author: BECHTLE, District Judge.

text:
    Clyde D. TYLER v. Thomas C. RAPONE.
    Civ. A. No. 83-0366.
    United States District Court, E.D. Pennsylvania.
    Feb. 14, 1985.

      Clyde D. Tyler, pro se.
    Matthew S. Donaldson, Jr., Media, Pa., for defendant.
   MEMORANDUM AND ORDER

BECHTLE, District Judge.

Presently before the court is defendant’s motion for summary judgment in an action brought by a prisoner under 42 U.S.C. § 1983. For the reasons stated herein, defendant’s motion will be granted.

I. FACTS

Plaintiff was arrested in early 1982 and charged with rape, involuntary deviate sexual intercourse, indecent assault, terroristic threats, unlawful restraint, and possession of the instruments of crime. On February 23, 1982, he was committed to Delaware County Prison in Pennsylvania where the defendant was warden. Plaintiff failed to make bail of $75,000.00 and remained incarcerated pending trial. Plaintiff was held in maximum security status because his bail was in excess of $50,000.00, he had a record of violent crimes, and as an inmate at the state correctional institution at Graterford, he had previously stabbed two inmates.

Plaintiff’s maximum security status was the result of a determination by the county prison officials. Plaintiff was given no notice nor opportunity to be heard prior to the determination.

On March 31, 1983, plaintiff was again convicted of rape, involuntary deviate sexual intercourse, and indecent assault. He was committed to the state correctional institution at Graterford.

Plaintiff brought this action pro se under 42 U.S.C. § 1983 against the warden. The court construes his complaint as setting forth three theories of recovery: (1) incarceration in administrative segregation without giving him prior notice and an opportunity to be heard violates his due process interest of liberty; (2) his First Amendment right to free exercise of religion was violated because prison officials did not permit him to attend group worship services held for members of the general prison population; and (3) the prison’s failure to provide him with prompt medical care for a toothache and a cut constituted a violation of his due process rights.

II. DISCUSSION

(A) The Administrative Segregation Issue

In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the United States Supreme Court construed Pennsylvania’s regulations pertaining to state correctional institutions. See 37 Pa.Admin. Code §§ 95.103-95.104 (Shepard’s 1979). These regulations required, in explicit and mandatory language, that when officials of state correctional institutions determine a prisoner’s administrative status, they must give the prisoner notice and an opportunity to be heard. The Court held that prisoners incarcerated in state correctional institutions had a liberty interest in remaining with the general prison population. The liberty interest arose from the regulation’s “repeated use of explicitly mandatory language in connection with requiring substantive predicates....” Hewitt, 459 U.S. at 472,103 S.Ct. at 871. The Court conceded, however, that, absent a state-created interest, a prisoner has no protected liberty interest in remaining in the general prison population. Hewitt, 459 U.S. at 472, 103 S.Ct. at 871.

Plaintiff argues that Hewitt is controlling in this case. The court finds, however, that the regulations construed in Hewitt involved state correctional institutions. Another group of regulations govern county correctional institutions such as the Delaware County Prison. See Pa.Admin.Code §§ 95.221-95.248 (Shepard’s 1979). Comparing the two regulations, the court finds that the explicit and mandatory language present in the regulations governing state correctional institutions is not present in regulations governing county correctional institutions. Since the mandatory language is absent, the court holds that the regulations pertaining to county prisons do not create a liberty interest in prisoners incarcerated in county prisons. As a result, county prisoners have no state-created liberty interest in remaining in the general population and no expectancy that they will be accorded notice and an opportunity to be heard when their administrative status is determined. Therefore, the court holds that plaintiff had no due process rights to notice or a hearing when the defendant determined plaintiff’s status. Accord Doss v. Rapone, 601 F.Supp. 935 (E.D.Pa.1985) (Luongo, J.); Garfield v. Rapone, No. 82-2345 (E.D.Pa., May 25, 1984) (Broderick, J.); Green v. Rapone, No. 83-2932 (E.D.Pa. February 16, 1984) (O’Neill, J.). Defendant’s motion for summary judgment will be granted with respect to plaintiff’s administrative segregation claim.

(B) Free Exercise of Religion Claim

Next, the court examines plaintiff’s claim. that defendant violated plaintiff’s First Amendment right to practice his religion by not permitting plaintiff to attend religious services with the general prison population.

Prison authorities must provide prisoner with the reasonable opportunity for the exercise of his religious tenets in a form that is substantially warranted by the requirements of prison safety and order. Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854, 863 (4th Cir.1975). A prisoner’s right to attend worship may be restricted, however, if the restriction is reasonably justified. St. Claire v. Cuyler, 634 F.2d 109 (3d Cir.1980).

Plaintiff was given an opportunity to attend a Christian Bible Study, and religious counseling was made available to him. Plaintiff’s right to attend religious services, however, was restricted by prison officials because plaintiff had a history of violent criminal acts, had stabbed two inmates at Graterford prison while serving a sentence for a prior conviction, and had participated in at least one fight at Delaware County Prison. Therefore, in light of plaintiff’s record of violent acts, the court holds that the restraint on plaintiff’s right to attend worship services with the general prison population was reasonably justified in order to maintain prison security. Accordingly, defendant’s motion for summary judgment will be granted with respect to plaintiff’s exercise of religion claim.

(C) The Medical Care Claim

In his final claim, plaintiff asserts that his right to due process was violated by the failure of defendant to provide him with prompt medical care. Specifically, the plaintiff alleges that: (1) the prison did not provide him with dental care until two weeks after he complained of a toothache; and (2) treatment of a cut, which plaintiff obtained in a fight with another inmate, was not prompt.

In order to recover the plaintiff must allege deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976); Inmates of Allegheny County Jail, 612 F.2d 754, 762 (3d Cir. 1979).

Plaintiff concedes that the care provided to him was adequate. Plaintiff does not allege in his pleadings or in his deposition that his condition was serious and, in fact, plaintiff indicated in his deposition that his condition was never serious. Also, plaintiff does not allege that defendant was deliberately indifferent to plaintiff’s medical needs. The plaintiff merely claims that prison officials were slow to provide medical and dental care while the plaintiff suffered from minor medical conditions. Accordingly, the court holds that the defendant was not deliberately indifferent to any serious medical needs of the plaintiff.

III. CONCLUSION

After consideration of all the pleadings and the deposition of plaintiff, the court holds that no genuine issue of material fact exists and that defendant is entitled to judgment as a matter of law.

An appropriate Order will be entered.

      . Title 37 Pa.Admin.Code § 95.103, until repealed in February, 1984, provided in pertinent part:
      (d) The procedure for handling misconducts shall be as follows:
      (1) The inmate shall be informed in writing of the charge and given a specific date for a hearing which shall be held not less than 24 hours after receipt of this notice but within six days.
      (2) The inmate shall be permitted assistance in presenting his case from either any staff member or any inmate in general population status, provided that such staff member or inmate is willing to serve in such an advisory capacity.

        (3) The inmate shall be permitted to meet with the person he chooses for an appropriate length of time before the hearing.
      (4) The inmate shall be permitted to call witnesses at the hearing. They shall be regulated by the Chairman of the Hearing Committee based on their relevance to the case. No inmate can be forced to be a witness against his will.
      (e) The Hearing Committee shall conduct the hearing as follows:
      (1) The charge and alleged facts in support of the charge shall be read and fully explained by the Chairman. The staff member writing the Misconduct Report may be present if he wishes and may call witnesses to support his claim; however, in cases of factual conflict, when the Hearing Committee deems it necessary to resolve the dispute, they shall compel the staff member’s presence and may continue the hearing until he can be present.
      (2) The inmate shall be permitted to admit or deny the charges and to give his version which shall be recorded on the misconduct form by a member of the Hearing Committee.
      (3) The inmate may present information available to him and to others, with help from whomever he has chosen to assist him.
      (4) The Committee members may interrogate the person making the report, the inmate, and others as necessary.
      (5) The inmate may question the staff member charging him, if the staff member is present, and other witnesses against him. The extent of the questioning shall be controlled by the Chairman of the Hearing Committee as considerations of relevancy, security, and other valid considerations dictate____
      37 Pa.Admin.Code § 95.103(d) & (e) (Shepard's 1979).

      . Title 37 Pa.Code §§ 95.225 and 95.226 provide, in pertinent part:
      § 95.225
      (a) Generally. Every jail in the Commonwealth should use a classification process to coordinate all information about the prisoner so that decisions concerning security, housing, and treatment programs may be made on a basis of knowledge instead of guess. Classification may be an uncomplicated or a very complex process depending upon the size, physical facilities, and staff of the jail. The purpose of classification is to help the jail administrator as follows:
      (1) Assure the security of the jail.
      (2) Assure the welfare of the inmates.
      (3) Assure the protection of the community by preventing escapes.
      (4) Assure the most effective use of the jail, within its limitations, as an instrument of correction and rehabilitation.
      (b) Minimum requirements. The minimum requirements as regards classification of prisoners in county jails are as follows:
      . . . . .
      (3) If possible, each prisoner should appear before the classification committee to discuss his or her case and future life goals.
      (4) Each prisoner should be informed of the decision and the reason for the decision of the classification committee.
      (5) Classification is an on-going process and a procedure for reclassification shall be developed and each prisoner shall be informed under what conditions reclassification is possible.
      § 95.226
      (a) Generally. The immediate problem of housing the new prisoner shall be solved when he enters the jail. Some housing arrangements are required by Pennsylvania law. Few jails have a formal procedure for evaluating new inmates. However, an immediate decision shall be made as to which housing unit he is to be assigned. The housing assignment of a prisoner may have serious consequences for him and for the jail. For example, a violent prisoner may be placed in a double cell with a weaker and older person whom he may assault. Or the youthful prisoner may be placed in a cell with an aggressive homosexual and be raped. The jail administration shall carefully assess the need for segregating prisoners who should be segregated and assure that the housing arrangements required by law are followed, and that all prisoners are handled according to good jail management standards.
      (b) Minimum requirements. The minimum requirements for housing are as follows:
      .....
      (iii) Prisoners considered to be habitual criminals shall be segregated.
      37 Pa.Admin.Code §§ 95.225-95.226 (Shepard’s 1979).


source: Caselaw Access Project

author: CARROLL, District Judge.

license: Public Domain

text:
    Gregory L. FREEMAN and Helen Freeman, Plaintiffs and Counterclaim Defendants, v. UNITED STATES Of America, Defendant and Counterclaimant, v. Jerry G. TAYLOR, Counterclaim Defendant.
    No. CIV 83-2141 PCT EHC.
    United States District Court, D. Arizona.
    Feb. 14, 1985.

      Philip J. Shea, Phoenix, Ariz., for Free-mans.
    Brad S. Ostroff, Burch & Cracchiolo, Phoenix, Ariz., for Taylor.
    Jack H. Kindsvatter, Trial Atty., Tax Div., Dept, of Justice, Washington, D.C., for U.S.
   ORDER

CARROLL, District Judge.

Gregory L. Freeman and Helen S. Freeman, husband and wife, filed this action to recover a partial payment of $846.00 made on a 100 percent penalty assessment against Gregory L. Freeman (Freeman) of $48,960.97. The assessment related to unpaid income tax withholding and social security taxes owed by Pueblo Builders & Developers, Inc., (Pueblo), for the quarters ending December 31, 1978 and March 31, 1979. Freeman was a Vice-President and Director of Pueblo during the periods in question.

The assessment against Freeman, as well as like assessments against Fred H. Steele and Jerry G. Taylor, two other officers of Pueblo, were made February 2,1982, under §§ 6671 and 6672 of the Internal Revenue Service Code of 1954, based on their association with Pueblo.

The Government counterclaimed against Freeman and Jerry G. Taylor (Taylor) to recover a judgment for the assessment amount.

Taylor replied to the counterclaim alleging as affirmative defenses that he was neither a person required to collect, account for, and pay over the income tax withholdings and social security taxes owed by Pueblo nor did he exercise (or have the authority to exercise) any control over the use of the corporation’s funds and the payment of creditors.

On February 7,1985, the day of the trial, the Government stipulated to entry of judgment that Freeman recover his partial payment. The case proceeded to trial against Taylor. The record reflects the following events:

Pueblo was incorporated in March, 1977 to engage in the construction business. It was organized with a Hopi Indian, Wayne P. Sekaquaptewa ostensibly having a majority interest in the corporation. Under federal legislation this would allow a bidding preferential for construction projects on Indian reservations.

Other incorporators included Steele, Richard Mayo, Bob J. Barker, Gregory L. Freeman and James W. Martin. Mayo, and Martin appear to have had little involvement in company activities. Barker resigned as vice president in early 1978, since he was the only officer not receiving a salary. Barker did participate as a director after his resignation as an officer. Sekaquaptewa was President and Chairman of the Board of Directors. Steele and Freeman were Vice Presidents and members of the Board of Directors. Freeman was the qualifying party on Pueblo’s contractor’s license.

The corporate offices were located in Camp Verde, Arizona. Taylor, who lived in Camp Verde, was employed in the spring of 1977 at an annual salary of $18,000, as an accountant or bookkeeper, while keeping his general accounting clientele. By October 19, 1977, he was a full time employee; he was Treasurer and a corporate director. On that date the Board authorized the issuance to him of 40 shares (4%) of the capital stock. He was issued an additional 40 shares of stock at a Board meeting on November 1, 1977.

Freeman, Taylor, Barker and Nancy Parsons, secretary with the company between mid-1978 and late 1979, testified that Steele ran the company; negotiated bids; signed all the contracts; decided who would be paid, etc. Sekaquaptewa was only a figurehead; Freeman was the construction superintendent and did the estimating; and Taylor paid bills as directed by Steele.

There is no documentary evidence which supports the opinions expressed by the witnesses called by Taylor, regarding the extent of Steele’s control over the corporation or its financial operations.

Freeman and Taylor testified that Taylor presented monthly financial reports at directors meetings. During the relevant times, these reports reflected the delinquent corporate tax liabilities to the Government. Steele would state that these liabilities would be satisfied out of future draws — and the Board either did nothing— or agreed with Steele to defer paying the taxes. The available funds would then be used to pay corporate salaries, employees and trade accounts.

Taylor testified that he would prepare and sign checks payable to the IRS for these liabilities and Steele would direct him not to mail the checks with the tax reports. At these times, Taylor was an authorized signatory on the bank accounts, and he could have signed and mailed the checks to the IRS. He did not do so. When asked why, he replied that had he done so, Steele would have terminated his employment with Pueblo.

It is clear that Taylor participated in management activities of the company during the time periods at issue by corresponding with architects, contracting parties, and governmental agencies, including the IRS. He signed all checks as a single signatory during the last quarter of 1978 and the first quarter of 1979. He also attended board of directors meetings where the corporation’s delinquent tax liabilities were discussed. Taylor testified that he told Steele the IRS would close the doors if it wasn’t paid something on account. Steele then told Taylor to make sufficient payments to keep the doors open. Taylor then made periodic payments to the IRS. IRS notices to Pueblo were directed to Taylor and he is the only one who dealt with IRS.

In early 1979, Taylor guaranteed a corporate bank loan of $10,000. The proceeds of this loan were used to meet payroll obligations. The loan was repaid from corporate funds prior to March 31,1979 in preference to paying tax obligations. Taylor guaranteed the loan because the bank refused to accept Steele’s guaranty.

Although Taylor’s salary terminated July 31, 1979, he remained a corporate officer and director until he filed a bankruptcy petition on behalf of Pueblo on December 12, 1979. He testified that he filed the petition at the direction of Sekaquaptewa’s widow.

ISSUES TO BE RESOLVED:

1. Was Taylor a person required to collect, truthfully account for and pay over employment taxes? and if so,

2. Did he willfully fail to pay over the trust fund taxes?

There are numerous reported decisions which have decided similar issues under the facts and circumstances presented in each case. While the result is determined by the evidence presented in each case, certain general legal principles are applicable in any case.

Before a person can be held personally liable for unpaid corporate withholding and FICA taxes, he must have a responsibility to collect and pay over those taxes. This responsibility is not necessarily exclusive to one person. United States v. Graham, 309 F.2d 210, 212 (9th Cir.1962).

Liability is not necessarily imposed on a corporate officer simply because of his office. In ordinary circumstances, the treasurer of a corporation does have responsibility for collection and payment of taxes. Taylor, as treasurer, had responsibility for performing the clerical duties of collecting the taxes, preparing the returns and paying over the taxes. His defense regarding his failure to collect and pay over the taxes — he did prepare and file the 941 forms — is that he did not have authority to do so because of orders from Steele (or the board of directors).

The facts do not support Taylor’s plea that he acted only in a clerical capacity and had no say in the policy making processes of the company.

He regularly prepared financial statements of the company and submitted them to the board of directors. These reports disclosed the delinquent tax obligations at issue.

He was a member of the board of directors and went along with board decisions to defer payment of these tax obligations.

He met with a representative of IRS during relevant times to discuss tax delinquencies and he negotiated payments which allowed the company to continue operations.

He guaranteed a corporate loan of $10,-000 in the fall of 1978 or in early January, 1979. He caused this loan to be repaid in preference to delinquent tax obligations.

He dealt with architects, contracting parties, and HUD — Office of Indian Programs, during January, February and March, 1979 regarding Pueblo projects.

He was singly empowered to sign corporate checks. Pueblo had sufficient funds during the last quarter of 1978 and the first quarter of 1979 to pay withholding and FICA obligations. He had the effective power to pay the taxes.

He did not pay the taxes, believing that if he did so, he would have been fired by Steele.

Steele was optimistic that Pueblo’s financial position would improve and it would be able to bring its tax obligations current.

Taylor’s ultimate argument is that he was ordered not to pay the taxes and that had he done so, Steele would have fired him. Thus, he contends he was not authorized to pay these taxes and did not willfully fail to pay them.

Taylor principally relies (Post-Trial Brief, p. 5) on an opinion of a district judge in the Northern District of Alabama, Roth v. United States, 53 A.F.T.R.2d 84-1153 (N.D.Ala.1984). That Court held, in granting the taxpayers’ motion for summary judgment, that a corporate officer lacks authority to pay taxes and is not a responsible party where a superior officer orders that the withheld funds be used to pay other creditors.

The Alabama court discussed and refused to follow a contrary viewpoint expressed in Howard v. United States, 711 F.2d 729 (5th Cir.1983). In my judgment, the Roth decision is bad law and I reject its reasoning and conclusion. In researching Roth it developed that the opinion was subsequently vacated on motion of the government and the case proceeded to trial.

As the Court noted in Howard:

The fact that Jennings might well have fired Howard had he disobeyed Jennings’' instructions and paid the taxes does not make Howard any less responsible for their payment.... However, as we have already noted in our analysis of Howard’s status as a ‘responsible person’, Howard had a choice. He could have paid the taxes, accepted the consequences, and thus avoided the penalty. Neither his discomfort over not paying the taxes, nor his desire to see them paid, makes his failure to pay any less willful....

711 F.2d 729, at 734. See also: In Re Turner, 35 B.R. 811. (Bkrtcy.N.D.1983).

I find and conclude, for the reasons stated previously:

1. This Court has jurisdiction pursuant to Title 28 U.S.C. Sections 1340 and 1345, and Title 26, U.S.C. Section 7402;

2. Jerry G. Taylor was a person required to collect, truthfully account for, and pay over the withholding and FICA taxes due and owing from Pueblo Builders & Developers, Inc. for the fourth quarter of 1978 and the first quarter of 1979;

3. Jerry G. Taylor willfully failed to pay over trust fund taxes due and owing the government for the two quarters at issue;

4. The assessment against Jerry G. Taylor is not erroneous.

The foregoing Opinion in its entirety constitutes the findings of fact and conclusions of law in this proceeding.

Accordingly, IT IS ORDERED that the Government shall, prior to March 1, 1985, lodge with the Court and serve on the attorney for Jerry G. Taylor, a form of Judgment setting forth the amounts owed to the Government, including principal and interest to February 28, 1985, and the amount of daily interest thereafter.

IT IS FURTHER ORDERED that objections, if any, to the form of Judgment shall be filed on or before March 15, 1985.

       Sekaquaptewa died in the late summer of 1979. Steele died December 11, 1983.

       Taylor submitted his resignation effective June 30, 1979, under date of April 23, 1979. However, he continued on after that date because of concerns about any personal liability he had for corporate activities.


author: BIGGERS, District Judge.

text:
    Melvin TUCKER, James Little and Irma Starks, Individually and on behalf of all others similarly situated, Plaintiffs, v. Cecil BURFORD, H.S. Handreker, Frank McCurty, Jr., Preson Tidwell, Preston Phillips, Members of the Panola County Election Commission; Horace Mathews, Bill Knox, Mack Benson, Johnny Cooper, David Ross Craig, Members of the Panola County Board of Supervisors; Leonard Morris, Alton Milan, O.T. Marshall, James Hal Moore, Bryant Woodruff, Members of the Panola County School Board, Defendants.
    No. DC84-188-NB-O
    United States District Court, N.D. Mississippi, Delta Division.
    Feb. 15, 1985.
    Leonard McClellan, Oxford, Miss., Minnie Howard, Batesville, Miss., for plaintiffs.
    Hubbard T. Saunders, IV, Jackson, Miss., William H. McKenzie, III, Ben Barrett Smith, Batesville, Miss., for defendants.
   MEMORANDUM OPINION

BIGGERS, District Judge.

This cause came before the court on the plaintiffs’ request to shorten the terms of various elected officials in Panola County, Mississippi and to order a special election to fill the balance of such terms. The plaintiffs’ cause of action arose because of unequal population among the five voting districts which comprise Panola County, Mississippi. According to the current United States Census, the maximum population deviations among these five districts is 30.96%. Thus, the districts are presumptively in violation of the one-man/one-vote principle discussed in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), which requires that voting districts contain roughly equal population. See Brown v. Thomson, 462 U.S. 835, 842, 103 S.Ct. 2690, 2696, 77 L.Ed.2d 214, 221-22 (1983) (population deviations exceeding ten percent generally unconstitutional unless justified by state or local government). In the present case, the defendants have conceded that the voting districts are malapportioned and must be redistricted.

On October 3, 1984, the plaintiffs filed suit seeking to alleviate the effect of the malapportionment upon both the then upcoming November 6, 1984 election for Panola County Election Commissioners and Board of Education Members and the past November, 1983 election for five members of the Panola County Board of Supervisors. With respect to the November 6, 1984 election, the plaintiffs sought an injunction against the election until implementation of an acceptable redistricting plan. If the 1984 election were not enjoined, the plaintiffs alternatively sought shortened terms for those officials elected from malapportioned districts and a special election within a reasonable time after completion of the redistricting process. Similarly, the plaintiffs asserted that the November, 1983 election results should be voided, and a new election should be held following redistricting.

Following oral argument by counsel on October 19, 1984, this court denied the plaintiffs’ request to enjoin the November 6, 1984 election since the machinery of the election process was already in progress. See Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 1393-94, 12 L.Ed.2d 506, 541 (1964). In the present case, the ballots had been printed, the candidates had been qualified, and considerable money and time had been expended in campaigning before the plaintiffs filed this suit. However, the court reserved ruling on the plaintiffs’ request to shorten the terms of the officials elected from the malapportioned districts, and requested that the parties submit briefs on this issue. Having received and considered the briefs submitted, and being fully advised in the premises thereof, this court is now in a position to rule on the plaintiffs’ requests.

The court notes at the outset that, in filing this suit on October 3, 1984, the plaintiffs sought pre-election relief with regard to the November 6, 1984 election, but seek post-election relief with regard to the November, 1983 election. Because of the different posture of the plaintiffs with respect to these elections, the elections will be treated separately.

NOVEMBER, 1983 ELECTION FOR FIVE MEMBERS OF PANOLA COUNTY BOARD OF SUPERVISORS

Although conceding that the voting districts in Panola County were malapportioned at the time of the November, 1983 election, the defendants assert that the failure of the plaintiffs to seek pre-election relief is fatal to their claim. Courts often require plaintiffs to seek pre-election judicial relief as a prerequisite to voiding an election and ordering a special election due to constitutional violations. See, e.g., Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969); Hamer v. Campbell, 358 F.2d 215, 222 (5th Cir.1966); McGill v. Ryals, 253 F.Supp. 374 (M.D.Ala. 1966), appeal dismissed, 385 U.S. 19, 87 S.Ct. 212, 17 L.Ed.2d 17 (1966). The rationale for this requirement was expressed by the court in Toney v. White, 488 F.2d 310 (5th Cir.1973) (hereinafter Toney II) as follows:

[F]ailure to require prompt pre-election action ... as a prerequisite to post-election relief may permit, if not encourage, parties who could raise a claim “to lay by and gamble upon receiving a favorable decision of the electorate” and then, upon losing, seek to undo the ballot results in a court action.

Id. at 314, quoting Toney v. White, 476 F.2d 203, 309 (5th Cir.1973) (hereinafter Toney I). However, the defendant incorrectly asserts that the seeking of pre-election relief is mandatory before a court may void an election and order a special election. See, e.g., Toney II, 488 F.2d at 315-16; Bell v. Southwell, 376 F.2d 659, 664 (5th Cir.1967). The court must consider the failure of the plaintiffs to seek pre-election relief in view of all the facts and circumstances of the case, including whether preelection relief was available. Toney II, 488 F.2d at 314. Furthermore, the defendants have a heavy burden of showing that the plaintiffs deliberately by-passed pre-election relief. Id. at 315.

The plaintiffs strenuously contend that their failure to seek pre-election relief is due to error by the United States Census Bureau. The record discloses the difficulty which the plaintiffs have encountered in obtaining accurate 1980 census figures for the five voting districts of Panola County. The original census results, which were disclosed in 1982, revealed a maximum population deviation of plus/minus 32.1%. However, in either March or April, 1984, the plaintiffs began inquiry with the United States Census Bureau regarding whether the census figures were based upon the current district boundary lines or on the pre-1978 lines that were no longer in force. On August 10, 1984, the plaintiffs’ attorneys received notification from the Census Bureau that some of the boundary lines used were in fact incorrect. The corrected figures given by the Census Bureau revealed a maximum population deviation of plus/minus 31.58%. After further inquiry the plaintiffs received another letter on October 1, 1984 from the Census Bureau which described additional boundary problems and indicated that revised figures were forthcoming. Thereafter, the present suit was filed on October 3, 1984. The plaintiffs received additional corrected population figures on November 19, 1984, which revealed a maximum population deviation of plus/minus 30.96% in Panola County-

The case at bar presents a difficult question. The official population figures consistently disclosed to both the plaintiffs and to the Panola County officials that the voting districts had maximum population deviations exceeding plus/minus 30%. Furthermore, Brown v. Thompson, 462 U.S. at 843, 103 S.Ct. at 2696, 77 L.Ed.2d at 221-22, clearly states that maximum population deviations exceeding ten percent among voting districts establish a prima facie case of discrimination. Thus, both parties had ample opportunity to take some corrective action prior to the November, 1983 election. Although the court abhors the failure of the Panola County officials to redistrict prior to the November, 1983 election so as to conform to the one-man/one-vote principle despite knowledge of a maximum population deviation exceeding 30% in the districts, the court is mindful that the plaintiffs chose not to seek relief prior to the November, 1983 election despite official census figures which indicated malapportioned districts. Furthermore, it is apparent that the erroneous figures originally reported by the Census Bureau in no way prejudiced the plaintiffs, inasmuch as the official figures consistently showed that the districts were malapportioned.

The court has no doubt that pre-election relief was available with regard to the November, 1983 election if the plaintiffs had been timely in seeking relief. Although this court is troubled by the tardiness of the Panola County authorities in redistricting, it is also concerned that to grant the extraordinary relief of setting aside an election, see, e.g., Cook v. Luckett, 735 F.2d 912, 921-22 (5th Cir.1984) (voiding election a drastic remedy); Saxon v. Fielding, 614 F.2d 78, 79-80 (5th Cir.1980) (same); United States v. Louisville Municipal Separate School District Board of Trustees, 557 F.Supp. 1168, 1172 (N.D.Miss.1983) (same), when no circumstances barred timely suit by the plaintiffs, would be to embrace the hedging posture discouraged in Toney II, 488 F.2d at 314. Thus, this court holds that the plaintiffs waived their right to relief with regard to the November, 1983 election by failure to seek pre-election relief, inasmuch as no extraordinary circumstances precluded such action. Cf. Toney II, 488 F.2d at 315-16 (election set aside despite failure to seek pre-election relief; occurrence of discriminatory activity thirty days prior to election); Bell v. Southwell, 376 F.2d at 663-64 (same; occurrence of discriminatory activity on election day). See generally Toney II, 488 F.2d at 313-15 (discussion of timeliness requirement with regard to voiding election).

NOVEMBER 6, 1984 ELECTION FOR PA-NOLA COUNTY ELECTION COMMISSIONERS AND BOARD OF EDUCATION MEMBERS

The November 6, 1984 election stands on different footing from the 1983 election, inasmuch as the plaintiffs sought pre-election relief. In this case, wherein officials were elected from admittedly malapportioned districts, and pre-election relief was sought, the paramount fact is that all persons in Panola County are currently represented by unconstitutionally elected officials. Thus, this court has no difficulty in determining that the terms of the officials elected in the November 6, 1984 election should be shortened and a special election held to fill the remainder of these terms. However, these officials shall continue to hold the offices for which they were elected in the November 6, 1984 election until a constitutionally acceptable redistricting is implemented and a special election is held for these offices.

CONCLUSION

Panola County, Mississippi has already begun the process of redistricting into constitutionally acceptable districts. However, to facilitate redistricting whereby officials may be constitutionally elected, the court establishes the following timetable:

(1) A redistricting plan that has been pre-cleared in accordance with § 5 of the Voting Rights Act, 42 U.S.C. § 1973c (1981), shall be submitted to this court no later than September 1, 1985.

(2) Thereafter, this court shall determine the manner in which the county should be redistricted. Oral argument will be requested if necessary.

(3) Following the implementation of the redistricting as ordered by the court, a special election shall be held within thirty days to fill the unexpired portion of the terms of those officials elected on November 6, 1984.

This court retains jurisdiction over this case to make such modifications as it sees fit.

Let an order issue accordingly.

ORDER

In accordance with a memorandum opinion this day issued, it is hereby ORDERED:

1. That the November, 1983 election for five members of the Panola County Board of Supervisors shall remain fully valid;

2. That the November 6, 1984 election for Panola County Election Commissioners and Board of Education Members shall be set aside; provided, however, that those officials elected in such election shall continue to hold the offices for which they were elected until a constitutionally acceptable redistricting plan is implemented and a special election held for those offices;

3. That a redistricting plan that has been pre-cleared in accordance with § 5 of the Voting Rights Act, 42 U.S.C. § 1973c (1981), shall be submitted to this court no later than September 1, 1985;

4. That following implementation of redistricting as ordered by the court, a special election shall be held within thirty days to fill the unexpired portion of the terms of those officials elected in the November 6, 1984 election; and

5. That this court shall retain jurisdiction over this case to make such modifications as it sees fit.

THIS, the 12th day of February, 1985.

      . The maximum population deviation is computed by determining the average population of the districts in issue, then totaling the percentages by which the two districts containing either the largest or the smallest population vary from such average. Thus, the percentage computed is the deviation between the most and least populous districts.


author: KANE, District Judge.

text:
    Joseph J. SANCHEZ, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 83-K-2014.
    United States District Court, D. Colorado.
    Feb. 15, 1985.
    John Whitehouse Cobb, Roper, Lief, Mains & Cobb, Boulder, Colo., for plaintiff.
    Robert N. Miller, U.S. Atty., Nancy E. Rice, Asst. U.S. Atty., Denver, Colo., for defendant.
   ORDER AWARDING FEES

KANE, District Judge.

Joseph Sanchez is a member of the class seeking payment of social security disability benefits through this action. Although I remanded Mr. Sanchez’s case for further administrative action, plaintiff won interim benefits as a direct result of this law suit and ultimately, via the administrative process and also as a direct result of this lawsuit, the relief to which he was entitled — social security disability benefits. As contemplated by the Equal Access to Justice Act, Mr. Sanchez has prevailed in this lawsuit.

Although the defendant objects to an award of fees in this case, the litigation position of the government was not substantially justified. See McGill v. Secretary of H.H.S., 712 F.2d 28, 32 (2d Cir. 1983). Both the relief obtained at the hearing on February 29, 1984 in the nature of interim benefits and the final determination on the merits by the defendant agency after remand were directly obtained as a result of the civil action.

Although a party may not be entitled to fees on an order of remand, if the subsequent agency action is favorable, the party will thereafter be entitled to fees under the EAJA. Trujillo v. Heckler, 582 F.Supp. 701, 709 (D.Colo.1984). It is important to note that I was effectively forced to remand the case because of defendant’s failure to procure or develop the administrative record below in a timely manner. I was, therefore, prevented from reversing and awarding benefits — as I would certainly have done. A similar situation resulted in an award of fees in Gross v. Schweiker, 563 F.Supp. 260 (N.D.Ind.1983).

Mr. Sanchez has requested compensation for attorney fees at the rate of $88.50 an hour. Although the EAJA sets a maximum hourly fee rate of $75.00 an hour, it provides for enhanced fees if, inter alia, a showing of inflation is made which justifies a higher fee. The affidavit of Mr. Charles Lief, Esq., shows an increase in the Denver average Consumer Price Index of 18% from the time the EAJA was enacted through December, 1984. A corresponding 18% increase in the $75.00 EAJA amount comes to $88.50 an hour. The affidavit and time sheets of the attorney who handled the matter, Mr. Brian Lawlor, Esq., show that 41 hours were reasonably expended in the prosecution of this case. Thus, plaintiff is entitled to an award of attorney fees in the amount of $3,628.50. Plaintiff is also entitled to attorney fees incurred in the prosecution of the application for fees in an amount as may be finally itemized.

I encourage the parties to stipulate to this latter amount. If the parties are unable to stipulate as to this latter fee amount as well as plaintiff’s costs, I will decide the issue upon plaintiff’s submission of proper filings within fifteen days after the date of this order.

IT IS ORDERED that Mr. Sanchez’s motion for fees is granted and he is awarded attorney fees in the amount of $3,628.50. It is further

ORDERED that plaintiff will be allowed attorney fees incurred in the prosecution of the application for fees in an amount to be determined. It is further

ORDERED that plaintiff is awarded costs in an amount to be determined.


author: REGAN, District Judge.

text:
    LIFE & CASUALTY INSURANCE CO., Plaintiff, v. Helen A. MARTIN, Georgia Webb, Sue Ann Martin, Larry A. Church, Shirley Schorege, Defendants.
    No. 81-948C(B).
    United States District Court, E.D. Missouri, E.D.
    Feb. 19, 1985.

      David Buchana, St. Louis, Mo., for plaintiff.
    Gary Lange, St. Louis, Mo., for Sue Ann Martin.
    Earl Blackwell, Hillsboro, Mo., for Larry Church.
    Michael Aubuchon, St. Louis, Mo., for Georgia Webb.
    Paul Passanate, St. Louis, Mo., for Helen Martin.
   MEMORANDUM OPINION EMBODYING FINDINGS OF FACT AND CONCLUSIONS OF LAW

REGAN, District Judge.

In this interpleader action tried to the Court, plaintiff paid into the registry of the Court the proceeds of two term life insurance policies issued by it on the life of Ronald A. Martin, and by consent of the parties has been discharged. The sole issue for determination is which claimants or claimant is entitled to the proceeds of the two policies. Missouri law governs.

The first policy (No. 78755612), issued on July 5,1978, was in the amount of $100,000 with an accidental death benefit in an additional amount of $100,000. The “first” or primary named beneficiary was Helen A. Martin, wife of the insured. The “second” or contingent beneficiaries, as set forth on the application, were “children to share and share alike and survivors.”

The second policy (No. 79846066), issued on June 11,1979, was also in the amount of $100,000 with an accidental death benefit of an additional $100,000. The “first” or primary beneficiary as set forth on the application for said policy was also Helen A. Martin, the wife of the insured. The “second” or contingent beneficiary as it appears on the application was Georgia Webb.

Each policy contains the following provision relating to the beneficiary:

Beneficiary. The Beneficiary is as designated in the application for this policy unless otherwise provided by endorsement on the Date of Issue or unless subsequently changed as provided below. Unless otherwise stated, the relationship of the Beneficiary is the relationship to the Insured. At the death of the Insured, unless the Beneficiary designation otherwise provided, the proceeds shall be payable in equal shares to such of the designated Beneficiaries as may be living, or to the survivor, in the following order:
(a) To the First Beneficiary or Beneficiaries.
(b) To the Second Beneficiary or Beneficiaries, if any, provided none of the First Beneficiaries are living at the death of the Insured.

On December 5, 1980, the insured, Ronald A. Martin, was murdered. Thereafter, on April 5, 1982, Helen A. Martin, the first beneficiary of each policy, was convicted by a jury of the capital murder of Ronald A. Martin and sentenced to imprisonment for life without eligibility for probation or parole until she served a minimum of 50 years of her sentence. The judgment of conviction was affirmed by the Missouri Court of Appeals on February 7, 1984.

In Missouri, capital murder is defined as follows:

Any person who unlawfully, willfully, knowingly, deliberately, and with premeditation kills or causes the killing of another human being is guilty of the offense of capital murder. Section 565.-001 RSMo.

The judgment of conviction of Helen A. Martin of the capital murder of her husband, Ronald A. Martin, the insured in both policies, conclusively establishes for purposes of this case her disqualification to take as beneficiary of the insurance policies. See Bradley v. Bradley, 573 S.W.2d 378 (Mo.App.1978) and In re Estate of Laspy, 409 S.W.2d 725 (Mo.App.1966).

We reject the contention of Helen A. Martin that inasmuch as this is a civil case, the judgment of conviction is at most only prima facie evidence of the facts adjudicated in her prosecution for murder, so that she was entitled to present evidence that she did not intentionally and feloniously kill or cause to be killed her husband. She stresses the fact that she is a named defendant in this interpleader action. However, once the insurance company was discharged, Helen A. Martin and each of the other claimants became, for the purpose of prosecuting their respective claims, plaintiffs. Whatever the merits of the principle contended for by Helen A. Martin in “a civil proceeding brought against the convicted defendant to recover damages for acts previously determined to be unlawful by the criminal judgment ... this same rule does not and should not apply to a civil action brought by the convicted defendant for the purpose of profiting from (her) criminal conduct.” In re Estate of Laspy, supra, at 733. Cf. LaRose v. Casey, 570 S.W.2d 746, 749-750 (Mo.App.1978), holding that where a party had been convicted of unlawfully hindering a police officer in the performance of his duties, her subsequent damage claims against the officers for false arrest and trespass were barred by collateral estoppel.

The public policy of Missouri (and other states) will not permit a murderer to profit from her own intentional and unjustified criminal conduct of which she was found guilty beyond a reasonable doubt. Accordingly, we hold that Helen A. Martin is disqualified from taking as the first beneficiary of the two insurance policies, and her claim to the proceeds thereof is denied.

We next consider whether the event which triggers the right of the second beneficiaries to take under the policies has occurred. As noted, supra, both policies provide that upon the death of the insured, the proceeds shall be payable to the designated beneficiaries, in the following order: (1) to the first beneficiary, and (2) to the second beneficiary or beneficiaries”, provided none of the first beneficiaries are living at the death of the insured. Obviously, Helen A. Martin was at the death of her husband (and still is) very much alive. It is only because of her felonious conduct of which she was thereafter convicted, that the law has disqualified and prevented her from receiving the insurance proceeds in accordance with the terms of the policies.

We have been cited to no Missouri case involving comparable facts. There is a split of authority in other jurisdictions. In our judgment, Missouri would follow the minority view as expounded in the well-reasoned case of Beck v. Downey, 191 F.2d 150 (9 Cir.1951). In that case, the policies, comparably to those here in issue, provided that the proceeds be paid to the husband (of the woman he killed) “if living; otherwise to (the husband’s mother) as contingent beneficiary.” After first holding that the husband, the murder beneficiary, was precluded by public policy from receiving the proceeds of the policies, the Court held that inasmuch as the contingency, which was a condition precedent to the right of the mother of the murdered to the proceeds, was that the husband be “not living” at the time of the insured’s death, and such contingency never occurred, the contingent beneficiary was not entitled to the insurance proceeds.

Said the Court, 191 F.2d, at 152:

“The words ‘if living’ must be interpreted in their ordinary common sense meaning, namely, that the insured intended the proceeds to go to her mother-in-law, if the beneficiary was not alive but was ‘dead and buried’. Had there been an intent to have the proceeds go to the contingent beneficiary in the event of any incapacity of the beneficiary, while alive, to take the proceeds, plain language to that effect could and certainly would have been used. We think the language of the policies was clear and unequivocal.”

In case after case, the Missouri courts have held that unambiguous language in an insurance contract must be given its plain meaning, and there is no room for construction. We may not exercise inventive powers to create ambiguity when none exists. The only contingency upon which the second beneficiaries in both policies could be entitled to the proceeds is that Helen A. Martin be deceased at the time Ronald A. Martin died. Clearer language could not have been chosen to express that intent.

The cases allowing the contingent beneficiary to take purport to base their holding on the presumed intent of the insured, thus excising the language actually used. In our view, however, the insured’s intent can only be that which was clearly expressed by the language employed in the insurance contract. The mere fact that the insured did not contemplate that his wife would murder him does not authorize us to speculate as to what he would have intended (immediately before his decease) in that unforeseen situation and to modify the insurance policies accordingly. Bearing in mind the right of Ronald A. Martin to change the beneficiaries originally named, we could not even speculate what his intention would have been, not merely when the policies were issued, but thereafter. We have no such authority and decline to do so.

The result, as to both policies, is that the named second beneficiaries as such are not entitled to the insurance proceeds by reason of the disqualification of Helen A. Martin. The remaining question is what disposition should be made of the proceeds, when, as in this case the first named beneficiary is disqualified by law from taking and there is no second beneficiary entitled to take. No provision of the policies relates to this factual situation. What is provided is that if there is no “surviving beneficiary at the date of death of the insured, the proceeds shall be payable to the Owner or the executors or administrators of the Owner.”

For practical purposes (by reason of the fact Helen A. Martin is alive) the situation here existant is exactly the same as it would be had no second beneficiary been designated. Even so, literally there was a “surviving” beneficiary (Helen A. Martin) at the date of the insured’s death, in the sense that she was then (and now) still alive. On the other hand, in view of the fact that the law precludes her from taking, it is reasonable to conclude that even though she is living she has not survived as a beneficiary. Note that the language is significantly different than that applicable to the right of the second beneficiaries to take.

Inasmuch as none of the other claimants are entitled to the proceeds of the policies and have no legal interest therein (and obviously, they do not revert to the insurer) we are convinced that the proceeds should be paid to the administrator of the estate of the insured, the Owner of the policies, and so hold. An order will be entered directing the Clerk to pay to Sue Ann Martin Voirol, as administratrix of the estate of Ronald A. Martin, the entire amount, including interest, remaining in the registry of the Court, upon furnishing proof that she is presently authorized to act as such and has complied with all requirements of the law as to furnishing bond in an amount sufficient to protect all interested parties in light of the amount for distribution.

The foregoing Memorandum and Order constitutes our findings of fact and Conclusions of Law.

JUDGMENT

The Court having this day entered its Memorandum Opinion embodying its findings of fact and conclusions of law,

NOW THEREFORE, in accordance therewith and for the reasons therein stated,

IT IS HEREBY ORDERED and ADJUDGED (1) that the claims of Helen A. Martin, Georgia Webb, Ronald A. Martin, Jr. and Richard A. Martin, Jr., by Shirley Schorege, as guardian of said minors, Sue Ann Martin Voirol, and Rebecca Martin, by Larry Church, as guardian of her Estate, and each of them, to the proceeds of insurance policies No. 78755612 and No. 79846066, heretofore deposited by plaintiff into the registry of the Court, be and the same are hereby respectively denied.

And (2) that the entire balance of said proceeds deposited by plaintiff into the registry of the Court, together with all interest thereon, be and the same is hereby awarded to Sue Ann Martin Voirol as administratrix of the Estate of Ronald A. Martin, Deceased, and the Clerk of this Court is hereby directed to pay her said amount upon her furnishing proof that she is currently authorized to act as such and has complied with all requirements of the law as to furnishing bond in an amount deemed by the Probate Court sufficient to protect all interested parties in light of the amount to be distributed to her.

      . We note that (according to the evidence) Georgia Webb was named as second beneficiary in Policy No. 79846066 on his premise that she would use the proceeds to take care of his youngest child. We certainly cannot speculate that had he known that Mrs. Webb would not be legally obligated to do so, he would nevertheless have named her unconditionally as second beneficiary.