Bank, 6 F.Supp. 928, 930 (S.D.N.Y.1934). Such a clearly expressed strong federal interest in litigating all reserve bank business in the federal courts further tips the scale away from the general hostility to interfering with a state taxing scheme.

The positioning of the federal reserve banks in the federal governmental structure also militates against forcing them to acquire the separate support of the Attorney General before asserting the same right available to the United States to contest, in federal court, an allegedly unconstitutional state exaction. The federal reserve banks share the making of policy with the seven member Board of Governors of the Federal Reserve System. Members are appointed by the President for staggeréd terms, and the Board, like the banks, may employ counsel. It would seem that Congress intended all components of the Federal Reserve System, including the banks, to act in many respects outside the executive chain of command, although their greater independence in no way signals a diminished role in the operations of government. We thus see little purpose in insisting upon a symbolic joinder by the United States itself. We conclude that appellant may proceed in a federal forum under the same exception to Great Lakes available to the United States were it a named plaintiff. In so deciding, we must accept the absence of any bright line to facilitate analysis; each instrumentality must be examined in light of its governmental role and the wishes of Congress as expressed in relevant legislation.

We add that the question to be litigated is largely, if not entirely, a “federal” rather than state question. The fundamental issue is whether the state has reached beyond its powers under the Supremacy Clause and under the federal statute exempting federal reserve banks from tax. 12 U.S.C. § 531. While an interpretation of the Commonwealth’s statute exempting certain governmental bodies and operations is also required, the meaning of "public purposes” is almost inextricably interwoven with federal issues, including constitutional principles and the federal charter and regulations of the Bank. Cf. Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 66 S.Ct. 992, 90 L.Ed. 1172 (1946); Springfield v. United States, 99 F.2d 860 (1st Cir. 1938), cert. denied, 306 U.S. 650, 59 S.Ct. 592, 83 L.Ed. 1049 (1939). Were this not so— were the case to raise a pure question of state law — we might think it wise to require abstention by the district court pending litigation of the state issue in the state court. Abstention in such circumstances is appropriate even when the United States is a party. See United States v. Nevada Tax Comm’n, 439 F.2d 435 (9th Cir. 1971); United States v. New York, 175 F.2d 75 (2d Cir.), cert. denied, 338 U.S. 885, 70 S.Ct. 189, 94 L.Ed. 543 (1949). It allows the state courts to employ their special expertise in construing state law without surrendering the protection of the federal court with respect to federal rights.

But we conclude here both that the Great Lakes doctrine does not prevent the Bank from securing a declaration in the district court and that it would be inappropriate, in these particular circumstances, for the district court, while retaining jurisdiction, to abstain.

Reversed and remanded for further proceedings consistent herewith.

      . In so doing, the Bank was following guidelines issued by the Board of Governors of the Federal Reserve System: “When, for various reasons, relocation of the Bank to a new site is deemed advisable, the building program should be developed to meet predictable needs for a minimum • of thirty years. ... It is recommended that a new building provide twenty percent more gross office space than the peak area estimated to be required during the thirty years after the completion of construction. . . . The provision of this amount of extra space for future expansion will have a profound effect upon the design of new Bank buildings, for it will be economically defensible only if this excess office space is leased until needed.” Guidelines for Design and Construction of Federal Reserve Bank Buildings 15, 21 (1970).

      . “Federal Reserve banks, including the capital stock and surplus therein and the income derived therefrom, shall be exempt from Federal, State, and local taxation, except taxes upon real estate.”

      . Great Lakes v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943).

      . 12 U.S.C. § 632 provides in part:
      “Notwithstanding any other provision of law, all suits of a civil nature at common law or in equity to which any Federal reserve bank shall be a party shall be deemed to arise under the laws of the United States, and the district courts of the United States shall have original jurisdiction of all such suits; and any Federal reserve bank which is a defendant in any such suit may, at any time before the trial thereof, remove such suit from a State court into the district court of the United States for the proper district by following the procedure for the removal of causes otherwise provided by law.

      . Great Lakes extended to declaratory proceedings the prohibition in the Tax Injunction Act, 28 U.S.C. § 1341, against a federal court’s enjoining of state tax collections if an adequate state remedy existed. But the Supreme Court has recognized “an unbroken line of authority, and convincing evidence of legislative purpose, that [the Tax Injunction Act] does not act as a restriction upon suits by the United States to protect itself and instrumentalities from unconstitutional state exactions.” Department of Employment v. United States, 385 U.S. 355, 358, 87 S.Ct. 464, 466, 17 L.Ed.2d 414 (1966) (footnotes omitted). In United States v. State Tax Comm’n, supra, we recognized that the United States enjoys similar freedom from the limitations in Great Lakes.

      . The typical co-plaintiff joining with the United States in other cases has been not a public governmental body, as in the instant case, but a private party performing some functions for the federal government. See, e. g., United States v. Bureau of Revenue, 291 F.2d 677 (10th Cir. 1961) (Phillip Petroleum Co.); United States v. Department of Revenue, 202 F.Supp. 757 (N.D.Ill.), aff’d, 371 U.S. 21, 83 S.Ct. 117, 9 L.Ed.2d 95 (1962) (Olin Mathieson Chemical Corp.); United States v. Livingston, 179 F.Supp. 9 (E.D.S.C.1959), aff’d, 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed.2d 1719 (1960) (E.I. duPont de Nemours & Co.).

      . In Agua Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184 (9th Cir. 1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972), an instrumentality of the United States was allowed io sue without the aid of the United States. In that case there was also a special jurisdictional statute, 28 U.S.C. § 1362, although one less comprehensive than 12 U.S.C. § 632.

      . In Great Lakes the Court stressed that federal courts should decline to exercise jurisdiction only when private, not public, rights were at stake. “[A] federal court of equity, which may in an appropriate case refuse to give its special protection to private rights when the exercise of its jurisdiction would be prejudicial to the public interest {citations omitted], should stay its hand ■in the public interest when it reasonably appears that private interests will not suffer.” 319 U.S. at 297-298, 63 S.Ct. at 1073.


author: CUMMINGS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Ewing DARROW and Cecil Dale Pierce, Defendants-Appellants.
    Nos. 72-2043, 72-2044.
    United States Court of Appeals, Seventh. Circuit.
    Heard April 1, 1974.
    Decided June 20, 1974.

      William H. Baughman, Jr., Arthur Connick, Law Students, Francis X. Beytagh, Jr., and Leslie G. Foschio, Notre Dame Law School, Notre Dame, Ind., for defendants-appellants.
    Stanley B. Miller, U. S. Atty:, William F. Thompson, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, and CUMMINGS and STEVENS, Circuit Judges.
   CUMMINGS, Circuit Judge.

In March 1972, an indictment was returned against defendants Darrow and Pierce charging violations of 18 U.S.C. § 472. Count I was against Pierce alone and alleged that he had a $20 bill (Series 1969, serial number F29392932A) in his possession on March 19, 1972, knowing that it was counterfeit and with intent to defraud. Count II charged both defendants with having in their possession on the same day 31 counterfeit $20 bills (same series and serial number as above) with like knowledge and intent. Count III charged both defendants with passing a counterfeit $20 bill (same series and serial number) to Herbert Clifford on March 18, 1972. Both defendants filed motions to suppress and waived a jury trial. The motions to suppress were granted in part. After a bench trial, Pierce was found guilty of all three counts and Darrow guilty of the two counts involving him. Pierce received a 5-year concurrent sentence on each count, but the court suspended 4 years and 9 months of the sentence and placed him on probation for that period. Darrow received a similar sentence on the two counts involving him.

The facts disclosed at the trial reveal the following: Both defendants patronized the Dry Dock Tavern in Indianapolis, Indiana, shortly after midnight on the morning of March 19, 1972. After they ordered drinks, Darrow paid for them with a $20 bill. Waitress Alice McNicholas noticed that the bill did not have a serial number and brought this to the attention of the tavern manager. He concluded that the bill was counterfeit and asked the waitress to “stall” in making change while he called the police.

Darrow then dropped his drink and demanded his change. Thereafter, both defendants approached the bar and requested their change. When the police arrived, the defendants were identified to them. One police officer testified that defendants were arguing about their change when he arrived. In view of the disturbance being caused, defendants were first arrested for disorderly conduct.

After the police arrived, Mrs. McNicholas found six counterfeit $20 bills in a beer case where the defendants had been standing at the bar. She turned them over to the manager of the tavern. He turned all seven bills over to the police. No charges were brought concerning these bills.

When the defendants were escorted from the bar, they were searched for weapons. Large amounts of legitimate cash were found in their pockets, and a set of Oldsmobile ear keys was also found in Darrow’s pocket. These items were then returned to defendants. Nothing was found when their back pockets were patted down. Upon request for identification, defendants gave the officers their Kentucky drivers’ licenses. One of the police officers then searched the tavern parking lot for a car bearing Kentucky license plates. Wfien he found it, he attempted to ascertain its owner by having repeated announcements made at the tavern, finally inquiring individually of the remaining patrons and employees, but no one claimed the car.

At the request of the local police, a Secret Service agent arrived at the tavern and inspected the bogus bills. He also looked inside the locked Kentucky automobile and observed a rolled-up sock in a trash container in the front seat.

Approximately fifteen minutes after the police arrived at the tavern, defendants were driven to the Indianapolis Police Department and brought to the basement lockup. In accordance with standard police procedure, defendants were again searched. Officer Osborn noticed a $20 bill in the right rear pants pocket of Pierce. He removed the bill and determined it was counterfeit and returned to the tavern to present it to the Secret Service agent. This bill is the subject of Count I.

At 3:00 a.m., the Kentucky Oldsmobile was removed from the tavern parking lot to police headquarters. Some time after 8:00 a.m., the police and Secret Service agent obtained a search warrant and then unlocked Darrow’s car in order to conduct an inventory of its contents. Upon opening the sock from the trash container , in the front seat, one of the officers discovered 20 additional counterfeit bills and later discovered eleven other counterfeit $20 bills rolled in a pack of Raleigh cigarettes that had been on the sun visor of the car. These 31 bills are the subject of Count II.

The evidence also disclosed that defendants were at the Kraft Standard Service Station around 8:00 p.m. on March 18, in Darrow’s Oldsmobile. Darrow was the driver and Pierce was the sole passenger. Darrow requested that a quart of oil be poured into the motor. Both defendants then entered the station and Pierce chose a novelty license plate that was for sale. Darrow paid for the oil and the novelty with a $20 bill. Half an hour later, Herbert Clifford, the attendant, noticed the difference between a genuine $20 bill in his possession and the $20 bill that Darrow had given him. Clifford turned the suspect bill over to the station owner the next afternoon, and he turned it over to the Secret Service on the evening of March 20. This bill was the subject of Count III.

All the bills were admitted into evidence and bore the same serial number, except the first $20 bill given to Mrs. McNicholas by Darrow; it had no serial number.

Seizure of $20 Bill from Pierce

Pierce contends that the bill supporting Count I was the fruit of an unlawful disorderly conduct arrest and should have been suppressed. The bill was obtained by the Government when officer Osborn noticed it in Pierce’s rear pants pocket at the police station, after the bartender had given the police the original counterfeit bill passed by Darrow.

Pierce’s contention must fail. The trial judge made no finding as to the validity of defendants’ original arrest for disorderly conduct, because when they arrived at the police station, they were also arrested for the felonious possession of counterfeit money with intent to put it into circulation in violation of Ind.Code § 35-1-124-5 (Burns Ind.Stat.Ann. § 10-1204). We agree with the trial judge that the police officers had probable cause to believe that defendants were committing a felony in violation of this Indiana statute. Consequently, if the bill protruding from Pierce’s rear pocket is considered as obtained from a warrantless search, it was a reasonable search incident to arrest within the Fourth Amendment. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771; United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427; Gustafson v. Florida, 414 U.S. 260, 266, 94 S.Ct. 488, 38 L.Ed.2d 456; Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685.

Seizure of Thirty-one $20 Bills from Darrow’s Car

Defendants next assert that Darrow’s car was searched under a search warrant based on an invalid affidavit. The affidavit stated:

“Officer, Phillip Ezzell, I.P.D. has good cause to believe that concealed in or about a certain. 1971 Oldsmobile automobile is a sum of counterfeit U. S. money to wit: counterfeit twenty dollar bills.
“I recieved [sic] a call to check a possible passing of forged $20.00 bills in the early hours of March 19, 1972 at the Dry Dock Tavern 151 E. Washington Street, Indianapolis, Marion, County, Indiana. The owner called in a complaint stating that two men were causing a disturbance over return of change from a $20.00 bill which the tavern owner believed to be counterfit [sic]. Upon my arrivail [sic] I found two male subjects causing a disturbance and placed John Darrow and Cecil Pierce under arrest for D.O.C. and placed a call to the Secret Service. Upon arrival the agent confirmed that the bill in question was counterfit [sic] as were several others in the possession of the two subjects. In a conversation with the subject John Darrow he informed me that he had a car in which he had come to the tavern and that he had additional currency. I ordered the car taken to Police Headquarters where it is at this time.
“The car to be searched is a 1971 Olds 442 Black over red mfg. serial number 34487ml82563 bearing Kentucky plate number 887435 (Union County). It is located at Police H.Q. on north Alabama Street and I wish to search the entire vehical [sic].” (emphasis added)

We have italicized the key sentences under attack by defendants. There is -a serious question whether the first of these sentences is true, whether it can be fairly construed to refer to the bill found in Pierce’s pocket and the six bills found in the beer case, and whether the affiant intended it to be so construed. As to the second sentence, the conversation referred to was suppressed by the district judge because it took place in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. This presents the question, seemingly of first impression in the federal courts, whether the exclusionary rule of Miranda and other cases applies to probable cause determinations. In United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561, the Supreme Court decided not to extend the Fourth Amendment exclusionary rule to grand jury proceedings. On the other hand, in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, n. 19, applying the “evidence derived therefrom” language of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2518(10)(a)), the Court suppressed evidence secured pursuant to a warrant, where the warrant application had included information obtained in violation of Title III. Cf. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182; United States v. Harrison, 265 F.Supp. 660 (S.D.N.Y.1967). Pierce has also called our attention to State v. Lekas, 201 Kan. 579, 442 P.2d 11 (1968), where it was held that a confession obtained in violation of Miranda could not be used for probable cause in the affidavit for a search warrant. A further difficulty with the affidavit is that it does not link Darrow or Pierce to the car described in the last paragraph.

. We find it unnecessary to resolve these issues, for under Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419, the officers were entitled to search the car without a warrant. Probable cause existed for the search. In addition to the facts given in the affidavit, the Oldsmobile was originally linked to its owner Darrow by the car keys, Kentucky license plates and driver’s license, and the failure of anyone else in the tavern to claim the car after repeated inquiry, and thereafter by the auto registration and bill of sale found on his person. When Secret Servicé Agent Honess peered into the car on the tavern parking lot, he observed a white rolled-up sock in a waste container in the front seat of . the car. Based on 19 years of experience with counterfeit cases, Honess explained to the police officers that a common method of operation used by the passers of counterfeit notes was to conceal a roll of counterfeit notes in a stocking. As he testified, when counterfeit passers are pursued in automobiles, they seal the bills in a stocking and' throw it out, instead of throwing the bills out of the window where the wind would cause them to go in different directions. Consequently, as the district court concluded, “the officers had independent knowledge of facts sufficient to establish probable cause for the search [even if] relying on an invalid warrant.”

Of course, probable cause alone is not sufficient to support a search without a warrant. But this case fits within an exception to the warrant requirement illustrated by the strikingly similar case of Chambers v. Maroney, supra. There the occupants of a car were arrested “in a dark parking lot in the middle of the night.” 399 U.S. at 52, n. 10, 90 S.Ct. at 1981. The police took the car to the station and searched it without a warrant. Id. at 44, 90 S.Ct. 1975. The Court concluded that the ear remained readily movable, despite the arrest of the occupants and the apparent lack of evidence that anyone was actually coming to pick it up. Id. at 51, 90 S.Ct. 1975. It then held:

“For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” Id. at 52, 90 S.Ct. at 1981.

In this case the police did not search the car “immediate [ly],” but United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 1239, 39 L.Ed.2d 771, has since held that items “that were subject to search at the time and place of * * * arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed -K # *

The only other difference between this case and Chambers is that here the officers obtained and relied on a warrant which may be invalid, whereas in Chambers the warrant process was never invoked. At least on these facts, the officers should not be penalized for going before a magistrate. It would be a different case if the magistrate had denied a warrant, and the officers had thereafter searched in purported reliance on some exception to the warrant requirement. But here the officers did not act in bad faith. We agree with Judge No-land that they are to be commended for seeking a warrant; they should not be required to run the risk that a poorly drafted affidavit will invalidate an otherwise permissible warrantless search.

Sufficiency of the Evidence

Pierce argues that the Government did not prove his guilty knowledge and intent to defraud beyond a reasonable doubt. However, the evidence summarized in this opinion’s statement of facts strongly suggests that Pierce and Darrow were engaged in a common scheme to pass counterfeit bills. The possibility that Darrow was treating an innocent Pierce to a good time is negated by the fact that Pierce kept good bills in his front pocket and the bad $20 bill in his rear pocket, showing that he knew the difference. Both Pierce and Darrow had a large amount of good currency, suggesting that both were taking change from bad bills. Thus Pierce’s entire conduct when the offense was alleged to have been committed was sufficient for the trial court to find that he had the requisite mental state to be guilty of all counts. See United States v. Cervantes, 466 F.2d 736, 740 (7th Cir. 1972); United States v. Browning, 390 F.2d 511, 512 (4th Cir. 1968). Because Pierce was engaged in a common scheme with Darrow to possess and pass counterfeit bills in the Indianapolis area, he had at least constructive possession of the 31 counterfeit bills found in Darrow’s car. See United States v. Cool, 461 F.2d 521 (7th Cir. 1972), reversed on other grounds, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335; cf. United States v. Parent, 484 F.2d 726, 732 (7th Cir. 1973).

Darrow attacks the sufficiency of the evidence only as to Count III. As already noted, this count charges that Darrow passed a counterfeit $20 bill to Herbert Clifford, a gas station attendant, on the night of March 18. Besides the evidence of the events occurring at the service station, the district court was entitled to consider the other counterfeit bills found in Darrow’s car and the one without a serial number that he had handed to the tavern waitress. Since Darrow’s service station transaction was accompanied by other acts inconsistent with innocence, the trier of facts was justified in inferring Darrow’s guilty knowledge and intent. United States v. Cool, supra.

Judgments affirmed.

      . 18 U.S.C. § 472 provides:
      “Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined not more than $5,000 or imprisoned not more than fifteen years, or both.”

      . In United States v. Cool, 461 F.2d 521, 523 (7th Cir. 1972), reversed on other grounds, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335, one of the defendants threw a paper sack containing counterfeit money from her husband’s automobile as they followed a police car to the station.

      . We do not reach two separate theories urged by the Government. It was urged that this was a permissible inventory search under Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067. In response to a question by the Court, the Government also argued that the Oldsmobile had been seized pursuant to 49 U.S.C. § 781 et seq. and could therefore be searched under the rationale of United States v. White, 488 F.2d 563 (6th Cir. 1973).


author: WEICK, Circuit Judge. PHILLIPS, Chief Judge

text:
    Elaine M. SCHMIDT, Administratrix of the Estate of Donald Edward Schmidt, Deceased, and Elaine M. Schmidt, Individually, Plaintiffs-Appellants, v. John W. WINGO, Individually, and as Warden of the Kentucky State Penitentiary, Defendant-Appellee.
    No. 73-1716.
    United States Court of Appeals, Sixth Circuit.
    Argued April 9, 1974.
    Decided June 21, 1974.
    Philip Taliaferro, Covington, Ky., for appellants; Robert E. Sanders, Neace, Taliaferro, Smith & Brown, Covington, Ky., on brief.
    M. Curran Clem, Vaughn, Vaughn & Clem, Henderson, Ky., on brief for appellee.
    Before PHILLIPS, Chief Judge, and WEICK and PECK, Circuit Judges.
   WEICK, Circuit Judge.

The plaintiff, Elaine M. Schmidt, individually and as Administratrix of the Estate of her deceased son, Donald Edward Schmidt, filed suit in the District Court for $200,000, damages for wrongful death, against the Commonwealth of Kentucky, John W. Wingo, individually and as Warden of Kentucky State Penitentiary at Eddyville, Kentucky, Louie B. Nunn, Governor of the Commonwealth of Kentucky, John C. Taylor, Commissioner of the Department of Corrections, and John Doe, a guard at the Kentucky State Penitentiary at Eddyville.

The complaint alleged that plaintiff’s decedent, while an inmate at the penitentiary, received numerous stab wounds inflicted by a fellow-inmate with a knife, as a result of which wounds he died in the prison hospital about seven hours later. The complaint charged that the defendants did not provide adequate medical treatment for the injuries inflicted upon the decedent.

Jurisdiction of the District Court was invoked under the Civil Bights Acts, 42 U.S.C. §§ 1981, 1983, 1988, 28 U.S.C. §§ 1331, 1343, and the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution.

On motion to dismiss, all of the state defendants except the Warden in his individual capacity, were dismissed because of sovereign immunity. Joe Doe was dismissed on the ground that suit may not be maintained against a fictitious person. The propriety of this ruling is not before us for review in this appeal.

The plaintiff then filed an amended complaint, adopting the allegations of her original complaint and making as an additional party defendant Doctor Max C. Salb, a general practitioner, who had been employed by the Warden as a prison doctor, on a forty-hour [per week] basis. The amended complaint charged Doctor Salb with medical malpractice.

It was the claim of the plaintiff that the prison hospital did not have adequate facilities for the treatment of the serious stab wounds inflicted upon her son, which injuries included a severing of the intercostal artery and vein, making a rent in the liver and entering the lung in two different places; that a thoracic surgeon was necessary to perform the operation; that the prison doctor was not a surgeon; that the defendants should have immediately removed the decedent to a hospital in another city having adequate facilities and personnel.

Extensive discovery was conducted. A short time before the trial commenced, Doctor Salb died, and the case was revived against his widow, as executrix of his estate. A settlement was effected by Dr. Salb’s estate with the plaintiff, and the case proceeded for trial before the Court without a jury, solely against the Warden individually.

The Court adopted findings of fact and conclusions of law in its opinion, and rendered judgment for the defendant. The plaintiff appealed. We affirm.

It appears from the findings of fact that the decedent was mortally wounded by numerous stab wounds in vital organs, the wounds having been inflicted by his fellow-inmate, and that he bled to death as a result thereof. These wounds were described in the Court’s findings of facts as follows:

Pursuant to that call, Dr. Salb came to the Penitentiary, arriving there between 3:50 and 4 p. m. When he arrived, he found that Schmidt had numerous stab wounds which were bleeding profusely. The First Aid inmates had given him Dextran interveneously and were applying dressings in an attempt to stem the loss of blood. His clothing was completely removed and he was taken to the large surgery room. Upon removal to surgery, it was found that the blade had entered between the 7th and 8th rib on the right side of the chest, severing the intercostal artery and vein, making a rent in his liver. The second wound penetrated between the 5th and 6th rib in the mammary line puncturing the lung.
A third stab wound entered the back between the 4th and 5th rib, entering the lung, and the upper left arm was penetrated and there was a laceration in the right shoulder. (App. p. 484).

The evidence to support these findings is contained in the deposition of Dr. Salb which was taken before his death, and also in Dr. Salb’s “Medical Statement”, plaintiff’s Exhibit 7, a copy of which appears in the transcript at pages 314 and 315, as part of the prison hospital record; a copy is also appended hereto.

The Medical Statement refers to Dr. Salb’s telephone call to the warden, as follows :

I immediately called Mr. Wingo, after discovering the extent of the injuries, telling him this man should be removed to another hospital because we did not have the equipment to handle such a case. Mr. Wingo asked if we could acquire this equipment immediately and I told him I didn’t think so. He then asked if the patient could survive a trip from our clinic to an outside hospital and I replied in the negative, as I considered the patient’s condition too serious. Mr. Wingo advised me to do what I could for the man. I immediately returned to the surgery, scrubbed, and with the assistance of an inmate nurse, did what I could do surgically to control the massive hemorrhage. (App. p. 314).

The closing paragraph of Dr. Salb’s Medical Statement states:

During the operation I noticed that the patient was becoming Emphysematous. His neck was enlarging due to air under the skin, as was his head and scrotum. I knew then that the patient was dying and nothing more could be done. We administered IV’s and the patient expired at 10:10 p. m., August 31, 1970. (App. p. 315).

The District Court found:

Dr. Salb’s testimony on deposition was to the effect that he told Wingo that Schmidt should be removed to another hospital because Eddyville did not have the necessary equipment, (page 127). Wingo asked if this equipment could be acquired immediately and Dr. Salb opined that he did not think so. The equipment needed was a ronger and a trocar. Dr. Salb then went on to say, in response to a question from Wingo, as to whether the patient could survive a trip from the Penitentiary to an outside hospital, that he could not. He considered the patient’s condition too serious to be moved. (App. p.485).

The Court further stated:

It is this Court’s opinion that as to the Warden, plaintiff must show by a preponderance of the proof a deliberate refusal to follow the recommendation of Dr. Salb. Since Dr. Salb did not give a recommendation that plaintiff’s decedent be removed to an outside hospital, the Court concludes that the plaintiff has failed to meet her burden of proof and, therefore, her complaint must be dismissed. (App. at 488-489).

In our opinion a deliberate refusal by the Warden to follow the recommendation of the prison doctor is not the only ground for holding him liable under the Civil Rights Act. In the present case, however, it was claimed that the Warden was liable for not following the recommendation of the prison doctor that the decedent be moved to an outside hospital in another city. The District Court found that the prison doctor made no such recommendation, and therefore the plaintiff failed in her burden of proof.

The District Court cited Stiltner v. Rhay, 371 F.2d 420 (9th Cir. 1967), cert. denied, 386 U.S. 997, 87 S.Ct. 1318, 18 L.Ed.2d 346 (1967), and Mayfield v. Craven, 299 F.Supp. 1111 (E.D.Cal., 1969), aff’d per curiam, 433 F.2d 873 (9th Cir. 1970). In these cases judgment was entered dismissing the complaint for failure to state a claim upon which relief could be granted. It was held in both cases that prison authorities have wide discretion in their treatment of prisoners. We agree.

■ In Stiltner the Court stated that it found no showing of inadequate medical eare and treatment that would justify federal intervention. In footnote 3 the Court said that under exceptional circumstances the failure to provide or permit access to medical eare may rise to Fourteenth Amendment proportions. It cited, for example, Coleman v. Johnston, 247 F.2d 273 (7th Cir. 1957), and Hughes v. Noble, 295 F.2d 495 (5th Cir. 1961).

In Coleman, allegations that police prevented treatment of bullet wounds so severe that they later required amputation of prisoner’s leg, were held to be sufficient to prevent summary disposition of a civil rights action. In Hughes, where the complaint alleged that a Sheriff, upon arriving at the scene of an automobile accident, arrested and held incommunicado a person who suffered a broken neck, the Court held that it did not appear beyond doubt that plaintiff could prove no set of circumstances in support of his claim. In Mayfield the Court stated that the Civil Rights Act was designed to protect constitutionally-guaranteed rights, not to provide a forum for alleged medical malpractice actions.

Coleman and Hughes involved wilful and outrageous conduct on the part of the law enforcement officials, which is entirely absent in the present case.

In the footnote in Stiltner the Court stated that the allegations in the illustrative cases tend to show an acute physical condition, the urgent need of medical care, the failure or refusal to provide it, and tangible residual injury. The Court then stated that plaintiff’s allegations show only that “he has not been receiving the kind and quality of medical treatment he believes is indicated and stated further:

Like the Seventh Circuit, “[w]e know of no authority standing for the proposition that such a claim as plaintiff attempts to assert here is cognizable under the Federal Civil Rights Act.” (371 F.2d at 421).

In the present case, unlike the cited cases the issues were not summarily disposed of against the plaintiff. There was extensive discovery here, and a full trial on the merits before the District Court. There was no refusal to furnish medical treatment to the decedent ; he was furnished treatment in the prison hospital by the prison doctor as soon as the doctor' could get there. The doctor was not a thoracic surgeon and could not perform needed surgery on the liver rent or on the lung. The doctor did all he could to stop the bleeding.

The Court pointed out that it would have taken about one hour for a round trip from the prison to the hospital at Princeton, Kentucky, which was fifteen miles away, and it would have taken from one and one-half to two hours for a round trip to another hospital at Madisonville, Kentucky, even under optimum circumstances. There was no proof that there was a thoracic surgeon at Princeton. It would take time to make the necessary arrangements for a thoracic surgeon and an anesthetist at Madison-ville. It must be remembered that decedent had been bleeding during more than forty-five minutes, even before Dr. Salb arrived at the prison hospital. Dr. Salb could do nothing to stop the internal bleeding from the liver rent or the lung. Time was consumed also while he stopped the bleeding in the areas that he was able to reach.

All of this confirms Dr. Salb’s opinion that, if moved, the decedent would have died on the way to the hospital outside the prison. Any other conclusion would be sheer speculation. Our reading of the record indicates serious doubt even as to any civil liability of Dr. Salb for malpractice, let alone constitutional violation. 1

Upon oral argument, when counsel for appellant was questioned about the liability of the doctor, he answered that the settlement made with the doctor’s estate was a “gift”.

In any event, the Warden relied on the advice of the prison doctor not to move the decedent to an outside hospital in another city. Such reliance does not vioíate any duty under the Constitution owed by the Warden to the decedent.

In our opinion the Warden is not personally liable for the adequacy or inadequacy -of the facilities at the prison hospital which was built only two years previously by the Department of Corrections of the State.

We are of the opinion that the findings of fact of the District Court are supported by substantial evidence and are not clearly erroneous.

The judgment of the District Court is affirmed.

APPENDIX

MEDICAL STATEMENT

RE: SCHMIDT, Donald #25491

I arrived at the institution at approximately 3:50 p.m., after being called at my home, advising me that there had been a stabbing incident at the institution at 3:10 p.m. and Donald Schmidt was severely wounded.

Examination of the patient in the first-aid room revealed numerous stab wounds bleeding profusely. Before I arrived the patient had been given Dextran intravenously, and dressings applied to stem the loss of blood. I had his clothing removed and, due to profuse bleeding, he was removed to the large surgery to reveal the extent of damage done by the stabbing. The following wounds were found:

A blade entered between the seventh and eighth ribs on the right side of the chest severing the intercostal artery and vein, making a rent in the liver.

The second wound penetrated between the fifth and sixth ribs in the mammary line, puncturing the lung.

The third stab wound entered the back between the fourth and fifth ribs entering the lung.

The above openings were bleeding profusely upon inspiration and expiration. The upper left arm was penetrated through the Brachio Radialin and came out through the Flexor Carpi Ulnaris muscle, dividing the Cubital vein, resulting in excessive hemorrhage. This was ligated immediately.

There also was a laceration on the upper right Deltoid area.

I immediately called Mr. Wingo, after discovering the extent of the injuries, telling him this man should be removed to another hospital because we did not have the equipment to handle such a ease. Mr. Wingo asked if we could acquire this equipment immediately and I told him I didn’t think so. He then asked if the patient could survive a trip from our clinic to an outside hospital and I replied in the negative, as I considered the patient’s condition too serious. Mr. Wingo advised me to do what I could for the man. I immediately returned to the surgery, scrubbed, and with the assistance of an inmate nurse, did what I could do surgically to control the massive hemorrhage.

I injected Lidocaine into the larger wounds, trying to find if they were surgically reparable. I ligated the bleeding points with plain #2 catgut and found that the injury was in the lung itself. This indicated that a Thoracotomy was required to make the lung repair, and this can be done only under a general anesthesia, and we are not equipped for this. We tied off all bleeders with #0 catgut and closed the wounds with 3 & 4 silk sutures.

During the operation I noticed that„the patient was becoming Emphysematous. His neck was enlarging due to air under the skin, as was his head and scrotum. I knew then that the patient was dying and nothing more could be done. We administered IV’s and the patient expired at 10:10 p.m., August 31, 1970.

/s/ M. C. SALB, M.D.

M. C. Salb, M.D.

Medical Director

PHILLIPS, Chief Judge

(concurring).

I concur in the result reached in the majority opinion in this civil rights action for damages brought by the mother of a deceased prisoner against the warden of a state prison.

Cases holding that prison officials have wide discretion in their medical treatment of prisoners are legion. See, e.g., Stiltner v. Rhay, 371 F.2d 420, 421 (9th Cir.), cert. denied, 386 U.S. 997, 87 S.Ct. 1318, 18 L.Ed.2d 346 (1967); Snow v. Gladden, 338 F.2d 999, 1000 (9th Cir. 1964). Similarly, there are many cases expressing the reluctance of federal courts to become involved in the internal administration of state prisons. See, e.g., Jones v. Metzger, 456 F.2d 854, 855 (6th Cir. 1972); Coppinger v. Townsend, 398 F.2d 392, 393 (10th Cir. 1968).

Our circuit has continued to recognize these general legal principles, but simultaneously we have acknowledged that a prisoner retains all the rights of an ordinary citizen except those expressly or by necessary implication taken from him by law. Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944). Further, prisoners alleging denial of civil rights are entitled to the same consideration by our court as that afforded other civil rights litigants. Jones, supra, 456 F.2d at 856. In Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972), we held that “where the circumstances are clearly sufficient to indicate the need of medical attention for injury or illness (of a prisoner), the denial of such aid constitutes the deprivation of constitutional due process.”

In Fitzke, Id., this court, speaking through Judge Miller, declared:

“An individual incarcerated, whether for a term of life for the commission of some heinous crime, or merely for the night to ‘dry out’ in the local drunk tank, becomes both vulnerable and dependent upon the state to provide certain simple and basic human needs. . . . Medical care is . such need. Denial of necessary medical attention may well result in disabilities beyond that contemplated by the incarceration itself. The result may be crippling injury, as alleged here, or, as the Stiltner court pointed out, the very deprivation of life itself, since, restrained by the authority of the state, the individual cannot himself seek medical aid or provide the other necessities for sustaining life and health.
“Thus it is that fundamental fairness and our most basic conception of due process mandate that medical care be provided to one who is incarcerated and may be suffering from serious illness or injury. This is not to say that every request for medical attention must be heeded nor that courts are to engage in a process of second-guessing in every case the adequacy of medical care that the state provides.”

Our present decision, in my view, turns upon the particular facts of this case, and not upon the holding of the District Court that the plaintiff had the burden to show by a preponderance of the evidence a “deliberate refusal” on the part of the warden to follow the recommendation of the prison doctor. I agree with the majority that a “deliberate refusal by the Warden to follow the recommendation of the prison doctor is not the only ground for holding him liable under the Civil Rights Act.”

A “deliberate refusal” standard would be too restrictive. Such a standard wrongly assumes the presence of a competent doctor on whose advice the prison warden can rely. Circumstances can be envisioned where a warden might be required to act in the absence of medical advice, such as for injuries or illnesses occurring when a doctor is not available at the prison or of such a serious nature as to require immediate decisions prior to reaching a doctor.

Once informed of the prisoner’s injury or illness, it is my view that the warden has the duty under Fitzke, supra, to investigate 1). the extent of the injuries, 2) the realistic possibilities of treatment, considering the availability of medical personnel and medical equipment, both inside and outside the prison, and 3) the consequences of pursuing the alternative methods of medical treatment. If one available avenue of treatment, albeit outside the walls of the prison, could save the life of an injured or ill prisoner, then that is the course which the prison warden would be required to follow.

Nothing in this concurring opinion is meant to imply that the warden of a prison cannot delegate responsibility to his immediate subordinates so that the duties outlined above can be performed by him and his staff at all hours. Nor is it intended to imply that a prisoner injured with a heart wound, for example, would be entitled to the services of the foremost heart surgeon in the nation. A rule of reason, applied on a case by case basis, must determine the adequacy of medical care provided.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Wayne MARSHALL, Defendant-Appellant.
    No. 74-1447
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 15, 1974.
    Dan Abbott, Abilene, Tex. (Court-appointed), for defendant-appellant.
    Frank D. McCown, U. S. Atty., Conrad L. Florence, W. E. Smith, Asst. U. S. Attys., Fort Worth, Tex., for plaintiffappellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant John Wayne Marshall was convicted after a jury trial for unlawful possession of an unregistered firearm, 26 U.S.C. § 5861(d), and was sentenced to three years imprisonment. Appellant argues that the trial judge erred in denying his motion to suppress, contending that the sawed-off shotgun that was introduced at trial was obtained by means of an unlawful search in violation of the Fourth Amendment. We affirm.

On August 24, 1973, Texas Department of Public Safety Officer Bartlett stopped Appellant Marshall on Interstate Highway 20 for driving with a defective muffler. Marshall was unable to produce a driver’s license, but identified himself to Bartlett during questioning at the scene. On learning Marshall’s identity, Bartlett recalled some information about Marshall previously related to him by one Melton, whom Bartlett had known for four years. According to Officer Bartlett, on August 10 or 12, 1973, Melton told him that Marshall had that day jokingly pointed a sawed-off shotgun at Melton, and had then placed the gun under the front seat of his car. Bartlett also testified that before the car was stopped, he saw Marshall “doing something under the front seat.” Because Bartlett and his fellow officer intended for Marshall to follow them in his own car to the office of the Justice of the Peace, Bartlett decided to check under the front seat of Marshall’s car. Although the gun was not in plain view, when Bartlett reached under the front seat, he found the gun exactly where Melton told him Marshall had placed it.

Appellant contends that this search does not fall within any of the recognized exceptions to the warrant requirement. He notes that the burden is on those seeking the exemption to show the need for it. Coolidge v. New Hampshire, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. It is well settled that a search incident to a lawful arrest is one exception to the Fourth Amendment warrant requirement. E. g., Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. Appellant concedes that on the basis of the recent decisions in United States v. Robinson, 1973, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, and Gustafson v. Florida, 1973, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456, search of his person and of the area within his immediate control was permissible, incident to the lawful custodial arrest, to preserve evidence or prevent flight, or for the personal protection of the arresting officers. Appellant argues, however, that because he had stepped out of the automobile prior to the search, the gun under the seat of the car could not have represented a danger, and the search therefore could not be justified as incident to the arrest.

We conclude, on the particular facts of this case, that the limited search under the front seat of the car was reasonable and justified as incident to a lawful arrest. First, the arrest was no mere pretext for the search. Second, Appellant was permitted to drive his own automobile to the Justice of the Peace office in accordance with customary and reasonable police procedures; absent, a search, any weapons under the front seat of the car would have been within his immediate control. The record and briefs reveal no evidence or suggestion that the decision to have Appellant drive his own car was made in order to justify the search. Third, the information provided by Melton, coupled with Appellant’s unusual movement prior to the stop, gave officers reason to suspect that Appellant might be concealing a gun under the front seat. Finally, the search was limited to a reach under the front seat and did not extend to the trunk or other areas of the car that would have been beyond Appellant’s immediate control.

Affirmed.

      . This was the customary practice. Bartlett’s testimony indicated that the Department of Public Safety considers it hazardous to leave an automobile unattended at the side of a major highway'; it is apparently thought to be less offensive and intrusive to permit the subject to drive his own car than to have it towed or to have a highway patrolman drive it.