source: Caselaw Access Project

author: ASPEN, District Judge:

license: Public Domain

text:
    Lee CAIN, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants. City of Chicago, Counterplaintiff, v. Estate of Michael Darrell Cain and Lee Cain, as Administrator of the Estate of Michael Darrell Cain, Counterdefen-dants.
    No. 85 C 1011.
    United States District Court, N.D. Illinois, E.D.
    Oct. 2, 1985.

      Jeffrey Haas, Chicago, 111., for plaintiffs.
    Robert J. Quinn, Asst. Corp. Counsel, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiff Lee Cain (“Cain”) brought this action individually, as the administrator of decedent Michael Cain’s (“the decedent”) estate and on behalf of the decedent’s next of kin under 42 U.S.C. §§ 1981, 1983 and 1985. There are also several pendent state law causes of action. The defendants in this case are the City of Chicago (“the City”), Chicago Police Superintendent Fred Rice (“Rice”), Chicago police officers Gerald Dahlberg (“Dahlberg”), Robert Hacker (“Hacker”) and Dorothy Stefan (“Stefan”) and “John Doe” and other unknown Chicago police officers. Rice and all of the defendant police officers are named both individually and in their official capacity.

I. Factual Allegations

Cain alleges that on September 14, 1983, defendants Dahlberg, Hacker and Stefan, along with other unknown Chicago police officers, were parked in an unmarked police car in the vicinity of decedent’s home. Somewhere between 4:30 p.m. and 5:00 p.m., the decedent, a 28-year old black man, arrived on the block, parked his car, walked to another car parked across the street and drove away in that car. Decedent drove into a nearby alley, but was blocked on one side by the car of Dahlberg, Hacker and Stefan. Other police officers blocked off the other entrance to the alley, trapping decedent in the middle. Dahlberg, Hacker and Stefan, who were all dressed in plain clothes, allegedly got out of their unmarked car, failed to announce that they were police officers and fired approximately fifteen shots at decedent’s car, sending at least four bullets into his upper body. The decedent had raised his hands up in the air at or before the time that defendants first fired their weapons. After the initial round of fire, defendant Stefan approached the decedent’s slumped body and fired two or three more shots through the driver’s side window into his head and neck. Decedent’s body remained at the scene for over an hour before being transported to a hospital where he was pronounced dead on arrival.

The defendants respond that the defendant police officers when attempting to apprehend the decedent, property identified themselves, that decedent first fired upon defendants, and that defendant Dahlberg shot the decedent in self-defense.

The defendants have also filed a motion to dismiss Counts IV, V and VI of Cain's complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, defendants' motion is granted in part and denied in part.

II. State Law Claims

We turn first to the pendent state law claims in this action. Count IV is a claim under the Illinois wrongful death statute, Ill.Rev.Stat. ch. 70, §§ 1, 2 (1983), filed by Cain on behalf of the decedent’s next of kin against defendants the City and Rice. Count V, on its face, differs little from Count IV. Its state law component constitutes a wrongful death claim against defendants the City and Rice under a theory of respondeat superior. Count VI is an Illinois common law claim against the City and Rice for negligent hiring, retention and entrustment of the defendant police officers.

In order to sue a local governmental entity or one of its employees under Illinois law, a plaintiff must first comply with the notice provisions of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (“the “Tort Immunity Act”), Ill.Rev.Stat. ch. 85, §§ 8-101 — 8-103 (1983).

The Tort Immunity Act was enacted in order to provide a statutory basis for the easing of sovereign immunity principles. In their current form, its provisions require any party to file a written notice of injury with the Secretary or Clerk of any municipal entity before commencing a damage suit against that entity or any of its employees. This notice must be filed within one year of the alleged injury, must be served personally or by registered or certified mail, return receipt requested, and must contain certain details concerning the incident which caused the injury. Ill.Rev. Stat. ch. 85, § 8-102 (1983). Failure to serve notice as required by the Tort Immunity Act is a basis for dismissal and results in a bar from further suit for the injury. Ill.Rev.Stat. ch. 85, § 8-103 (1983).

The defendants have moved to have Counts IV, V and VI dismissed on the grounds that (1) plaintiffs failed to allege compliance with the statutory notice provision in their complaint and (2) plaintiffs failed to serve the City Clerk of defendant City of Chicago with the statutory notice. It is true that plaintiffs’ complaint contains no reference to the Tort Immunity Act, and that compliance with the notice provisions of that Act should be pled. In other circumstances, this Court might grant leave to amend the complaint regarding statutory notice, but in the present case that would be a meaningless formality since we find that notice was not properly served on the City Clerk of the City of Chicago.

The following facts are not in dispute with respect to plaintiffs’ attempts to comply with the Tort Immunity Act. With their motion to dismiss, defendants filed an affidavit from Mary Frances Meyer, an investigator in the City Clerk’s Office of defendant City of Chicago. Meyer states in this affidavit that a notice of injury was never served on the City Clerk’s Office by any of the plaintiffs within one year of the time the shooting is alleged to have occurred in plaintiffs’ complaint. Plaintiffs do not contest that they never served notice on the City Clerk’s Office, but have submitted a copy of a notice which was served on the City Corporation Counsel’s Office at 2:11 p.m. on September 13, 1984, just within one year from the date of the alleged shooting. This notice is stamped as received by the City Corporation Counsel’s Office.

Defendants’ central claim in their motion to dismiss is that service on the Corporation Counsel’s Office fails to adequately meet the notice requirement of Ill.Rev.Stat. ch. 85, § 8-102 (1983). They also argue that, because plaintiffs’ written notice does not contain a statement as to “about the hour” that the shooting occurred and is not personally signed by any of the plaintiffs, it is insufficient notice. Plaintiffs respond that their notice was sufficient to satisfy the purposes underlying the Tort Immunity Act since the Corporation Counsel’s Office represents the City in legal matters. They argue that the statute should be liberally interpreted in evaluating the sufficiency of notice.

There seems to be some confusion among the Illinois courts on the extent of compliance necessary to satisfy the notice requirements of § 8-102. While some Illinois opinions profess a general rule of liberal construction of the statute and sometimes merely require “substantial compliance” with its provisions, Reynolds v. City of Tuscola, 48 Ill.2d 339, 343, 270 N.E.2d 415, 417 (1971); Klein v. City of Chicago, 10 Ill.App.3d 670, 674-75, 294 N.E.2d 755, 758 (1st Dist.1973), others have applied § 8-102 with unmitigated severity, often rendering harsh results. See, e.g., Zavala v. City of Chicago, 66 Ill.2d 573, 578-79, 6 Ill.Dec. 901, 903, 363 N.E.2d 848, 850 (1977) (complaint dismissed where plaintiff neglected to include in the notice'the names of hospitals at which the plaintiff received treatment for his injuries); Smith v. City of Chicago, 92 Ill.App.3d 247, 251, 48 Ill. Dec. 125, 128, 416 N.E.2d 20, 23 (1st Dist. 1980) (typographical error in notice which stated wrong year of injury rendered notice insufficient); Ramos v. Armstrong, 8 Ill. App.3d 503, 506-07, 289 N.E.2d 709, 711 (3d Dist.1972) (failure to include plaintiff’s address rendered the notice ineffective).

While these opinions have dealt with the adequacy of the notice’s content, the present case turns on the adequacy of service. Section 8-102 specifically requires the notice of injury to be served on the “Secretary or Clerk” for the entity against whom suit is to be brought (or whose employees are to be sued). In this case, notice is alleged to have been served on the City Corporation Counsel’s Office. Other cases have addressed the adequacy of notice served on the wrong office and have dismissed complaints for failure to properly serve the City Clerk as required by the statute. In People ex rel. Department of Transportation v. City of Chicago, 36 Ill. App.3d 712, 344 N.E.2d 688 (1st Dist.1976), the plaintiff wrote a series of letters to the City Committee on Finance regarding an automobile collision between a City employee and plaintiff’s property, but failed to serve proper notice on the City Clerk. The Illinois Court of Appeals affirmed the dismissal of the plaintiffs complaint for failure to comply with § 8-102, noting that even after being denied by the Committee on Finance, the plaintiff made no attempt to serve the City Clerk. Id. at 715, 344 N.E.2d at 691. Cf. Repaskey v. Chicago Transit Authority, 60 Ill.2d 185, 326 N.E.2d 771 (1975) (holding that notice provisions in analogous statute were not met where plaintiff served notice on wrong office). Similarly, in Mui v. Dietz, 559 F.Supp. 485, 490 (N.D.Ill.1983), this Court granted a motion to dismiss the plaintiffs state law claim for assault and battery, false arrest and imprisonment and malicious prosecution where the plaintiff served his § 8-102 notice on the police department rather than the City Clerk’s Office.

It has been held that the purpose underlying the § 8-102 notice provision is to provide timely notice of an injury to a public entity, to enable prompt investigation and settlement of meritorious claims. King v. Johnson, 47 Ill.2d 247, 250-51, 265 N.E.2d 874, 876 (1970). While these goals might be achieved with a mere “substantial compliance” standard, Illinois courts have apparently preferred a strict compliance standard where questions involving service on the proper office under § 8-102 are concerned. We are bound here, as we were in Mui, to follow Illinois law with respect to the requirement of strict compliance with the Tort Immunity Act, and accordingly, the motion to dismiss the state law claims against the City and Superintendent Rice in Counts IV, V and VI is granted pursuant to § 8-103. Because we base our decision on the failure of service with respect to claims against the City and defendant Rice, we need not address the issue of the sufficiency of the notice’s content. Nor do we address the defendants' claim that Rice is immune from respondeat superior liability under Ill.Rev.Stat. ch. 85, § 2-204 (1983) which protects public employees acting within the scope of their employment from liability for the acts of others. Dismissal of this claim in Count V does not affect the plaintiffs’ civil rights claims in Counts I through III, nor, as discussed below, is the federal civil rights claim against the City in Count V affected.

III. Federal Civil Rights Claims Section 1981 Claim Against the City

Count V also contains a federal claim against the defendant City under 42 U.S.C. § 1981 (1982) based on a theory of respondeat superior for the acts of its employees, the defendant police officers. Defendants have moved to dismiss this claim as well for failure to comply with the Tort Immunity Act. However, § 1981 constitutes a federally-created cause of action, and as such, the procedural aspects of § 1981 actions are controlled by federal law except where Congress has not spoken. 42 U.S.C.- § 1988 (1982). Although this means that for certain rules of decision, such as statutes of limitations, the federal courts look to the state law for the appropriate law, Burnett v. Grattan, — U.S. —, 104 S.Ct. 2924, 2929, 82 L.Ed.2d 36 (1984), other aspects of state practice need not be complied with in maintaining a federal civil rights claim. It already has been determined that the notice provisions of the Illinois Tort Immunity Act are not applicable to federal civil rights actions under 42 U.S.C. § 1983 (1982) and 42 U.S.C. § 1985 (1982), since the Tort Immunity Act was intended to apply to common law tort claims as opposed to quasi-tort actions of a constitutional nature. Luker v. Nelson, 341 F.Supp. 111, 117-18 (N.D.Ill.1972); see also Firestone v. Fritz, 119 Ill.App.3d 685, 689, 75 Ill.Dec. 83, 87, 456 N.E.2d 904, 908 (2d Dist.1983) (citing Luker with approval). By the same reasoning, we now extend that holding to actions under 42 U.S.C. § 1981. Furthermore, this Court has already determined that municipalities are subject to § 1981 liability on a respondeat superior basis. Haugabrook v. City of Chicago, 545 F.Supp. 276 (N.D.Ill.1982). Accordingly, the motion to dismiss plaintiffs’ § 1981 claim against the City of Chicago in Count V is denied.

Section 1981 Claim Against Superintendent Rice

Finally, Count Y includes a claim against Superintendent Rice under § 1981 based on a respondeat superior theory. Defendants have moved to dismiss this claim because they claim Rice is immune from liability under Ill.Rev.Stat. ch. 85, § 2-204 which protects public employees acting within the scope of their employment from liability for the acts of others. It is not clear that the protection from liability set forth in § 2-204 would be properly applicable to a federal civil rights claim. To so hold would be to permit state legislatures to draft statutes which could potentially undermine the very purposes of having federal statutes governing the protection of civil rights. Nevertheless, municipal officials have not been held liable under § 1981 solely on a respondeat superior basis, Trotter v. City of Chicago, 573 F.Supp. 1269, 1275 (N.D.Ill.1983), at least not in the absence of their direct participation in the allegedly offensive acts or knowing acquiescence therein. Preston v. City of York, 452 F.Supp. 52, 54 (M.D. Pa.1978). Plaintiffs here have made no allegation in Count V that defendant Rice directly participated in the shooting incident, nor that he had direct knowledge or had approved of the defendant police officers’ conduct. In the absence of such allegations, plaintiffs’ respondeat superior claim against defendant Rice under § 1981 must be dismissed.

IV. Conclusion

The defendants’ motion to dismiss Counts IV and VI is granted. The defendants’ motion to dismiss Count V is denied with respect to the § 1981 claim against the City of Chicago and granted in all other respects. It is so ordered.

      . Also named as a plaintiff is Andre Cain, the minor son of the decedent, by his guardian and mother, Peggy Horton. However, with respect to the present motion, Andre’s claims are only relevant as a "next of kin” to the decedent.

      . Ill.Rev.Stat. ch. 85, § 8-102 states:
      Within 1 year from the date that the injury or cause of action, referred to in Sections 8-101, 8-102 and 8-103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, must serve, either by personal service or by registered or certified mail, return receipt requested, a written notice on the Secretary or Clerk, as the case may be, for the entity against whom or against whose employee the action is contemplated a written statement, signed by himself, his agent or attorney, giving in substance the following information: the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any.
      Ill.Rev.Stat. ch. 85, § 8-103 states:
      If the notice under Section 8-102 is not served as provided therein, any such civil action commenced against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, shall be dismissed and the person to whom such cause of injury accrued shall be forever barred from further suing.

      . For the purposes of a motion to dismiss, the Court usually assumes the truth of the complaint’s allegations and does not look beyond its four corners. However, because the parties have submitted other documents with their memoranda, we shall consider defendants’ motion under Rule 56. See Fed.R.Civ.P. 12(b). In any event, the material facts with respect to the filing of notice of claim are undisputed.

      . However, the annalytical standards applied by Illinois courts in these cases seem to be identical whether the statutory compliance issue involves content or service.

      . Where Illinois courts have invoked a substantial compliance standard regarding § 8-102, the plaintiff has ordinarily included all essential elements enumerated in the statute and has served the proper office, the only question being whether the contents of the notice are sufficiently complete. See, e.g. Bickel v. City of Chicago, 25 Ill.App.3d 689, 323 N.E.2d 832 (1st Dist.1975).

      . We note as an alternative ground for dismissing Count IV that the claims set forth in Count IV are identical to those contained in Count V regarding the wrongful death claims against the City and Superintendent Rice. Since it is not alleged that defendant Rice was at the scene of the shooting, and the City cannot be directly liable for the shooting, the only basis for the wrongful death claim against these two defendants must be through vicarious liability. Count IV is therefore totally subsumed by Count V and is unnecessary to plaintiff's claims.

      . 42 U.S.C. § 1981 (1982) states:
      All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties,-give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

      . 42 U.S.C. § 1988 (1982) states in pertinent part:
      The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this Title, and of Title “CIVIL RIGHTS,” and of Title "CRIMES,” for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal causes is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.

      . Ill.Rev.Stat. ch. 85, § 2-204 (1983) states:
      Except as otherwise provided by statute, a public employee, as such and acting within the scope of his employment, is not liable for an injury caused by the act or omission of another person.

      . It should be noted that from the standpoint of agency law, respondeat superior might not be an appropriate theory of liability of a supervisory municipal official in any case since it is the municipality, and not the supervisor, who is the employer of the offending subordinates. See Jones v. City of Philadelphia, 491 F.Supp. 284, 289 (E.D.Pa.1980).


author: H. FRANKLIN WATERS, Chief Judge.

text:
    Ronald LACEY, Individually and as Special Administrator of the Estate of Rebecca Lacey, Deceased; and Glenda Richie Tomlinson, Plaintiffs, v. BEKAERT STEEL WIRE CORPORATION; Crawford County, Arkansas; City of Van Buren, Arkansas; CNA; the Pillsbury Company; Fred McLane; and Bruce Shaw and Virgil Bracken, Co-Executors of the Estate of H.H. (Mike) Meyer, Deceased, Defendants.
    Civ. No. 85-2046.
    United States District Court, W.D. Arkansas, Fort Smith Division.
    Oct. 2, 1985.

      Robert S. Blatt and Charles Karr, Fort Smith, Ark., for plaintiffs.
    G. Alan Wooten, Warner & Smith, Fort Smith, Ark., for Bekaert Steel Wire Corp. and CNA.
    Joseph C. Self, Deputy Pros. Atty., Van Burén, Ark., for Crawford County, Ark.
    Gary R. Cottrell, Van Burén, Ark., for City of Van Burén, Árk.
    Robert L. Jones, Jr., Jones, Gilbreath & Jones, Fort Smith, Ark., for Pillsbury Co.
    Thomas Harper, Harper, Young, Smith & Maurras, Fort Smith, Ark., for Fred McLane.
    James A. Arnold, II, Shaw, Ledbetter, Hornberger, Cogbill & Arnold, Fort Smith, Ark., for Bruce Shaw and Virgil Bracken, Co-Executors of the Estate of H.H. (Mike) Meyer, Deceased.
   MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

I. Introduction

Plaintiffs initiated this action on February 19, 1985, against the various defendants, for damages sustained in a one-vehicle accident which occurred on July 30, 1982. Specifically, plaintiffs allege that on the aforementioned date the decedent, Rebecca Lacey, operated a vehicle owned by plaintiff, Ronald Lacey, and occupied by plaintiff, Glenda Tomlinson, on “Lee Creek Road” in Crawford County, Arkansas. Lee Creek Road ends at the north bank of the Arkansas River. Rebecca Lacey drove the vehicle off of the end of Lee Creek Road into the Arkansas River. Rebecca Lacey drowned and Glenda Tomlinson sustained personal injuries. Ronald Lacey’s vehicle was damaged.

Defendants, Bruce Shaw and Virgil Bracken, are co-executors of the estate of H.H. Meyer, who is now deceased. It is alleged that H.H. Meyer and defendant Fred McLane owned the property in 1968 that would now be east of the center line of Lee Creek Road and immediately to the north of the point of the occurrence. Defendant, Pillsbury Company (Pillsbury) is the predecessor in title of defendant, Bek-aert Steel Wire Corporation (Bekaert), to the property that would now be west of the center line of Lee Creek Road, and the property immediately to the north of the point of occurrence.

In April of 1968, H.H. Meyer, defendant McLane, and defendant Pillsbury conveyed to defendant Crawford County, Arkansas (Crawford County), an 80-foot right-of-way for Lee Creek Road running approximately 1663.25 feet from the north bank of the Arkansas River to the north. Crawford County accepted the easement for use as a public road.

In June, 1974, Pillsbury conveyed its interest in the property to Bekaert. In May, 1975, Crawford County annexed the land at the point of occurrence and immediately north thereof, to defendant City of Van Burén, Arkansas (Van Burén). The land was accepted by Van Burén that same day.

In July, 1976, Bekaert contracted with Van Burén for Van Burén to issue Act 9 bonds to raise capital for the construction of Bekaert’s industrial plant. The agreement required Bekaert to maintain general public liability insurance against personal injury or death occurring in or about the plant and property damage insurance against damage on or about the plant. The agreement further provided for Bekaert’s indemnification of Van Burén for liability from claims arising from the conduct or negligence of Bekaert, its assignees, or agents. The land described in the agreement includes Lee Creek Road at the point of occurrence and immediately to the north thereof.

At the time of the accident, there was a policy of insurance issued by defendant CNA in accordance with the Bekaert-Van Burén agreement. Van Burén is an alleged insured under the policy. Plaintiffs allege that CNA is therefore subject to direct-action suit pursuant to Ark.Stat.Ann. § 66-3240.

Plaintiffs contend that Bekaert, Crawford County, Van Burén, Pillsbury, McLane and H.H. Meyer were negligent in the dedication, acceptance, design, ' construction, maintenance, marking, and guarding of Lee Creek Road at the point of occurrence. In this regard, plaintiffs assert essentially that any negligence of Bekaert is “imputed” to Crawford County, whose negligence is “imputed” to Van Burén, whose negligence is “imputed” to Pillsbury, whose negligence is “imputed” to McLane and H.H. Meyer, whose negligence is “imputed” to United States Trust Company of New York, Trustee. This negligence is alleged to arise from the following particulars:

(1) dedication and acceptance of a public road that would not benefit the public and which ended at the north bank of the Arkansas River;
(2) designing and constructing a public road that does not benefit the public and ends at the north bank of the Arkansas River;
(3) designing, constructing and paving a road that ends at the north bank of the Arkansas River which appears to be a “through” highway, which is marked with double yellow lines;
(4) failing to erect barricades and warning devices and signs to prevent persons from driving into the Arkansas River;
(5) inaccurately warning persons that the road ended in three-fourths of a mile;
(6) failing to close the road and generally failing to exercise ordinary care.

Although Ark.Stat.Ann. § 12-2901 renders counties, cities and political subdivisions immune from tort liability, plaintiffs contend that this immunity violates section 1 of the fourteenth amendment to the United States Constitution. This argument is premised on the fact that Ark.Stat.Ann. § 12-2901 requires political subdivisions to carry liability insurance on all motor vehicles, but does not require them to carry general liability insurance. Ark.Stat.Ann. § 66-3240 authorizes a direct action against an insurance carrier when a political subdivision not ordinarily subject to suit carries liability insurance, but this statute does not require political subdivisions to carry such insurance.

Van Burén moved to dismiss the complaint under Rule 12(b)(6), Fed.R.Civ.P., based upon the “statutory” immunity and plaintiffs’ failure to utilize sections 7.20.01 and 7.20.02 of chapter 7.20 of the Van Burén Municipal Code which authorize an administrative claims procedure against Van Burén.

Crawford County moved to dismiss, pursuant to Ark.Stat.Ann. § 12-2901, and because plaintiffs’ complaint and exhibits demonstrate that Crawford County had no control over Lee Creek Road for more than seven years prior to the accident. However, because counsel for Crawford County failed to submit a brief in support of its motion as required by Local Rule 20 of the Rules for the Eastern and Western Districts of Arkansas, this court, by order dated March 11, 1985, denied Crawford County’s motion and directed it to submit an answer to the complaint within 13 days. The answer was duly submitted reaffirming its defenses raised by motion and adding several other factual defenses.

Shaw and Bracken filed an answer to the complaint, raising factual defenses and affirmatively alleging that this court lacks jurisdiction of the subject matter or persons of these separate defendants, Shaw and Bracken. They further contend that the complaint fails to state a cognizable claim as to them, and that the action is barred by the statute of limitations.

Bakaert answered the complaint raising the defenses of comparative fault, unavoidable casualty, and failure to state a claim upon which relief can be granted.

CNA moved to dismiss under Rules 12(b)(2) and 6, Fed.R.Civ.P. CNA argues that the policy referred to in the complaint was issued to Bekaert rather than Van Burén, and therefore that Ark.Stat.Ann. § 66-3240 does not apply so as to allow a direct action against it.

Evelyn McLane, guardian of the person and property of Fred McLane, moved to quash service because the summons was not signed by the clerk, bore no date, was not “sealed” by the court, directed McLane to answer within 20 days rather than 30, and additionally because the guardian and ward were not both served as required by law. McLane additionally asserts that the complaint fails to state a claim and is barred by the statute of limitations.

On March 27, 1985, Crawford County moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., primarily on the grounds raised in its motion and answer.

Pillsbury moved to dismiss plaintiffs’ complaint for an alleged failure to state a claim cognizable under law.

Shaw and Bracken moved to dismiss plaintiffs’ complaint on the bases alleged in their answer.

Plaintiffs subsequently re-served McLane properly, and the adequacy and sufficiency of the original service are no longer before the court.

On May 3, 1985, the court advised the parties that the court had decided to consider the motions to dismiss filed by Crawford County, Van Burén, Pillsbury, McLane, and Shaw and Bracken, as motions for summary judgment. The parties were given ten days to supplement the record as necessary. All issues are now ripe for resolution and the motions of the various parties will be discussed in turn.

II. The Motions of the City of Van Bu-rén and Crawford County, Arkansas

It is undisputed that the complaint purports to allege a claim for relief based upon negligence against Van Burén and Crawford County. Ark.Stat.Ann. § 12-2901 provides:

12-2901. State subdivisions immune from tort liability. — It is hereby declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the State shall be immune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees. [Acts 1969, No. 165, § 1, p. 455.]

Section 12-2902 allows political subdivisions to provide for the hearing and settling of tort claims against them, which Van Burén has done.

As noted, one of plaintiffs’ arguments is that section 12-2901 is violative of section 1 of the fourteenth amendment, because section 12-2903 provides: “All political subdivisions shall carry liability insurance on all their motor vehicles ...” but does not require political subdivisions to procure general liability insurance. As a result, potential plaintiffs have a remedy via the direct action statute, section 66-3240, for damages caused by the negligent operation of vehicles owned by political subdivisions, see Sturdivant v. Farmington, 255 Ark. 415, 500 S.W.2d 769 (1973), but have no remedy in tort for damages sustained as a result of other types of negligence on the part of political subdivisions.

Plaintiffs argue that sections 12-2901 et seq. violate the equal protection clause in the following particulars: (1) It classifies victims of negligence who have sustained damage by whether they have been injured by a non-government tortfeasor or a government tortfeasor; (2) It classifies victims of government tortfeasors by whether they have been injured by a motor vehicle or other instrumentality; (3) It classifies victims of government tortfeasors by whether they have been injured by a political subdivision that carries liability insurance or by one that does not do so; (4) It classifies victims of government tort-feasors by whether they have been injured by a political subdivision that has established a procedure for hearing and settling tort claims or by those that have not.

The potential unfairness of the legislative scheme is apparent. A citizen injured by a city’s lawnmower is not necessarily entitled to compensation, although if that same citizen were instead to be struck by a city’s motor vehicle, the citizen would be entitled to compensation under section 12-2903 and Sturdivant.

If a person is injured through the negligence of an employee of insured City A, that person’s claim is compensable, while the claim of a person injured through the negligence of an employee of non-insured City B would not necessarily be compensa-ble.

Obviously the legislative scheme allows some cities and counties to be held accountable for their wrongful acts while allowing other cities and counties to remain immune from accountability. This necessarily implies that some citizens of the state of Arkansas may receive compensation for injuries caused by city or county employees while some citizens are entitled to recover nothing, depending upon whether the political subdivision has in its sole discretion decided to purchase insurance, whether the victim was injured by a “motor vehicle,” or whether the subdivision has “chosen” to implement a procedure for the handling of claims.

The issue of governmental immunity per se is not at issue. It is generally agreed that immunity of local governments was seminally recognized in Russel v. Men of Devon, 2 T.R. 667, 11 Eng.Rep. 359 (1788). This rule was first enunciated in Arkansas in Granger v. Pulaski County, 26 Ark. 37 (1870). This was the rule at common law theoretically carried forward in Arkansas by Ark.Stat.Ann. § 1-101. The only deviation from this principle, in the state of Arkansas, has been Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1963), which overruled the rule of the common law with respect to a city’s tort immunity. In “response” to that decision the general assembly of the state of Arkansas enacted the legislative scheme now codified as Ark.Stat.Ann. §§ 12-2901 — 12-2903. This legislation restored the common law immunity of political subdivisions. Williams v. Jefferson Hospital Ass’n, Inc., 246 Ark. 1231, 442 S.W.2d 243 (1969). It is also generally accepted that counties have always been immune from tort liability in Arkansas. Chandler v. Pulaski County, 247 Ark. 262, 445 S.W.2d 96 (1969).

The legislative scheme at issue has been upheld against a constitutional attack based upon Art. II, § 13, of the Constitution of the State of Arkansas, which purportedly grants to all persons a remedy for all injuries or wrongs received. Emberson v. Buffington, 228 Ark. 120, 306 S.W.2d 326 (1957). However, it has been held that Art. II, § 13, applies only to actions between individuals. Hardin v. City of DeValls Bluff, 256 Ark. 480, 508 S.W.2d 559 (1974).

None of the recent cases upholding the legislative scheme, see Matthews v. Martin, 280 Ark. 345, 658 S.W.2d 374 (1983), have considered the argument presented herein by plaintiffs, based upon the equal protection clause of the fourteenth amendment.

Obviously a state need not subject any of its political subdivisions to suit in tort. However, once a state undertakes to alter the common law rule of immunity, its legislative actions must comport with the requirements of the fourteenth amendment.

It is clear that the legislative scheme at issue does create certain classifications of individuals. However, because the right to bring a tort suit is not a “fundamental” right, and because the legislative classifications do not establish “suspect” classes, the legislative scheme need only have an underlying “rational basis.” The test is often stated as follows: (1) Does the challenged legislation have a legitimate purpose; and (2) was it reasonable for the lawmakers to believe that the use of the challenged classification would promote that purpose? Western and Southern Life Ins. Co. v. St. Bd. of Equalization of Calif, 451 U.S. 648, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981).

Just as a state need not necessarily grant its citizens access to appellate review of court decisions, once a state undertakes to allow such access, the access may not be granted to some litigants and capriciously denied to others. Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). Therefore, although a state need not grant its citizens access to a process for seeking compensation for tortious injury inflicted by its political subdivisions, once it undertakes to do so, it may not arbitrarily allow such access to some and not to others.

A state may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a state may not accomplish such a purpose by invidious distinctions between classes of its citizens. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1968). The mere saving of public money is not a sufficient reason to draw an “invidious” distinction between classes. Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1973).

Were the legislative scheme at issue properly characterized as plaintiffs suggest, plaintiffs’ argument would present a troubling constitutional question. However, the statutes do not simply render some political subdivisions liable in tort while arbitrarily exempting others from liability.

Counties have always been exempt from tort liability. Hardin, supra. The effect of Ark.Stat.Ann. § 12-2901 was to restore the tort immunity of cities that had been abolished by Parish v. Pitts, supra, and to reaffirm the tort immunity of school districts, special improvement districts, and all other political subdivisions. This statute, per se, poses no constitutional problem.

Ark.Stat.Ann. § 66-3240 simply authorizes an action against a liability insurance carrier of a political subdivision not ordinarily subject to suit. The court does not believe that the state’s authorization of political subdivisions to procure liability insurance poses a cognizable constitutional issue as characterized by plaintiffs.

Similarly, Ark.Stat.Ann, § 12-2902 authorizes political subdivisions to hear and settle tort claims if they choose to do so. This authorization, like section 66-3240, serves a legitimate governmental purpose. Those subdivisions that choose to procure liability insurance or provide for the hearing and settling of tort claims provide some form of relief to the public and ameliorate the harshness of the rule of governmental immunity.

The state has but three alternatives with respect to subdivision immunity: (1) it can remain silent in which case the common law rule of immunity would ordinarily adhere; (2) it may authorize subdivisions to provide some form of relief, as Arkansas has done in sections 12-2902 and 66-3240; or (3) it may require political subdivisions to provide some compensation for tort victims, as Arkansas has done, in part, with respect to motor vehicles in section 12-2903.

As a result of section 12-2903, political subdivisions who fail to comply with respect to their motor vehicles are deemed to be self-insured. Sturdivant, supra. Therefore, should the state require general liability insurance of its political subdivisions, as plaintiffs urge, it is possible that those who failed to comply would likewise be deemed to be self-insured. The result would, in effect, be a direct abrogation of “the public policy of the State of Arkansas that all ... political subdivisions shall be immune from liability for damages.” Section 12-2901.

Thus, the legislative scheme is an ameliorative measure designed to provide a method and manner of relief to some victims of governmental tortfeasors. This is doubtlessly a legitimate governmental objective. The court also believes that it was reasonable for the legislature of the state of Arkansas to believe that the legislative scheme would accomplish its intended purpose, consistently with the “public policy of the State of Arkansas” as clearly expressed.

Classifications of this nature are to be set aside as unconstitutional only if based solely on reasons totally unrelated to attainment of the state’s legitimate objective and only if no grounds can be conceived to justify them. Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982).

It must be remembered that the Constitution does not forbid all that is evil nor command all that is good. Federal courts are not empowered by the fourteenth amendment to “re-write” clearly delineated public policy of the states in our federal system of government simply because we may believe some legislation to be unfair, unwise, or unpopular.

The court finds and concludes, therefore, that the City of Van Burén and Crawford County are immune from tort liability of the type alleged in the complaint by virtue of Ark.Stat.Ann. § 12-2901, and that the legislative scheme is not unconstitutional under the equal protection clause of the fourteenth amendment.

Because the City of Van Burén is immune from the tort liability alleged, none of the other arguments or defenses raised by these parties need be discussed. The City of Van Burén is entitled to summary judgment as a matter of law.

For the same reasons, Crawford County is likewise entitled to summary judgment on plaintiffs’ complaint.

III. The Motions of Shaw, Bracken and McLane

Defendant McLane argues that plaintiffs’ complaint fails to state a cognizable claim and that plaintiffs’ action is also barred by the statute of limitations. The allegations in the complaint pertaining to McLane are essentially as follows: That in 1968 McLane and H.H. Meyer owned the property east of Lee Creek Road and to the north of the accident scene; that in 1968 McLane, Meyer and Pillsbury conveyed to Crawford County a right-of-way; that in 1975 McLane joined in a petition to annex the lands to Van Burén; that McLane was negligent in the dedication, acceptance, design, construction, maintenance, marking and guarding of Lee Creek Road, and in several other particulars based upon repeated and multiple “imputations” of negligence from the acts of other defendants (see U 27, Complaint).

The court finds no basis in law for the “chain reaction” imputation of any acts of alleged negligence on the part of any of the other defendants to defendant McLane. See Harris Construction Co., Inc. v. Powers, 262 Ark. 96, 554 S.W.2d 332 (1977). Further, it is well-settled that after a property owner causes land to be dedicated to public use which is accepted, the property owner has no further obligation with respect to the land and indeed has no right to take action inconsistent with the public use. Taylor v. Armstrong, 24 Ark. 102 (1863).

Even if the court were to find all factual allegations of the complaint to be true, insofar as they refer to McLane, the court simply does not believe that a claim for negligence has been pled. See AMI 301 (Civil); Kubik v. Igleheart, 280 Ark. 310, 657 S.W.2d 545 (1983); First Electric Coop. Corp. v. Pinson, 277 Ark. 424, 642 S.W.2d 301 (1982) (discussing “negligence,” “proximate cause” and “foreseeability”).

However, even if the allegations of the complaint could be construed as stating a cognizable claim against McLane, such a claim would clearly be barred by the applicable statute of limitations, Ark.Stat.Ann. § 37-206. The most recent “act” of which plaintiffs allege McLane was “guilty” occurred in 1975, with his initial actions occurring in 1968. Plaintiffs’ “claim” against McLane is clearly barred by the statute of limitations, even if the complaint had stated a cause of action against McLane, which it has not.

Defendant McLane is entitled to summary judgment on plaintiffs’ complaint. For the same reasons, defendants Shaw and Bracken, as co-executors of the estate of H.H. Meyer, are also entitled to summary judgment on plaintiffs’ complaint.

IY. The Motion of CNA

The allegations of plaintiffs’ complaint with respect to CNA are that CNA “is the liability insurance carrier for Defendant Bekaert Steel Wire Corporation and Defendant City of Van Burén, Arkansas, under an agreement between (Bekaert) and (Van Burén)” (118, Complaint). The complaint further recites that Bekaert entered into a sale agreement with Van Burén requiring Van Burén to issue “Act 9 Bonds” to raise money to construct Bekaert’s plant, and requiring Bekaert to maintain general public liability insurance and property damage insurance. Article X, § 1001, of the agreement requires Bekaert to indemnify Van Burén against claims brought in connection with the plant (1123, Com-nlaint). Plaintiffs additionally contend that the policy was issued by CNA to Bekaert, covering claims occurring on or about the plant which, by definition, includes Lee Creek Road at the point of the accident. Therefore, plaintiffs state that they are “third-party beneficiaries” and Van Burén is an “insured,” and, thus, CNA is subject to “direct action” suit (II25, Complaint). Plaintiff cites no authority for this proposition.

The “direct action” statute, upon which plaintiffs rely, provides:

66-3240. Liability insurer may be sued direct where insured not subject to suit for tort. — When liability insurance is carried by any cooperative nonprofit corporation, association or organization or by any municipality, agency or subdivision of a municipality or of the State or by any improvement district, school district, or by any other organization or association of any kind or character, not subject to suit for tort, and any person, firm or corporation suffers injury or damage to person or property on account of the negligence or wrongful conduct of any such organization, association, municipality or subdivision, its servants, agents or employees acting within the scope of their employment or agency, then such person, firm or corporation so injured or damaged shall have a direct cause of action against the insurer with which such liability insurance is carried to the extent of the amount or amounts provided for in the insurance policy as would ordinarily be paid under the terms of the policy, and such insurer shall be directly liable to such injured person, firm or corporation for such damages to the extent of such coverage in such liability insurance policy, and the plaintiff or plaintiffs may proceed directly against the insurer regardless of the fact that the actual tortfeasor may not be sued under the laws of the state. [Acts 1959, No. 148, § 307, p. 418.]

It has been held that direct action statutes do not apply to insurance policies carried by private individuals even in cases wherein the political subdivision may have been liable in tort were it not for their immunity. Savage v. Spicer, 235 Ark. 946, 362 S.W.2d 668 (1962). Comparable former law, Ark.Stat.Ann. § 66-517 (repealed) applied only to insurance companies issuing policies to enumerated immune organizations. The purpose of that law was clear that the legislative intent was not to extend the statute to allow a direct action against the insurer of an individual. Savage, supra.

The current statute applies only “when liability insurance is carried by ... any (political subdivision) not subject to suit for tort....” Section 66-3240. The policy involved in this case was “carried” by Bekaert, not Van Buren, and Bekaert does not qualify as an “association of any kind or character, not subject to suit for tort.”

Plaintiffs’ theory is attractive, however, the statute upon which they rely has never been broadly construed. See Hamilton v. Covington, 445 F.Supp. 195 (W.D.Ark. 1978). Again, the court reiterates that federal courts should not attempt to “rewrite” state legislation without a clear indication that such would comply with the intent of the state legislative body, whose purpose is, after all, to declare and implement the public policy of the state.

The court does not believe that plaintiffs’ argument would be accepted by the state courts, nor does it believe that the legislature intended the extended interpretation urged. Accordingly, the court concludes that section 66-3240 is inapplicable. There being no other asserted basis for a “direct action” against CNA, CNA is entitled to summary judgment on plaintiffs’ complaint.

V. The Motion of Pillsbury

The allegations of the complaint with respect to Pillsbury are essentially that in 1968 H.H. Meyer and McLane owned the property east of the center line of what is now Lee Creek Road, and Pillsbury owned the property west of the center line of what is now Lee Creek Road. In April, 1968, Meyer, McLane and Pillsbury conveyed an 80-foot “right-of-way” to Crawford County, that right-of-way now being Lee Creek Road. In May, 1968, Crawford County accepted the easement for use as a public road. In June, 1974, Pillsbury conveyed the property west of Lee Creek Road to Bekaert.

It could not be seriously argued that any duty by Pillsbury to warn anyone of a potentially hazardous condition of the Lee Creek Road property would have extended beyond May, 1968, when Lee Creek Road was established as a county road, to be maintained thereafter by Crawford County. After that date, Pillsbury had no authority to perform any of the tasks alleged, the omissions of which constitute the basis of plaintiffs’ claim against Pillsbury.

Any negligent acts or omissions by Pillsbury occurring prior to May, 1968, with respect to Lee Creek Road would long be time-barred by Ark.Stat.Ann. § 37-206. Any negligent acts or omissions with respect to the property west of Lee Creek Road would similarly be precluded, as Pillsbury’s interest in that property expired in June, 1974. Suffice it to say that Pillsbury is entitled to summary judgment on plaintiffs’ complaint.

VI. The Amendment to Plaintiffs’ Complaint And Plaintiffs’ Other Arguments

On July 31, 1985, this court granted plaintiffs leave to amend their complaint. The amended complaint adds United States Trust Company of New York, Trustee, as a party defendant. As the case progressed it appeared that defendant McLane divested his ownership of the lands described in the right of way deed (see Exhibit “A” to Complaint) by a sale to United States Trust Company of New York, Trustee, without excepting the fee underlying the road, on June 26, 1979.

Subsequent to the filing of the amended complaint, the court notified the parties that, unless otherwise instructed, all prior motions, briefs and exhibits would be deemed realleged and resubmitted, and that the court would continue to view all pending motions to dismiss as motions for summary judgment. The parties were given sufficient time to supplement the record as they chose. All requested materials have now been submitted.

Plaintiffs argue, in opposition to the various motions for summary judgment, that certain of the lands at issue have been “abandoned” by the governmental entities, “re-establishing” any duty owed by abutting or prior landowners. Lee Creek Road was established as a county road by order of the Crawford County Court in May, 1968. Because the road was not established by prescription or “use,” the procedure for vacation or abandonment of it is governed by Ark.Stat.Ann. § 76-918. That statute provides:

76-918. Vacation of road — Procedure-Costs.

When any county road, or any part of any county road, shall be considered useless, any ten [10] citizens residing in that portion of the county may make application by petition agreeable to the preceding section [§ 76-916] of this act to the county court to vacate the same, setting forth in the petition the reason why the same ought to be vacated, which petition shall be publicly read at a regular session of the county court, with the proof of notice and publication required by this act; and no further proceedings shall be had thereon until the next regular session of the court. If no objections be made and filed, the county court may declare said road vacated, or any part thereof that it may deem necessary. If objection be made in writing, the county court shall appoint three [3] viewers to view said road, who shall proceed, after taking the oath or affirmation required by this act, to view the road as aforesaid, and make written report of their opinion thereon, and their reason for the same, to the county court. If said viewers shall report in favor of vacating such road, or any part thereof, the court may, if it deems the same reasonable and just, declare said road, or any part thereof, vacated, agreeable to the report of the viewers. The costs thereof and expenses incident thereto shall be paid by the petitioners, unless the county court shall order the same paid out of the county treasury. [Act Mar. 23, 1871, No. 26 § 58, p. 56; C. & M. Dig., § 5247; Pope’s Dig., § 6966.]

There is nothing in the record to indicate that this procedure was utilized. There are several cases which indicate that a street or road vacated by ordinance or established by use or prescription, may revert by abandonment or non-use to the preceding landowners upon petition of a proper party. However, this is only the case where the road is established by limitation or prescription. McLain v. Keel, 135 Ark. 496, 205 S.W. 894 (1918); Lovegrove v. Hanna, 239 Ark. 44, 386 S.W.2d 947 (1965). Although such a distinction was not drawn in Wallace v. Toliver, 265 Ark. 816, 580 S.W.2d 939 (1979), the court believes the statutory scheme set forth above supplies, implicitly, the different treatment accorded county roads established by court order. Even if such a distinction in the law is not to be drawn, however, plaintiffs’ complaint itself states “Lee Creek Road south of Interstate 40 is a paved roadway with center line markings which appears to be a regularly-traveled, through highway” (¶ 16, Amended Complaint), rather than an abandoned, non-used road with gaps or gates. It would be anomalous for the court to hold that actions based upon negligence of landowners qua landowners are ordinarily barred after three years subsequent to conveyance thereof via the statute of limitations, as appears to be the case, and then hold that responsibility for the land involuntarily and without notice reverts to the abutting or preceding landowners any number of years later by some extralegal “leap of fiction” simply because of an alleged de facto “abandonment” and non-use of a road for a continuous period of seven years, which road nonetheless appears to be a marked, well-paved, “regularly-traveled, through highway.”

Nor does the court believe that any non-use or “abandonment” of the road has been documented sufficiently to meet the requirements of Rule 56(e), Fed.R.Civ.P. Even if Lee Creek Road was, at some point in time, the responsibility of Van Burén, any “abandonment” by it to Crawford County, or vice versa, would not inure to plaintiffs’ benefit, as both are immune from tort liability.

The court is further unable to accept the theory that the road became a city street by virtue of an alleged non-use or abandonment by the county or by the annexation of the land by Van Burén. See generally Ark.Stat.Ann. §§ 19-301, 19-3801, 19-2304, and 19-3825 — 19-3830. Thus, neither Van Burén nor Crawford County can involuntarily “shift” responsibility to prior or abutting landowners without notice or consent by virtue of some form of quasi-indifference to the road. Counsel for MeLane terms plaintiffs’ theory in this regard “extralegal osmosis.” The court agrees.

In accordance with the foregoing, the court finds that the motions for summary judgment of defendants Crawford County, Van Burén, CNA, Pillsbury, MeLane, Shaw and Bracken should be granted and plaintiffs’ amended complaint should be dismissed as to these parties.

A separate order in accordance herewith will be concurrently entered.


author: JUNE L. GREEN, District Judge.

text:
    SIERRA CLUB, et al., Plaintiffs, v. Francis M. MULLEN, Jr., Acting Administrator, Drug Enforcement Administration, et al., Defendants. The NATIONAL ORGANIZATION FOR the REFORM OF MARIJUANA LAWS (NORML), Plaintiff, v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION (DEA), et al., Defendants.
    Civ. A. Nos. 83-2592, 83-2595.
    United States District Court, District of Columbia.
    Oct. 4, 1985.

      Frederick S. Middleton, III, Howard I. Fox, Sierra Club Legal Defense Fund, Kevin B. Zeese, Peter H. Meyers, Eric S. Sirul-nik, Washington, D.C., for plaintiffs.
    James Draude, Dept, of Justice, Washington, D.C., for defendants.
   OPINION

JUNE L. GREEN, District Judge.

The above-styled action is before the Court on plaintiff National Organization for the Reform of Marijuana Laws’s (“NORML”) application for attorneys’ fees and costs, pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, defendant United States Drug Enforcement Administration’s (“DEA”) opposition thereto, NORML’s reply to DEA’s opposition, DEA’s supplemental memorandum in opposition to NORML’s fee petition, and the entire record herein. For the reasons set forth below, the Court awards NORML $8,767.55 in attorneys’ fees and costs.

Statement of Facts

In August 1983, DEA used paraquat to eradicate marijuana in the Chattahoochee National Forest in Georgia and in the Daniel Boone National Forest in Kentucky. On September 1, 1983, the Sierra Club, the National Coalition Against the Misuse of Pesticides, and the Friends of the Earth (hereafter collectively “Sierra Club”) filed a complaint (Civil Action No. 83-2592) and motion for temporary restraining order, challenging DEA’s use of paraquat to eradicate marijuana on public lands.

Sierra Club claimed: (1) that a nationwide program of aerial spraying of paraquat to eradicate marijuana on public lands is a major federal action significantly affecting the quality of the environment and that DEA violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., by failing to prepare an environmental impact statement (“EIS”) on such eradication, Sierra Club Complaint 1MI2, 25-31; and (2) that use of paraquat on undeveloped, federal lands and other areas of wildlife habitat is not consistent with the currently approved paraquat label and, therefore, violates the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et seq. Sierra Club Complaint ¶¶ 2, 32-35. Sierra Club requested the Court to enjoin defendants from “the aerial application of paraquat on public lands for the eradication of marijuana” until they prepare an EIS and to “enjoin defendants from using paraquat in a manner inconsistent with its label, including the aerial application of paraquat on all Forest Service and public lands and other areas of wildlife habitat.” Sierra Club Complaint U 36.

On September 1,1983, NORML also filed a complaint (Civil Action No. 83-2595) and motion for a temporary restraining order challenging DEA’s use of paraquat to eradicate marijuana in the United States. NORML alleged: (1) that defendants violated NEPA by failing to prepare an EIS on the spraying program, NORML Complaint ¶¶ 1, 33-38; (2) that defendants violated regulations of the Council on Environmental Quality (“CEQ”), NORML Complaint ¶¶ 1, 39-42; (3) that defendants violated DEA’s environmental assessment, and associated guidelines, NORML Complaint ¶¶ 1, 43-44; (4) that defendants violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., by failing to publish DEA’s finding of no significant impact 30 days prior to spraying, NORML Complaint 11111, 44-46; (5) that defendants’ conduct was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law, NORML Complaint 1148; (6) that defendants violated the constitutional and civil rights of NORML’s members, giving rise to a cause of action under Biven v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and 42 U.S.C. §§ 1983, 1985, NORML Complaint ¶¶ 1, 49-52; and (7) that defendants committed various common law torts, including assault, intentional infliction of emotional distress, and negligence. NORML Complaint ¶¶ 1 53-55).

NORML sought declaratory and injunc-tive relief, $10 million compensatory damages, and $20 million punitive damages. NORML Complaint at 21. NORML sought a Court order instructing defendants to prepare an EIS on “the herbicide spraying program in the United States” and to enjoin defendants “from obligating or expending any funds, or providing any other support or assistance to the herbicide spraying program in the United States against marijuana plants.” NORML proposed temporary restraining order; NORML Complaint at 21.

Following briefing and argument, on September 13, 1983, this Court entered a temporary restraining order reciting that it appears that aerial spraying of paraquat on public lands by defendants violates the EIS requirement of NEPA and the use restrictions of FIFRA. The Court enjoined defendants “from further aerial spraying of paraquat on U.S. federal lands until further hearing in this case can be had.”

On September 14, 1983, defendants informed plaintiffs that they would not use paraquat to eradicate marijuana on U.S. federal lands unless and until defendants prepare an EIS on such a program. In light of that development, defendants moved on September 23, 1983, to stay further proceedings in this case until defendants prepared an EIS and filed it with the Court. Sierra Club and NORML opposed defendants’ motion.

NORML filed an amended complaint on October 4, 1983. NORML deleted claims regarding constitutional and civil rights violations and common law torts, and added a claim under FIFRA. Amended Complaint 111149-51. NORML also dropped its claims for compensatory and punitive damages. Amended Complaint at 19-20.

Upon stipulation of the parties, on November 8,1983, this Court signed a consent judgment. The consent judgment prohibits the defendants from using, or authorizing the use of, “paraquat to eradicate on U.S. federal lands unless and until defendants prepare an [EIS] on such use in compliance with the [NEPA] and regulations of the Council on Environmental Quality.” Consent Judgment H1. Second, defendants agreed not to “use or authorize the use of, paraquat to eradicate marijuana on U.S. federal lands under the paraquat label currently registered with the Environmental Protection Agency pursuant to [FI-FRA] ____” Consent Judgment 112.

As provided in the consent judgment, Consent Judgment H 5, and in compliance with the EAJA, 28 U.S.C. § 2412(d)(1)(B), Sierra Club and NORML submitted applications for attorneys’ fees and costs. Sierra Club subsequently settled with the defendants and is no longer a party to this action. NORML requests a sum of $35,512.12, which includes court costs and expenses.

Conclusions of Law

The EAJA provides in relevant part: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. 2412(d)(1)(A).

I. NORML Is a Prevailing Party

The EAJA authorizes an award of attorneys’ fees only to a “prevailing party.” 28 U.S.C. § 2412(d)(1)(A). To qualify as a prevailing party, NORML must prevail on some significant issue in the case “which achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eck-erhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978); see also Environmental Defense Fund, Inc. v. E.P.A., 716 F.2d 915, 919 n. 7 (D.C.Cir.1983) (“[a] party may be deemed prevailing if he obtains a favorable settlement of his case ...”). The Court finds that NORML meets this test.

The defendants argue that NORML did not contribute significantly to the litigation by asserting that NORML did not prevail on any of “its” claims. Defendants' Memorandum in Opposition to Plaintiff NORML’s Application for an Award of Attorneys’ Fees and Expenses (“Defendants’ Opposition”) at 9. This assertion does not comport with the course of events. After consultation between the two plaintiff groups, Sierra Club and NORML simultaneously filed separate suits against the defendants on September 1, 1983. See Affidavits of Frederick S. Middleton, III; Jay Feldman; and Elizabeth Raisbeck. Their litigation strategy involved pursuing different avenues, yet the destination remained essentially the same. Sierra Club and NORML both sought to enjoin defendants from continuing the paraquat spraying program until such time as they should conform with the provisions of NEPA. Sierra Club Complaint at 16; NORML Complaint at 21; Amended Complaint at 19.

In response to the defendants’ motion, this Court ordered, on September 9, 1983, that the two actions be consolidated. Though consolidation under Fed.R.Civ.P. 42(a) does not so completely merge the two cases as to deprive any party of substantial rights that he would have possessed had the actions proceeded separately, NORML was a party to the consent judgment which settled the litigation between all the parties. See Midwest Community Council v. Chicago Park District, 98 F.R.D. 491 (D.C.Ill.1983).

The consent judgment afforded NORML most of the relief they sought. Amended Complaint at 19. Furthermore, a comparison of the relief requested by NORML in its original complaint with that sought in its Amended Complaint reveals the fallacy of the defendants’ assertion that NORML merely intervened at the last moment and claimed Sierra Club’s victory as its own. Defendants’ Opposition at 13. Thus, the Court finds that NORML did succeed on important issues in litigation which brought “some of the benefit the parties sought in bringing suit.” Hensley v. Eck-erhart, 461 U.S. at 433, 103 S.Ct. at 1939.

Additionally, the Court notes that NORML, in its amended complaint, based its second cause of action on a violation of agency rules. To wit, NORML alleged that the defendants were in violation of “Council of Environmental Quality regulations for compliance with NEPA____” Amended Complaint II41. Defendants conceded this issue in the consent judgment. Consent Judgment at 1. As this particular claim was nowhere alleged by Sierra Club, NORML is clearly a prevailing party on this issue.

II. Defendants’ Position Was Not Substantially Justified

Because NORML is a prevailing party, it is entitled to attorneys’ fees under the EAJA unless the defendants can demonstrate that “the position of the United States was substantially justified." 28 U.S.C. § 2412(d)(1)(A); Spencer v. NLRB, 712 F.2d 539, 557 (D.C.Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984). The legislative history of the EAJA indicates that the test of whether or not a government position is substantially justified is “slightly more stringent than one of reasonableness.” Spencer v. NLRB, 712 F.2d at 558 (footnote omitted). Following this standard, the Court concludes that the litigation position of the United States in this case was not substantially justified.

With regard to the issues contested in this litigation, controlling legal standards were clear, but were overtly ignored by the defendants. “[T]he more clearly established are the governing norms, and the more clearly they dictate a result in favor of the private litigant, the less ‘justified’ it is for the government to pursue or persist in litigation.” Spencer v. NLRB, 712 F.2d at 559.

As for the claims asserted under NEPA, it is well settled in this Circuit that a federal agency must prepare an EIS prior to taking any action that creates the potential for significant adverse environmental effects. Maryland-National Capitol Park and Planning Commission v. U.S. Postal Service, 487 F.2d 1029, 1039 (D.C. Cir.1973); Foundation on Economic Trends v. Heckler, 587 F.Supp. 753, 762 (D.D.C.1984). Of particular relevance is National Organization for the Reform of Marijuana Laws v. U.S. Department of State, 452 F.Supp. 1226 (D.D.C.1978). The court found that the defendants (one of which was DEA) violated NEPA, 42 U.S.C. § 4332, by participating in a paraquat spraying program of marijuana and poppy plants in Mexico without first preparing, circulating and considering a detailed EIS on the effect within the United States of such a program. It is difficult to conceive how the government’s position of not preparing an EIS for a comprehensive paraquat spraying program on public lands throughout the United States was reasonable when an EIS had been mandated previously for U.S. involvement in the Mexican spraying program.

The defendants’ position was equally unjustified with regard to the FIFRA claim. The defendants’ action was in clear violation of FIFRA, 7 U.S.C. § 136j(a)(2)(G), which states that “[i]t shall be unlawful for any person ... to use any registered pesticide in a manner inconsistent with its label-ing____” The aerial spraying of paraquat for non-crop use on public lands is contrary to the express provisions of the EPA-approved label for paraquat which took effect on May 19, 1983. This label prohibits the use of paraquat in areas of recognized wildlife habitat such as highway, railroad, utility and pipeline rights-of-way. Such corridors which run through forest areas are prime areas of wildlife exposure. See Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for a Temporary Restraining Order at 20-22.

The defendants conducted their paraquat operation in open violation of both the letter and spirit of NEPA and FIFRA. This course of conduct was then aggravated by the government’s attempt to defend these actions in court, wasting the time and resources of the Court and plaintiffs. A temporary restraining order was issued in the plaintiffs’ favor, pointing to ultimate victory for the plaintiffs. The defendants quickly moved to stay the proceedings, and then initiated settlement discussions. The resulting Consent Judgment of November 8, 1983, granted plaintiffs a clear victory.

It is well settled in this Circuit that in cases, such as the present one, where the government engages in an unreasonable course of conduct contrary to established legal principles, defends its action in court, and then settles the case, giving plaintiffs the relief they requested — fees must be granted. In its comprehensive discussion of the EAJA, the Spencer court explained,

It seems clear that if the government does not immediately accede to the plaintiffs demand, but instead initially opposes his claims and then at some later stage ... surrenders, the United States would be liable for attorneys’ fees____ Under such circumstances, not only will government have acted unreasonably, but it will have adopted (at least briefly) a litigation position lacking substantial justification.

712 F.2d at 555 n. 58; see also Environmental Defense Fund v. EPA, 716 F.2d 915 (D.C.Cir.1983) (fees granted where EPA took unreasonable action and initially defended that action in court, then settled the case favorably to plaintiff only after plaintiff had filed its brief on the merits).

III. Award of Attorneys’Fees

A. NORML’s Contribution as a Prevailing Party

The only issue remaining is the amount of attorneys’ fees to which NORML is entitled. NORML’s attorneys, Erik S. Sirulnik, Peter H. Meyers, and Kevin B. Zeese, request a total of $35,512.12 for legal services.

NORML contemplated an action for monetary and punitive damages, asserting constitutional and tort claims, as well as, NEPA, APA, and CEQ violations. Following consolidation of the NORML suit and the Sierra Club suit, NORML filed an amended complaint. NORML dropped its claims for monetary and punitive damages, constitutional and tort law violations, but added a claim under FIFRA. The consent judgment granted the plaintiffs relief under NEPA, CEQ regulations, and FIFRA only. Supra at 1246-1248.

It is well settled that parties can be compensated only for the issues on which they prevail. Hensley v. Eckerhart, 461 U.S. at 433-37, 103 S.Ct. at 1939-41; Copeland v. Marshall, 641 F.2d 880, 892 n. 18 (D.C.Cir.1980) (en banc). By this reckoning, NORML may be compensated only for work performed on the NEPA, CEQ, and FIFRA claims. The Court’s duty, now, is to determine what NORML’s contribution to victory actually was. This is especially important here as NORML’s amended position largely overlapped Sierra Club’s extant efforts. Miller v. Staats, 706 F.2d 336, 341 n. 32 (D.C.Cir.1983).

As stated earlier, NORML is due credit for the provision in the consent judgment concerning compliance with CEQ regulations. Supra at 1248-1249. The extent of NORML’s contribution on the NEPA claim is unclear, as both NORML and Sierra Club asserted NEPA-based claims in their original complaints. In its amended complaint, NORML added a claim under FIFRA that largely repeats Sierra Club’s FIFRA claim.

In short, NORML significantly reshaped its action in the image of Sierra Club’s suit. Indeed, NORML admits that the decision was made whereby Sierra Club “would take the lead role in arguing” the NEPA and FIFRA claims which became the basis of Sierra Club’s and NORML’s consent judgment victory. Plaintiff NORML’s Response to Defendant’s [sic] Opposition to Plaintiff’s Request for Attorneys’ Fees at 7. Furthermore, it was Sierra Club that actually negotiated the stipulation for consent judgment with the defendants. Affidavit of James T. Draude, lead defense counsel.

From this, it is apparent that NORML performed in an advisory role, assisting in some of the legal and factual research. NORML’s contribution as a prevailing party was as an adjunct to Sierra Club. See Affidavits of Elizabeth Raisbeck; Jay Feldman, Sierra Club co-plaintiffs; and Affidavit of Frederick S. Middleton, III, Sierra Club lead counsel. Thus, the Court finds some merit in the defendants’ claim of exaggerated hours and duplication of work on NORML’s part. The Court cannot compensate NORML for these hours. Action on Smoking and Health v. C.A.B., 724 F.2d 211, 220-21 (D.C.Cir.1984).

Further complicating the Court’s effort to ascertain the degree of NORML’s contribution as a prevailing party are the deficiencies in documentation of time expended on the case. NORML’s three attorneys each submitted time logs and supporting affidavits, claiming a total of approximately 230 hours of work on the underlying case. These records, some of which are after-the-fact estimates, see Supplemental Affidavits of Meyers and Sirulnik, are at best vague and at worst cryptic. The time logs provide little or no reference to the substance of the work claimed. As such, they are insufficient to enable the Court to access accurately the work that should be compensated and that which is duplicative or excessive. Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. at 1939; see also National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C.Cir.1982) (“[c]asual after-the-fact estimates of time expended on a case are insufficient to support an award of attorneys’ fees.”)

In making its fee determination, a court is not required to “ ‘become enmeshed in a meticulous analysis of every detailed facet of the professional representation.’ ” Copeland v. Marshall, 641 F.2d at 903 (quoting Lindy Brothers Builders v. American Radiator & Standard Sanitary Corporation, 540 F.2d 102, 116 (3d Cir. 1976)). Accordingly, the Court will make a reduction in the requested award. Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. at 1939; Action on Smoking and Health v. C.A.B., 724 F.2d at 220.

B. The Lodestar

In this Circuit, courts determine the appropriate award of attorneys’ fees by establishing a “lodestar” rate, which is the number of hours reasonably expended multiplied by a reasonable hourly rate. The courts may then adjust the lodestar rate upward or downward by use of a multiplier to reflect various factors. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1323.

1. Hourly Rate

In establishing the lodestar rate, the Court must first determine a reasonable hourly rate, which this Circuit has defined as “that prevailing in the community for similar work.” Copeland v. Marshall, 641 F.2d at 892. The fee applicant is charged with providing the Court with “specific evidence” of the prevailing community rate for similar services which the attorney performed. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1325. Adequate proof includes affidavits reciting the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases, fees awarded by courts or through settlements to attorneys of comparable experience rendering comparable services, and the hourly rate customarily charged by the fee applicant. “What is needed are some pieces of evidence that will enable the District Court to make a reasonable determination of the appropriate hourly rate.” Id. at 1326.

NORML claims $75 per hour, the maximum rate allowed by the EAJA, 28 U.S.C. § 2412(d)(2)(A), for each of its three attorneys. Messrs. Meyers, Sirulnik, and Zeese each submitted affidavits outlining their qualifications.

Peter H. Meyers graduated from law school in 1971. He had practiced law for 12 years at the time of the underlying action and he is a member of the faculty at George Washington University Law School. Mr. Meyers has argued cases before numerous federal and state courts, including the United States Supreme Court. In addition, Mr. Meyers has authored or edited several legal publications in the area of drug law. Mr. Meyers asserts that he would receive $100 to $125. per hour if engaged in private practice. Meyers Affidavit MI 2, 3, 4, 6, 7. The Court finds that an hourly fee of $75 for Mr. Meyers is justified given his experience.

Eric S. Sirulnik received his J.D. in 1968 and a Masters of Law degree in 1971. He is a tenured law professor at George Washington University Law School, and is admitted to practice before the Bars of Massachusetts and the District of Columbia. Mr. Sirulnik also has substantial litigation experience. Mr. Sirulnik asserts that he could command $100 to $125 per hour if engaged in the private practice of law. Sirulnik Affidavit W 2, 3, 5, 6, 7. Given Mr. Sirul-nik’s experience, the Court finds that an hourly rate of $75 is reasonable.

Kevin B. Zeese graduated from law school in 1980 and is admitted to practice in the District of Columbia. Since 1980, Mr. Zeese has been with NORML as an attorney and, since August 15, 1983, the NORML National Director. Mr. Zeese also maintains a private law practice which is 90 percent criminal law. Mr. Zeese states that if engaged in private practice, he could command an hourly fee of $75 to $150. Affidavit ¶¶ 2, 3, 7, 8. Taking into account Mr. Zeese’s limited experience, the Court finds that an hourly fee of $60 is reasonable. See generally Veterans Education Project v. Secretary of the Air Force, 515 F.Supp. 993, 995 (D.D.C.1982), aff'd, 679 F.2d 263 (D.C.Cir.1982).

2. Number of Hours

NORML claims that its three attorneys spent 230.60 hours on the underlying action and 61.25 hours on the attorneys’ fees issue. As discussed earlier, the Court finds that NORML’s suit substantially overlapped the Sierra Club action. See supra at 1250. As a result of the duplication of efforts and the insufficient documentation of time expended on NORML’s part, the Court will make an 80 percent reduction in the number of hours claimed by NORML in the underlying action. The Court will compensate fully NORML’s attorneys for the hours expended on the attorneys’ fees issue. Environmental Defense Fund v. Environmental Protection Agency, 672 F.2d 42 at 62 (D.C.Cir.1982).

3. The Multiplier

Finally, NORML seeks a multiplier of 48.29 percent to reflect a cost-of-living increase based on the Consumer Price Index (8.29 percent), quality of representation (20 percent), and bad faith on the defendants’ part (20 percent). The EAJA authorizes a cost-of-living adjustment, and the Court grants this increase pursuant to 28 U.S.C. § 2412(d)(2)(A)(ii).

The Court will not entertain NORML’s request for an upward adjustment of 20 percent to reflect the quality of representation. Such an adjustment is justified only on rare occasions. The Court of Appeals addressed itself to this issue in Donnell v. United States, 682 F.2d 240, 254 (D.C.Cir.1982):

We have found it all too common for the District Courts to adjust the lodestar upward to reflect what the courts view as a high level of quality representation. This trend should stop. Copeland contemplated such adjustments only for rare cases: “A quality adjustment is appropriate only when the representation is unusually good or bad, taking into account the level of skill normally expected of an attorney commanding the hourly rate used to compute the ‘lodestar.’ ”

Accord, National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1329 (“an adjustment for the quality of representation should not routinely be awarded.”) No such quality adjustment will be made here, especially given NORML’s secondary role in the underlying litigation.

NORML also claims a 20 percent upward adjustment for the defendants’ bad faith. This Court need not decide whether bad faith is among the factors that justify an upward adjustment of the lodestar, as the Court finds no such bad conduct on behalf of the defendants. See Copeland v. Marshall, 641 F.2d at 905-08.

C. Summary of Attorneys’ Fees Award

Fee Application Underlying 80 Percent
Attorney Hours Case Hours Reduction Rate Total
Meyers 25.50 (79.0) 15.80 $75 $3097.50
Sirulnik 6.0 (23.0) 4.6 $75 795.00
Zeese 29.75 (128.60) 25.72 $60 3328.20
Total Fees = $7220.70
Cost of Living Adjustment = 8.29%
Total Fees Awarded = $7819.30

D. Expenses

NORML also seeks expenses, available under the EAJA, 28 U.S.C. § 2412(d)(2)(A). The Court awards NORML litigation expenses totaling $938.25, including expenses incurred during the attorneys’ fees issue. Zeese Affidavit 1110; Supplemental Zeese Affidavit at 3.

E. Court Costs

NORML also seeks court costs in the amount of $10.00. The Court awards NORML $10.00 in court costs pursuant to the EAJA, 28 U.S.C. § 2412(a). Zeese Affidavit U 10.

IV. Conclusion

NORML was a prevailing party in the underlying litigation and the defendants’ litigation position was not substantially justified. In accordance with the EAJA, the Court awards NORML attorneys’ fees, litigation expenses, and court costs. The Court, however, finds that NORML’s contribution as a prevailing party was more in the nature of an adjunct to Sierra Club. The poor documentation of time expended on the underlying case by NORML’s attorneys served only to hinder the Court in its attempt to distinguish accurately genuine contributions on NORML’s part from duplication of Sierra Club’s efforts. An appropriate order is attached.

ORDER

Upon consideration of plaintiff National Organization for the Reform of Marijuana Law’s application for award of attorneys’ fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982), defendants’ opposition thereto, plaintiff’s response, the entire record herein, and for the reasons stated in the accompanying opinion, it is by the Court this 4th day of October 1985,

ORDERED that plaintiff’s request for award of attorneys’ fees, court costs, and expenses is granted; it is further

ORDERED that defendants shall pay to plaintiff attorney’s fees of $7,819.30, divided among Peter H. Meyers, Eric S. Sirul-nik, and Kevin B. Zeese as provided in the Court’s Opinion; it is further

ORDERED that defendants shall pay plaintiff’s expenses of $938.25; and it is further

ORDERED that defendants shall pay plaintiff’s court costs of $10.00.

      . The cases, Civil Action Nos. 83-2592 and 83-2595, were consolidated by order on September 9, 1983.

      . It is well settled in this Circuit that the "position of the United States" is that advanced during litigation, not that taken at the agency level. Spencer v. NLRB, 712 F.2d at 557.