text:
    Nick CONDOS and Georgia Condos, Plaintiffs, v. Sally CONFORTE, Jack Christensen, David Burgess and The County of Storey, Defendants.
    No. CV-R-81-296-ECR.
    United States District Court, D. Nevada.
    Oct. 5, 1984.

      G.C. Backus, Reno, Nev., for plaintiffs.

      Pete Perry, Stanley H. Brown, Chartered, Stanley H. Brown, Sr., Stanley H. Brown, Jr., Reno, Nev., for Sally Conforte and David Burgess.
    Cromer, Barker, Michaelson, Gillock & Rawlings by Ken Bick, Reno, Nev., for Jack Christensen and Storey County.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

The plaintiffs have objected to the Report and Recommendation of U.S. Magistrate Phyllis Halsey Atkins, wherein she has recommended that the motion for summary judgment by defendants Jack Christensen and the County of Storey be granted. On the other hand, said defendants have moved to strike, pursuant to Fed.R. Civ.P. 12(f), a certain portion of the plaintiffs’ Objection to Magistrate’s Report, the affidavit of plaintiff Nick Condos attached thereto, and a subsequently filed affidavit of attorney Lawrence J. Semenza. Since the resolution of the motion to strike affects the contents of the record this Court will consider in determining the issues raised by the plaintiffs’ Objection, that motion will be resolved first.

The portion of the Plaintiffs’ Objection that the defendants have asked the Court to strike commences on line 12 of page 11 and ends on line 15 of page 12. It contains allegations concerning defendant Sally Conforte’s husband, Joe Conforte. Mr. Conforte is not a party to the instant action. The plaintiffs’ Objection is meant to influence this Court in its consideration of the Magistrate’s recommendation that summary judgment be granted. Therefore, the method of presenting any facts would have to comply with Fed.R.Civ.P. 56, which requires that evidentiary facts be submitted in the form of affidavits or sworn copies of documents. Since the allegations are not in conformity with the Rule, the defendants’ motion to strike will be granted as to the plaintiffs’ Objection to Magistrate’s Report.

The affidavit of Nick Condos indicates personal knowledge of facts relevant to the claim for relief set forth in the Complaint. However, it was submitted subsequent to the filing of the Magistrate’s recommendation, so that the Court has discretion to accept or reject it. Fed.R.Civ.P. 6(d). Bearing on the exercise of this discretion, it is noted that the moving defendants have attached an affidavit of defendant Jack Christensen to one of their memoranda of points and authorities in opposition to the plaintiffs’ Objection. That affidavit, also, was untimely. Nevertheless, it does contain declarations relevant to the same issues touched on in Mr. Condos’ affidavit. Mr. Christensen’s affidavit also indicates his personal knowledge of the matters contained therein. Therefore, the Court will accept both affidavits as additional evidence as provided for in Fed.R.Civ.P. 72(b), •and will deny the defendants’ motion to strike Mr. Condos’ affidavit.

Mr. Semenza’s affidavit consists of a learned discussion as to the law of “probable cause” and his expert opinion as to the propriety of the procedures followed in connection with the preparation of the criminal complaint against Mr. Condos. It amounts to legal argument rather than evidentiary facts. As such, it should not be treated as factual support for the plaintiffs’ opposition to the motion for summary judgment. It will be ordered stricken.

The Complaint herein alleges that the defendants conspired to deprive the plaintiffs of due process and equal protection in their dispute with defendant Sally Con-forte. The action is based on 42 U.S.C. §§ 1983, 1985 and 1986. The main contentions of the plaintiffs have been that the defendants falsely had Mr. Condos charged with embezzlement from defendant Sally Conforte and that defendant Christensen, then the District Attorney of Storey County, threatened the life of Mr. Condos. Both acts purportedly were meant to induce the latter to move out of Mrs. Conforte’s trailer park. If he would move, the embezzlement charge would be dismissed.

Magistrate Atkins’ Report and Recommendation reflects a thorough study of the facts and law of the case. She found that the circumstances put forth by the plaintiffs failed to support a claim of conspiracy as against defendants Christensen and Storey County. The Magistrate found a lack of evidence to show that the moving defendants shared a conspiratorial agreement to deprive the plaintiffs of their federal rights. She also held that defendant Christensen falls within the protection of the absolute immunity accorded prosecutors acting within the scope of their authority in preparing, investigating and prosecuting a case.

As to defendant Storey County, Magistrate Atkins held that the plaintiffs had failed to allege any facts that would provide a basis for direct liability. She also noted that a county may not be held liable vicariously merely as the employer of a wrongdoer.

The plaintiffs’ Objection to the Magistrate’s recommendation that summary judgment be granted the moving defendants starts out with the argument that a justice of the peace’s issuance of the warrant for Mr. Condos’ arrest did not constitute the legal proximate cause of the plaintiffs’ damages, so that it should not have served to insulate those defendants from liability in this civil rights suit. Also, the plaintiffs cannot accept the concept that defendant Christensen’s actions, in coming to their home and purportedly threatening the safety of Mr. Condos if he didn’t move, fell within the scope of Mr. Christensen’s authority as district attorney. They further emphasize that a conspiratorial agreement can often best be shown by the circumstances, and they point out the circumstances from which a conspiracy may be inferred here.

Prosecutors are entitled to absolute immunity from liability for damages in civil rights actions. Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 736, 100 S.Ct. 1967, 1977, 64 L.Ed.2d 641 (1980). The plaintiffs’ Complaint also asks for injunctive relief against State court prosecution and expungement of the criminal record of plaintiff Nick Condos. Defendant Christensen no longer is the District Attorney of Storey County, however, therefore he would not be a proper target for such injunctive relief.

Absolute immunity as to damages exists if the prosecutor was acting in a quasi-judicial capacity within the scope of his authority. Beard v. Udall, 648 F.2d 1264, 1271 (9th Cir.1981). The scope of authority test is to determine whether the prosecutor performed a kind of act obviously beyond his authority or, rather, whether the act had more or less connection with the general matters committed to his control or supervision. Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 678 (9th Cir.1984). The focus of analysis in deciding whether the prosecutor was acting in a quasi-judicial capacity is on the nature or function of the activity. Ibid.; McGruder v. Necaise, 733 F.2d 1146, 1148 (5th Cir.1984). If it was prosecutorial in nature, there is immunity. Harlow v. Fitzgerald, 457 U.S. 800, 810-811, 102 S.Ct. 2727, 2734-2735, 73 L.Ed.2d 396 (1982). So long as the actions were performed as part of his prosecution of a case, the immunity attaches; it doesn’t matter that they could be characterized as investigative or administrative. Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir.1984); Freeman ex rel. The Sanctuary v. Hittle, 708 F.2d 442, 443 (9th Cir.1983). Actions outside the courtroom may be part of the prosecutorial function. Ybarra at 678. Further, the time of the activity is not controlling, because the immunity applies to pre-litigation and post-litigation actions as well as those that occur in the very midst of the litigation. Demery at 1144.

The intent of the prosecutor is not a factor in deciding whether immunity applies, for the analysis is objective. Ybarra at 679. Even if he was motivated by malice, his actions that were part of the prosecutorial function will not subject him to liability for damages. Sykes v. State of California (Dept. of Motor Vehicles), 497 F.2d 197, 200 (9th Cir.1974). Since neither timing nor state of mind are considerations, such activities as the filing of criminal complaints, the institution of proceedings for the arrest of a person suspected of criminal activities, and the drawing of criminal in-formations are automatically entitled to immunity. Ibid. The decision to initiate, maintain or dismiss criminal charges is at the core of the prosecutorial function. McGruder at 1148; Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976); Sykes at 201. The claim that the plaintiffs arrest and prosecution were part of a conspiracy against him does not defeat immunity. Smart v. Jones, 530 F.2d 64, 65-66 (5th Cir.1976). Even if the purpose of plaintiff Nick Condos’ arrest was to extort money from him or to intimidate him into dismissing a civil action, immunity attaches. McGruder at 1148; United States ex rel. Rauch v. Deutsch, 456 F.2d 1301, 1302 (3rd Cir.1972).

The plaintiffs have spotlighted the Ninth Circuit civil rights case of Beard v. Udall, 648 F.2d 1264 (1981). There, the county attorney, who was allowed to have a private practice, had charged the plaintiff with kidnapping. The county attorney also represented a private client in a civil action against the plaintiff. The plaintiff charged that the county attorney had filed the criminal charges against him to further the civil action, even though he knew the charges were baseless. The Ninth Circuit opinion held that where a prosecutor faces an actual conflict of interest, and files charges he knows to be baseless, he is acting outside the scope of his authority and lacks immunity.

In the instant action, it is uncontroverted that defendant Sally Conforte was not the client of defendant Christensen at the time of the criminal prosecution of plaintiff Nick Condos. Nor can it be said that then-District Attorney Christensen knew the embezzlement charges to be baseless, for he had been provided with bookkeeping records that indicated a failure by Mr. Condos properly to account for monies he had collected as manager of Mrs. Conforte’s trailer park. Further, a justice of the peace ordered the issuance of the arrest warrant for Mr. Condos. The responsibility of the prosecutor terminates when the arrest is made pursuant to court order; the order itself becomes the proximate cause of the plaintiff’s injury. See Hoffman v. Halden, 268 F.2d 280, 296, 297 (9th Cir.1959), overruled on another ground in Cohen v. Norris, 300 F.2d 24, 29-30 (9th Cir.1962); Houston v. Humboldt County, 561 F.Supp. 1124, 1127-1128 (D.Nev.1983), affd 725 F.2d 516 (9th Cir.1984). The exception to this rule noted in Hoffman at 297 and Houston at 1127 — where the judge who ordered the arrest or detention had been deceived or hoodwinked by the prosecuting authorities, those authorities may be deemed to have proximately caused the plaintiff’s damages — is not applicable under the facts of the instant proceeding.

The Magistrate’s recommendation, that summary judgment be granted defendant Jack Christensen, is accepted.

The immunity of its former District Attorney does not extend to defendant County of Storey. Owen v. City of Independence, 445 U.S. 622, 650, 100 S.Ct. 1398, 1415, 63 L.Ed.2d 673 (1980). Nevertheless, the claims for relief based on 42 U.S.C. §§ 1985 and 1986 may be treated quite summarily. § 1985 is limited to conspiracies motivated by racial or other class-based discriminatory animus. Mollnow v. Carlton, 716 F.2d 627, 628 (9th Cir.1983); Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir.1978). The plaintiffs have neither alleged nor offered any evidence to indicate that the defendants were so motivated. An indispensible prerequisite for a § 1986 claim is the existence of a conspiracy actionable under § 1985. Wagar v. Hasenkrug, 486 F.Supp. 47, 51 (D.Mont.1980); Kedra v. City of Philadelphia, 454 F.Supp. 652, 663 (E.D.Pa.1978). Since a claim for relief under § 1985 has not been stated, the plaintiffs cannot prevail under § 1986, either.

A civil claim for relief based on conspiracy may be brought under 42 U.S.C. § 1983. Hoffman at 293. The plaintiffs have sufficiently alleged that the County knew of the practices complained of and ratified the same by deliberate inaction. See Guillory v. County of Orange, 731 F.2d 1379, 1382 (9th Cir.1984).

The particular activities of the defendants spotlighted by the plaintiffs in their submissions opposing the motion for summary judgment are threefold: (1) The admitted practice of then-District Attorney Christensen in signing criminal complaints, purportedly as a courtesy to non-residents of the County seat, Virginia City; (2) use of the criminal prosecution to coerce the plaintiffs to move away from Mrs. Conforte’s trailer park, which remedy was being sought by her in ongoing civil proceedings; and (3) Mr. Christensen’s making of a purported threat to Mr. Condos’ safety if the latter refused to move.

The signing of the criminal complaints by the District Attorney will not render the County liable because, as discussed above, such a signing was not the legal proximate cause of the plaintiffs’ damages. This was the only activity that can be construed as a policy, practice or custom of Storey County. There has been no evidence presented that would indicate the actions of Mr. Christensen in seeking to coerce and threaten Mr. Condos were other than isolated occurrences, as contrasted to a practice or custom. For a governmental entity to be held liable under § 1983 it must be shown that official policy, practice or custom was responsible for the deprivation of the plaintiffs’ rights. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-691, 98 S.Ct. 2018, 2035-2036, 56 L.Ed.2d 611 (1978); Ybarra at 681. This requirement applies regardless of whether monetary or equitable relief is sought. Monell at 690, 98 S.Ct. at 2035.

The Court accepts the recommendation of Magistrate Atkins that the motion for summary judgment by Storey County be granted.

Because intent is an element of a claim of conspiracy, such a claim often cannot be decided via a motion for summary judgment. Fonda v. Gray, 707 F.2d 435, 438 (9th Cir.1983). The mere fact that a conspiracy is alleged, however, will not defeat an adequately supported motion. Ibid. Even after viewing the evidence in the light most favorable to the plaintiffs, no genuine issue of material fact has been found. Defendants Jack Christensen and County of Storey are entitled to judgment as a matter of law.

IT IS, THEREFORE, HEREBY ORDERED as follows:

1. The moving defendants’ motion to strike that portion of the plaintiffs’ Objection to Magistrate’s Report found between line 12 of page 11 and line 15 of page 12 be, and the same hereby is, GRANTED.

2. The moving defendants’ motion to strike the affidavit of plaintiff Nick Condos be, and the same hereby is, DENIED.

3. The moving defendants’ motion to strike the affidavit of Lawrence J. Semenza be, and the same hereby is, GRANTED.

4. The motion of defendant Jack Christensen for summary judgment be, and the same hereby is, GRANTED.

5. The motion of defendant County of Storey for summary judgment be, and the same hereby is, GRANTED.


source: Caselaw Access Project

author: HAROLD H. GREENE, District Judge.

license: Public Domain

text:
    LAKER AIRWAYS LIMITED, Plaintiff, v. PAN AMERICAN WORLD AIRWAYS, et al., Defendants. LAKER AIRWAYS LIMITED, Plaintiff, v. SABENA, BELGIAN WORLD AIRWAYS, et al., Defendants. LAKER AIRWAYS LIMITED, Plaintiff, v. UNION DE TRANSPORTS AERIENS, et al., Defendants.
    Civ. A. Nos. 82-3362, 83-0416 and 83-2791.
    United States District Court, District of Columbia.
    Oct. 9, 1984.

      Robert M. Beckman, Beckman & Farmer, Washington, D.C., for plaintiff.
    Douglas E. Rosenthal, Sutherland, Asbill & Brennan, Washington, D.C., for British Caledonian Airways.
    Sidney S. Rosdeitcher, Paul, Weiss, Rifkind, Wharton & Garrison, Washington, D.C., for British Airways Bd.
   MEMORANDUM

HAROLD H. GREENE, District Judge.

This is a motion for a preliminary injunction to restrain defendants British Airways and British Caledonian Airways from engaging in foreign proceedings which would interfere with the jurisdiction of this Court. The background of the current phase of the proceeding, briefly, is as follows. This case had been pending in this Court for some months when these two defendants, among others, proceeded ex parte and without notice to this Court, to secure an injunction in the British High Court of Justice which for a lengthy period of time precluded Laker from taking any steps in the litigation here. See generally, Laker Airways Ltd. v. Pan American World Airways, 559 F.Supp. 1124 (D.D.C.1983); Laker Airways Ltd. v. Pan American World Airways, 577 F.Supp. 348 (D.D.C. 1983); Laker Airways v. Sabena, 731 F.2d 909 (D.C.Cir.1984). Ultimately, on July 19, 1984, the British House of Lords ordered the injunction dissolved. House of Lords Judgment in British Airways Board v. Laker Airways Ltd. reprinted in XXIII Interg.Leg.Mats. 727 (1984).

Immediately following the House of Lords decision, Laker applied to this Court for the issuance of a temporary restraining order to prevent these defendants from repeating their previous conduct in the same or another form. The Court issued such an order, and a hearing was held on the motion for preliminary injunction on October 5, 1984.

The irreparability of the injury to Laker in the event of further interference with the litigation here is obvious as is the likelihood of its success on the merits should there again be such interference. Laker Airways v. Sabena, supra. Further, while defendants profess that they do not intend to repeat their previous conduct, this primarily demonstrates that an injunction would not injure them. In short, under the traditional standards for injunctive relief the issuance of a preliminary injunction is clearly warranted. The real question is — what activities should such an injunction cover? As to that, there does not now appear to be any real dispute about two of the three relevant problems.

First. There is general agreement that, following the decisions of the United States courts and that of the House of Lords, the defendants cannot maintain that they have the legal right to seek to frustrate the proceedings in this Court through orders of the British courts, irrespective of whether those orders operate directly to interfere with this Court’s jurisdiction or whether they do so indirectly (by preventing Laker from litigating here). Injunctive relief to that end is therefore appropriate and will be granted.

Second. There is also general agreement that this Court should not, at least at this time, enjoin the so-called parallel proceedings in the British courts. Injunctive relief against the institution or maintenance of such proceedings will accordingly be denied.

Third. The difficult issue — and the one on which the parties are in sharp disagreement — relates to the Court’s authority to enjoin the defendants from seeking to importune the British Parliament or the British executive authorities to take actions which might frustrate the ability of United States courts to continue with this litigation.

The Court suggested to the parties that, because of its difficult and complexity, this issue be briefed, and that they assure that Court that during the briefing period they would not change the status quo. British Airways agreed to do so; British Caledonian did not. Thus, although the Court has not yet decided whether it has the authority to issue an order which would permanently preclude these defendants from seeking to abort this lawsuit by securing action by the British legislative or executive bodies, it has no choice but to issue a preliminary order to that effect at this time pending further briefing. Failure to do so could well moot this aspect of the proceedings and conceivably Laker’s lawsuit against these defendants.

It should be well understood, however, that the Court is taking this action only to preserve the status quo pending the briefing and decision of the legislative-executive question. The issuance of today’s injunction should therefore not be regarded as a definitive decision — one way or the other— on whether the Court has the power ultimately to enjoin defendants from seeking British legislative and executive remedies with respect to the continuation of this litigation by Laker, or whether such an injunction is advisable in these circumstances.

      . The injunction was subsequently vacated by the High Court, later reinstated by the Court of Appeal and then, as noted below, dissolved by the House of Lords.

      . The temporary restraining order was extended by agreement between the parties to October 9, 1984.

      . WMATA v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977).

      . A parallel proceeding can occur when two states share concurrent jurisdiction over a transaction. In such circumstances, each forum is ordinarily free to proceed to a judgment. An antisuit injunction should normally not issue to preempt parallel proceedings on the same in personam claim, but it can issue to prevent a party from seeking interdictory relief in another forum. Laker Airways v. Sabena, supra, 731 F.2d at 926-27.

      . Because of the structure of Great Britain's parliamentary system, there may not be as much difference between legislative and executive authorities in respect of the issues raised by the current controversy as there would be if a similar situation arose in the United States.

      . One possible action, cited during the hearing on the preliminary injunction by way of example, would be an Act of Parliament, induced by these defendants, making it a criminal offense for Laker to proceed further with this lawsuit.

      . A possible assurance was phrased in various ways, one of them being an undertaking not to take action which would not be permitted if the existing temporary restraining order were extended.

      . In view of the past behavior of these defendants, it is, of course, not improbable that, unless restrained, they would proceed to interfere.

      . That this is a difficult issue is readily apparent. To cite but the most obvious examples, it is clear, on the one hand, that a court should not lightly interfere with the right of an entity to lobby its own government for any purpose, particularly since less intrusive but possibly equally efficacious remedies may be available. See Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958); United States v. Vetco, 691 F.2d 1281 (9th Cir.1981). On the other hand, there is the fact that the British government owns British Airways and would be responsible for payment of antitrust damages here in the event of an adverse judgment. For that reason, the arm’s length relationship which normally precludes interference with petitioning activities may not exist in this situation.


author: FILIPPINE, District Judge.

text:
    POSTSCRIPT ENTERPRISES, INC., and Transcontinental Leasing Corp., Plaintiffs, v. Hon. George F. WESTFALL, as Prosecuting Attorney of St. Louis County, Missouri, and Col. Gilbert Kleinknecht, as Commanding Officer of the St. Louis County Police Department, Defendants.
    No. 82-1628C(2).
    United States District Court, E.D. Missouri.
    Oct. 9, 1984.

      Murry A. Marks, St. Louis, Mo., for plaintiffs.
    Thomas W. Wehrle, Robert H. Grant, Clayton, Mo., for defendants.
   MEMORANDUM

FILIPPINE, District Judge.

Plaintiffs bring this action for a declaration by the Court that Mo.Rev.Stats. §§ 542.281, 542.301, 573.010, 573.030, 573.-060, and 573.070 are unconstitutional under the First, Fifth, and Fourteenth Amendments to the United States Constitution. The Court adopts the following memorandum as its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.

I. Facts

This matter is presented to the Court on stipulated facts.

The plaintiff Postscript Enterprises, Inc. (hereinafter “Postscript”) operates the Adult Book Store located at 3421 North Lindbergh Boulevard in the City of Bridge-ton, Missouri. The Adult Book Store (hereinafter “the Store”) is divided into two sections. The front section, which does not require a “membership,” is described as follows: a glass-enclosed counter is located on the northeast side in the front area. Behind the glass counter is a small desk with a cash register. The clerk or store manager generally sits in this area. Inside the glass case is a display of vibrators, dildos and creams. Across from the clerk area and attached to the north wall are several photographs of nude men and women. On the east wall and the west wall of the front area are two magazine racks containing magazines. The west wall is a divider separating the front and rear areas of the Store. In the center of the divider is a door leading to the rear area wherein the adult movie section is located. The door contains a lock which is controlled by an electronic button. The door is operated by the clerk from behind the glass counter.

The rear section of the Adult Book Store contains fifteen booths, each booth containing a movie machine. As one enters through the door to the rear area, there is a small partition which contains a listing of each movie and in which booth the movie is located. The list gives the booth number, a small description of the movie, and the type of movie, i.e., Number 1, two white males and one white female straight. Behind the small partition is a large open area. The booths are located on both the north and south walls. On the north wall are booths numbers 1 through 8, and on the south wall are booths numbers 9 through 15. The rear area of the store is very dim and poorly lit. The rear area of the store is marked as being “not open to the general public.” Neither minors nor non-members are permitted by plaintiff to enter the rear portion of the Adult Book Store. To become a member entitling an adult to gain access to the rear area of the store, the adult must purchase a membership. A membership is purchased in the front of the store at a cost of one dollar ($1.00) for a period of one year and the individual must show some identification and sign a statement which states that he is not a police officer. The store clerk then issues a membership card to the individual which entitles him to access to the rear area of the store. In order for an individual to view any movie in one of the fifteen booths, he must deposit one quarter into a coin slot. After the coin is deposited, a segment of . the movie can be viewed. To see an entire movie, approximately eight quarters ($2.00) are required. For each twenty-five cents, a segment of film is shown varying in length of time from approximately one minute and twenty seconds to one minute and forty seconds. The films involved herein are all silent films (no sound track) and do not show titles or credits. All of the projectors involved herein contain a metal plate bearing a serial number and the words “Property of Transcontinental Leasing Corporation.”

On December 8, 1981, Detective Denver Belmear of the St. Louis County Police Department, entered the store and reviewed each film located in the rear area of the store. On December 9, 1981, he filed an application for a search warrant and an affidavit describing each of the films. After an adversary hearing pursuant to Mo. Rev.Stat. § 542.281.5 and an unsuccessful attempt on the part of Postscript to secure a writ of prohibition, on January 22, 1982, Judge George Gerhard of the St. Louis County Circuit Court signed a search warrant authorizing the search and seizure of the films as well as the projectors by which the films were being displayed and which were located on the premises of the Store. Detective Belmear proceeded to the Store, served the search warrant on Randall Pallarito, manager of the Store, and seized the films and projectors. On April 16, 1982, plaintiffs’ motion filed February 24, 1982, in the St. Louis County Circuit Court to quash the search warrant previously issued by Judge Gerhard and for return of the films and projectors was denied.

On September ' 21, 1982, Detective Charles Scherer of the Bridgeton Police Department purchased a membership to gain access to the rear area of the store. Detective Scherer viewed each of the movies in the fifteen booths. On September 22, 1982, Detective Scherer and Detective Tom Vohsen, also of the Bridgeton Police Department, executed and filed affidavits in the St. Lo.uis County Circuit Court. Along with the affidavits, the St. Louis County Prosecuting Attorney’s Office filed an application to search the Store and seize the films and projectors described in the affidavits. On September 24, 1982, an adversary hearing was held in the St. Louis County Circuit Court before Judge John F. Kintz. At the conclusion of the hearing Judge Kintz signed a search warrant authorizing a search of the premises and the seizure of the films and one projector and booth. On September 27, 1982, after service of the search warrant on Joseph Demetria DeAndrea, Jr. at the store, Detective Scherer and one Lieutenant Steinman seized the items described in the warrant. On October 22, 1982, the St. Louis County grand jury indicted Mr. DeAndrea on the charge of promoting pornography in the second degree.

On September 30, 1982, Detective John Schupp of the St. Louis County Police Department entered the Store, purchased a membership to the rear portion of the Store and viewed each of the movies in the booths. On October 1, 1982, Detective Schupp filed an affidavit and application for a search warrant in the St. Louis County Circuit Court. After an adversary hearing on October 5, 1982, Judge Kintz signed a search warrant authorizing the seizure of the films viewed by Detective Schupp, fourteen super eight movie projectors on which the films were displayed and fourteen projection booths in which the films and projectors were located. Detective Schupp and Lieutenant Steinman executed the warrant on October 7, 1982. On October 7, 1982, the motion of plaintiffs filed on October 6, 1982, to quash the search warrant and for return of the projectors and booths was denied.

Following the execution of this third search warrant on October 8, 1982, plaintiffs filed suit against George R. Westfall, Prosecuting Attorney of St. Louis County, and Colonel Gilbert Kleinknecht, Superintendent of the St. Louis County Police Department, in this Court. Plaintiffs’ third amended complaint is premised on 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201. Plaintiffs allege that defendants’ confiscation of movie projectors and viewing booths, owned by plaintiff Transcontinental Leasing Corp. and leased by plaintiff Postscript, pursuant to Mo.Rev.Stat. §§ 542.281 and 573.010 deprived them of their constitutional rights. In their prayer for relief, plaintiffs seek a declaration that these and other Missouri statutes, Mo.Rev.Stat. §§ 542.301, 573.010, 573.030, and 573.070, are unconstitutional on their face or as applied to them, an order requiring defendants to return all of the property of plaintiff Transcontinental which was seized and attorney’s fees and costs.

It is apparent from the parties’ pre-trial briefs that after this action was filed, defendants returned all seized movie projectors and booths- to defendant except for one projector which plaintiffs apparently agreed to permit defendants to retain. According to the affidavit of Murry A. Marks, Attorney for plaintiffs, at the time the property was returned, Mr. Marks was advised by the office of the Prosecuting Attorney that destruction of the machines would ultimately be sought and that the machines should not be removed from the state of Missouri. Thus, as is confirmed in plaintiffs’ proposed conclusions of law, plaintiffs no longer seek injunctive relief. All that remains is plaintiff’s request for declaratory judgment and the matter of attorney’s fees and costs.

II. Jurisdiction

The fact that the machines have been returned to plaintiffs and that plaintiffs, therefore, no longer seek return of any property seized raises the question of whether this Court presently has jurisdiction to decide this case. Article III, Section 2, of the United States Constitution permits a federal court to act only in cases and controversies. The Declaratory Judgment Act, 28 U.S.C. § 2201, under which this suit is brought, provides:

In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.

(Emphasis added.)

At the time this suit was filed there unquestionably existed a case or controversy between the parties. However, it is settled law that in order for the Court to have jurisdiction to decide a matter, an actual controversy must exist at the time of the decision. Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969); 10A Wright, Miller & Kane, Federal Practice and Procedure § 2757 p. 602-614 and cases cited therein. Further, for the Court to enter a declaratory judgment there must exist a “substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Golden, 394 U.S. at 108, 89 S.Ct. at 959 quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). In Laird v. Tatum, 408 U.S. 1, 14, 92 S.Ct. 2318, 2326, 33 L.Ed.2d 154 (1972) the Court proposed that the test of justiciability in this context is whether there exists “a claim of specific present objective harm or a threat of specific future harm____” With regard to their challenges to the seizure and ultimate forfeiture of the booths and projections plaintiffs have met this test. When the property was returned to plaintiffs they were advised that the property should not be removed from the state of Missouri as defendants intended to ultimately seek their destruction. Affidavit of Murry A. Marks. This is clearly a threat of specific future harm and is sufficient to satisfy the requirements of both Article III, . Section 2, of the United States Constitution and the Declaratory Judgment Act, 28 U.S.C. § 2201.

However, with regard to plaintiffs’ prayer for declaratory judgment of the constitutionality of Mo.Rev.Stats. §§ 573.010, 573.030, 573.060, and 573.070 there is no actual case or controversy. These statutes define the crimes of promoting pornography in the second degree and public display of explicit sexual. material and the procedures for obtaining declaratory judgments and injunctions against them.

According to the stipulated facts before the Court, plaintiffs are not charged with either of these crimes, nor is there any indication that plaintiffs have been charged with, or convicted of, these crimes in the past. Further, nothing indicates to the Court that there are any specific threats of future prosecution under the statute. Laird, supra. Accordingly, the Court is without jurisdiction under Article III, Section 2, of the United States Constitution to address the constitutionality of Mo.Rev. Stats. §§ 573.010, 573.030, 573.060, and 573.070.

III. Mo.Rev.Stat. §§ 542.281 and 542.301

A.

Plaintiffs first ask this Court to hold that the projectors and booths seized from the store do not come within the ambit of Mo. Rev.Stat. §§ 542.281 and 542.301. They rely exclusively on the memorandum opinion of Judge Michael F. Godfrey of the Circuit Court of the City of St. Louis in In re: Search Warrants for 3552 Gravois, No. 782-654 (May 23, 1978) in which the court held that mini-movie machines by which obscene films were displayed “do not come with [sic] the purview of the forfeiture statute.” In re: Search Warrants at 13. There are no reported decisions addressing this issue.

Mo.Rev.Stat. § 542.281.1(2) authorizes the seizure of “[property which has been used by the owner, or used with his consent, as a raw material or as an instrument to publish or produce such obscene matter.” The seizure of the booths and projectors is clearly within the ambit of the seizure statute.

Mo.Rev.Stat. § 542.301.2(1) authorizes the seizure of three types of property. First, it authorizes the seizure of “[weapons, tools, devices, and substances other than motor vehicles, aircraft, used by the owner or with the owner’s consent as a means for committing felonies____” The projectors and booths may arguably be considered devices within the meaning of the statute. There is nothing in the facts to suggest, however, that they are being used as a means for committing felonies. Second, it authorizes the seizure of “property, the possession of which is an offense under the laws of this state [Missouri]____” This category clearly does not include the projectors and booths. Finally, the statute authorizes the forfeiture of property used “as a raw material or as an instrument to manufacture or produce anything the possession of which is an offense under the laws of [Missouri], or which any statute authorizes or directs to be seized____” The projectors and booths do not fit into this category either. There is no suggestion in the stipulations that the booths and projectors are being used to manufacture or produce anything. They are simply used to display the films. Thus, although the booths and projectors are clearly within the seizure statute, § 542.281, they are not subject to forfeiture under § 542.301. Accordingly, the Court finds it unnecessary to address the issue of the constitutionality of the forfeiture of the booths and projectors under § 542.301.

B.

Plaintiffs attack Mo.Rev.Stat. § 542.281, the seizure statute, on two grounds. First they argue that seizure of the projectors and booths constitutes an unconstitutional prior restraint on their First Amendment rights since the projectors are ultimately subject to forfeiture under § 542.301. In determining that the projectors and booths are not subject to forfeiture under § 542.-301 the Court has disposed of this issue.

Second, plaintiffs argue that § 542.-281 is unconstitutional since it permits a taking of property without adequate due process safeguards. The seizure as evidence of non-obscene items related to the crime being investigated is a valid and accepted procedure in the investigation and prosecution of crimes. See United States v. Wild, 422 F.2d 34 (2d Cir.1969); StarSattelite, Inc. v. Rosetti, 317 F.Supp. 1339 (S.D.Miss.1970). Further, the seizure at issue here is under close judicial control. In order to seize the property one must obtain a warrant from a judge. If more than twenty items are sought to be seized, or the item to be seized is a motion picture film being exhibited to the public, an adversary hearing must be held prior to issuance of the warrant and decision must be rendered within ten days of the hearing. The safeguards provided render meritless any argument that they deny plaintiffs their due process rights.

C.

Plaintiffs argue that the application of Mo.Rev.Stat. § 542.281.1(1) to plaintiffs is invalid because the material seized was not “being held or displayed for sale, exhibition, distribution or circulation to the public.” Plaintiffs contend that the area of the Store in which the obscene material was held was open only to members of the private club and that the area was clearly so marked.

Plaintiffs here are asking the Court to declare whether or not they are within the meaning of the seizure statute. This matter is not properly before the Court as it is in the nature of a defense to prosecution under the statute. “[I]t is not the function of the federal declaratory action to anticipate a defense that otherwise could be presented in a state action.” 10A Wright, Miller and Kane, Federal Practice and Procedure § 2758, at 631-32. See id. at n. 13 and cases cited therein. Accordingly, the Court will not address the issue of the applicability of Mo.Rev.Stat. § 542.-281 to plaintiffs herein.

      . Of the pornography offense in Mo.Rev.Stats. Ch. 573, only promoting pornography in the first degree, § 573.020, is a felony. The stipulated facts do not suggest that plaintiffs are using the projectors to engage in this crime as nothing indicates that they are wholesalers of pornographic materials.


author: OBERDORFER, District Judge.

text:
    RUBBER MILLERS, INC., Plaintiff, v. The UNITED STATES, et al., Defendants.
    Civ. A. No. 84-1954.
    United States District Court, District of Columbia.
    Oct. 9, 1984.

      A.W. Breiner, Theodore A. Breiner, Alexandria, Va., for plaintiff.
    Joseph DiGenova, U.S. Atty., Royce C. Lamberth, Robert E.L. Eaton, Jr., Asst. U.S. Attys., Washington, D.C., for defendants; Michael W. Clancy, Trial Atty., Naval Facilities Engineering Command, Dept, of the Navy, Alexandria, Va., of counsel.
   MEMORANDUM

OBERDORFER, District Judge.

Rubber Millers manufactures sea fenders, devices that act as cushions between a vessel and a dock. The Navy has issued a solicitation for berthing improvements at the Naval Air Station (Truman Annex) in Key West, Florida. Plaintiff alleges that this solicitation includes a subcontract with a specification that describes, to the exclusion of plaintiff’s product, a marine fender manufactured by Seaward International. Rubber Millers claims that these specifications unlawfully prevent it from effectively competing for the procurement as a subcontractor, in violation of 10 U.S.C. §§ 2301, 2304, and 2305. The prime contractors’ bids have been opened but no prime contract for the facility and therefore no subcontract for fenders has been let. Meanwhile, the plaintiff has protested the solicitation to the Comptroller General.

This matter comes before the Court on the defendants’ motion to dismiss, which is based on the theory that the plain language of section 133(a) of the Federal Courts Improvement Act, 28 U.S.C. § 1491(a)(3), vests in the Claims Court “exclusive” jurisdiction over pre-award relief. Because the Court concludes that the plaintiff lacks standing to bring this suit, however, it is unnecessary to reach the question of whether the Claims Court has exclusive jurisdiction over actions like this one.

The starting point for standing analysis in this type of case is Control Data Corp. v. Baldridge, 655 F.2d 283 (D.C.Cir. 1981), cert. denied, 454 U.S. 881, 102 S.Ct. 363, 70 L.Ed.2d 190 (1981). In Control Data, major manufacturers and suppliers of computer systems for the government protested new rules embodying specifications that prevented them from bidding successfully on government contracts. In the course of determining that the computer manufacturers lacked standing, the Court of Appeals adopted a three-part test for implementing the zone of interest analysis developed by the Supreme Court in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Three requirements must be satisfied before Rubber Millers may be deemed to have standing:

1) [plaintiff] must allege injury in fact;
2) [plaintiff] must assert that arbitrary or capricious agency action injured an interest arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question; 3) there must be no “clear and convincing” indication of a legislative intent to withhold judicial review.

Control Data, supra, at 288-89 (footnotes omitted).

Rubber Millers clearly satisfies the injury in fact aspect of the Control Data test. Plaintiff alleges that if the Navy is allowed to use the specifications it has included in the solicitation, Rubber Millers will not be able to compete for this or related future government contacts and will be forced out of the government contracting market. The plaintiff has therefore alleged a specific injury that can be redressed by a favorable judicial decision. See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Control Data, supra, at 289.

Plaintiff faces a more difficult hurdle in attempting to establish that the interest which it seeks to vindicate is within the zone of interests protected or regulated by the statutory provisions under which the suit is brought. The Court of Appeals has rejected the notion that a plaintiff may act as a private attorney general to protect the public interest once an injury in fact has been sufficiently alleged. Control Data, supra, at 291-93. Rather, the Court must determine “that the interest asserted ... is one intended by Congress to be protected or regulated by the statute under which the suit is brought.” Id. at 293-94. This is the exclusive means of determining standing where a plaintiff, like Rubber Millers, has not actually bid. Unlike a bidder, Rubber Millers has not “placed in the hands of the representatives of the Government the power to bind [it] to a contract.” Merriam v. Kunzig, 476 F.2d 1233, 1242 n. 7 (3d Cir.), cert. denied, 414 U.S. 911, 94 S.Ct. 233, 38 L.Ed.2d 149 (1973). Moreover, . Rubber Millers cannot allege as a special injury the notion that it will be entirely precluded from the government market — it is free to decide whether it will conform to government specifications or withdraw. See Control Data, supra, at 293; cf. Ballerina Pen Co. v. Kunzig, 433 F.2d 1204 (D.C.Cir.1970), cert. dismissed, 401 U.S. 950, 91 S.Ct. 1186, 28 L.Ed.2d 234 (1971) (inclusion of ball point pens on Schedule of Blind-Made Products would have completely excluded plaintiff from the government market). Thus, Rubber Millers has standing only if its interests are within the zone protected or regulated by the relevant procurement statutes.

A plaintiff should be found to have standing if the statute contains a slight beneficiary indicia. Constructores Civiles de Centroamerica, S.A. v. Hannah, 459 F.2d 1183, 1189 (D.C.Cir.1972) (cited in-Control Data, supra, at 295). To determine whether Rubber Millers’ interests are within the zone of interests protected or regulated by the procurement statutes, the Court must look to the language of those statutes and to their legislative history.

Rubber Millers relies primarily on three provisions of the Armed Services Procurement Act of 1947. 10 U.S.C. § 2301 declares Congress’s intent to establish a procurement system for the benefit of national defense and the economy. In pertinent part, section 2301 states:

[I]t is the policy of the Congress that such contracts ... will ... provide incentives to contractors to improve productivity through investment in capital facilities, equipment, and advanced technology-

Section 2301(b) adds that “[i]t is also the policy of Congress that a fair proportion of the purchases and contracts made under this chapter be placed with small business concerns.” In this connection, Rubber Millers avers, through the declaration of its Vice-President, that it is a small business within the definition set forth in the Small Business Administration’s regulations, 13 C.F.R. part 121, and the Federal Acquisition Regulation, 48 Fed.Reg. 42,242 (to be codified at 48 C.F.R. § 19.102). The second provision on which Rubber Millers relies is 10 U.S.C. § 2304, which requires formal advertising for most purchases and contracts. The relevant language appears in section 2304(a):

Purchases of and contracts for property or services covered by this chapter ... shall be awarded on a competitive basis to the lowest responsible bidder____

Finally, plaintiff refers to 10 U.S.C. § 2305, which sets forth the standards governing formal advertisements for bids. Section 2305(a) states:

The specifications and invitations for bids shall permit such free and full competition as is consistent with the procurement of the property and services needed by the agency concerned.

Rubber Millers also develops its point with citations to the legislative history surrounding the procurement statutes; essentially, these statements indicate that Congress was concerned about maintaining a competitive environment and soliciting the participation of small businesses in the procurement process.

The essence of Rubber Millers’ argument is that it has standing because it is a small business competitor in a market that has been restricted by improper agency action. Plaintiff claims that the resulting injury to its ability to compete as a small business is an injury to an interest that the procurement statutes were designed to protect.

It is well settled that bidders may challenge government procurement actions in proper circumstances. See, e.g., Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 841-42 (D.C.Cir.1982); Merriam v. Kunzig, supra, at 1240-41. But the plaintiff, a subcontractor, has never submitted a bid to the Navy. Therefore, the question is whether the interests of this plaintiff as a nonbidder arguably fall within the zoné of interests protected by the procurement statutes.

The statutory provisions cited by the plaintiff are directed exclusively at “contractors” and bidders. Although Congress may have been concerned about the role that small business competitors would play in the procurement process, it apparently restricted its concern to small businesses that were in a position to enter into a direct bidding or contractual relationship with the government. Because the interests of a disappointed potential subcontractor do not fall within the zone of interests arguably protected by the procurement statutes, Rubber Millers does not have standing to sue under the Armed Services Procurement Act. See Peoples Gas, Light & Coke Co. v. United States Postal Service, 658 F.2d 1182, 1199-1200 (7th Cir.1981); Ingersoll-Rand Co. v. United States, No. 84-0382, slip op. (May 25, 1984). Neither the language of the statute nor its legislative history suggests a contrary conclusion.

The new Federal Acquisition Regulation System (FAR) discussed by the plaintiff does not change this result. The FAR clearly expresses a concern that small business subcontractors be provided with an opportunity to participate in government contracts. Moreover, it is clear that regulations (as opposed to statutes or constitutional provisions) may give rise to interests sufficient to confer standing on a plaintiff suing for an injury to those interests. See Gulf Airborne Instruments, supra, at 842. But it is not enough for Rubber Millers to assert that it is a small business and that any procurement action which incidentally affects a single small business subcontractor is an injury to the interests protected by the regulations. Instead, there must be a nexus between the effect of the solicitation decision and the interests protected by the regulation. In this case, if the Navy had promulgated its specification in a way that excluded only small businesses from the procurement process, it might have been injuring interests protected by the FAR. But because the Navy promulgated a specification that would have affected any business (large or small) that did not conform, it cannot be said to have taken an action that affects small business interests as such. It seems reasonable to conclude that the FAR does not confer on small business subcontractors a right to sue where other businesses cannot where the challenged action does not implicate a concern peculiar to small businesses. Moreover, contrary to plaintiffs implication, there is no reason to read the FAR as an inference of a congressional intent to include the interests of small subcontractors within the zone of interests protected by the Armed Services Procurement Act. Thus, the mere fact that Rubber Millers is a small business is not enough to give it standing to challenge the Navy’s solicitation.

Although neither the plaintiff nor the defendant identifies any congressional intent to preclude judicial review in situations like this one, it is worth noting that the Court's determination that the plaintiff lacks standing is reinforced by the need to balance carefully the statutes and regulations encouraging competition against the statutes and regulations effecting an efficient procurement process. In M. Steinthal & Co. v. Seamans, 455 F.2d 1289 (D.C.Cir.1971), for example, the Court of Appeals noted the

strong public interest in avoiding disruptions in procurement, and for withholding judicial interjection unless it clearly appears that the case calls for an assertion of an overriding public interest “in having agencies follow the regulations which control government contracting.”

455 F.2d at 1300 (quoting Scanwell Laboratories v. Shaffer, 424 F.2d 859, 864 (D.C.Cir.1970)); see also Ingersoll-Rand Co. v. United States, supra, slip op. at 6. The statutes and regulations encouraging competition do not sufficiently concern nonbidders and applying those statutes and regulations to parties situated as this plaintiff could unreasonably complicate the procurement process.

Accordingly, an accompanying order will grant the defendants’ motion to dismiss the complaint.

ORDER

For the reasons set forth in an accompanying memorandum, it is this 5th day of October, 1984, hereby

ORDERED: that the defendants’ motion to dismiss be, and is hereby, GRANTED; and it is further

ORDERED: that the plaintiff's com- ' plaint be, and is hereby, DISMISSED.

      . See Rubber Millers, Inc.’s Supplemental Memorandum on the Issue of Plaintiffs Standing to Sue at 7-10 (hereinafter cited as Plaintiffs Supp. Mem.); see abo H.R.Rep. No. 71, 97th Cong., 1st Sess. (1981), reprinted in 1981 U.S.Code Cong. & Ad.News 1781.

        . Among other things, the FAR sets up “a single regulation for use by all Executive agencies in their acquisition of supplies and services with appropriated funds.” 48 Fed.Reg. 42,102 (to be codified at 48 C.F.R. Ch. 1). The regulations cited by plaintiff provide, in pertinent part:
      19.201 General policy.
      (a) It is the policy of the Government to place a fair proportion of its acquisitions with small business concerns and small disadvantaged business concerns. Such concerns shall also have the maximum practicable opportunity to participate as subcontractors in the contracts awarded by any executive agency, consistent with efficient contract performance.
      ******
      (b) Heads of contracting activities are responsible for effectively implementing the Small Business and Small Disadvantaged Business Utilization Programs within their activities ____ They are to ... take all reasonable action to increase small business participation in their activities’ contracting processes. 19.202-1 Encouraging small business participation in acquisitions.
      Small business concerns shall be afforded an equitable opportunity to compete for all contracts that they can perform to the extent consistent with the Government’s interest. When applicable, the contracting officer shall take the following actions:

        (d) Encourage prime contractors to subcontract with small business concerns____ 48 Fed.Reg. 42,245; see Plaintiff’s Supp.Mem. at 10-12.


author: FRANCIS J. BOYLE, Chief Judge.

text:
    Idalio SANTOS, Petitioner, v. John BROWN, Warden, Adult Correctional Institution.
    Civ. A. No. 80-0286.
    United States District Court, D. Rhode Island.
    Oct. 11, 1984.

      John M. Roney, Roney & Labinger, Barbara Hurst, Asst. Public Defender, Providence, R.I., for Santos.
    Dennis J. Roberts, II, Atty. Gen., Sharon O’Keefe, Dept, of Atty. Gen., Appellate Div., Providence, R.I., for Brown.
   OPINION

FRANCIS J. BOYLE, Chief Judge.

Petitioner was convicted in the Rhode Island Superior Court of committing an abominable and detestable crime against nature (sodomy) and transporting for immoral purposes. During the testimony of the complaining witness, the trial judge excluded spectators from the courtroom over the objection of the defense attorney and without an evidentiary hearing. On direct appeal to the Supreme Court of Rhode Island, Petitioner claimed the trial judge violated his Sixth Amendment right to a public trial by failing to hold an evidentiary hearing prior to clearing the courtroom of all spectators. He now presents his claim on a petition for habeas corpus relief. His petition is based on the United States Supreme Court’s opinion in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) and other cases which were decided after his trial. Petitioner has exhausted all his state remedies. At issue is the extent of Petitioner’s right to a public trial as required by the Sixth Amendment. Also at issue is the retroactive application of federal constitutional law, as determined in United States Supreme Court opinions filed after trial.

1. BACKGROUND

Idalio Santos (“Petitioner”) was tried in October 1978 in the Rhode Island Superior Court on four counts: rape, kidnapping, sodomy and transporting for immoral purposes. The prosecution called as its first witness the complainant, a woman who at the time of trial was twenty-two years old. The prosecution moved to close the courtroom to the public. The following colloquy took place in which Mr. Landry, an Assistant Attorney General and Mr. Casparian, counsel for the Defendant addressed the Court:

MR. LANDRY: Your Honor, before this witness testified (sic) the State, at this point, makes a motion that the courtroom be cleared relative to any spectators other than of course the jury and the court personnel, because of the nature of the testimony and I think it’s in the best interest of the State and everybody at this point that the courtroom be cleared.
MR. CASPARIAN: I must strenuously object. The complaining witness is not a child of tender year's. Especially to grant this motion without the court making inquiry with the witness, Your Honor please, I think would be improper. The defendant is entitled to a public trial. He is entitled to have the doors of the court opened. I don’t think this is a situation where a courtroom should be closed, if the court please.
THE COURT: Because of the outline in the opening statement of counsel, the court will exclude all people that are in the courtroom who witness this trial, and will open the doors as soon as her testimony is concluded. And, this does not deprive the defendant of an open and public trial. And, based upon the facts that the type of testimony that will be given, based upon the opening as outlined by counsel, I feel it’s in the best interest of all parties concerned. The courtroom doors may be shut, at this time.

The trial court’s order excluding spectators from the courtroom was based solely on the nature of the testimony expected from the complainant, according to the State attorney’s representations already made in open court. Among the spectators who left the courtroom when the court issued its closure order were Petitioner’s mother and sister, and members of the press. The courtroom was reopened after the completion of the complainant’s testimony.

On October 18, 1978, the jury acquitted Petitioner of rape and of kidnapping, and convicted him of sodomy and of transporting for indecent purposes. The Defendant contended that the complaining witness had consented. The court instructed the jury that consent was not relevant on the two counts of which he was convicted. He was sentenced to ten years (seven suspended) and three years (two suspended) for the respective convictions. Petitioner’s appeal to the Rhode Island Supreme Court was denied. State v. Santos, 413 A.2d 58 (R.I. 1980).

Having exhausted his state remedies, Petitioner filed the present petition for a writ of habeas corpus. He claims, first, that the trial court violated his Sixth Amendment right to a public trial by closing the courtroom during the complainant’s testimony, without an evidentiary hearing. Second, he claims that the statutes under which he was convicted are unconstitutionally vague, deny him due process and equal protection and violate his right to privacy. Petitioner has moved for partial summary judgment on his Sixth Amendment claim.

The Rhode Island Supreme Court relied on United States ex rel. Smallwood v. La Valle, 377 F.Supp. 1148 (E.D.N.Y.1974) in holding that the right to a public trial, although fundamental, is not a “limitless imperative” of a criminal defendant. Id. at 1151. It stated in part that the public maybe excluded from the courtroom — “if, in light of the nature of the crime, the expected testimony, or the emotional state of the witness” the court determines “the testimony would likely be severely hampered or distorted if the witness were required to testify in public.” State v. Santos, 413 A.2d 58, 63 (R.I.1980).

2. OPEN TRIAL

Generally, the public trial guarantee of the Sixth Amendment is a well-established safeguard against the possible abuse of judicial power or use of the courts as instruments of persecution. In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682 (1948). Although the right to a public trial is fundamental, it is not absolute and must be balanced against other interests which might justify excluding the public. United States v. Eisner, 533 F.2d 987, 993 (6th Cir.1976), cert. denied, 429 U.S. 919, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976). The state of the law at the time of trial regarding the balancing of interests was unclear.

Shortly after the Santos opinion was filed by the Rhode Island Supreme Court, the United States Supreme Court enumerated strict requirements for closure, finding that the press and public have a First Amendment right to attend a criminal trial. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573, 100 S.Ct. 2814, 2825, 65 L.Ed.2d 973 (1980). The Court held that a “presumption of openness inheres in the very nature of a trial under our system of justice,” id., and that only an overriding interest in closure could super-cede this right of access. Id. at 581, 100 S.Ct. at 2829. The Court further explicated the weighty criteria required to preclude the public’s independent right of access to trial proceedings in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) and in Press-Enterprise Co. v. Superior Court of California, Riverside County, — U.S. -, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). Most recently, the Court addressed a defendant’s Sixth Amendment right to a public trial, stating that the closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its progeny. Waller v. Georgia, — U.S. -, 104 S.Ct. 2210, 2216, 81 L.Ed.2d 31 (1984). The constitutional right to a public trial is for the protection of the defendant, in order that the public may see that he is fairly dealt with and not unjustly condemned, and in order that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions. Id. 104 S.Ct. at 2215. Any closure of the courtroom over the objections of the accused must therefore meet the following tests: the party seeking closure must show likely harm to an overriding interest, closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closure, and it must make adequate findings to support the closure. Id.; Cf. Press-Enterprise Co. v. Superior Court of California, Riverside County, — U.S.-, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984).

The Supreme Court has not as yet provided standards for deciding whether there is an overriding interest in closure of a trial or of pretrial hearings. Two circuits have adopted tests proposed by Justice Black-mun’s dissent in Gannett v. De. Pasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). The test prescribes access to the courtroom unless closure is vitally necessary for a fair trial. This is demonstrated by a substantial probability, first that irreparable damage to his fair-trial right will result from conducting the proceeding in public, second, that alternatives to closure will not protect his right to a fair trial, and third, that closure will be effective in protecting against the perceived harm. Id. at 441-42, 99 S.Ct. at 2936-37. The Ninth Circuit applied this strict Blackmun test in reversing the trial court’s decision to partially close the voir dire and hearing on two evidentiary matters. United States v. Brooklier, 685 F.2d 1162, 1167 (9th Cir. 1982). The Fourth Circuit, in applying the Blackmun test, found that closure of the voir dire met the Blackmun standard where reporters sought access in a much-publicized criminal trial. In re Greensboro News Co., 727 F.2d 1320, 1324-25 (4th Cir.), petition for cert. filed, 52 U.S.L.W. 3562 (U.S. June 4, 1984) (No. 83-1995).

Although the applicable test for an evidentiary hearing is not at issue here, the requirement of an evidentiary hearing is. There is no need to consider on what possible basis the trial justice might have confined the giving of the complainant’s testimony to a courtroom cleared of spectators and the press. It is evident from the trial court transcript that no evidentiary hearing of any type took place. No required findings were made, or could have been made in accordance with the recent Richmond and Waller decisions. The Petitioner’s Sixth Amendment constitutional right to a public trial as it has lately been developed was violated.

Neither the trial court nor the State Supreme Court could have been expected to accurately foresee this change in the law. Because exhaustion of Petitioner’s state remedies is complete, it is necessary to discuss whether this later developed case law is to be given retroactive application.

3. RETROACTIVE APPLICATION OF LAW

When the sole question in a habeas petition is the retroactivity of a federal constitutional decision, federal courts may decide the issue without requiring the petitioner to return to the state courts for reconsideration in light of the new constitutional principle. Roberts v. Russell, 392 U.S. 293, 294, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100 (1968) (per curiam). If the facts are not in dispute and their application to the constitutional principal are clear, then the concerns of comity are met. Vargas v. Brown, 512 F.Supp. 271, 273-74 (1981); Subilosky v. Massachusetts, 412 F.2d 691, 693 (1st Cir.1969).

In a habeas proceeding, the First Circuit has tacitly applied Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) retroactively, requiring a trial judge to make a clear-cut determination of the voluntariness of a confession. Johnson v. Hall, 605 F.2d 577, 580 (1st Cir.1979). In the same case, however, the court declined to decide the retroactive effect of Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), regarding the burden of proof in a hearing to determine the voluntariness of a confession. The court determined that the confession would have been voluntary even under the Lego standard. Johnson v. Hall, 605 F.2d at 580.

Generally, law may be applied retroactively when the major purpose of a new constitutional doctrine is to overcome the impairment of the truth-finding function and where there is a serious question regarding the accuracy of a guilty verdict. Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971); Ivan v. City of New York, 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659 (1972). This question of degree depends on how the new rule enhances the integrity of the fact-finding process. Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966). It is a question of probabilities and requires inquiry into other safeguards available to protect the integrity of the trial. Id. In Ivan the court gave retroactive application to In re Winship, requiring the government to bear the burden of the reasonable doubt standard. Ivan v. City of New York, 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659 (1972). The court has also given retroactive effect to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), concerning the right of an indigent to the advice of counsel at trial, and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), involving the right of the accused to effective exclusion of an involuntary confession from trial. Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965) ; Tehan v. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453 (1966). In both cases, the Court found retroactive application proper because the new constitutional principles affected the very integrity of the fact finding process. Linkletter v. Walker, 381 U.S. at 639, 85 S.Ct. at 1743.

Conversely, the Court declined to apply retroactively the principles of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) or Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Johnson v. New Jersey, 384 U.S. 719, 733, 86 S.Ct. 1772, 1780, 16 L.Ed.2d 882 (1966). The Court reasoned that although Escobedo and Miranda guard against the possibility of unreliable statements, during in-custody interrogation, they do not directly safeguard against unreliable statements at trial. Id. at 730, 86 S.Ct. at 1779. In addition, the court was concerned that retroactive application of Escobedo and Miranda would seriously disrupt the administration of justice by opening floodgates on petitions for retrial. Id. at 731, 86 S.Ct. at 1779.

These administrative concerns do not affect the present case. In fact, the aims and interests of the accused’s rights to a public trial, in ensuring that the public sees that he is fairly dealt with and not unjustly condemned, and in encouraging witnesses to come forward, and in discouraging perjury, are mainstays of integrity in the fact finding process. For these reasons and because of the fundamental nature of the Sixth Amendment right to a public trial, the Court holds the Richmond and Waller principles requiring an evidentiary hearing, of sufficient weight to merit their retroactive application.

The petition for habeas corpus relief is granted and Petitioner is discharged from detention unless he is afforded a new trial commencing within 120 days of the date of this opinion.

      . The events which led to criminal charges against Petitioner are described by the Rhode Island Supreme Court in State v. Santos, 413 A.2d 58, 61-62 (R.I.1980).

      . Because of the Court's determination of Petitioner's Sixth Amendment argument, it is not necessary to consider Petitioner’s other contentions.


author: NANGLE, Chief Judge.

text:
    SOUTHWEST INVESTMENTS I, et al., Plaintiffs, v. MIDLAND ENERGY COMPANY, INC., et al., Defendants.
    No. 84-347C(l).
    United States District Court, E.D. Missouri, E.D.
    Oct. 12, 1984.

      Alan E. Popkin, St. Louis, Mo., for plaintiffs.
    J. Martin Hadican, Clayton, Mo., Andrew B. Leonard, Manchester, Mo., for defendants.
   MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court on defendants Midland Energy Company, Inc.’s and Don C. Webb’s motions to dismiss plaintiffs’ complaint for lack of subject matter jurisdiction and to dismiss Count II of plaintiffs’ complaint for failure to state a cause of action.

Plaintiffs’ cause of action arises out of their alleged investment of $741,000.00 with defendants. According to the complaint, Odessa Company (hereinafter “Odessa”), a partnership, and Midland Energy Company, Inc. (hereinafter “Midland”), a Kentucky Corporation, were engaged in the business of investing money in various ventures, including the coal market. Odessa and Midland were controlled by defendants William Scott Watson (hereinafter “Watson”) and Don C. Webb (hereinafter “Webb”), respectively. The complaint alleges that plaintiffs invested money with defendants in reliance on defendants’ representations that the funds would be invested in the coal market and that plaintiffs would receive a return of six per cent (6%) to twenty per cent (20%). The complaint further alleges that defendants’ representations were false. Attached to the complaint is one of several contracts governing the investment relationship entered into between plaintiffs and defendants. The provisions of this contract must be examined in detail.

The document is entitled “Agreement” and refers to plaintiffs, generally, as “Principal” and to defendants, generally, as “Agent.” Principal agreed to “advanc[e] funds ... to Agent ... for the purpose of purchasing coal____” Agent agreed to do six (6) things. First, Agent agreed to pay Principal $0.50 for every ton of coal purchased by Agent with Principal’s money, but the price per ton of the coal purchased could not exceed $25.00/ton. Second and third, Agent agreed to provide Principal with periodic notice of purchases and payment of returns. Fourth, Agent granted to Principal a security interest in Agent’s accounts receivable “to the extent of the funds due Principal from time-to-time under the terms of this Agreement.” Fifth, Agent agreed that “[ujpon receipt of written request from Principal for a return of Principal’s funds, Agent will return said funds within a 2-week period from date of receipt of said notice.” Finally, Agent agreed that if it would ever be in default on either the payment of $0.50 per ton or return of Principal’s funds, then it would pay Principal interest at the rate of fiften per cent (15%) per annum on the amount in default.

Plaintiff’s complaint consists of five (5) separate counts. Counts I and II allege that defendants’ conduct violated § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), as well as Rule 106-5 promulgated hereunder, 17 C.F.R. § 240.106-5, and § 12(2) of the Securities Act of 1933, 15 U.S.C. § 770(2), respectively. The remaining counts are based on state law. Count III alleges violations of Missouri securities statutes, Mo.Rev.Stat. § 409.411 (1978). Count IV alleges common law fraud and Count V alleges breach of contract.

In passing on a motion to dismiss, a court is required to view the facts alleged in the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss will not be granted merely because the complaint does not state every element necessary for recovery with precision. 5 Wright & Miller, Federal Practice and Procedure: Civil § 1216 at 120 (1969). A complaint is sufficient if it “contain[s] aliegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Id. at 122-23. A complaint should not be dismissed unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. at 101.

Movants Midland and Webb first challenge the sufficiency of the allegations in Count II. Movants argue that Count II fails to state a claim on which relief can be granted because it is silent as to when plaintiffs discovered that defendants’ representations were untrue. Movants rely on § 13 of the Securities Act of 1933, 15 U.S.C. § 77m, to support their argument that such an allegation is essential to a cause of action under § 12(2), 15 U.S.C. § 77 Z (2). § 13 provides, in pertinent part, as follows:

No action shall be maintained to enforce any liability created under Section 77k or 771(2) of this title unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence ____

15 U.S.C. § 77m. Section 13 is not a typical statute of limitations because compliance must be affirmatively pleaded to validly state a cause of action under § 12(2). Hagert v. Glickman, Lurie, Eiger & Co., 520 F.Supp. 1028, 1033 (D.Minn.1981).

Plaintiffs argue that compliance with § 13 can be inferred from the complaint because 119 alleges that a check from defendants to plaintiffs was dishonored in November, 1983. However, this allegation fails to satisfy the specificity required by § 13. “[A] plaintiff must affirmatively plead facts indicating the action has been timely brought.” Id. (citations omitted). Paragraph 19 fails to allege that plaintiff first discovered in November, 1983, that defendants’ statements were untrue. Count II will be dismissed, unless, within fourteen (14) days of this date, plaintiffs amend Count II to affirmatively plead compliance with § 13. Leave to so amend is granted.

Movants’ second motion challenges this Court’s jurisdiction over the subject matter of plaintiffs’ complaint. Subject matter jurisdiction over Counts I and II is based upon § 27 of the Securities Exchange Act of 1934, 15 U.S.C. § 78aa, and § 22 of the Securities Act of 1933, 15 U.S.C. § 77v, respectively. Because Counts III, IV and V are state law claims and the citizenship of the parties is not diverse, subject matter jurisdiction over said counts rests on the doctrine of pendent jurisdiction. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Thus, if this Court lacks subject matter jurisdiction over Counts I and II, the entire complaint must be dismissed. Id.

Subject matter jurisdiction does not exist under either the Securities Exchange Act of 1934 or the Securities Act of 1933 unless the transactions in question involved a “security” within the meaning of both acts. “Security” is defined in § 3 of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(10) and § 2 of the Securities Act of 1933, 15 U.S.C. § 77b(l). The two (2) definitions are virtually identical. Tcherepnin v. Knight, 389 U.S. 332, 335-36, 88 S.Ct. 548, 552-53, 19 L.Ed.2d 564 (1967). The definitions themselves do not contain meaningful legal standards, but instead consist of a litany of labels for various financial devices which Congress intended to bring within the scope of the federal securities laws. However, the Supreme Court “has endorsed an approach to interpreting the federal securities laws that emphasizes ‘the economic realities underlying a transaction, and not on the name appended thereto.’ ” Kansas State Bank in Holton v. Citizens Bank of Windsor, 737 F.2d 1490 (8th Cir. 1984) (quoting United Housing Foundation v. Forman, 421 U.S. 837, 849, 95 S.Ct. 2051, 2059, 44 L.Ed.2d 621 (1975).

In SEC v. W.J. Howey, 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), the Supreme Court established a test for distinguishing a “security” from those commercial transactions which Congress did not intend to be protected by the federal securities laws. Id. at 301, 66 S.Ct. at 1104. Recently, in Citizens Bank of Windsor, the Eighth Circuit paraphrased the Howey test, as follows:

(1) an investment (2) in a common venture (3) with a reasonable expectation of profits (4) to be derived from the entrepreneurial or managerial efforts of others.

Citizens Bank of Windsor, 737 F.2d at 1494 (citation omitted). While the transactions in Howey and Citizens Bank of Windsor were an investment contract and a loan participation agreement, respectively, both the Supreme Court and the Eighth Circuit have indicated that the Howey test is not so limited. United Housing Foundation v. Forman, 421 U.S. 837, 852, 95 S.Ct. 2051, 2060, 44 L.Ed.2d 621 (1975); Citizens Bank of Windsor, 737 F.2d at 1494 n. 7. Thus, the Howey test, as restated by the Eighth Circuit in Citizens Bank of Windsor, expresses the standard for determining whether plaintiffs’ transactions with defendants involved a security and whether this court has subject matter jurisdiction over plaintiffs’ complaint.

The first element of a security, an investment, is the primary area of disagreement herein. This element “presents the task of distinguishing investments from commercial transactions.” Citizens Bank of Windsor, 737 F.2d at 1495. As the Eighth Circuit noted in Citizens Bank of Windsor, other circuits have developed various tests for making this distinction. These tests include the “investment-commercial” test, see, e.g., National Bank of Commerce v. All American Assurance Co., 583 F.2d 1295 (5th Cir.1978); the “risk capital test,” see Great Western Bank and Trust v. Kotz, 532 F.2d 1252 (9th Cir.1976); and the “presumption” test, see, e.g., Chemical Bank v. Arthur Andersen & Co., 726 F.2d 930 (2d Cir.1984). In Citizens Bank of Windsor, the Eighth Circuit declined to adopt any of the three (3) tests, but it did examine several of the factors that comprise said tests in determining that the loan participation before it was a “standard commercial loan” rather than an investment. Citizens Bank of Windsor, 737 F.2d at 1495. The participation in that case was processed by a bank as a loan, was collateralized, was payable on demand at a fixed rate of interest, and the proceeds were intended to be used as operating funds rather than for capital improvement.

The characterization of the agreement herein as an investment or a standard commercial loan presents a close question. The attributes which make it akin to a commercial loan are: 1) the funds were intended to be used for operating purposes, such as the purchase of coal; 2) the funds were collateralized by defendants’ accounts receivable; 3) the funds were payable on demand; and 4) there was a default clause with a provision for the payment of interest at a fixed rate. On the other side of the ledger are the following facts: 1) the rate of return to plaintiffs was contingent on the price per ton of coal obtained by defendants; 2) the form of the agreement was not that of a loan; and 3) plaintiffs were not commercial lenders. In the opinion of this Court, the contingent rate of return is the most significant fact and tips the balance in favor of finding that the agreement in the case at bar was a security.

Although the amount of return to plaintiffs for each ton of coal purchased was fixed at $0.50 per ton, the rate of return was contingent on the price per ton. The maximum price per ton was $25.00. If the price obtained by defendants was $25.00 per ton, then plaintiffs’ rate of return would be two per cent (2%). Towards the other end of the spectrum, if defendants were able to purchase a ton of coal with plaintiffs’ money for $1.00 per ton, then plaintiffs’ rate of return would be fifty per cent (50%). Thus, plaintiffs took a significant risk concerning the rate of return and it is this risk that distinguishes the agreement in question from a standard commercial loan. Plaintiffs accepted more than the risk of nonpayment of their funds. Cf. Williamette Savings & Loan v. Blake & Neal Finance Co., 577 F.Supp. 1415, 1423 (D.Or.1984). In addition, while it is true that plaintiffs were collateralized to some extent, they were not collateralized in the commercial sense because they were “as dependent upon the management skill of [defendants] as is an unsecured lender.” Great Western Bank & Trust v. Kotz, 532 F.2d 1252, 1258 n. 4 (9th Cir.1976).

Having concluded that the agreement herein was an investment, it is not difficult to further conclude that it was a security because the other elements of the Howey test are not seriously disputed. The activities of defendants, viewing the complaint in the light most favorable to plaintiffs, clearly constituted a common venture. Plaintiffs had a reasonable expectation of profits “of the type typically associated with an investment,” Citizens Bank of Windsor, 737 F.2d at 1495, because they “participated] in earnings resulting from the use of [their] funds____” United Housing Foundation v. Forman, 421 U.S. 837, 852, 95 S.Ct. 2051, 2060, 44 L.Ed.2d 621 (1975). Finally, the profits in question were derived solely from the efforts of others. Therefore, this Court holds that the agreement which plaintiffs allegedly had with defendants was a security within the meaning of the federal securities laws and that this Court has subject matter jurisdiction over plaintiffs’ complaint.

ORDER

Pursuant to the Memorandum filed herein this day,

IT IS HEREBY ORDERED that defendants’ motion to dismiss Count II of plaintiffs’ complaint be and is granted and plaintiffs’ Count II will be dismissed unless, within fourteen (14) days of this date, plaintiffs amend Count II to affirmatively plead compliance with § 13 of the Securities Act of 1933, 15 U.S.C. § 77m.

IT IS FURTHER ORDERED that defendants’ motion to dismiss plaintiffs’ complaint for lack of subject matter jurisdiction be and is denied.


author: HENRY WOODS, District Judge.

text:
    David SCHWINDLIG, Plaintiff, v. Melba SMITH, Records Supervision, Cummins Unit, Arkansas Department of Correction, and Steven Clark, Attorney General, State of Arkansas, Defendants.
    No. PB-C-84-269.
    United States District Court, E.D. Arkansas, Pine Bluff Division.
    Oct. 12, 1984.

      David Schwindlig, pro se.
    Randall Miller, Asst. Atty. Gen., State of Ark., Little Rock, Ark., for defendants.
   ORDER

HENRY WOODS, District Judge.

This case comes before the Court on defendants’ motion to dismiss. Defendants contend that the proper avenue for plaintiff to challenge his parole eligibility classification is a petition for habeas corpus, rather than suit under 42 U.S.C. § 1983. Defendants further contend that plaintiff is not being deprived of his civil rights, and therefore has failed to state a claim upon which relief can be granted. These two arguments must be addressed separately.

It is true that when a state prisoner challenges the fact or duration of his physical imprisonment, and seeks immediate release or a speedier release, his sole remedy is by writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Here, however, the issue is one of classification for parole eligibility. The fact that one is classified as eligible for parole does not necessarily mean that he will be released from prison before his sentence is served. Release is therefore not the issue. The issue is plaintiff’s claim that he is being denied due process of law and/or is being subjected to ex post facto punishment by being classified as a fourth offender for parole eligibility purposes, when he was tried, convicted, and sentenced as a first offender. Suit under 42 U.S.C. § 1983 is the proper avenue to seek redress of a deprivation of civil rights such as is alleged here.

Defendants argue that even if 42 U.S.C. § 1983 is the proper avenue for relief in a case such as this, plaintiff is not being deprived of his civil rights. Plaintiff takes the position that it is a violation of due process, and of the prohibition against ex post facto laws, for him to be classified as a fourth offender for purposes of parole eligibility, when he was tried, convicted and sentenced as a first offender for the offense for which he is presently incarcerated.

Plaintiff first argues that it is a denial of due process for Act 93 (codified at Ark.Stat.Ann. §§ 43-2828 — 2830 (Repl. 1977)) to be applied to him when he has not been judicially determined to be a habitual offender. Nothing in Act 93 requires that a prisoner have been adjudicated a habitual offender before the Act is applicable. Fourth offenders (plaintiff’s classification) are defined as “inmates convicted of four or more felonies and who have been incarcerated in some correctional institution in the United States, whether local, state or federal, three or more times, for a crime which was a felony under the laws of the jurisdiction in which the offender was incarcerated, prior to being sentenced to a correctional institution in this State for the offense or offenses for which they are being classified.” Ark.Stat.Ann. § 43-2828(4) (Repl.1977). Plaintiff does not deny that he fits the classification of fourth offender; he only denies that a judge has so determined. This does not invalidate his classification as a fourth offender for parole eligibility purposes.

Plaintiff next argues that Act 93 is a sentencing law, rather than merely a parole classification law. Such a position is clearly erroneous. Sentencing is the domain of the trial court. Parole is entirely within the control of the Parole Board, which is allowed to order parole “only for the best interest of society, not as an award of clemency; it shall not be considered a reduction of sentence or pardon.” Ark.Stat.Ann. § 43-2808 (Repl.1977). A decision on parole eligibility does not affect sentencing. Such a decision can neither enlarge nor reduce the sentence determined by the trial court. Act 93 is a parole law, not a sentencing law.

Plaintiff next contends that Act 93 was intended to deal only with the offense for which a prisoner is presently incarcerated, not taking into account previous incarcerations. This argument is patently in error. The emergency clause enacted with Act 93 states that it is necessary to give Act 93 immediate effect, because “the present system of parole eligibility does not adequately deter crime, especially the habitual offenders, and ... such habitual offenders should have their parole eligibility bear a direct relationship to the number of times they have been incarcerated” Ark. Stat.Ann. § 43-2830 note (Repl.1977). This Court can imagine no clearer expression of an intent to apply Act 93 to situations such as plaintiff’s.

Plaintiff’s final argument against the application of Act 93 to his situation is that his previous incarcerations were all prior to April 1, 1977, the date on which Act 93 became effective. Section 3 of the Act states that “It is the purpose and intent of this Act to establish the parole eligibility for persons who are convicted of felonies committed on and after April 1, 1977.” Ark.Stat.Ann. § 43-2830 (Repl. 1977). Plaintiff is currently incarcerated for a felony committed after April 1, 1977. The fact that his previous incarcerations were before the effective date of Act 93 is irrelevant.

Plaintiff has established no constitutional violation sufficient to support an action under 42 U.S.C. § 1983. The motion to dismiss is therefore granted.