source: Caselaw Access Project

author: PLUNKETT, District Judge.

license: Public Domain

text:
    Erika HENNINGS, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84 C 0240.
    United States District Court, N.D. Illinois, E.D.
    Jan. 31, 1985.

      David R. Bryant, Chicago, 111., for plaintiff.
    Dan K. Webb, U.S. Atty., Gail C. Ginsberg, Asst. U.S. Atty., Chicago, 111. (Randolph W. Gaines, Mary Beth McNamara, Dept, of Health and Human Services, Baltimore, Md., of counsel), for defendant.
   MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

Erika Hennings (“Plaintiff”) brought this action against Margaret M. Heckler, as Secretary of Health and Human Services (“Defendant” or the. “Secretary”), seeking reversal of the Secretary’s decision that Plaintiff is not entitled to receive Social Security Disability Insurance benefits (“S.S.D.I.”). Plaintiff invokes 42 U.S.C. § 405(g) (“§ 405(g)”) as the basis for subject matter jurisdiction over this case. Presently before the court is Defendant’s motion, under Fed.R.Civ.P. Rules 12(b)(1) and 12(b)(6), to dismiss the complaint for lack of jurisdiction over the subject matter, or, in the alternative, for failure to state a claim upon which relief can be granted. For the reasons set forth below, Defendant’s motion is denied.

Background

Plaintiff is a forty-five year old German citizen who has not lived in the United States since June 1972. However, because she worked in the United States from 1960 until she returned to Germany (apparently only intending to stay for a short period) in 1972, Plaintiff was “insured,” for purposes of the S.S.D.I. program, until March 31, 1977. As a result, Plaintiff is eligible for S.S.D.I. if she became “disabled,” within the meaning of 42 U.S.C. § 423(d), on or before March 31, 1977, but not if she became disabled after that date.

On August 18, 1978, Plaintiff filed an application for S.S.D.I., contending that she had been disabled, as a result of several physical impairments, at least since November 16, 1974. The Social Security Administration (the "S.S.A.”) initially denied Plaintiff’s claim, and the S.S.A. denied her claim again on reconsideration. Plaintiff then requested a “hearing” before an administrative law judge (“A.L.J.”), but she waived her “right to appear and give evidence,” asking for “a decision on the evidence on file.” (Plaintiff’s Exhibit A at 8.) On September 28, 1979, the A.L.J., basing his decision on “the evidence of record,” ruled that Plaintiff “was not under a ‘disability,’ as defined in the Social Security Act, as amended, at any time on or before March 31, 1977.” (Plaintiff’s Exhibit A at 9, 15.) Plaintiff did not seek review of the A.L.J.’s decision by the Appeals Council within the time allowed.

On September 16, 1981, Plaintiff filed a second application for S.S.D.I., claiming that she had been disabled since November 16, 1974. The S.S.A. properly treated that application as a request to reopen the A.L. J.’s September 28, 1979 decision, see 20 C.F.R. §§ 404.987-404.995 (1983), on the ground that Plaintiff had submitted “[n]ew and material evidence,” 20 C.F.R. § 404.-989(a)(1) (1983), and the S.S.A. denied the request initially and on reconsideration. On September 29, 1983, a different A.L.J. dismissed Plaintiff’s request for a hearing, stating, in part, as follows:

On September 28, 1979, an Administrative Law Judge issued a decision denying ... [Plaintiff’s] claims. The claimant did not request review of the decision and it thereupon became final and binding on all issues covered therein. The claimant last had insured status for disability purposes under Title II of the Social Security Act March 31, 1977. Inasmuch as the claimant did not have disability insured status after the decision of September 28, 1979, that decision accordingly is the final and binding action of the Secretary____
Under ... [20 C.F.R. § 404.988 (1983)] a decision may be reopened for good cause “ — (w)ithin four years of the date of notice of the initial determination____”. Notice of the initial determination in this case was dated September 19, 1978. The four year period during which the September 28, 1979 decision might be reopened for good cause thus expired September 19, 1982.
The decision of September 28, 1979 is no longer subject to reopening for good cause and remains final and binding. It was dispositive of all issues relating to the claims and is res judicata as to the subsequent application dated [September 16, 1981.

(Plaintiff’s Exhibit B at 24.) The Appeals Council denied Plaintiff’s request for review of the A.L.J.’s decision on November 10, 1983, and the A.L.J.’s decision thus constitutes the Secretary’s decision with respect to Plaintiff’s second application for S.S.D.I. See 20 C.F.R. § 404.959 (1983). Plaintiff filed her complaint in this court on January 12, 1984.

Discussion

Section 405(g) provides, in part, as follows:

Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow.

Defendant’s primary contention is that that jurisdictional grant does not cover the present case, and that, because § 405(g) is the only possible source of jurisdiction over this case, we must dismiss the complaint for lack of jurisdiction. We consider the two prongs of Defendant’s argument separately.

Subject to a single exception, § 405(g) does not, as Plaintiff concedes, confer jurisdiction to review a denial by the Secretary of a request to reopen an earlier final decision. Califano v. Sanders, 430 U.S. 99, 107-109, 97 S.Ct. 980, 985-986, 51 L.Ed.2d 192 (1977). See Watters v. Harris, 656 F.2d 234, 238 (7th Cir.1980). The same is true of a decision by the Secretary that a claim for benefits is barred under the doctrine of administrative res judicata. See, e.g., Carter v. Heckler, 712 F.2d 137, 142 (5th Cir.1983). The exception is that § 405(g) authorizes judicial review in such cases if the Secretary’s decision “is challenged on constitutional grounds.” Califano v. Sanders, 430 U.S. at 108-109, 97 S.Ct. at 985-986.

Plaintiff attempts to fit this case within that exception by arguing that the Secretary’s actions deprived her of property without due process of law, in violation of the Fifth Amendment. This argument is without merit. First, to the extent that Plaintiff claims that she was afforded insufficient process in connection with the A.L.J.’s 1979 decision, we note that, in order to fall within the exception discussed in Sanders, the Secretary’s refusal to reopen the decision, not simply the original decision, must raise a constitutional question. See Steebe v. United States Railroad Retirement Board, 708 F.2d 250, 256 (7th Cir.), cert. denied, — U.S.-, 104 S.Ct. 496, 78 L.Ed.2d 689 (1983). Accordingly, even were we to find that Plaintiff did not receive proper notice or a meaningful opportunity to be heard in 1979, that would not provide a basis for finding that we have jurisdiction over the case under § 405(g).

At any rate, we could not find that Plaintiff’s attack on the A.L.J.’s 1979 decision presents “colorable constitutional claims.” Califano v. Sanders, 430 U.S. at 109, 97 S.Ct. at 986; Watters v. Harris, 656 F.2d at 240-241. Plaintiff was informed by the S.S.A. that she had a right to a hearing before an A.L.J., and she requested review of her ease by an A.L.J., although she waived her right to appear. Plaintiff cannot complain that she received no notice of a “hearing” which, because of the waiver, was never held. The essence of Plaintiff’s argument, though, seems to be that the waiver was invalid because Plaintiff was not offered a meaningful opportunity to be heard, in that the S.S.A. would not hold her hearing in Germany or pay for her to come to the United States for a hearing. This contention is frivolous. The relevant regulation provides that “[hjearings are held in the 50 States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, the Commonwealth of Puerto Rico and the Virgin Islands,” 20 C.F.R. § 404.936(a) (1983), and Plaintiff has not presented any statutory or constitutional authority, and we have not found any, which supports her claim that that provision is not valid. Nor has Plaintiff adduced any authority, and we have not found any, which supports her argument that, as an alternative, the S.S.A. should have paid for her to come to the United States for a hearing. Moreover, Plaintiff’s contention that she was not afforded a proper hearing in connection with the A.L.J.’s 1983 decision is, to the extent that it is based on the due process clause, equally without merit, since Plaintiff did not have a constitutional right to a hearing. See, e.g., Califano v. Sanders, 430 U.S. at 108, 97 S.Ct. at 985.

To the extent, however, that Plaintiff challenges the substance of the A.LJ.’s 1983 decision, the jurisdictional situation is somewhat different. This is so despite the fact that we find no merit in Plaintiff’s constitutional attack on the A.L.J.’s application of the doctrine of administrative res judicata to bar Plaintiff’s claim. That argument, also based on the due process clause of the Fifth Amendment, depends on our accepting Plaintiff’s contention that she was denied the opportunity for a “full and fair hearing” in 1979, which, for the reasons discussed above, we decline to do. The reason that the absence of a colorable constitutional claim does not entirely deprive us of jurisdiction under § 405(g) is that we always retain our jurisdiction to determine whether we have jurisdiction. See, e.g., Texas & Pacific Railway Co. v. Gulf, Colorado & Santa Fe Railway Co., 270 U.S. 266, 274, 46 S.Ct. 263, 265, 70 L.Ed. 578 (1926) (Brandéis, J.). We agree with those courts which have found that this means that we have the power to decide whether the original claim for benefits and the subsequent claim are the “same” claims for purposes of applying the doctrine of administrative res judicata, and the power to determine whether the Secretary, in the course of considering the subsequent claim, has, regardless of any statements to the contrary, actually or constructively reopened the original claim. See McGowen v. Harris, 666 F.2d 60, 65-66 (4th Cir.1981); Tolbert v. Secretary of Health and Human Services, 587 F.Supp. 681, 682-633 (N.D.Ill.1982). If we find that the original claim and the subsequent claim are not the “same” claims for purposes of applying the doctrine of administrative res judicata, or if we find that the Secretary has actually or constructively reopened the original claim,, then we have “full” jurisdiction under § 405(g) to review the Secretary’s decision denying the subsequent claim. See McGowen v. Harris, 666 F.2d at 65-66. In the present case, however, we believe that Plaintiff’s two claims clearly were the “same” for res judicata purposes, and that the Secretary clearly did not reopen Plaintiff’s original claim. Accordingly, we agree with Defendant that § 405(g) does not confer jurisdiction over this case.

That conclusion does not, however, end our inquiry, since we must also consider whether any statutory provision other than § 405(g) confers jurisdiction over this case. Although Plaintiff only alleges jurisdiction under § 405(g) in her complaint, “[a] court’s discretion to dismiss for lack of subject matter jurisdiction when the plaintiff could have pleaded the existence of jurisdiction and when in fact such jurisdiction exists, should be exercised sparingly.” Hoefferle Truck Sales, Inc. v. Divco-Wayne Corporation, 523 F.2d 543, 549 (7th Cir.1975). See Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 608 n. 6, 98 S.Ct. 2002, 2005 n. 6, 56 L.Ed.2d 570 (1978); Kuehner v. Schweiker, 717 F.2d 813, 825 n. 12 (3d Cir.1983) (Becker, J., concurring), vacated and remanded on other grounds, — U.S. -, 105 S.Ct. 376, 83 L.Ed.2d 312 (1984); Harary v. Blumenthal, 555 F.2d 1113, 1115 n. 1 (2d Cir. 1977). We will not dismiss the complaint if we find that any proper jurisdictional basis for it exists.

We begin by noting that such a jurisdictional basis cannot be found in 28 U.S.C. § 1331 or 28 U.S.C. § 1346, see 42 U.S.C. § 405(h) (“§ 405(h)”); Weinberger v. Salfi, 422 U.S. 749, 756-759, 95 S.Ct. 2457, 2462-2464, 45 L.Ed.2d 522 (1975), or in the Administrative Procedure Act. See Califano v. Sanders, 430 U.S. at 104-107, 97 S.Ct. at 983-985. That leaves only one possible source of jurisdiction over this case, the federal mandamus statute, 28 U.S.C. § 1361 (“§ 1361”), which provides as follows:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

Whether § 405(h) precludes a court’s exercising jurisdiction under § 1361 is an issue which neither the Supreme Court, see Heckler v. Ringer, — U.S.-, 104 S.Ct. 2013, 2022, 80 L.Ed.2d 622 (1984), nor the Court of Appeals for the Seventh Circuit, see Attorney Registration and Disciplinary Commission of Supreme Court of Illinois v. Schweiker, 715 F.2d 282, 290 (7th Cir.1983); Americana Healthcare Corporation v. Schweiker, 688 F.2d 1072, 1087 (7th Cir.1982), cert. denied, 459 U.S. 1202, 103 S.Ct. 1187, 75 L.Ed.2d 434 (1983); Watters v. Harris, 656 F.2d at 241 n. 12, has decided. However, as Judge Posner has noted, “there is a powerful argument that the mandamus statute remains available to social security claimants notwithstanding [§ 405(h)].” Attorney Registration and Disciplinary Commission of Supreme Court of Illinois v. Schweiker, 715 F.2d at 290. Indeed, every court of which we are aware which has explicitly decided the issue has found that, “under circumstances where the writ [of mandamus] properly would issue,” City of New York v. Heckler, 742 F.2d 729, 739 (2d Cir.1984), § 1361 “provides jurisdiction to review otherwise unreviewable procedural issues not related to the merits of a claim for benefits.” Dietsch v. Schweiker, 700 F.2d 865, 868 (2d Cir.1983). See, e.g., Lopez v. Heckler, 725 F.2d 1489, 1507-1508 (9th Cir.), vacated and remanded on other grounds, — U.S. -, 105 S.Ct. 583, 83 L.Ed.2d 694 (1984); Mental Health Association of Minnesota v. Heckler, 720 F.2d 965, 971 n. 17 (8th Cir.1983); Belles v. Schweiker, 720 F.2d 509, 511-512 (8th Cir.1983); Kuehner v. Schweiker, 717 F.2d at 819; Ellis v. Blum, 643 F.2d 68, 78-82 (2d Cir.1981) (Friendly, J.); Bellantoni v. Schweiker, 566 F.Supp. 313, 316 n. 4 (E.D.N.Y.1983); Dixon v. Quern, 537 F.Supp. 990, 991-992 (N.D.Ill.1982). We find the reasoning of those decisions to be persuasive, and we thus follow the overwhelming weight of authority and conclude that, under appropriate circumstances, mandamus jurisdiction under § 1361 is available in social security cases.

Moreover, several courts have held that exercising such jurisdiction was proper under circumstances which were very similar to those presented by this case. In Dietsch v. Schweiker, 700 F.2d at 868, the Court of Appeals for the Second Circuit held that § 1361 provided jurisdiction to decide “whether mailing a request for review of an administrative law judge’s decision constitutes filing within the meaning of the regulations promulgated under the Social Security Act.” Id. at 866. In Silvis v. Heckler, 578 F.Supp. 1401, 1402-1403 (W.D.Pa.1984), the court ruled that it had jurisdiction under § 1361 to determine “whether the Secretary’s regulations permit the Secretary, as well as the claimant, to reopen a determination or decision of an administrative law judge ... after the sixty-day period for internal appeal has elapsed.” Id. at 1402. Finally, in Sinatra v. Heckler, 566 F.Supp. 1354, 1357-1358 (E.D.N.Y.1983), the court held that § 1361 conferred jurisdiction to determine the nature of a presumption, concerning the date of receipt of a certain type of notice sent by the S.S.A., which is created by the Secretary’s regulations. Id. at 1358-1359.

This case presents a similar issue of “regulatory interpretation.” In order to bring that issue into focus, we set out the relevant provisions of the regulations. We begin with 20 C.F.R. § 404.955 (1983), which states, in part, as follows:

The decision of the administrative law judge is binding on all parties to the hearing unless—
(c) The decision is revised by an administrative law judge or the Appeals Council under the procedures explained in § 404.987; ...

In turn, 20 C.F.R. § 404.987 (1983) provides as follows:

(a) General. Generally, if you are dissatisfied with a determination or decision made in the administrative review process, but do not request further review within the stated time period, you lose your right to further review. However, a determination or a decision made in your case may be reopened and revised. After we reopen your case, we may revise the earlier determination or decision.
(b) Procedure for reopening and revision. You may ask that a determination or a decision to which you were a party be revised. The conditions under which we will reopen a previous determination or decision are explained in § 404.988.

The cited regulation, 20 C.F.R. § 404.988 (1983) (“§ 404.988”), provides, in part, as follows:

A determination, revised determination, decision, or revised decision may be reopened—
(a) Within 12 months of the date of the notice of the initial determination, for any reason;
(b) Within four years of the date of the notice of the initial determination if we find good cause, as defined in § 404.-989, to reopen the case; ____

Finally, 20 C.F.R. § 404.989 (1983) states, in part, as follows:

(a) We will find that there is good cause to reopen a determination or decision if—
(1) New and material evidence is furnished; ...

The Secretary is, of course, bound by those regulations. See, e.g., United States v. Nixon, 418 U.S. 683, 694-696, 94 S.Ct. 3090, 3100-3102, 41 L.Ed.2d 1039 (1974); Sinatra v. Heckler, 566 F.Supp. at 1358.

In the present case, as noted above, the A.L.J. (and thus the Secretary), in dismissing Plaintiffs request for a hearing in 1983, ruled that “[t]he decision of September 28, 1979 [denying Plaintiff’s claim for benefits] is no longer subject to reopening for good cause and remains final and binding. It was dispositive of all issues relating to the claims and is res judicata as to the subsequent application dated September 16, 1981.” (Plaintiff’s Exhibit B at 24.) We may properly exercise mandamus jurisdiction under § 1361 with respect to the Secretary’s 1983 decision if and only if we find:

“(1) a clear right in the plaintiff to the relief sought;
(2) a plainly defined and peremptory duty on the part of the defendant to do the act in question; [and]
(3) no other adequate remedy available.”

Americana Healthcare Corporation v. Schweiker, 688 F.2d at 1084 (citations omitted). What has been said above makes clear that Plaintiff has “no other adequate remedy.” Thus, our decision turns on the question of whether the Secretary has “a plainly defined and peremptory duty” to consider whether Plaintiff has shown “good cause” to reopen the 1979 decision, and of whether Plaintiff correlatively has “a clear right” to have the Secretary consider whether she has shown “good cause.”

We have little difficulty in finding that the A.L.J. clearly misinterpreted § 404.988(b) in his 1983 decision. Although the A.L.J. correctly found that the relevant four year period ended on September 19, 1982, he nevertheless concluded that Plaintiff’s request to reopen the 1979 decision on the basis of “good cause” was time barred, on the ground that he was considering the case after September 19, 1982. That conclusion was erroneous. What § 404.988(b) requires is that the request to reopen the decision be filed “[w]ithin four years of the date of the notice of the initial determination,” not that the Secretary reopen the decision (assuming that she decides to do so) within four years of that date. See Wilson v. Califano, 580 F.2d 208, 211 (6th Cir.1978). Since Plaintiff filed her second application for S.S.D.I., which the S.S.A. treated as a request to reopen the 1979 decision, on September 16, 1981, well within the four year period, Plaintiff’s request was timely under § 404.988(b).

The fact that the Secretary incorrectly interpreted § 404.988(b), and thus found that Plaintiff’s request to reopen was time barred, is not, however, sufficient to establish that we can properly exercise mandamus jurisdiction under § 1361 in this case. We must still determine whether, given that Plaintiff's request to reopen was not time barred, the Secretary has “a plainly defined and peremptory duty” to consider the merits of that request. We believe that the Secretary has such a duty. Cf. 20 C.F.R. § 404.987(b) (1983) (referring to “conditions under which we will reopen a previous determination or decision” (emphasis added)). In other words, within the four year period specified in § 404.988(b), a decision of the Secretary is not “final” for purposes of applying the doctrine of administrative res judicata, 20 C.F.R. § 404.-957(c)(1) (1983), unless the Secretary finds that “good cause” to reopen the decision does not exist. See 20 C.F.R. § 404.955(c) (1983). That is, a decision that a claim is res judicata must be preceded by a determination that no basis exists for reopening the earlier decision.

We believe that this view is implicit in Judge Shadur’s apt description of the Secretary’s determination not to reopen a decision and her determination to apply the doctrine of administrative res judicata to that decision as “companion decisions].” Tolbert v. Secretary of Health and Human Services, 537 F.Supp. at 632. Indeed, in the present case, the A.L.J.’s order dismissing Plaintiff’s request for a hearing makes clear that the A.L.J. believed that those decisions are so related; he first decided (incorrectly, we have found) that the Secretary's 1979 decision could not be reopened for “good cause,” and only then did he apply the doctrine of administrative res judicata to the 1979 decision. To find that the Secretary can, before the relevant four year period has elapsed, refuse to consider whether a claimant has shown “good cause” to reopen an earlier decision would be to permit the Secretary to make completely arbitrary decisions. Allowing the Secretary discretion in deciding whether “good cause” has been established is one thing; allowing her discretion in deciding whether to consider whether “good cause” has been established would be something quite different. Having provided by regulation that her decisions may be reopened for “good cause” within the specified four year period, the Secretary must, when a claimant within that period requests that a decision be reopened for “good cause,” determine whether the claimant has shown “good cause” to reopen the decision, and only if the Secretary determines that the claimant has failed to show “good cause” may she apply the doctrine of administrative res judicata to the decision. Requiring less would violate the most fundamental tenets of our legal system.

Accordingly, we find that the Secretary has “a plainly defined and peremptory duty” to consider whether Plaintiff has shown “good cause” to reopen the Secretary’s 1979 decision, and that Plaintiff has “a clear right” to have the Secretary consider whether she has shown “good cause.” Thus, we conclude that we have mandamus jurisdiction over this case under § 1361. What has been said also establishes that the complaint states a claim upon which relief can be granted, and, indeed, that Plaintiff is entitled to relief.

Conclusion

For the reasons stated above, Defendant’s motion to dismiss the complaint is denied. The Secretary’s order dismissing Plaintiff’s request for a hearing is hereby vacated, and the case is remanded to the Secretary with instructions to give Plaintiff a hearing before an A.L.J. on the issue of whether Plaintiff has shown “good cause” to reopen the Secretary’s 1979 decision denying her claim for S.S.D.I.

      . Section 405(h) provides as follows:
      The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.

      . We do not believe that the Second Circuit’s decision in Mercer v. Birchman, 700 F.2d 828 (2d Cir.1983) (Friendly, J.), in which the court held that it did not have jurisdiction under § 1361, is inconsistent with these decisions, since in Mercer, among other things, all of the alleged procedural "defects had been corrected by exhaustion of internal remedies.” Id. at 835. See Mental Health Association of Minnesota v. Heckler, 720 F.2d at 971 n. 17. Our conclusion is reinforced by the fact that the author of the court's opinion in Deitsch, Judge Pratt, joined the court’s opinion in Mercer, which was decided less than a week before Dietsch.

      . That regulation, 20 C.F.R. § 404.957 (1983), provides, in part, as follows:
      An administrative law judge may dismiss a request for a hearing under any of the following conditions: ...
      (c) The administrative law judge decides that there is cause to dismiss a hearing request entirely or to refuse to consider any one or more of the issues because—
      (1) The doctrine of res judicata applies in that we have made a previous determination or decision under this subpart about your rights on the same facts and on the same issue or issues, and this previous determination or decision has become final by either administrative or judicial action; ...


author: DEVINE, Chief Judge.

text:
    Thomas COLLIER v. REDBONES TAVERN & RESTAURANT, INC.; Robert Shallow; James River Corporation of Virginia; Seven Islands Land Company. Thomas F. COLLIER v. VOLKSWAGEN OF AMERICA, INC.
    Civ. Nos. 82-630-D, 85-40-D.
    United States District Court, D. New Hampshire.
    Jan. 31, 1985.

      Peter S. Cowan, Manchester, N.H., for plaintiff.
    Michael P. Lehman, Concord, N.H., for James River.
    David J. KillKelley, Laconia, N.H., for Redbones and Shallow.
    Ralph R. Woodman, Jr., Portsmouth, N.H., for Seven Islands.
   ORDER

DEVINE, Chief Judge.

In this action, plaintiff Thomas Collier seeks damages against defendants James River Corporation of Virginia (“James River”) and Seven Islands Land Company (“Seven Islands”) for injuries sustained when a car in which plaintiff was a passenger struck a culvert situated within a State of New Hampshire right-of-way adjacent to defendants’ property. Plaintiff premises defendants’ liability on claims of negligence, negligence per se, and nuisance. Plaintiff is a citizen of New Jersey; James River is a Virginia corporation with a principal place of business in Richmond, Virginia; and Seven Islands is a Maine corporation with a principal place of business in Bangor, Maine. Jurisdiction is founded on 28 U.S.C. § 1332, the citizenship of the parties being diverse and the amount in controversy exceeding $10,000 exclusive of interest and costs. This matter now comes before the Court on defendants’ motion for summary judgment and plaintiff’s motion to amend the complaint and the ad damnum.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In this Circuit, the test to which a summary judgment motion must be put has traditionally been a stringent one. The moving party must affirmatively demonstrate that there is no genuine, relevant factual issue, and the Court must look at the record in the light most favorable to the party opposing the motion and indulge all inferences favorable to that opposing party. General Office Products Corp. v. M.R. Berlin Co., Inc., 750 F.2d 1 at 3 (1st Cir.1984); Donovan v. Agnew, 712 F.2d 1509, 1516 (1st Cir.1983); Gual Morales v. Hernandez Vega, 579 F.2d 677, 680-81 (1st Cir.1978).

The record reveals the following facts. Plaintiff was a passenger in an automobile driven by Mark Gemmetti on November 14, 1981. Gemmetti, drunk and speeding, lost control of the automobile as it approached a curve on Route 16 between Errol and Berlin, New Hampshire. The automobile left the paved portion of Route 16, a Class I highway, traveled through a drainage ditch parallel to Route 16, and finally collided with a culvert situated under an abandoned logging road. In 1933 the State of New Hampshire completed a layout proceeding which confirmed the establishment of the present Route 16 and created a right-of-way for the highway 66 feet in width. The culvert at the point of impact was nine feet from the paved portion of the highway, thus located entirely within the State of New Hampshire’s right-of-way. The abandoned logging road prior to reaching the curve on Route 16 traverses the adjacent land owned jointly by James River (a 25% interest) and by the heirs of the Coe and Pingree families (a 75% interest). At the time the logging road was built, James River’s predecessor, the Brown Company, owned the 25% interest. The Coe and Pingree interest was and is managed by and is the responsibility of Seven Islands. After traversing this land owned and managed by defendants, the road ends on property belonging to the heirs of the Twitchell family, property which is landlocked behind defendants’ property. Although it is unclear as to who constructed the road and culvert or when it was constructed, it is undisputed that defendants did not build the logging road or install the culvert, nor do they have an ownership interest in the situs of the accident. The installation of the culvert was accomplished without a proper permit in violation of New Hampshire Revised Statutes Annotated (N.H. RSA) 249:17 I (1950). The most recent use of the logging road was by William Martineau, who used it in 1964 to ■ access the Twitchell property for harvesting wood. James River’s predecessor, Brown Company, and Seven Islands knew of the road and its use.

The Court in addressing plaintiff’s negligence claim must consider the threshold issue of whether or not defendants’ conduct created a foreseeable risk of harm to plaintiff. Resolution of this question, for purposes of deciding the motion for summary judgment, rests within the purview of the Court. According to the New Hampshire Supreme Court in Paquette v. Joyce, 117 N.H. 832, 834, 379 A.2d 207 (1977), “[i]t is a question of law for determination by the court whether the defendants’ conduct created such a foreseeable risk of harm to the particular plaintiff that defendants were under a duty to avoid it.” The Court concludes, based on the following, that the culvert did not present a foreseeable risk of harm. This conclusion obviates the need to decide whether or not defendants controlled and were obligated to maintain a culvert situated within a State right-of-way in a reasonably safe condition.

The court in Paquette v. Joyce, supra, confronted a similar negligence issue when a defendant landowner with property abutting a state highway cut down a tree, leaving a stump six feet from the roadway. The plaintiff passenger was injured when the car in which he was traveling left the roadway on a curve, the site of several previous accidents, and struck the stump. The court found that the stump did not present a foreseeable risk of harm to normal users of the highway. The court rationalized that the tree stump presented as much a hazard as the tree itself and that the defendant had not introduced a new object which increased the risk of impact to normal users of the highway. The court acknowledged New Hampshire’s adoption of the Restatement (Second) of Torts § 368, which provides that:

A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.

The court recognized that section 368 normally extends liability in those cases where a defendant introduces “an object in close proximity to the highway that was not there before, thereby increasing the risk of impact to travelers” on the highway or where a defendant creates a condition that constitutes a hidden trap to highway travelers. Id. at 836, 379 A.2d 207. Since the defendant in Paquette did neither of these things, no liability under section 368 was found to attach. The court, however, in concluding that the stump was not a hidden trap, did note that the stump “was dangerous only to travelers six feet off the highway encountering it at sufficient speed to be injured by the impact, to whom the diminished visibility of the object would in most cases be irrelevant.” Id. The court went further in holding that it was “not prepared to say defendants’ conduct introduced a risk that was appreciable enough to be foreseen and that would give rise to a duty to avoid.” Id. (emphasis added). Thus it is apparent that the court applied a foreseeability analysis in finding the defendants free of liability. Plaintiff ignores this foreseeability analysis in arguing that Paquette v. Joyce is inapposite.

In the instant case, the Court is not prepared to say that defendants’ conduct introduced a risk that was appreciable enough to be foreseen. The culvert as an artificial condition or as a hidden trap was dangerous only to travelers nine feet off the highway encountering it at sufficient speed to be injured by the impact. The nine-foot distance from the culvert to the road supports the conclusion that the culvert did not present a risk appreciable enough to be foreseen. As Restatement (Second) of Torts § 368, Comment h, makes clear, the distance from the roadway is an important and often decisive factor in ascertaining the reasonable foreseeability of the risk of harm created by the location of a condition in proximity to a roadway. See, e.g., Burchfield v. Smith, 295 F.Supp. 1126 (D.Miss.1969) (unforeseeable deviation into drainage ditch with pipes 24 feet from pavement); Hoffman v. Vernon Township, 97 Ill.App.3d 721, 53 Ill.Dec. 135, 423 N.E.2d 519 (1981) (unforeseeable deviation into utility pole 12 to 16 feet from pavement); and Boutelje v. Tarzian, 142 Pa.Super. 275, 16 A.2d 146 (1940) (unforeseeable deviation into areaway dropoff 3 feet from sidewalk).

The Court’s foreseeability analysis in the instant case must also include a determination of whether plaintiff foreseeably deviated from the highway in the ordinary course of travel. In concluding that plaintiff did not foreseeably deviate from Route 16, the Court considered the insight offered by the official comments of section 368:

[This section] applies ... to those who reasonably and expectably deviate from the highway and enter upon the abutting land in the ordinary course of travel. The possessor is required to anticipate the possibility of such deviations and to realize, where a reasonable man would do so, that the traveler so deviating may encounter danger. The public right to use the highway carries with it the right to protection by reasonable care against harm suffered in the course of deviations which may be regarded as the normal incidents of travel.

Restatement (Second) of Torts § 368, Comment e (emphasis added). The official comments further clarify the application of this section by noting that:

In determining whether the condition is one which creates an unreasonable risk of harm to persons lawfully traveling on the highway and deviating from it, the essential question is whether it is so placed that travelers may be expected to come in contact with it in the course of a deviation reasonably to be anticipated in the ordinary course of travel.

Restatement (Second) of Torts § 368, Comment h (emphasis added).

It is thus obvious to the Court that there are specific limitations imposed in the application of Restatement (Second) of Torts § 368. As emphasized above, these limitations to a finding of reasonable foreseeability are that a lawfully-traveling person must deviate in the ordinary course of travel and as a normal incident to travel. The specific question for the Court to answer is whether a lawfully-traveling person deviating from Route 16 in the ordinary course of travel and as a normal incident of travel might reasonably be expected to collide with a culvert located nine feet from the road. The Court cannot divine such a reasonable expectation under the facts presented in the record.

It is undisputed that the driver of the car in which plaintiff was a passenger was not lawfully traveling on Route 16. The driver was both intoxicated and speeding. It was not reasonably foreseeable to defendants that a drunk driver would speed off the road and collide with the culvert. Moreover, such an erratic and uncontrolled deviation from the roadway cannot be considered a normal incident of travel nor one encountered in the ordinary course of travel. This conclusion is supported by the fact that no previous accidents have been documented at the site of the logging road and culvert.

While plaintiff asserts that the culvert was located on a curve where vehicles traveling on Route 16 were more likely to deviate from the paved portion of the highway, especially in emergency situations, the mere possibility of a deviation from a roadway is not a sufficient finding when the standard is one of reasonable foreseeability. According to W. Prosser, Handbook of the Law of Torts § 31 (4th ed. 1971),

[n]early all human acts, of course, carry some recognizable but remote possibility of harm to another____ No man can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.

The Court concludes that while the culvert might present a possible risk to travelers, it did not present a reasonably foreseeable risk to travelers on Route 16, particularly where the driver of the vehicle was intoxicated and speeding and the deviation from the roadway was not a normal incident of travel. Accordingly, where the defendants could not reasonably foresee any injury resulting from the placement of the culvert, there can be no negligence and no liability attributable to defendants. Paquette v. Joyce, supra, 117 N.H. at 837, 379 A.2d 207, citing W. Prosser, supra at 543. Consequently, defendants’ motion for summary judgment with respect to the negligence claim must be granted.

Plaintiff’s negligence per se claim is based on an alleged violation of N.H. RSA 231:109 (1981), which provides that:

Any person or corporation, except municipal corporations, through whose negligence or carelessness any obstruction, defect, insufficiency, or want of repair is caused upon any highway, shall be liable to any person injured by reason thereof, and the damages may be recovered in an action on the case, provided that this part shall not enlarge the common law liability of public officers.

(Emphasis added.) It is well settled that a causal violation of a statutory standard of conduct can result in the imposition of civil liability when the consequences contemplated by the statute have actually resulted from the violation. Emery v. Booth, 114 N.H. 646, 647-48, 325 A.2d 788 (1974); Moulton v. Groveton Papers Co., 112 N.H. 50, 52, 289 A.2d 68 (1972).

A statutory violation of N.H. RSA 231:109 will be found in the instant case if defendants negligently or carelessly caused an obstruction upon Route 16 resulting in injury to plaintiff. The Court has already concluded that defendants were not negligent since the culvert did not present a reasonably foreseeable risk to travelers in the ordinary course. The negligence per se claim rests therefore on whether defendants carelessly caused an obstruction upon the highway. While “carelessness” is not statutorily defined, the New Hampshire Supreme Court has on occasion offered insight into its meaning. “Carelessness means wrong thinking or failure to think in connection with action.” Smith v. Boston & Maine Railroad, 87 N.H. 246, 257, 177 A. 729 (1935). Moreover, in determining whether a party was careless in a given situation, the party’s thinking and conduct should be “tested by the thoughts and conduct of the average person under the same circumstances.” Id. Since it has previously been determined that an average person in defendants’ position would not have foreseen the risk of impact with a culvert nine feet from the roadway, the Court concludes that this same average person could not be guilty of wrong thinking or failing to think with respect to the culvert’s placement. Defendants therefore cannot be deemed careless within the meaning of this statute. Accordingly, since defendants neither negligently nor carelessly caused an obstruction within the meaning of N.H. RSA 231:109, their motion for summary judgment with respect to the negligence per se claim must be granted.

According to plaintiff, his nuisance claim against defendants can be summarized as follows:

One who, without special authorization, creates or continues a dangerous condition or obstruction in a public highway, street, or sidewalk, does so at his own peril and is liable for injuries proximately resulting therefrom.

39 Am.Jur.2d Highways, Streets, and Bridges § 359, p. 743 (1968). Plaintiff further cites White v. Suncook Mills, 91 N.H. 92, 96-97, 13 A.2d 729 (1940), which provides that an excavation adjoining a public highway or so near to the highway that a person lawfully and with ordinary care using the highway may by accident fall into it is a public nuisance. A public nuisance under New Hampshire law has been further described as “an unreasonable interference with a right common to the general public” and “behavior which unreasonably interferes with the health, safety, peace, comfort or convenience of the general community”. Robie v. Lillis, 112 N.H. 492, 495, 299 A.2d 155 (1972).

The Court upon review of the record concludes as a matter of law that defendants did not create or continue a public nuisance upon Route 16. As noted above in its discussion of plaintiff’s negligence claim, the Court ruled that defendants could not reasonably foresee that the culvert would present a hazard to the traveling public. Under the circumstances of this case, therefore, it cannot be said that defendants’ conduct “unreasonably interfered” with public safety along Route 16. This conclusion is buttressed by Restatement (Second) of Torts §§ 824, 839. According to section 824:

The conduct necessary to make the actor liable for either a public or private nuisance may consist of
(a) an act; or
(b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the public interest or the invasion of the private interest.

It is, as noted above, undisputed that neither defendant James River nor defendant Seven Islands “acted” to create or install the subject culvert and road. Plaintiff's nuisance claim rests therefore on the proposition that defendants failed to act in permitting the continuance of an obstruction along Route 16. Liability for failure to act in a public nuisance situation is explained in Restatement (Second) of Torts § 839. This section provides in pertinent part that:

A possessor of land is subject to liability for a nuisance caused while he is in possession by an abatable artificial condition on the land, if the nuisance is otherwise actionable, and
(a) the possessor knows or should know of the condition and the nuisance or unreasonable risk of nuisance involved____

(Emphasis added.) According to Comment i of this section which discusses what a possessor “should know” before liability will attach for failure to act,

[wjhat the possessor should know ... depends first upon whether his land is in such condition that he, as a reasonable man, would be led to believe that it might be in a harmful condition and that an inspection of it was necessary.

Under the circumstances of this case, since defendants could not reasonably foresee that the culvert would present a hazard to the traveling public, they did not know nor should they have known that the culvert presented an unreasonable risk of nuisance. Therefore, no liability for failing to abate a public nuisance will attach. Accordingly, since defendants did not create or continue a dangerous condition along Route 16, defendants’ motion for summary judgment with regard to the nuisance claim must be granted.

Plaintiff has also moved to amend his complaint to reflect his change of residence from New Jersey to North Carolina as well as to amend his ad damnum from five million two hundred thirty-five thousand dollars ($5,235,000) to fifteen million two hundred thirty-five thousand dollars ($15,-235,000) on the ground that his injuries are of a more disabling nature and his future income as a physician would be more adversely affected than originally believed. These motions are moot as to defendants James River and Seven Islands in light of the Court’s affirmative ruling in their motions for summary judgment. They are not, however, moot with respect to the two remaining defendants, Redbones Tavern & Restaurant, Inc., and Robert Shallow. Neither of these defendants has objected to these motions within the ten-day time period under Local Rule 11. The Court accordingly grants plaintiff’s motion to amend the complaint to reflect the change of residence. The Court, however, pursuant to its power under Rule 15(a), Fed.R.Civ.P., will defer ruling on the motion to amend the ad damnum until final pretrial. However, if at final pretrial it is determined that the proposed increase in plaintiff’s ad damnum exceeds the remaining defendants’ insurance coverage, which would of necessity require a continuation of the trial due to the exposure of defendants’ personal assets and subsequent need of personal counsel, the Court will deny this late-filed motion to amend the ad damnum.

In summation, the Court grants the motion for summary judgment of defendants James River and Seven Islands, grants plaintiff’s motion to amend the complaint to reflect the plaintiff’s change of residence, and defers ruling on plaintiff’s motion to amend the ad damnum until final pretrial.

SO ORDERED.

      . This Order concerns only the original civil action, No. 82-630-D. The later civil action, No. 85-40-D, in which plaintiff seeks damages against the manufacturer of the automobile involved, has recently been consolidated with the original civil action and is not referred to in this Order.

      . Plaintiff has also sought damages against Red-bones Tavern & Restaurant, Inc., where the driver of the car, Mark Gemmetti, had been drinking, and against Robert Shallow, the owner of the tavern property. Plaintiff had also sought damages against Gemmetti, but that claim was settled on July 2, 1984.

      . As noted above, as a result of the Court’s finding that the culvert did not present a reasonably foreseeable risk to travelers in the ordinary course, it is not necessary to reach the issue of whether or not defendants owed a duty to plaintiff with respect to maintenance, control, and location of the culvert.


author: DORSEY, District Judge.

text:
    Antoine J. JANDREAU v. POST-SCRIPT WAREHOUSE, INC., et al.
    No. Civ. N-83-106 (PCD).
    United States District Court, D. Connecticut.
    Feb. 1, 1985.

      Vincent T. McManus, Jr., Wallingford, Conn., for plaintiff.
    Thomas P. Mullaney, III, Stoner, Gross, Chorehes, Lapuk & Kleinman, West Hartford, Conn., for defendant Post-Script Warehouse, Inc.
   RULING ON DEFENDANT POSTSCRIPT WAREHOUSE’S MOTION TO DISMISS

DORSEY, District Judge.

Post-Script Warehouse, Inc. (defendant) has moved to dismiss plaintiff’s complaint for lack of subject-matter jurisdiction pursuant to Rule 12(h)(3), Fed.R.Civ.P. As plaintiff and movant are not of diverse citizenship, plaintiff invoked this court’s jurisdiction under 28 U.S.C. § 1337, which provides: “The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce____” Plaintiff alleges that defendant violated three provisions of the Interstate Commerce Commission Federal Motor Carrier Safety Regulations and that plaintiff’s accident and subsequent injuries were the direct and proximate result of these violations. Plaintiff argues that the alleged violations of the ICC regulations provide a basis for the court’s jurisdiction over this defendant. Defendant argues that plaintiff’s claim is grounded in the common law of negligence and does not arise under any federal law regulating commerce.

“Jurisdiction under § 1337 does not attach on the bare assertion that a right under an act regulating commerce is infringed.” Russo v. Kirby, 453 F.2d 548, 551 (2d Cir.1971). For an action to arise under federal law, the complaint must allege a right created by the particular law or assert a claim that is dependent upon the construction or validity of such law. Gully v. First Nat'l Bank, 299 U.S. 109, 114, 57 S.Ct. 96, 98, 81 L.Ed. 70 (1936); Russo, 453 F.2d at 551; see also, T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir.1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1534, 14 L.Ed.2d 435 (1965) (construing 28 U.S.C. § 1338 which grants jurisdiction over civil actions arising under any act of Congress relating to patents, copyrights and trademarks). Therefore, plaintiff must allege facts that permit a finding that his cause of action is created by federal law or that the suit is dependent for its resolution upon construction or interpretation of such law. Absent such allegations, dismissal for lack of subject-matter jurisdiction is required.

Plaintiff alleges that defendant violated §§ 393.100(b)(2), 393.100(b)(4), and 393.104(b) of the Interstate Commerce Commission Federal Motor Carrier Safety Regulations. These sections apply to the loading of trailers which are used in interstate commerce and require the use of equipment designed to prevent the shifting or falling of cargo in transit. The cargo must be tied down and/or securely blocked and braced in conformance with the regulations. Assuming plaintiff’s allegations to be true, the complaint falls short of establishing a right derived from any federal law regulating commerce. Defendant may have violated various ICC regulations in improperly loading the trailer plaintiff contracted to haul, and proof of such violations might establish per se negligence on the part of defendant. The regulations might establish a standard of care without creating a cause of action in plaintiff’s favor. The indirect relationship of the federal law to plaintiff’s cause of action is insufficient to satisfy the requirement of § 1337 that an action arise under federal law regulating commerce. See Russo, 453 F.2d 548.

The Ninth -Circuit has held that a claim may arise under federal law if a remedy can be properly inferable from an act of Congress regulating commerce. Garrett v. Time-D.C., Inc., 502 F.2d 627 (9th Cir. 1974), cert. denied, 421 U.S. 913, 95 S.Ct. 1569, 43 L.Ed.2d 778 (1975). Even under the “properly inferable” test, the requirement of § 1337 would still not be satisfied in this case. The purpose of the Interstate Commerce Act, 49 U.S.C. §§ 10101, et seq., is to promote the national economy and protect the national defense. There is no indication that Congress intended to create a cause of action for negligence based on violations of the regulations cited by plaintiff. Plaintiff’s cause of action does not depend on construction of the ICC regulations allegedly violated by defendant. There is no dispute regarding the meaning, validity, or applicability of the regulations. Plaintiff simply alleges that defendant violated various regulations. Resolution of the question whether the violations did in fact occur does not require the statutory construction necessary to invoke the original jurisdiction of this court under 28 U.S.C. § 1337. See Gully, 299 U.S. at 114, 57 S.Ct. at 98; Russo, 453 F.2d 548.

As plaintiff’s complaint does not allege a cause of action created by federal law or dependent upon the construction of federal law, plaintiff’s claim does not arise under federal law as required by 28 U.S.C. § 1337. Since there is no other basis to support the jurisdiction of this court, defendant’s motion to dismiss must be granted.

SO ORDERED.


author: LUONGO, Chief Judge.

text:
    Miles W. DOSS v. Thomas C. RAPONE.
    Civ. A. No. 83-3013.
    United States District Court, E.D. Pennsylvania.
    Feb. 1, 1985.

      Miles W. Doss, pro se.
    Matthew S. Donaldson, Jr., Media, Pa., for defendant.
   MEMORANDUM AND ORDER

LUONGO, Chief Judge.

This is a pro se civil rights action filed by Miles W. Doss, an inmate incarcerated at Delaware County Prison. Afforded a liberal construction, plaintiff’s complaint seeks damages and injunctive relief because he was placed in 22-hour lockup as a pretrial detainee and, later, as a convict. Defendant Rapone, former warden of Delaware County Prison, has filed a motion for summary judgment to which plaintiff has not responded. Because plaintiff is without an attorney I have examined this case for possible merit despite the absence of a response. I conclude that no genuine issue of material fact exists, and I will grant defendant’s motion.

As described in the uncontroverted affidavits of defendant Rapone and the prison officials who initially decided to place plaintiff in 22-hour lockup, Delaware County Prison has an established set of criteria for determining the security classification of persons to be confined at that location. Individuals such as plaintiff who are classified as “maximum status” detainees are lodged in cellblock “D,” an area of the prison in which, with several exceptions, prisoners are required to remain in their cells except for two hours of daily exercise. Individuals are assigned to cellblock “D” for various reasons that include the denial or setting of high bail and a history of violent or aggressive behavior on the part of the individual so confined.

The affidavits supporting defendant’s motion for summary judgment demonstrate that plaintiff met at least two of the criteria for admission to cellblock “D.” The District Justice who first remanded plaintiff to Delaware County Prison set plaintiff’s bail at $100,000 (10%), greatly in excess of the prison’s standard for high bail ($50,000). Moreover, plaintiff was charged with attempted homicide and related offenses, charges that, if proven, certainly would constitute a history of aggressive behavior.

The affidavits supporting defendant’s motion also state the reasons for plaintiff’s continued classification as “maximum status” through the date this suit was filed. Shortly after his commitment to Delaware County Prison, plaintiff was charged with murder and other offenses, and he was denied bail as to those charges. Furthermore, on January 13, 1983 a jury found plaintiff guilty of aggravated assault on the first set of charges, and on the second series, a jury convicted him of possession of instruments of crime and first degree murder on February 9, 1983.

Against this background, I discern two possible bases for plaintiff’s claim that his assignment to cellblock “D” violated his due process rights: First, because plaintiff refers to cellblock “D” as the “punishment block,” his claim can be construed as a complaint of unconstitutional punishment of a pretrial detainee. Second, because plaintiff claims that he was assigned to cellblock “D” without a hearing and in contravention of prison policies, the complaint must be considered as a claim for denial of procedural due process.

The first possible theory of plaintiff’s complaint is without basis in the facts of this case. It is abundantly clear that the decision to classify plaintiff as a “maximum status” detainee was based upon objective criteria reasonably related to legitimate institutional objectives. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). As stated in defendant Ra-pone’s affidavit, the purpose for segregating “maximum status” detainees from the general prison population is to prevent individuals with a history of violent behavior from posing an unreasonable risk of harm to the largely nonviolent population of a county prison. It cannot be gainsaid that the classification scheme adopted by Delaware County Prison is rationally related to the prevention of such violence or that the scheme was correctly applied in the plaintiffs case. The record is therefore devoid of any evidence that plaintiff suffered unconstitutional punishment prior to his conviction.

The second possible basis for plaintiffs complaint is equally without merit. In order to invoke the procedural protections of the Due Process Clause, plaintiff must identify a liberty interest of which he was deprived by his placement in administrative segregation. Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). The Due Process Clause affords plaintiff no liberty interest in remaining in the general prison population. “[Administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration.” Id. at 468, 103 S.Ct. at 870. State law provides no firmer ground for plaintiffs assertion of a liberty interest. As several decisions from this judicial district have held, Pennsylvania’s administrative regulations relevant to county jails, 37 Pa.Code § 95.221 et seq., do not create a liberty interest in remaining in the general prison population. See Garfield v. Rapone, C.A. 82-2345 (E.D.Pa., May 25, 1984) (Broderick, J.) and cases cited therein.

Finally, assuming arguendo that the administrative regulations provided plaintiff a liberty interest in being assigned to the general prison population, the record demonstrates that plaintiff’s interest received constitutionally sufficient process. Plaintiff was personally interviewed with respect to factors relevant to the prison’s security classifications upon his arrival at the prison, and the initial decision to assign plaintiff to cellbloek “D” was reviewed, and affirmed, the following day and at periodic intervals thereafter. In view of the limited incremental loss of liberty occasioned by plaintiff’s assignment to administrative segregation, and the low risk that Delaware County Prison’s procedures would erroneously deprive plaintiff of that liberty, I conclude that plaintiff's procedural due process claim cannot succeed.

In short, the uncontested affidavits in this case demonstrate that plaintiff was placed in administrative segregation for legitimate institutional reasons, not for the purpose of punishment, and that whatever liberty interest plaintiff had in residing in the general prison population has been adequately protected. I will therefore grant defendant’s motion for summary judgment.


author: MIHM, District Judge.

text:
    COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff, v. Larry E. JACOBUS, Corrine M. Jacobus, Lear Siegler, Inc., and Royal Industries, Inc., Defendants, and Larry E. JACOBUS, Counterplaintiff, v. COUNTRY MUTUAL INSURANCE COMPANY, Counterdefendant.
    No. 84-1383.
    United States District Court, C.D. Illinois, Peoria Division.
    Feb. 1, 1985.

      James B. Lewis, Peoria, 111., for plaintiff.
    David Stuckel, Peoria, 111., for Jacobus.
    James R. Carter, Peoria, 111., for Lear and Royal.
   MEMORANDUM OPINION AND ORDER

MIHM, District Judge.

This case was initiated by the filing of a complaint for declaratory judgment by Plaintiff Country Mutual Insurance Company (“Country Mutual”). Country Mutual asserts that it is not obligated under its insurance policy to provide a defense of or pay on behalf of the insured, Larry Jacobus, any sums which Defendant Larry Jacobus may become obligated to pay because of bodily injuries sustained by Defendant Corrine Jacobus on October 6, 1981. This injury is currently the subject of a complaint captioned Corrine M. Jacobus, Plaintiff, v. Lear Siegler, Inc. (“Lear”) and Royal Industries, Inc. (“Royal”), Defendants and Third Party Plaintiffs, v. Larry Jacobus, Third Party Defendant, Case No. 83-1086. At issue in this declaratory judgment action is the applicability of a household exclusion clause in a third party contribution action against the insured where the initial cause of action arose from injury to a member of the insured’s family.

Case No. 83-1086 arises from a farm machinery accident in which Corrine Jacobus was injured. She filed suit against Lear and Royal for, inter alia, alleged defects in the manufacture and design of the grain auger which she claims proximately contributed to her injury. The Defendants Lear and Royal sought contribution against Larry Jacobus in the underlying action.

Country Mutual is currently defending Larry Jacobus in Case No. 83-1086 while reserving its right to deny coverage pursuant to an exclusion contained in the insurance policy issued to Larry Jacobus. The insurance policy contains an exclusion relating to “bodily injury to you ...” The term “you” is defined as “... the person named on the Declarations Page of this policy and that person’s spouse if a resident of the same household.” It is admitted by all Defendants that at the time of the grain auger accident, Corrine Jacobus was the spouse of Larry and resided in the same household.

Larry Jacobus filed a counterclaim in this case against Country Mutual alleging that Larry Jacobus demanded and tendered the defense to Country Mutual of the suit filed against him by Lear and Royal in Case No. 83-1086 but that Country Mutual refused to provide a defense to Jacobus. By virtue of its wrongful conduct, Jacobus argues that Country Mutual has waived any claim it may have to deny coverage under the terms of the policy.

The third party complaint in Case No. 83-1086 was filed on August 1, 1984. On that date, a letter to Larry Jacobus’ attorney, David Stuckel, from a senior claims representative of Country Mutual raised the question of whether coverage would be afforded under the insurance policy, but stated that the claim would be sent to Country Mutual’s home office for review.

On August 10, 1984, attorney Stuckel forwarded suit papers and a notice and acknowledgment of non-waiver of rights executed by Jacobus. Country Mutual, through its senior claims representative, Thomas Johnson, replied to attorney Stacker s tender of defense in a letter dated August 13. Johnson again indicated that he did not think coverage would be afforded to Mr. Jacobus for the incident, but that a copy of the summons had been sent to the home office for a final determination. Johnson stated that attorney Stuckel would be contacted as soon as that determination was made and that “I would suggest you do whatever you deem necessary to protect your client, Larry Jacobus, on this Summons.”

By letter dated August 17, attorney Stuckel informed Johnson that Mr. Jacobus had private counsel and that Jacobus would incur attorney’s fees by virtue of the denial of coverage. With an answer to the third party complaint due on August 28, 1984, attorney Stuckel filed an answer on August 24 relying on the statements made, in the August 13 letter. On August 22, however, the claims attorney in Country Mutual’s home office assigned the defense of the third party action against Larry Jacobus to the law firm of Heyl, Royster, Voelker and Allen. On August 27, attorney Stuckel received a copy of a letter addressed to Jacobus stating that Heyl, Royster, Voelker and Allen would enter an appearance on his behalf. Stuckel states that he himself never received any correspondence indicating that Country Mutual would provide a defense for Jacobus.

Country Mutual and Larry Jacobus have filed cross motions for summary judgment on the complaint, and Larry Jacobus has filed a motion for summary judgment on the counterclaim. Because there are no disputed issues of fact, this case can be resolved on the basis of the motions.

Country Mutual did not refuse, wrongfully or otherwise, to defend the third party action against Larry Jacobus in Case No. 83-1086. The letter of August 13, 1984 stated that suit papers had been sent to the home office for a final determination as to coverage and that attorney Stuckel would be notified as soon as the determination was made. The final sentence of that letter, advising attorney Stuckel to do whatever he deemed necessary to protect the interest of his client, cannot be construed as a denial of coverage.

Lear, Royal and Larry Jacobus argue that the exclusion set forth in Country Mutual’s insurance policy is inapplicable in this contribution suit against the insured by a third party where the initiating cause of action arose from injury to the insured’s family member. Larry Jacobus contends that the exclusion sought to be applied by the Plaintiff is violative of § 143.01 of the Illinois Insurance Code, Pub.Act 83-1132, 1984 Ill.Legis.Serv. 27 (West) (to be codified at Ill.Ann.Stat. ch. 73, § 755.01). That section, effective July 11, 1984, reads in relevant part:

“(a) A provision in a policy of vehicle insurance described in Section 4 excluding coverage for bodily injury to members of the family of the insured shall not be applicable when a third party acquires a right of contribution against a member of the injured person’s family.”

Jacobus argues that the subject policy does provide vehicle insurance coverage and that under Section 4 of the Insurance Code, Ill.Rev.Stat. ch. 73, § 616 (1983), it should be deemed a policy of vehicle insurance although it also insures risks other than those arising out of vehicular accidents.

The first sentence of Section 4 classifies vehicle insurance as “insurance against any loss or liability resulting from or incident to the ownership, maintenance or use of any vehicle (motor or otherwise), draft animal or aircraft.” Ill.Rev.Stat. ch. 73, § 616, Class 2(b). The insurance policy issued by Country Mutual to Jacobus contains multiple coverages. Liability coverage is provided against bodily injury of residence or farm employees during their employment for an insured. Coverage A (liability) and Coverage B (medical payments) are excluded where injury arises from any operation of a motor vehicle as that term is defined on page 4 of the policy. The language of § 143.01(a) of the Insurance Code by its very terms is meant to apply to actions for contribution arising out of vehicular injuries. Since the injury to Corrine Jacobus arose out of use of a grain auger, a piece of machinery which is not within the “vehicle” classification of § 4 of the Insurance Code, § 143.01(a) does not apply to damages arising out of the incident complained of in Case No. 83-1086.

Lear and Royal attempt to escape the language and import of § 143.01(a) by arguing that the intent of § 143.01(a) should be extended to this general liability situation since public policy considerations are the same. In Wirth v. City of Highland Park, 102 Ill.App.3d 1074, 430 N.E.2d 236, 58 Ill.Dec. 294, 300 (2nd Dist.1981), the court concluded that interspousal tort immunity was not a bar to a suit for contribution by a third party, stating that:

“(E)quity requires that contribution be allowed even where our statute provides for interspousal tort immunity which would bar a direct suit by the plaintiff. Such a rule is consistent with the desirable policy of the equitable distribution of loss among those parties responsible.”

In State Farm Mutual Auto Insurance Co. v. Suarez, 104 Ill.App.3d 556, 60 Ill.Dec. 305, 432 N.E.2d 1204 (1st Dist.1982), and State Farm Mutual Insurance Co. v. Palmer, 123 Ill.App.3d 674, 78 Ill.Dec. 951, 463 N.E.2d 129 (3rd Dist.1984), the courts addressed the question of insurance coverage provided by liability policies in third party actions for contribution arising out of injuries in automobile accidents to other members of the insured’s household. Suarez and Palmer held that the household exclusion in the respective policies would act as a bar to the insurance company’s responsibility to defend and ultimately pay should liability be found to exist.

Lear and Royal argue that § 143.-01(a) reverses Suarez and Palmer by making policy exclusions regarding injury to the insured’s family inapplicable in a suit for contribution by a third party against a member of the insured’s family. Public policy considerations, they argue, mandate the same result in the case at bar. Instead of a family automobile accident and automobile liability policy, this case involves a farm accident and a farm owner’s liability policy. Applying the household exclusion in this instance may result in an out-of-pocket loss to the insured’s family. In the area of motor vehicle liability insurance, the legislature has mandated that the family will be protected and covered even in the face of a household exclusion in the policy. Lear and Royal argue that the result should be the same here.

The equities favoring the position taken by Lear and Royal are strong. It is not within the province of this Court, however, to hold that the household exclusion should not apply in this general liability situation. The Illinois courts had previously held that the household exclusion did apply in the case of a motor vehicle contribution claim, see Suarez and Palmer, supra, and it took an act of the legislature to change that law. To hold that the household exclusion does not apply to the contribution claim in Case No. 83-1036 would be to change the law. Such a change is peculiarly within the province of the legislature.

Larry Jacobus also constructs an argument in favor of coverage based on the extent of damages for “bodily injury” under the terms of the policy. His reasoning is unpersuasive. The language of the household exclusion in Country Mutual’s insurance policy is clear and unambiguous. It is taken in its plain, ordinary and popular sense and the exclusion is upheld. See, e.g., Miller v. Madison Country Mutual Auto Insurance Co., 46 Ill.App.2d 413, 415-19, 197 N.E.2d 153 (5th Dist.1964).

Accordingly, it is hereby declared:

1. Country Mutual Insurance Company is not obligated under its Policy #A12L0430521 to provide a defense for Larry E. Jacobus in Case No. 83-1086;

2. Country Mutual Insurance Company is not obligated under its Policy # A12L0430521 to indemnify Larry E. Jacobus for any sums of money which he may become legally obligated to pay as damages because of the bodily injury allegedly sustained by Corrine M. Jacobus.

Case dismissed.


author: FOREMAN, Chief Judge.

text:
    H. Jack FRANSDEN, Plaintiff, v. BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, et al., Defendants.
    Civ. No. 84-3067.
    United States District Court, S.D. Illinois.
    Feb. 1, 1985.

      Eric D. Jackstadt, Lance Callis, Callis & Hartman, P.C., William E. Brandt, Granite City, 111., for plaintiff.
    James C. Cook, Walker & Williams, P.C., Belleville, 111., S.I. Hirsh, Chicago, 111., Joseph Guerrieri, Jr., John A. Edmond, High-saw & Mahoney, P.C., Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

FOREMAN, Chief Judge.

Before the Court are Defendant Brotherhood of Railway, Airline and Steamship Clerk’s (BRAC) Motion for Summary Judgment (Document No. 21) and Defendant Missouri Pacific Railroad Company’s (MO-PAC) Motion for Summary Judgment (Document No. 24). Plaintiff filed this action alleging that BRAC was guilty of unfair representation in negotiations with MO-PAC resulting in a loss of his seniority rights and privileges and that MOPAC conspired with BRAC to deprive the plaintiff of his seniority rights. The main argument of both defendants’ summary judgment motions is that plaintiff’s cause of action is barred by the six-month statute of limitations set forth in Del Costello v. International Brotherhood of Teamsters, 461 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983).

Summary judgment is appropriate only where the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56. The party moving for summary judgment has the burden of establishing the lack of a genuine issue of material fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). The Court must view the evidence, and the reasonable inferenees to be drawn therefrom, in the light most favorable to the party opposing summary judgment. Where the moving party fails to meet its strict burden of proof, summary judgment cannot be entered even if the opposing party fails to respond to the motion. Yorger v. Pittsburg Corning Corp., 733 F.2d 1215 (7th Cir.1984).

Where the moving party has met its initial burden and the opposing party asserts the existence of a question of fact, the Seventh Circuit has identified two considerations to be used in determining whether summary judgment is proper. The Court must determine whether the non-moving party has established that there is a genuine issue as to that fact.

To create a question of fact, an adverse party responding to a properly made and supported summary judgment motion must set forth specific facts showing that there is a genuine issue for trial ____ A party may not rest on mere allegations or denials of his pleadings; similarly, a bare contention that an issue of fact exists is insufficient to raise a factual issue.

Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, — U.S.-, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Furthermore, the disputed fact must be material, that is, it must be outcome-determinative under the applicable law. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.) (en banc), cert. denied, — U.S. -, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).

Applying these principles to the issue at hand, the Court finds that there exists no issue of material fact and that the defendants are entitled to judgment as a matter of law. Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, gives an employee a cause of action against his employer for unfair labor practices. The employee also has a cause of action against his union for breach of the union’s duty of fair representation. Both the union’s duty and the employee’s cause of action are “implied under the scheme of the National Labor Relations Act.” Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983). A similar duty and cause of action are implied under the Railway Labor Act. Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 204, 65 S.Ct. 226, 232, 89 L.Ed. 173 (1944); Ranieri v. United Transportation Union, 743 F.2d 598, 600 (7th Cir.1984).

Initially, the Court notes that the plaintiff claims that MOPAC is liable to him as a party to BRAC’s alleged duty of fair representation breach. The plaintiff does not bring a direct claim against MO-PAC under § 301 of the LMRA, 29 U.S.C. § 185, as is usually the case in a “hybrid duty of fair representation/301 action.” In the usual hybrid case, the § 301 claim could stand distinct from the duty of fair representation claim, but here the plaintiff cannot bring such a claim because § 301 does not apply to employers, such as MO-PAC, subject to the Railway Labor Act. The claim here is that MOPAC is a party to BRAC’s breach. Thus, if BRAC’s claim is dismissed, the claim against MOPAC must also be dismissed. United Independent Flight Offices Inc., et al. v. United Airlines, Inc., et al., No. 83-3069, slip op. at 17 (7th Cir. Jan. 17, 1985). An employer is liable together with the union for the union’s breach of its duty of fair representation, if as alleged here, it acted in collusion with the union. Id.

In Del Costello, the Supreme Court held that the six-month statute of limitations set forth in Section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), governs breach of contract and/or breach of fair representation claims like the one present in this lawsuit. In Ranieri, the Seventh Circuit held, following Del Costello, that the six-month section 10(b) limit applied to a Railway Labor Act duty of fair representation claim by an employee against his union. 743 F.2d at 599. The Seventh Circuit has also applied this limitations period to a suit in which the employer is alleged to have colluded with the union in breaching the duty of fair representation. United Independent Flight Officers, Inc., et al. v. United Airlines, Inc., No. 83-2572, slip op. at 17 (7th Cir. Jan. 17, 1985.) The Seventh Circuit has applied Del Costello retroactively. Storck v. International Brotherhood of Teamsters, 712 F.2d 1194 (7th Cir.1983). The six-month limitations period begins running when the claimant “discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged [violation].” Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 304 (7th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984).

In the instant case, the plaintiff does not contest the fact that he discovered or otherwise became aware of the acts constituting the alleged violations on April 16, 1982, or shortly thereafter. Rather, he alleges that his pursuance of intra-union remedies tolled the six-month statute of limitations. The defendant BRAC counters by arguing that since the plaintiff is not required to exhaust intra-union remedies that are futile, the statute of limitations is not tolled by the fact that the plaintiff did pursue them.

With regard to the defendants’ argument, the Supreme Court has held that a railroad employee’s suit against a union for breach of its duty of fair representation is not subject to the ordinary requirement that administrative remedies be exhausted before resorting to the courts. Czosek v. O’Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970). One commentary has implicitly stated that this rule applies to the intra-union remedies a railroad employee might have at his disposal. 23 Fed.Proc., L.Ed. § 52:2016. Therefore, accepting this as true, the defendants’ argument would certainly have merit since if there exists no requirement of exhaustion of even effective intra-union remedies, tolling of the limitations period would not be necessary or proper. However, this Court is not convinced that the Supreme Court in Czosek intended to remove the exhaustion of intraunion remedies requirement since that precise issue was not before it. Further, the Court sees no reason why the Supreme Court would require exhaustion of effective intra-union remedies in other labor contexts and not in the railroad context. Therefore, this Court will proceed on the premise that exhaustion of intra-union remedies by a railroad employee is governed by the same principles set forth by the Supreme Court in other labor cases.

The Supreme Court has held that prior to filing suit a grievant need not exhaust internal union remedies unless the exhaustion would afford “complete relief” to the grievant. Clayton v. UAW, 451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981). Implicit in the defendants’ argument is that if a plaintiff need not exhaust internal union remedies because they would not afford him complete relief, his attempt to exhaust them should not toll the running of the statute of limitations. In other words, if the plaintiff reaps the benefit from the no exhaustion rule, he must also pay the costs.

Resolution of this dispute requires the Court to define the interrelationship of two distinct legal doctrines. The purpose of exhaustion doctrines traditionally has been to encourage private rather than judicial resolution of disputes. On the other hand, the purpose behind the six-month statute of limitations is a rapid resolution of labor disputes. Del Costello, 103 S.Ct. at 2292.

However, in Clayton, the Supreme Court decided that exhaustion of futile internal union remedies would not promote the private resolution purpose. The Supreme Court stated:

By contrast, where an aggrieved employee cannot obtain either the substantive relief he seeks or reactivation of his grievance, national labor policy would not be served by requiring exhaustion of internal remedies. In such cases, exhaustion would be a useless gesture: it would delay judicial consideration of the employee’s § 301 action, but would not eliminate it. The employee would still be required to pursue judicial means to obtain the relief he seeks under § 301. Moreover, exhaustion would not lead to significant savings in judicial resources, because regardless of the outcome of the internal appeal, the employee would be required to prove de novo in his § 301 suit that the union breached its duty of fair representation and that the employer breached the collective-bargaining agreement.

Id., 451 U.S., at 693, 101 S.Ct. at 2097 (footnotes omitted). Thus, the Clayton Court refused to require that the plaintiff exhaust futile remedies.

The defendants are asking this Court to go one step further than Clayton. By adopting the defendants’ position, the Court would implicitly not only be dispensing with the exhaustion requirement where the remedies would not afford complete relief, but would also be essentially foreclosing any attempt to pursue such internal union remedies. But, the Supreme Court in Clayton conceded that exhaustion of even futile internal union remedies might be beneficial.

Concededly, a requirement that aggrieved employees exhaust internal remedies might lead to nonjudicial resolution of some contractual grievances. For example, an employee who exhausts internal union procedures might decide not to pursue his § 301 action in court, either because the union offered him a favorable settlement, or because it demonstrated that his underlying contractual claim was without merit.

451 U.S. at 689, 101 S.Ct. at 2095. Yet, this Court does not believe that the slight possibility of nonjudicial resolution resulting from the pursuance of futile internal union remedies outweighs the need for a quick and complete judicial resolution. Therefore, pursuance of futile internal union remedies should not be required or encouraged. Accordingly, the Court holds that pursuance of internal union remedies which can not afford the grievant complete relief does not toll the six-month statute of limitations. Compare, Ashby v. American Airlines, 115 LRRM 2522 (W.Dist.Tenn. 1983) (delay in pursuing internal union remedies which do not even exist, does not toll the statute of limitations).

Clearly, in the instant case the union could not have afforded the plaintiff complete relief. The gist of the plaintiff’s case against the union is that the union breached its duty of fair representation by entering into an agreement with MOPAC which had the effect of depriving the plaintiff of seniority. However, once this agreement was entered into, the only possible relief the union could have had afforded the plaintiff would have been renegotiation of the contract with MOPAC in an attempt to modify it. Absent modification of the contract, the union would have no power to grant the plaintiff the “dovetail” seniority he seeks, even if the contract violated the union constitution as the plaintiff here alleges. Furthermore, modification of the contract is surely not the type of effective remedy the Supreme Court was referring to in Clayton, since renegotiation seeking modification is always a possibility in such a case. Therefore, the Court finds that the internal union remedies the plaintiff pursued could not have afforded him the relief he requested. As a result, the plaintiff’s pursuance of them did not toll the six-month statute of limitations.

Accordingly, the Court GRANTS the Defendant BRAC’s Motion for Summary Judgment (Document No. 21) and Defendant MOPAC’s Motion for Summary Judgment (Document No. 24). The Court has fully considered all other arguments presented by the parties and finds them to be without merit. The Court ORDERS the Clerk to enter judgment in favor of the defendants and against the plaintiff.

IT IS SO ORDERED.


author: ALLEN SHARP, Chief Judge.

text:
    Emma J. HEBNER, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    No. S 84-162.
    United States District Court, N.D. Indiana, South Bend Division.
    Feb. 1, 1985.
    Marie Waring Mengel, Elkhart, Ind., for plaintiff.
    R. Lawrence Steele, Jr., U.S. Atty. by David H. Kreider, Asst. U.S. Atty., South Bend, Ind., for defendant.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This case is brought pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) for judicial review of the Secretary’s final decision denying plaintiff’s application for Supplemental Security Income. On July 30, 1984 plaintiff filed a motion for summary judgment requesting that this case be (1) remanded for further proceedings on the ground that plaintiff was not afforded a full and fair hearing before the Administrative Law Judge (ALJ) and (2) reversed because the AU’s decision was not based on substantial evidence. In her cross motion for summary'judgment filed November 6, 1984, the defendant responded to plaintiff’s arguments and requested the court to affirm the Secretary’s decision.

I. FULL AND FAIR HEARING

It is a basic obligation of the ALJ to develop a full and fair record at the hearing and his failure to do so constitutes good cause sufficient to remand the case to the Secretary under 42 U.S.C. § 405(g) for the taking of additional evidence. See, e.g., Cannon v. Harris, 651 F.2d 513, 519 (7th Cir.1981); Smith v. Secretary of Health, Educ. and Welfare, 587 F.2d 857, 860 (7th Cir.1978). Further, where a disability claimant is not assisted by counsel, the AU especially has a duty to “scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts Gold v. HEW, 463 F.2d 38, 43 (2nd Cir. 1972); Cannon v. Harris, supra; Smith v. HEW supra, since it is well established that hearings to determine whether claimants are entitled to disability benefits are not adversary proceedings. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Cannon v. Harris, supra. Accordingly, the lack of representation of a disability claimant at an AU hearing is not per se grounds for remanding a case. Bibbs v. Secretary of Health, Educ. and Welfare, 626 F.2d 526, 528 (7th Cir.1980); Smith v. Secretary of Health, Educ. and Welfare, supra. Rather in a case where a claimant is not represented by counsel, there must be a showing of clear prejudice or unfairness to justify remand. Sykes v. Finch, 443 F.2d 192 (7th Cir.1971); Perez v. Heckler, 581 F.Supp. 1095, 1100 (N.D.Ind.1984).

In this case there is no evidence in the record that the AU was biased or. otherwise unfair. However, there is a serious question as to whether plaintiff was competent to adequately present her case. Although the record appears to indicate that she voluntarily waived her right to counsel, it is not clear that she understood what she was doing — that she understood the issues involved, her burden of proof or the standards of disability. The record reveals that she had a seventh grade education and could read a little bit. (Tr. 23). The record also reveals that pulmonary function studies could not be done after eight attempts because plaintiff could not comprehend the instructions. (Tr. 70). Further, in answering questions propounded to her by the AU, the record indicates that plaintiff had difficulty formulating answers that responded to the question. Thus, even though the AU attempted to elicit the necessary information, the record reveals that he was not very successful.

This court notes that the Secretary proffered substantial evidence to support the denial of benefits. However, because of plaintiffs competence, or lack thereof, the court cannot overlook the prejudicial effect of claimant’s lack of representation in this case. Therefore, pursuant to 42 U.S.C. § 405(g), this case must be remanded for a new hearing. On remand, however, the claimant is instructed to closely follow the guidelines for admission of new evidence set out in Czubala v. Heckler, 574 F.Supp. 890, 897 (N.D.Ind.1983).

Accordingly, it is hereby ORDERED that the Motions for Summary Judgment filed by plaintiff and defendant are DENIED and this case is hereby REMANDED to the Secretary for a new hearing.