author: VERON, District Judge.

text:
    Joseph Robert STOOT v. D & D CATERING SERVICE, INC.
    Civ. A. No. 83-0887.
    United States District Court, W.D. Louisiana, Lake Charles Division.
    Sept. 30, 1985.

      Anthony D. Moroux, Domengeaux & Wright, Lafayette, La., for plaintiff.
    Norman P. Foret, McBride, Foret, Rozas & Leonard, Lafayette, La., Scott E. Delacroix and Lawrence E. Abbott, Hebert & Abbott, New Orleans, La., for defendant.
   MEMORANDUM OPINION

VERON, District Judge.

In this suit, Joseph Robert Stoot seeks recovery from D & D Catering Service, Inc. under the General Maritime Law. Fluor Drilling Services, Inc. and its compensation insurer, Hartford Accident & Indemnity Company, have intervened for reimbursement for compensation and medical benefits paid to and on behalf of plaintiff. The matter came on before this Court, without a jury, on December 12, 1984.

FINDINGS OF FACT

On April 18, 1982, the plaintiff, Joseph Robert Stoot, was employed as a derrick-hand aboard the vessel “Mr. Dave,” a jack-up drilling rig located approximately 12 miles offshore from Corpus Christi, Texas. The Mr. Dave was owned and operated by the intervenor, Fluor Drilling Services. Also employed aboard the Mr. Dave was Eloise Porter, a cook who was in control of the galley and had served the vessel by and-through her galley services since November 3, 1981. Both plaintiff and Porter were crewmembers of the Mr. Dave. While Porter served the vessel over the course of several months prior to April, 1982, she was generally employed by D & D Catering Services, Inc., a labor service contractor and the sole defendant herein.

According to the testimony of Porter, the only other employees of D & D Catering aboard the rig were a galleyman, a bedroom man, and a night cook, along with a steward’s helper. Porter had no supervisor or superior employee of defendant on board the vessel with her to exercise any degree of direct control over her day-to-day activities.

The plaintiff and Porter had been in contact since Porter was first assigned aboard the rig in November of 1981 and apparently enjoyed a casual and uneventful relationship until shortly before April 18, 1982. Problems arose between the two when the plaintiff began to work an earlier shift than usual, causing him to request meals from the galley at irregular hours. Porter apparently objected to feeding plaintiff at irregular hours and plaintiff reported this difficulty to Mr. Jaubert, his toolpusher. As a result, the toolpusher thereafter spoke directly to Porter about the situation, causing her to become upset.

On April 18, 1982, Porter and plaintiff had an altercation in the galley. When plaintiff entered the galley that morning just before 10:30 A.M., Porter told the plaintiff that he was “nothing but a troublemaker” because he had complained to his toolpusher, Jaubert about her not wanting to feed plaintiff at irregular hours. Without giving plaintiff an opportunity to deliver a retort, Porter marched back into the kitchen. Plaintiff then went to the ice machine in the dining area, turned and told Porter, “Kiss my ass,” whereupon Porter came out of the kitchen into the dining area wielding a carving or butcher knife and replied that, “Nobody tells me to kiss their ass.” In the ensuing encounter, Porter swung the knife at the plaintiff, severing the third and fourth digits, and lacerating the fifth digit of the plaintiffs right hand.

The plaintiff was flown by helicopter to the Memorial Medical Center in Corpus Christi, Texas, where the distal joint of his right ring finger was amputated and lacerations of his third and fifth digits were also treated. Plaintiffs third digit was partially amputated in January, 1983 and surgery was subsequently performed on his right hand on four additional occasions. The medical testimony shows that the plaintiff has been left with a forty-four percent disability of his right hand as a result of the knife slash.

CONCLUSIONS OF LAW

I. This action is brought pursuant to the General Maritime Law of the United States and this Court is vested with subject matter jurisdiction pursuant to 28 U.S.C. § 1333.

II. The plaintiffs cause of action fails to state a claim upon which relief can be granted under the General Maritime Law because recovery under the facts of this case may be had only against the vessel owner or operator.

A. The plaintiffs complaint seeks to hold the defendant vicariously liable for the assault of its general employee, Eloise Porter, upon plaintiff. While assigned by her general employer, defendant D & D Catering, aboard the Mr. Dave, Porter was a crewmember serving as galley cook in the furtherance of the vessel’s mission. As a crewmember, any negligent actions on the part of Porter are traditionally charged to the owner or operator of the vessel for which Porter served. In this case, however, plaintiff has already received $23,-821.84 and has had medical expenses in the amount of $19,125.46 paid by his employer, Fluor Drilling Services, Inc. and its insurer, Hartford Accident & Indemnity Company, intervenors herein. As plaintiff’s employer, Fluor, is both the owner and operator of the drilling vessel, Mr. Dave, it is the entity against which plaintiff has the traditional maritime remedies of vessel unseaworthiness and/or Jones Act negligence. Having already been compensated by Fluor, however, plaintiff seeks to recover further damages from D & D Catering, which apparently assigned Porter aboard the Mr. Dave pursuant to an agreement with Fluor.

The novel question thus presented by this case is not whether Porter acted or intended to act on the vessel’s behalf by assaulting plaintiff, but rather whether Porter acted within the course and scope of her employment with defendant, D & D Catering, by assaulting the plaintiff. After the parties submitted post-trial memoranda on the standard to be applied in determining whether the actions of Porter were within the course and scope of her employment, it became abundantly clear that no such standard exists under the General Maritime Law because the cause of action asserted by the plaintiff has never been recognized under the General Maritime Law.

This Court has found only one case where the remedy for an injury sustained from an assault upon a seaman by a fellow crewmember was sought under the General Maritime Law against a party other than the vessel owner or operator. In Harts field v. Seafarers International Union, 427 F.Supp. 264 (S.D.Ala.1977), the personal representative of a fatally assaulted seaman brought suit against the labor union that had allegedly undertaken the duty of supplying a crew to the vessel S.S. “Eagle Warrior,” alleging that it negligently performed that duty in causing an individual to be a crewmember when it knew or should have known that that individual was unstable and dangerous to his fellow crew-members, and that said negligence proximately caused the death of plaintiff’s decedent. In noting that a labor organization is not in any position to supervise a crew-member while at sea, the Court recognized that the cause of action asserted by the plaintiff had no basis under the General Maritime Law.

A seaman who is assaulted may, under proper circumstances, recover damages for breach of the warranty of seaworthiness. Boudoin v. Lykes Bros. Steamship Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955). However, recovery in such a case may be had only against the vessel owner or operator. The history of litigation arising out of an assault by a fellow crewmember, whether the theory of liability has been unseaworthiness, negligence or respondeat superior, has dealt with the liability of SHIPOWNER to the injured seaman. Hartsfield, supra at 268, citing Annotation, 99 L.Ed. 359 (emphasis added).

Thus, it is clear that the General Maritime Law has never recognized a cause of action against any party, apart from the vessel owner or operator, seeking damages resulting from an assault perpetrated by a fellow crewmember. Id.; but c.f., Baggett v. Richardson, 342 F.Supp. 1024 (E.D.La.1972) (wherein a cause of action was recognized under the General Maritime Law for an assault by persons who were not crew-members of the vessel perpetrated upon the vessel’s captain).

B. The plaintiff nevertheless contends that because the admiralty law uses principles of the common law to fix its liability, Daigle v. Point Landing, Inc., 616 F.2d 825 (5th Cir.1980), this Court should apply common law principles of respondeat superior to find the defendant vicariously liable for the assault perpetrated by Porter. The General Maritime Law incorporates the general law of torts, however, only •when doing so would not be inconsistent with the law of admiralty. Harrison v. Flota Mercante Grand Colombia S.A., 577 F.2d 968, 977 (5th Cir.1978); Spinks v. Chevron Oil Company, 507 F.2d 216, 222 n. 8 (5th Cir.1975). It is a fundamental principle of the maritime law of the United States that it is to be uniform throughout the country. All of those cases brought under the General Maritime Law in which recovery has been awarded to a seaman for injuries sustained as a result of an assault by a fellow crewmember have been had only against the vessel owner or operator, usually involving a finding of unseaworthiness of the vessel as a result of the unfit nature of the crewmember perpetrating the assault. See, e.g., Clevenger v. Starfish & Oyster Co., 325 F.2d 397 (5th Cir.1963). In Clevenger, the Fifth Circuit Court of Appeals, noting that the warranty of seaworthiness extending from the shipowner has its roots deep in maritime history, held that a savage assault with a meat cleaver or similarly dangerous weapon by one crew-member upon another does, as a matter of law, constitute a breach of the warranty of seaworthiness. Id. at 402. The Court further noted that “when the action for unseaworthiness is available, its notion of liability swallows up any notion of maritime negligence, no matter how leniently conceived.” Id. The shipowner’s duty to provide a seaworthy vessel, including a crew equal in disposition and seamanship to the ordinary person in the calling, is absolute and nondelegable. Id. at 400; The Rolph, 299 Fed. 52, 55 (9th Cir.1924).

Because it is the shipowner’s duty to control his crew that is so deeply rooted in federal maritime law, it would upset the uniform and harmonious application of that law to recognize a cause of action against a general labor service contractor in the circumstances of this case. The common law doctrine of respondeat superior is based upon the long-established policy that persons are bound to conduct their affairs so as to not cause injury to another, and if a person undertakes to manage his affairs through his employees, he remains bound to manage them so that third persons are not injured while his employees are engaged upon his business and within the scope of their authority. See, e.g., 35 Am. Jur. § 543 at p. 974. As explained long ago by Lord Chief Justice Best, “The maxim of respondeat superior is bottomed on this principle: that he who expects to derive an advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it.” Hall v. Smith, 2 Bing. 156, 130 Eng. reprint 265, cited in 35 Am.Jur. § 543 at p. 975. In accordance with the doctrine, it has been recognized that some power to control the acts of the wrong-doer must have been vested in the employer at the time of the injury. Id. It is this concept of “control” which dictates that a seaman’s right of recovery for an injury caused by an assault perpetrated by a fellow crewmember should be had only against the shipowner in the circumstances of this case.

In the case at bar, Porter was a crew-member of the Mr. Dave, having served aboard the vessel from November 4, 1981 up until the date of the assault on April 18, 1982. According to the deposition testimony of Porter, she had no supervisor or superior employee of defendant on board the vessel with her to exercise any degree of direct control over her day-to-day activities. Moreover, she was utilizing facilities of the vessel galley and was furthering the mission of the vessel by her employment. Additionally, it has been well observed that “[those] engaged in the operation of a vessel on the high seas work under conditions of close confinement which tend to breed irritations and sharp tempers such as are not usually encountered in employment ashore.” M. Norris, The Law of Seaman § 30:35, at p. 490 (4th ed. 1985). As noted by Judge Learned Hand in Jones v. Lykes Bros. S.S. Co., 204 F.2d 815 (2d Cir.1953), “Sailors lead a rough life and are more apt to use their fists than office employees.” Under these circumstances, it would be entirely inappropriate to impose a duty of control, pursuant to the policies underlying the doctrine of respondeat superior, upon a general labor service contractor for an assault perpetrated by a person whom it provided for assignment aboard a vessel several months earlier. No case authority to date has imposed such a duty of control upon anyone other than the vessel owner or operator, and this Court does not find it appropriate to do so under the facts of the case at bar.

III. Even if this Court were to recognize a cause of action under the doctrine of respondeat superior by the injured seaman against the defendant labor service contractor, the action of Porter in assaulting plaintiff with the large kitchen knife was not within the course and scope of her employment. Although the origin of the dispute between plaintiff and Porter concerned the plaintiffs requests to be fed at irregular hours, the apparent motivation of Porter in picking up the knife and waving it at plaintiff was because, as plaintiff relates the words of Porter as she approached him with the knife, “Nobody tells me to kiss their ass.” As related in the deposition testimony of Porter:

Q. And it is your testimony that you did not grab the knife until he told you to kiss his ass?
A. Definitely not.

As such, the Court holds that Porter’s knife assault upon plaintiff was motivated for purely personal reasons in order to satisfy her own spite after having been told to kiss plaintiff’s ass.

In the case of Palmer v. Apex Marine Corp., 510 F.Supp. 72 (W.D.Wash.1981), the plaintiff, Palmer, sued the vessel operator under the General Maritime Law for injuries sustained to his finger as a result of a fight with a fellow crewmember by the name of Brown. Apparently there had been a longstanding dispute between Palmer and his fellow crewmember Brown as to the tardiness of Palmer in relieving Brown from his watch. The Court found that “[Palmer’s] acts of relieving Brown late was the main cause of the friction ... which eventually ignited into a fight____” Id. at 73. Nevertheless the Court held:

Findings of “course and scope” are based on the attacker's intent, warped or otherwise, to act for the ship____ There is no allegation, and no reasonable argument could be made, that Brown acted or intended to act on the ship’s behalf by fighting with Palmer. Therefore, this theory must fail as a matter of law. Id. at 74.

The Court finds' the Palmer case to be persuasive. Also, those cases seeking to impose vicarious liability under the Jones Act apply a test which is similar to that employed in Palmer, which was brought under the General Maritime Law. As stated by the Second Circuit Court of Appeals in the oft-cited case of Walters v. Moore-McCormack Lines, Inc., 309 F.2d 191 (2d Cir.1962):

The test to be employed is whether the attack was with the intention of furthering the personal interests of the assailant or the interests of the employer. Id. at 195. See also Lambert v. Morania Oil Tanker Corp., 677 F.2d 245 (2d Cir.1982).

Because the assault upon plaintiff was simply a wanton act, done to satisfy the employee’s temper and spite, the employer cannot be held vicariously liable.

Plaintiff nevertheless contends that the Court should apply the general state law test for vicarious liability in such situations as that embodied in the Louisiana Supreme Court case of LeBrane v. Lewis, 292 So.2d 216 (La.1974). In LeBrane, the supervisor stabbed one of his employees after the employee had been fired and while the supervisor was escorting the fired employee off of the employment premises. The Court held that the stabbing

... occurred while the employee was at least partially actuated by his purpose of acting for his employer in the discharge of the recalcitrant co-employee [citation omitted], and it was reasonably consequent upon or incident to [the supervisor’s] performance of his employment function of hiring and firing sub-employees [citation omitted]. Id. at 219.

Even if this Court were to find some basis for the application of state law, no reasonable argument can be made that Porter was attempting to get plaintiff to eat in the galley only at scheduled meal-times when she incidentally lacerated his fingers with the knife.

Upon its foregoing consideration of the facts of this case and the established General Maritime Law, the Court accordingly grants JUDGMENT FOR DEFENDANT.

      . See the discussion at II.B., infra, regarding the claim of unseaworthiness as the traditional remedy where a seaman has been assaulted by a fellow crewmember.

      . These remedies would be premised upon the fact that Porter was a crewmember of Fluor’s vessel and was Fluor’s borrowed employee. The law is well-settled that a seaman oftentimes may have more than one employer, i.e., in those instances where she acts as a "borrowed servant.” Spinks v. Chevron Oil Co., 507 F.2d 216, 224-26 (5th Cir.1975). See discussion, infra at note 6 and accompanying text. Apparently, no cause of action for the negligence of Porter as Fluor’s borrowed employee, or for the unseaworthiness of the Mr. Dave was ever asserted by plaintiff against Fluor.

      . No evidence whatsoever was presented to this Court as to the existence of or terms of any specific written or oral agreement between defendant D & D Catering and Fluor Drilling Services.

      . Of course, the vessel owner is not liable for the malicious acts of a stranger, i.e., one not a member of the vessel’s crew. Campbell v. Penn. R.R. Co., 85 Fed. 462 (2d Cir.1898), cited in 2 BENEDICT ON ADMIRALTY § 11 n. 7.

      . There is no inconsistency between admiralty law and the common law in product liability situations, such as recognizing the duty of the seller of a product to warn of those dangers which are reasonably forseeable and of which the plaintiff cannot reasonably be expected to be aware. See, e.g., Harrison, supra at 977.

      . The importance of "control” over the employee-crewmember has been recognized in cases arising under the Jones Act in determining who is the Jones Act employer of a "borrowed servant." In Roberts v. Williams-McWilliams Co., 648 F.2d 255 (5th Cir.1981), plaintiff was employed by Gibson, a labor service company, and was sent to the Williams-McWilliams barge to do welding work. While assigned aboard the barge, plaintiff was injured. In holding Williams-McWilliams to be liable for plaintiff’s injury under the Jones Act, the Court noted: “During his work, Roberts was under the complete control of Williams as no Gibson foreman was assigned to the shift on which he worked.” Id. at 262.
      For other factors to be evaluated in determining whether an employee is to be considered a borrowed employee of another, see Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th Cir.1969). It is important to note, however, that “no fixed test is used to determine the relationship.” Champagne v. Penrod Drilling Co., 341 F.Supp. 1282, 1284-85 (W.D.La.1971), aff’d 459 F.2d 1042 (5th Cir.1972).


source: Caselaw Access Project

author: SHADUR, District Judge.

license: Public Domain

text:
    Samuel COLEMAN, Plaintiff, v. Gordon FRIERSON, Defendant.
    No. 82 C 4460.
    United States District Court, N.D. Illinois, E.D.
    Sept. 30, 1985.
    On Motion for Reconsideration Oct. 28, 1985.
    Supplement to Memorandum On Reconsideration Oct. 30, 1985.
    Abraham N. Goldman, Abraham N. Goldman & Assoc., Ltd., Chicago, Ill., for plaintiff.
    Aldus S. Mitchell, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Samuel Coleman (“Coleman”) prevailed against each of three defendants (the only ones remaining in the case) in this 42 U.S.C. § 1983 (“Section 1983”) action, brought to challenge (a) Coleman’s firing as Special Investigator for the Village of Robbins (“Robbins”) and (b) his later arrest on charges of impersonating a police officer. After entry of a default judgment in Coleman’s favor as to liability, a jury trial was held solely to determine Coleman’s damages. Verdicts were returned:

1. against former Robbins Mayor Marion Smith (“Smith”) for $250,000 in compensatory damages for physical, mental and emotional injury and $100,000 in punitive damages;
2. against former Robbins Police Chief Gordon Frierson (“Frierson”) for $125,000 in compensatory damages for physical, mental and emotional injury and $100,000 in punitive damages;
3. against Robbins for $34,000 in lost wages and $14,842 in interest; and
4. against Frierson and Smith jointly and severally, for $3,000 in compensatory damages for legal and medical expenses.

After this Court (in the “Opinion,” 607 F.Supp. 1566 (N.D.Ill.1985)) denied (1) defendants’ alternative motions for a judgment notwithstanding the verdict or for a new trial and (2) Smith’s and Frierson’s motions to vacate the default judgment, Smith and Frierson appealed those rulings. During the pendency of the appeal, Coleman, Smith and Frierson filed a joint motion in this Court to require Robbins to indemnify Smith and Frierson pursuant to Ill.Rev.Stat. ch. 85, ¶ 9-102 (“Section 9-102”). This Court raised a question as to its jurisdiction to decide the indemnification motion, given the pendency of the appeal, and suggested that movants consider applying to the Court of Appeals for a limited remand to deal with the indemnification question. They did so, and the Court of Appeals entered such an order September 3, 1985, also staying proceedings on the appeal pending action by this Court. For the reasons stated in this memorandum opinion and order, the joint motion for indemnification is denied.

Robbins’ five-page submission is appallingly shallow, dealing not at all with any of the conceptual difficulties posed by the motion. It chooses in principal part to appeal to this Court’s discretion and sense of fairness. It urges indemnification is not proper in a case such as this, where Smith and Frierson were as much to blame for entry of the default judgment as Robbins was. Allowing indemnification here, Robbins Mem. 4 says, would set a dangerous precedent:

Simply put, that rule would provide that where a governmental officer is named a defendant in a civil rights case in both an individual and official capacity and a default judgment is entered against that officer, his governmental employer must indemnify him irrespective of his conduct and diligence in participating in the defense of the action.

Under such a regime, Robbins continues, the officer would have every incentive to frustrate the progress of the lawsuit in the hope of a default judgment.

Whatever the merits of that argument, the issue of indemnification is not a function of this Court’s views of fairness or of the exercise of its discretion as an equity chancellor. Instead it is purely a matter of state law. Section 9-102 speaks in mandatory terms:

A local public entity is empowered and directed to pay any tort judgment or settlement for which it or an employee while acting in the scope of his employment is liable in the manner provided in this Article.

And if there were any question as to the scope of Section 9-102 in the context of a Section 1983 action, that question has received a definitive answer earlier this year in Kolar v. County of Sangamon, 756 F.2d 564 (7th Cir.1985). After categorizing Section 1983 actions as giving rise to “tort judgments,” Kolar, id. at 567 went on to deal with the potential coverage of punitive damage awards by Section 9-102:

As a general rule, local public entities are immune from punitive damage awards in civil rights actions. See City of Newport v. Fact Concerts, 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); Bell v. City of Milwaukee, 746 F.2d 1205, 1270 (7th Cir.1984). It is clear, however, that a local government entity’s “immunity from liability, including liability for punitive damages, may be waived by federal or state law.” Bell, 746 F.2d at 1271; see Owen v. City of Independence, 445 U.S. 622, 647-648, 100 S.Ct. 1398, 1413-1414, 63 L.Ed.2d 673 (198,0). This Court held in Bell that the indemnity afforded government employees under Wisconsin law waived the City of Milwaukee’s immunity with regard to suits by City employees seeking indemnification for punitive damage awards obtained against them under 42 U.S.C. § 1985. 746 F.2d at 1271. Section 9-102 similarly waives the defendant County’s immunity from Section 1983 punitive damage awards. The failure of Section 9-102 expressly to authorize recovery of a punitive damage award from a local public entity in Illinois does not bar such a remedy. In Bell we ruled that the Wisconsin indemnity statute, which applied generally to all “judgments,” authorized indemnity suits for punitive damage awards against a local public entity. Id. Section 9-102 also fails to distinguish between compensatory and punitive damages, and where, as in Bell and here, the local entity fails to argue that the statute should be read so narrowly, local entity immunity is waived as to both types of damages.

Of course both compensatory and punitive damages, to be capable of indemnification, remain subject to the statutory concept of “scope of his employment.” Kolar, id. at 569 n. 7 went on to explain how that concept interacts with the potentially inconsistent premises underlying punitive damage awards:

Without engaging in a detailed discussion of the matter, the bringing of a suit against a public official in an official capacity would not necessarily appear to preclude an award of punitive damages against that official. Under Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983), a jury may assess punitive damages in a Section 1983 action when the defendant’s conduct involves “reckless or callous indifference to the federally protected rights of others.” Id. at 56, 103 S.Ct. at 1640. It seems that a public official whose reckless actions give rise to liability under Section 1983 could still be acting within the scope of employment or in an “official capacity.” See Barrett v. Thomas, 649 F.2d [1193] at 1203 [5th Cir.1981], and Collins v. Thomas, 649 F.2d [1203] at 1206 [5th Cir.1981] (Judge Brown concurring) (although defendant’s conduct, described as a “crass, flagrant violation of established constitutional rights” and as “flagrant, spectacular unconstitutional acts,” would appear to support an award of punitive damages, action was characterized as against defendant in his official capacity). Cf. Barker v. Norman, 651 F.2d 1107, 1121, 1121 n. 18 (5th Cir.1981) (only egregious acts performed by a defendant public official would mean that he was not acting within the scope of his authority nor within his official capacity and therefore would not be entitled to claim a qualified immunity in the first instance). Actions taken by a public official with malice or “evil motive or intent,” however, Smith v. Wade, 481 U.S. at 56, 103 S.Ct. at 1640, would preclude a finding that the official acted in an official capacity.

What that analysis teaches for present purposes is that a public entity remains liable under Section 9-102 for the reckless acts of an individual officer but not for his malicious acts. To see on which side of that line this case falls, with its default judgment as to liability, we look first to the allegations of Coleman’s Complaint (which are deemed admitted by the default). Complaint 11114-5 charge Smith and Frierson in both their individual and their official capacities. Complaint ¶ 7 includes the conclusory allegation that both acted “pursuant to their authority,” equivalent to acting within the scope of their employment. But Complaint If 28 alleges their acts were “wanton, willful and malicious.”

Coleman’s Complaint, of course, antedated Kolar, and it did not anticipate the Kolar distinction between an official’s malicious acts and his acts in the “scope of his employment” (which can embrace merely reckless conduct). In those terms Complaint II28 looks in one direction, while Complaint 117 points toward the polar opposite.

Thus the Complaint alone does not answer which side of Kolar’s n. 7 dichotomy is operative for indemnification purposes. However, that possible dilemma resolves itself in light of the issues posed to the jury at the damages trial (after all, the measure of the claimed indemnification is what the jury awarded in terms of the case as presented to it). It is not the jury instructions that do the job: They told the jury it could award punitive damages against either individual defendant on a finding he had acted “with malicious intent or in willful and wanton disregard of plaintiff’s rights” (given that alternative, the jury’s punitive damages award could have reflected reckless misconduct rather than malice on the part of Smith or Frierson or both, in which case Robbins would be obliged to provide indemnification under Section 9-102 and Kolar). It was rather the factual summary provided the jury with the approval of Coleman’s counsel — a summary drawn from the Complaint following the entry of the default judgment— that makes clear individual defendants’ unconstitutional conduct must be considered malicious:

19. The acts alleged above in paragraphs 10-16 by Defendant Smith and other unknown others were malicious and done with the intent to injure, harass, and discredit Plaintiff. After the incident involving Defendant Frierson alleged in paragraphs 16 and 17, Defendants Smith and Frierson conspired to further injure, harass and discredit Plaintiff.
20. On June 22, 1979, Plaintiff was arrested and charged with wrongfully impersonating a police officer.
******
22. On or about July, 1979, the above wrongful and malicious charge was dismissed by a judge at the Circuit Court of Cook County.

Nor is that characterization accidental. It is solidly confirmed by the factual substance of Coleman’s claims. He maintained Robbins itself — through its Board of Trustees (“Board”) — appointed him to the post of Special Investigator and gave him his mandate. Smith and Frierson then deliberately thwarted Board’s purposes by persecuting him because Smith was afraid Coleman would uncover Smith’s past criminal conduct. Against that background— again to be taken as true by virtue of the default judgment — the term “malicious” was not used lightly.

Those then were the factual premises of the jury’s award of both compensatory and punitive damages. Even in the matrix of a damages trial following a default judgment on liability, it would be impermissible to impute to the jury a finding of reckless misconduct based on the Janus-like allegations of the Complaint or of the punitive damages instruction. Whatever might have been established in the course of a trial on the merits, the facts deemed established for purposes of the damages trial leave no doubt that Smith and Frier-son acted maliciously. Indeed the Opinion, 607 F.Supp. at 1576 confirmed that before the current issue was ever raised:

But the question of good faith was foreclosed by the default judgment as to liability — a judgment that included the fact of their having acted out of malice (and hence not in good faith).

It follows under Kolar, 756 F.2d at 569 n. 7 that Smith and Frierson were not acting in their official capacities, despite the conclusory allegations to that effect in part of the Complaint. They are therefore not entitled to indemnification against Robbins under Section 9-102. Accordingly the joint motion of Coleman, Smith and Frierson for indemnification by Robbins is denied.

ON MOTION FOR RECONSIDERATION

Samuel Coleman (“Coleman”) has moved for reconsideration of this Court’s September 30, 1985 memorandum opinion and order (the “Opinion”). Though some of the arguments advanced in Coleman’s supporting memorandum are imaginative, they fail on the core issue that really controls the conclusion reached in the Opinion.

Of course the question of malice vel non on the part of individual defendants Marion Smith (“Smith”) and Gordon Frierson (“Frierson”) is not the reason for the inquiry made in the Opinion. Coleman Mem. [2] is quite right that the indemnification question hinges instead on the scope of Ill.Rev.Stat. ch. 85, 119-102 (“Section 9-102”)— which is in turn a function of the statutory concept of “scope of employment.” But where Coleman’s argument fatally parts company with the Opinion is as to the nature of the conduct that triggered Smith’s and Frierson’s liability to Coleman in the first place.

Before this opinion turns to that dispositive factor, however, it is worth spending a moment or two on Coleman’s other arguments. Though they might have some force if considered in a vacuum, they are really a sideshow rather than the main event.

First, Coleman Mem. [2-3] essays to downplay the effect to be given to Kolar v. County of Sangamon, 756 F.2d 564 (7th Cir.1985), and most particularly Kolar’s n. 7 (756 F.2d at 569), by pointing to general respondeat superior doctrine as to private employers in Illinois. According to Coleman that doctrine renders Kolar’s n. 7 inapplicable here, and that footnote statement in Kolar is also said to be a weak reed to rely on because it is both dictum and unsupported by the cases the Court of Appeals cites. Were Kolar and its applicability the critical issue, our Court of Appeals could itsélf decide (after all, this case is now on appeal) whether it chooses to disavow its statement in Kolar. It is really not for this Court to make that judgment.

Second, Coleman Mem. [4] points to Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.1984) as assertedly inconsistent with Kolar’s n. 7. It is true (1) the Wisconsin municipal indemnification statute at issue in Bell (Wis.Stat. § 895.46(1)(a)) also spoke in terms of “scope of employment” and (2) indemnification of punitive damages was awarded in Bell, 746 F.2d at 1271. But the language of the Wisconsin statute was never addressed by our Court of Appeals. Instead Bell, id. at 1271 n. 78 relied on the admission by Milwaukee’s lawyer that the. City was obligated to indemnify the employees for whatever damages were assessed against them. As Bell, id. at 1271 said:

The City does not contend that Section 895.46 does not apply to punitive damages. Rather, the City argues that the punitive damages rule of City of Newport precludes municipal liability irrespective of Wisconsin law, so that the City is not responsible for the punitive damages of Grady, Johnson, and Shaffer. This contention, however, directly conflicts with the recognition in City of Newport that some state indemnification statutes exclude indemnification for “malicious or willful misconduct by employees,” 453 U.S. at 269 n. 30, 101 S.Ct. at 2761 n. 30, and that these limited statutes do not shift the liability from the offending official to the municipality for such conduct. Wisconsin does not so limit its indemnification law. The obvious implication is that, regardless of the willfulness of the conduct at issue, an unlimited indemnification statute superimposes upon the common law a state-created rule which shifts the liability to the municipality.

Thus the Court of Appeals in Bell had no occasion to construe the Wisconsin statute, but instead accepted the concession by Milwaukee’s lawyer as to the statute’s coverage.

But both the previous-discussed questions are really beside the mark. Coleman’s Memorandum prefers to forget his own insistence that the statutory test is one of “scope of employment.” And on that score, Opinion at 1283-1284 makes it plain that Smith and Frierson were grinding their own axes and not that of the Village of Robbins (“Robbins”) when they violated Coleman’s constitutional rights. As Opinion at 8 summarized Coleman’s factual claims on which liability was grounded:

[Coleman] maintained Robbins itself— through its Board of Trustees (“Board”) —appointed him to the post of Special Investigator and gave him his mandate. Smith and Frierson then deliberately thwarted Board’s purposes by persecuting him because Smith was afraid Coleman would uncover Smith’s past criminal conduct.

What Coleman actually complained of— and what the jury awarded him damages for — was that Smith and Frierson were deliberately faithless (not faithful) to the command of their master, Robbins. That is the exact opposite of the respondeat superi- or concept, and it is indeed a situation in which the very Illinois authority relied on by Coleman (Sunseri v. Puccia, 97 Ill.App.3d 488, 493, 52 Ill.Dec. 716, 721, 422 N.E.2d 925, 930 (1st Dist.1981)) would negate municipal liability.

In sum, the actual conduct of Smith and Frierson that produced the jury award in Coleman’s favor simply cannot be characterized as having been within their “scope of employment.” That being so, Section 9-102 does not come into play, even without reference to Kolar’s reading of that statute. Coleman’s motion for reconsideration is denied.

SUPPLEMENT TO MEMORANDUM ON RECONSIDERATION

When this Court announced in open court its October 28,1985 denial of the motion by Samuel Coleman (“Coleman”) for reconsideration of this Court’s September 30, 1985 memorandum opinion and order (the “Opinion”), counsel for Marion Smith (“Smith”) and Gordon Frierson (“Frierson”) advised they had recently joined in the Coleman motion for reconsideration. Frierson’s motion has also reasserted his reliance on Ill.Rev.Stat. ch. 24, ¶1-4-6 as a basis for indemnification.

This supplement to the October 28 memorandum order will confirm that this Court’s reasons for denial of reconsideration on Coleman’s motion apply with equal force to the comparable motions by Smith and Frierson. In addition, the reasons stated in the October 28 memorandum order reconfirm the inapplicability of the Illinois statute relied on by Frierson — a subject first dealt with in the Opinion at 1284 n. 5.

Accordingly Smith’s and Frierson’s motions for reconsideration are denied as well.

      . It is worth pausing in the context of this opinion to address a topic discussed at length in the Opinion, 607 F.Supp. at 1572-74. Smith and Frierson claimed they were entitled to vacate the default judgment against them because they and Robbins were represented by the same counsel, despite what have now emerged as differing interests. See Dunton v. County of Suffolk, 729 F.2d 903, modified on other grounds, 748 F.2d 69 (2d Cir.1984). It is certainly true that the present dispute among the defendants exemplifies the potential for conflicts of interest in Dunton-type circumstances. But as the Opinion, 607 F.Supp. at 1573-74 stressed, one (though not the only) critical factor in legal terms was that no conflict had been realized (let alone perceived) when the default judgment was entered. There was nothing that then indicated any prospect that Smith and Frierson required representation separate from Robbins’. Indeed, it was several months after each individual defendant had retained his own counsel before the indemnification question was raised for the first time.

      . Before it turns to the argument referred to in the text, Robbins Mem. 2 advances a totally inapt contention based on Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Of course the predicate for a public entity’s direct liability under Section 1983 is wholly irrelevant to the question of its derivative liability under a state indemnification statute.

      . Robbins’ suggested specter of large-scale bad faith conduct appears to be more the product of an advocate’s imagination than a sober prediction based on a careful assessment of litigant behavior. While indemnification may operate anomalously in the unusual situation where (as here) a jury assesses small damages against the public entity and large amounts against its officers, that result is certainly no more anomalous than the more frequent situations where the officers alone are sued, or the public entity is sued and then dismissed out, or it is sued and wins entirely. In each of those circumstances the public employer must indemnify even though it has no direct liability. As the text discussion in this opinion indicates, Section 9-102 makes no special provision for such cases.

      . Coleman’s counsel does not explain how, having successfully urged that conclusion on this Court (as reflected in the Opinion of April 30, 1985), he can have drafted and filed the current indemnification motion on May 16 in good conscience (although the motion is styled as jointly filed by Coleman, Smith and Frierson, it is signed by Coleman’s lawyer).

      . Frierson, who served as Chief of Police at the time of the conduct giving rise to his liability, also seeks indemnification under Ill.Rev.Stat. ch. 24, ¶ 1-4-6. That statute provides for indemnification of a police officer by an employing municipality of up to $100,000 for any judgment recovered against him as a result of injury he may inflict on persons or property in the performance of his duties as a police officer, "except where the injury results from the wilful misconduct of the policeman." That exception is plainly brought into play by the discussion in the text. Frierson thus falls outside the express terms of the statute.

      . This is not the first time Coleman’s counsel has (for some inexplicable reason) filed a memorandum without numbering the pages. Accordingly this Court has done the numbering, and this memorandum order will cite to Coleman’s Memorandum in the form shown in the text.

      . Coleman Mem. [4] misleadingly points only to part of the Complaint's allegations (and conclusory ones at that), wholly ignoring the careful analysis in Opinion at 1283-1284 of the Corn-plaint’s more specific allegations, the jury instructions and — perhaps most important — the factual presentation to the jury, which refuted any "scope of employment” notion.


text:
    Edilberto AVILES, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 85 C 01820.
    United States District Court, N.D. Illinois, E.D.
    Sept. 30, 1985.
    Agustín G. Garcia, Quinones & Garcia, Chicago, Ill., for plaintiff.
    Anton R. Valukas, U.S. Atty., Margaret C. Gordon, Asst. U.S. Atty., N.D. Ill., Donna Morros Weinstein, Regional Atty., Dept. of Health and Human Services, Chicago, for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Edilberto Aviles (“Aviles”) seeks judicial review of a final decision by Secretary of Health and Human Services Margaret Heckler (“Secretary”) denying Aviles disability insurance and supplemental security income benefits. Aviles initially applied for benefits under the Social Security Act (“Act”) §§ 216(i), 223 and 1602, 42 U.S.C. §§ 416(i), 423 and 1381a. After a November 14, 1984 evidentiary hearing (the “Hearing”), Administrative Law Judge Peter Scalise (“ALJ Scalise” or simply the “AU”) denied Aviles’ application December 10, 1984. Aviles then exhausted his administrative remedies in proper sequence (a process that resulted in the AU’s decision becoming Secretary’s) and brought this action against Secretary pursuant to Act § 205(g), 42 U.S.C. § 405(g).

As invariably occurs in these actions, which come to this Court on the administrative record and a decision by Secretary, the parties have filed what they have labeled cross-motions for summary judgment. In fact, however, Aviles’ motion is “to remand his case to the Secretary of [sic — should be ‘for’] further administrative review,” and Secretary Mem. 13 n. 2 essentially concedes the propriety of a remand. For the reasons stated in this memorandum opinion and order, this case is remanded to Secretary for further proceedings consistent with this opinion.

Background

Aviles, who was 43 years old at the time of the Hearing, was born in Puerto Rico. He has an eighth-grade education and is literate in Spanish, but his English is apparently poor (the Hearing was conducted through an interpreter). Since 1967 he has held jobs with five firms in the Chicago area, most recently as a line assembler with Stern Electronics (“Stern”) from February 1978 to June 1982. On June 17,1982 Stern laid him off because he was missing work two or three days a week.

Aviles claims disability because he suffers from hypertension, gout and arthritis, which produce disabling headaches, dizziness and an inability to walk. He testified he was regularly missing work at Stern because he was “sick on [his] feet and [he] could not work a full week” (R. 33). Aviles submitted a handwritten note (R. 110) from his physician, Dr. Rumilla:

TO Whom it may concern:
that Mr. EDILBERTO AVILES Treated by me since 1/6/78 for HYPERTENSION & polyarthritis. BP up sometimes to 180/115[.] [L]ast time seen on 12/8/83 his BP was 150/100[.] Taking MODURETIC one a day and INDO-CIN____

Dr. Bacalla’s October 7, 1983 consultative examination (R. 97-100) also found Aviles’ blood pressure was 150/100 (it is worth noting Aviles, 5'5V4" tall, then weighed in at 197 pounds). Dr. Bacalla went on to find:

1. Aviles was “without any significant evidence of end-organ damage.”
2. Aviles’ history of chest pain was “not typical of angina pectoris,” and a chest x-ray showed “normal heart size without any evidence of pulmonary congestion.”
3. Aviles gave a history of gout attacks occurring once or twice per month, involving the knees and feet and occasionally the right upper extremity.
4. “On examination of this patient, he is able to ambulate with minimal limp towards the right side but independently. There was tenderness over the dorsum of the right foot. There were no signs of acute inflammation during the examination. The rest of the joints in both upper and lower extremities revealed no significant bony deformity or restriction of movement of the joint. The SM4-12 revealed an elevated uric acid of 9.4 mgs.”

Dr. Panitch’s shorter report of a February 21, 1984 consultative examination (R. 111-12) is consistent with Dr. Bacalla’s re-suits, except that Dr. Panitch measured Aviles’ blood pressure at 180/120 (Aviles then tipped the scales at 192 pounds). Dr. Panitch’s diagnosis read:

Hypertension, uncontrolled.
Heavy alcohol abuse.
Gout by history with possible gouty arthritis.

On July 25, 1984 Dr. Rumilla examined Aviles (R. 136-40) and found his gout was “getting better” and “will be better” with diet and medication. His weight was 209 pounds and his blood pressure was 160/100, but his EKG, urinalysis and heart were normal.

On August 27, 1984 Aviles received emergency room treatment at Cook County Hospital. His blood pressure was 164/130, his left knee was swollen and very painful to the touch and there was slight edema in the left ankle (R. 132). Aviles was advised to take colchicine and Aldomet, follow a low-salt diet and return in three days for another examination (R. 133). Aviles did not return until November 1, 1984, when his blood pressure was 160/110 and the diagnosis reflected uncontrolled hypertension, lower back strain and a history of gout (the work-up for gout was not completed due to Aviles’ noncompliance) (R. 134-35).

At the Hearing Aviles testified he could not exercise, could walk only half a block at a time (R. 38), had a lot of headaches on top of his head, could not bend over and had to use crutches in the morning because of pain in his feet (R. 40). He said in his present condition he could not sit or stand for an eight-hour work day (R. 41).

Applying the Statutory Framework

To establish entitlement to disability benefits, a claimant must show he or she is “disabled.” Act § 216(i)(l), 42 U.S.C. § 416(i)(1) defines “disability” as:

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months____

Once the claimant has demonstrated an impairment of sufficient severity to preclude the type of work he or she previously performed, the burden shifts to Secretary to prove there exists other “substantial gainful employment” the claimant can do. Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir.1982).

Garfield v. Schweiker, 732 F.2d 605, 607 n. 2 (7th Cir.1984) (citations omitted) summarizes what has been the five-step inquiry to be used by the ALJ in determining disability, with a shift in the burden from the claimant to Secretary between steps 4 and 5:

The following steps are addressed in order. (1) Is the claimant presently unemployed? (2) Is the claimant’s impairment “severe”? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops inquiry and leads to a determination that the claimant is not disabled.

In applying step 5 the AU typically looks to the “Grid,” medical-vocational guidelines (found at 20 C.F.R. Subpart P, Appendix 2) that balance the claimant’s physical limitations against his or her age, education and work experience. Alternatively the AU may base the step 5 determination on other evidence, including the assessment of a vocational specialist (20 C.F.R. § 404.1566(e)).

Secretary’s decision must be affirmed on appeal unless the findings are not supported by substantial evidence or Secretary has applied incorrect legal standards. 42 U.S.C. § 405(g). Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938), has defined “substantial evidence” as:

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

Based on the medical evidence and Aviles’ testimony, the AU found in Aviles’ favor at steps 1 and 2 of the sequential analysis. But as to steps 3 and 4 the AU concluded (R. 10):

3. The medical evidence establishes that the claimant has severe gout and hypertension, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
******
7. The claimant’s impairments do not prevent the claimant from performing his past relevant work.

In support of that last conclusion the AU found (id.):

4. The claimant’s complaints of disabling headaches, dizziness, and inability to walk due to gout are not credible in view of the medical evidence of record.
5. The claimant has the residual functional capacity to perform work-related activities except for work involving heavy lifting and frequent bending (20 C.F.R. 404.1545 and 416.945).
6. The claimant’s past relevant work as a line assembler did not require the performance of work-related activities precluded by the above limitation(s) (20 C.F.R. 404.1565 and 416.965).

Aviles challenges the step 4 determination that he can perform his past relevant work. It is not that he contests the AU’s rejection of his subjective complaints in light of the medical evidence — he does not. Rather he urges his past work as a line assembler did involve heavy lifting, so— given the AU’s finding he cannot do that — the step 4 determination was incorrect as a matter of law.

Aviles’ Past Work Experience

AU Scalise’s decision found that on Aviles’ job as a line assembler he typically “walked two hours, stood eight hours, occasionally bent and carried very small parts” (R. 8). Those findings were obviously drawn directly from the circled items and written notations on one page (R. 84) of the Department of Health and Human Services (“HHS”) form Vocational Report signed by Aviles August 29, 1983 (“Vocational Report,” R. 83-88). That information, clearly relating to Aviles’ most recent job at Stern, described that job as (R. 84):

Putting parts together with screws. Used hand tools such as screwdrivers, air guns, yankee screwdriver, hammer. Parts which were put together were contacts, light sockets, coils, etc. Stapled cables with air gun.

But it must be remembered the Vocational Report could not have been filled out by Aviles himself (he lacked the English to do so), so it had to represent an interviewer’s understanding of what Aviles had told him or her. By contrast, the Hearing reflects the following colloquy (R. 23-24):

Q. From February 2, 1978 to June 17, 1982, you worked at Stern ... Electronics ... as an inspector. Your job as an inspector probably required you to carry heavy weights[;] more than 10 pounds?
A. More than 50 pounds.
Q. And, for instance, what, what did you call the job where you had to lift more than 50 pound weights?
A. I have to take the boards that brought in the electronics, pinballs, the games, pinball games. They came into these boards and.
Q. How much did they weigh about?
A. I used to lift these boards and put them on a rack. They made a pinball machine that weighed over 80 pounds.
Q. How did you know that they weighed more than 80 pounds?
A. Because the boss, took two of us to lift these boards.
* * * * *
A. Because one of the guys working there hurt his back and was hospitalized for a while.

That testimony tracks directly with the information on an undated HHS Claimant’s Work Background form (“Work Background,” R. 142), listing Aviles’ past employers and stating as to the Stern job:

Lifted pinball machines that weighed over 80 lbs. Knew because his boss helped him and one other co-worker hurt his back on acct of lifting heavy weights____

Finally, the job description (R. 73-74) in the August 18, 1983 HHS Disability Report form (“Disability Report,” R. 69-76) is somewhat garbled. It describes a typical day as involving eight hours’ walking, eight hours’ standing, no sitting, constant bending and constant reaching (R. 74). Then in the “Lifting and Carrying” section the form describes Aviles’ work at the “toy factory” (Playskool, where he worked the year before Stern) rather than at Stern itself, and a checkmark under “HEAVIEST WEIGHT LIFTED” falls somewhere between the adjacent “20 lbs.” and “50 lbs.” boxes (id.).

What all this reflects is an impermissible singling out by the ALT — without saying so or (at least equally important) saying why — of one second-hand recording of what an unknown interviewer had understood Aviles to say in the Vocational Report. That version was totally inconsistent with everything else in the record — whether essentially contemporaneous, or recorded at an unstated time, or in the only first-hand version (Aviles’ Hearing testimony). Cf. Jackson v. Heckler, 592 F.Supp. 1124, 1128 (N.D.Ill.1984) (claimant’s own description of her work at hearing justified AU in finding it was “light or sedentary” work she was presently capable of performing). And it must be remembered all the information comes from Aviles himself in any event — this is not a typical battle of conflicting medical opinions, or the other typical situation in which an AU or court makes a choice of objective medical evidence over a claimant’s subjective complaints.

If the AU had any doubts as to Aviles’ credibility in testifying about his having to lift heavy weights over 50 pounds, he did not evidence them by probing further with questions when he had Aviles before him. AU Scalise’s decision does not say either that he disbelieved what Aviles said or, if so, why. As Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7th Cir.1984) teaches:

While we must defer to the credibility determinations of the fact-finder, we must be sure that the AU has indeed made a credibility determination____ In the absence of an explicit and reasoned rejection of an entire line of evidence, the remaining evidence is “substantial” only when considered in isolation. It is more than merely “helpful” for the AU to articulate reasons (e.g., lack of credibility) for crediting or rejecting particular sources of evidence. It is absolutely essential for meaningful appellate review. As the Third Circuit put it in Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.1981), when the AU fails to mention rejected evidence, “the reviewing court cannot tell if significant probative evidence was not credited or simply ignored.”

True enough, Stephens v. Heckler, 766 F.2d 284 (7th Cir.1985) may perhaps narrow Zblewski’s holding to some extent, reading Zblewski to require only the mentioning of “uneontradieted evidence” rejected by the factfinder. As Stephens, 766 F.2d at 287 put it:

If a sketchy opinion assures us that the AU considered the important evidence, and the opinion enables us to trace the path of the AU’s reasoning, the AU has done enough.

Despite the AU’s total failure to mention the principal evidence and how it was at war with his stated finding, it is easy enough to “trace the path of the AU’s reasoning” — and that reasoning itself is fatally self-contradictory. AU Scalise specifically found Aviles could perform work-related activities “except for work involving heavy lifting and frequent bending” (R. 10). Nothing whatever in the medical evidence addresses Aviles’ ability to do those things. Necessarily, then, the AU’s determination on that score must have credited Aviles’ own testimony (the only record evidence on the subject) that he was “sick on [his] feet” and could not work a full week as a line assembler at Stern (R. 33). That leaves wholly unexplained, in rational terms, any failure by the AU to credit Aviles’ contemporaneous testimony that the Stern job in fact required heavy lifting and frequent bending.

Though no AU should thus force a reviewing court to indulge in speculation, it may perhaps be the AU relied on the part of the Vocational Report describing the job as assembly work with small tools — and that description may well have been accurate as to what most of Aviles’ time on the job entailed. But as Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir.1985) states:

Every occupation consists of a myriad of tasks, each involving different degrees of physical exertion. To classify an applicant’s “past relevant work” according to the least demanding function of the claimant’s past occupations is contrary to the letter and spirit of the Social Security Act.

It may be that some jobs classified as “line assembly” work would not involve much heavy lifting (though that is hardly an apt matter for some unstated form of judicial notice). But if an employee must lift any weights over 50 pounds, 20 C.F.R. § 404.1567 classifies his job as “heavy work.” Aviles was not in a position to define his own job and parse out the aspects he was incapable of managing, refusing to perform that part of the work required for total performance. No more could the AU (or this Court) redefine Aviles’ job.

AU Scalise’s finding that Aviles cannot do heavy lifting differentiates this case from those in which issues are controverted and AUs make permissible credibility determinations. It is impossible to characterize the AU’s own internally inconsistent treatment as supported by substantial evidence. Whether (1) by his failure to be struck by the obvious fact the one inconsistent statement about job content was in an English-language form filled out by someone other than Aviles, or (2) by oversight, or (3) by faulty reasoning, or (4) by a combination of those factors, the AU did not fulfill his duty “to determine the physical demands of the particular type of ... work [Aviles] had done and then compare those demands to [his] present capabilities.” Strittmatter v. Schweiker, 729 F.2d 507, 509 (7th Cir.1984). Secretary’s Mem. 13 n. 2 admits as much (though she “reasons” from that acknowledgement to the wrong remedy):

It is unclear from the AU’s decision whether he did ascertain the demands of plaintiff’s past relevant work as a line assembler and compare them with his present physical capacity in concluding that his impairments do not prevent him from working as a line assembler now.

Because the AU found (erroneously) Aviles could perform his relevant past work, the AU stopped the analysis there and did not proceed under step 5 to determine (via the Grid or otherwise) whether Aviles is able to perform any other work available within the economy. Strittmatter, 729 F.2d at 509-10. That of course represents a failure on Secretary’s part to meet her burden of going forward, which had shifted to her at that stage of the analysis. Whitney, 695 F.2d at 786. And the law could perhaps impose the consequences of that failure on Secretary, who controls the shape and scope of disability hearings, by this Court’s entry of a final ruling in Aviles’ favor.

Any such general rule, however, would undercut the whole concept of the five-step inquiry. Garfield, 732 F.2d at 607 n. 2 specifically recognized the AU could properly stop his or her analysis with a step 4 finding adverse to the claimant:

A negative answer at any point, other than step 3, stops inquiry and leads to a determination that the claimant is not disabled.

And so it was in Whitney, 695 F.2d at 789-90 (a case much like this one) that our Court of Appeals found a remand necessary for application of the “Grid” step.

Here too this Court cannot substitute its judgment for administrative expertise. Its task ends with determining Secretary’s findings cannot be supported by substantial evidence. Remand is the appropriate result.

Conclusion

No substantial evidence exists to support AU Scalise’s conclusion that Aviles can perform his past relevant work as a line assembler. Secretary’s motion for summary judgment is therefore denied.

It remains to be determined whether Aviles is capable of performing other work available within the economy. In accordance with Aviles’ motion, this case is remanded to Secretary for that determination under step 5 of the sequential analysis. In view of the very limited scope of remand (which will call for either no further evidentiary hearing or one of narrow compass), Secretary is ordered to complete that determination within 91 days from the date of this order.

      . While written in the first person, the note (written on a prescription blank of the California-Fullerton Medical Center bearing the imprint of Dr. A. Rumilla and Dr. A. Guevara) is not signed, so it is impossible to determine who wrote it. There is an arrow at the note’s bottom right corner, suggesting more writing (and perhaps a signature) on the reverse side, but that side is not reproduced by photocopy as part of the Hearing exhibit. AU Scalise's decision assumed the note was by Dr. Rumilla (R. 8), although Aviles said he had been treated by both doctors (R. 40). Though the unreproduced reverse side of the note might have contained other information relevant to Aviles’ medical history, this Court must take the record as it finds it.

      . ALJ Scalise’s decision mistakenly dated the second visit January 1, 1984 (R. 9). That is an obvious misreading of the "11/01/84” date at the top of the emergency room form (R. 134).

      . Because the ALJ did not rule for Secretary at the second step, it is irrelevant for current purposes that our Court of Appeals has recently invalidated that part of Secretary's formulation. Johnson v. Heckler, 769 F.2d 1202, 1209-13 (7th Cir.1985).

      . Aviles' Work Background form (R. 142) described his job at Stern as both "assembler” and "inspector,” while the Report (R. 84) referred to the job as "line assembler” (the same term used in the ALJ’s decision (R. 8)).

      . See n. 4.

      . That represents this Court’s best efforts to make out an only fair photocopy of a handwriting that is scarcely a model of the Palmer (or any other) method of penmanship. Though not in the same handwriting as the rest of the form, the quoted language is again someone else’s rendition of what Aviles said (note the third-person usage).

      . "Heavy” is a term of art in this area of the law — not as to individual weights, but as to categories of work. 20 C.F.R. § 404.1567 classifies “medium work” as involving the lifting of no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. "Heavy work” is classified as involving the lifting of no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds.

      . That may or may not be so. Johnson, 769 F.2d at 1212-13 and Rousey v. Heckler, 771 F.2d 1065, 1069, 1071 (7th Cir.1985) give strong surface indications of internal disagreements within our Court of Appeals about the Stephens abdication of any effective judicial review of ALJ decisions.

      . That is not of course necessarily the same as saying the AU is free to develop less than a complete record — one enabling a decision at every step of the analysis. After all,' at the time of the hearing the AU has not reached his or her decision, and hence must obtain all the grist for the decisional mill. Cannon v. Harris, 651 F.2d 513, 519 (7th Cir.1981) (per curiam) (AU has “a basic obligation at such hearings to develop a full and fair record"). If there is any gap in that respect, it is only fair to impose the risk of that deficiency on Secretary. See, e.g., Taylor v. Weinberger, 512 F.2d 664, 668-69 (4th Cir.1975) (remand to allow Secretary to “start all over again in his determination to deny benefits” to claimant inappropriate).

      . This result implicitly embraces a decision that should be made explicit: It is not open on remand for Secretary to reconsider, as her Mem. 13 n. 2 suggests, whether Aviles has the "ability to perform his former work” (see n. 9). And given the state of the record, the need for Aviles to have filed this action and the argument asserted by Secretary and rejected by this opinion, this Court finds Secretary was not "substantially justified" in her position, so that attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), may be awarded even though this Court has ordered a remand and not an outright reversal. See Bohn v. Heckler, 613 F.Supp. 232, 234 (N.D.Ill.1985).


author: VAN SICKLE, Senior District Judge.

text:
    Nik CARPENTER, individually, and as the Special Administrator of the Estate of Wade Carpenter, deceased, Plaintiff, v. WILLIAMS COUNTY, NORTH DAKOTA; Stan Lyson, Sheriff of Williams County, North Dakota; and Elroy Jorgenson, Defendants.
    Civ. No. A4-83-137.
    United States District Court, D. North Dakota, Northwestern Division.
    Sept. 30, 1985.
    Joanne M. Briese, Charles F. Moses, Richard J. Carstensen, Billings, Mont., Deborah Carpenter, Bismarck, N.D., for plaintiff,
    Jeffrey R. Hannig, Moorhead, Minn., for defendants.
   ORDER

VAN SICKLE, Senior District Judge.

This is an action pursuant to 42 U.S.C. § 1983. Plaintiff’s son, a juvenile, died while incarcerated in the Williams County Jail and Plaintiff alleges that the death resulted from Defendants’ lack of supervision of the jail facility. The complaint alleges two counts: Count One seeks damages on behalf of the decedent for pain, suffering, and medical and burial expenses, while Count Two seeks damages for Plaintiff’s loss of consortium. On September 22, 1983, Defendants filed a motion for partial summary judgment, asserting that Count Two was barred by the applicable statute of limitations. This court entered an order on that motion on December 29, 1983, holding the motion in abeyance pending further briefing. On March 9, 1984, this court held a hearing on the motion. At the conclusion of that hearing, this court asked that the parties submit additional briefing after certain depositions were completed. On July 2, 1985, United States Magistrate Karen K. Klein held a telephone status conference concerning this action. On July 10, 1985, Plaintiff filed the supplemental brief discussed at the March 9,1984 hearing. Defendants filed a reply brief on the motion for partial summary judgment on July 23, 1985. This order is addressed to the motion for partial summary judgment, which seeks dismissal of Count Two on grounds it is barred by the statute of limitations.

While this matter was pending, the Supreme Court issued a decision which affects this court’s disposition of this matter. In Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the Court held that, for statutes of limitations purposes, all section 1983 actions are properly characterized as personal injury actions. The Court further held that 42 U.S.C. § 1988 is fairly construed as a directive to select, in each state, the one most appropriate statute of limitations for all section 1983 claims. Since Wilson arose in New Mexico, the Court applied New Mexico’s statute of limitations governing actions “for an injury to the person or reputation of any person.” Id. 105 S.Ct. at 1949.

The question can thus be stated simply: What statute of limitations is to be applied to all section 1983 actions to which a North Dakota statute applies? Plaintiff argues, the answer lies in N.D.Cent.Code § 32-12.-1-10 (Supp.1983), which provides a three year statute of limitations for actions brought against political subdivisions. In Wilson, however, the Court stated, “[W]e are satisfied that Congress would not have characterized § 1983 as providing a cause of action analogous to state remedies for wrongs committed by public officials.” This court therefore rejects Defendants’ assertion that section 32-12.1-10 provides the proper statute of limitations for section 1983 actions in North Dakota.

Defendants argue that Count Two should be governed by the two year statute of limitations for wrongful death actions found in N.D.Cent.Code § 28-01-18(4) (Supp.1983). In support of their position, they cite cases holding that state law governs survival of civil rights actions under section 1983. Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978); Archer v. Preisser, 723 F.2d 639 (8th Cir.1983). The language of Wilson, however, does not leave room to apply a different statute of limitations when a claim for alleged deprivation of civil rights resulting in death is involved:

Although the need for national uniformity “has not been held to warrant the displacement of state statutes of limitations for civil rights actions,” [citations omitted], uniformity within each State is entirely consistent with the borrowing principle contained in § 1988. We conclude that the statute is fairly construed as a directive to select, in each State, the one most appropriate statute of limitations for all § 1983 claims.

105 S.Ct. at 1947. For a more balanced approach, see Justice O’Connor’s dissent.

North Dakota law provides a six year statute of limitations for “[a]n action for criminal conversation or for any other injury to the person or rights of another not arising upon contract, when not otherwise expressly provided.” N.D.Cent.Code § 28-01-16(5) (Supp.1983). This is the statute for personal injury action which is to be applied in section 1983 actions to which North Dakota law applies. This action was commenced within the six year period.

For the foregoing reasons, IT IS ORDERED:

Defendant’s motion for partial summary judgment is denied.


author: GOETTEL, District Judge.

text:
    Charles A. WEIL, Plaintiff, v. Joseph T. McCLOUGH and Ermyn Stroud, Defendants.
    No. 84 Civ. 3730 (GLG).
    United States District Court, S.D. New York.
    Oct. 1, 1985.

      Charles A. Weil, New York City, plaintiff pro se.
    Frederick A.O. Schwarz, Jr., Corporation Counsel of the City of New York by Ruby E. Bradley, Asst. Corp. Counsel, New York City, for defendants.
   OPINION

OPINION

GOETTEL, District Judge.

On June 6, 1982, the plaintiff, who was operating an automobile in the midst of what he describes as a massive Manhattan gridlock, honked his horn, apparently a number of times. He received a citation for “horn honking” in violation of N.Y.City Admin.Code § 1403.3-4.05(1) (1975), which provides, in pertinent part, “No person shall operate or use or cause to be operated or used any claxon installed on a motor vehicle, except as a sound signal of imminent danger____” Id. A hearing on the citation was scheduled before the New York City Environmental Control Board (the “Board”). Prior to the hearing, the plaintiff commenced an Article 78 proceeding in New York State Supreme Court, Special Term, seeking a declaration that § 1403.3-4.05(1) was unconstitutional, a stay of the hearing before the Board, and an order prohibiting the Board from proceeding further with the matter. By order dated December 17, 1982, Special Term denied the requested relief. The plaintiff unsuccessfully appealed that decision.

On May 29, 1984, the plaintiff brought this action pro se seeking a declaration that N.Y.City Admin.Code § 1403.4-4.05(1) (1975) is unconstitutional and an order enjoining the proceedings before the New York Environmental Control Board. On June 1, 1984, this Court denied the plaintiffs motion for a temporary restraining order. The plaintiff's administrative hearing was conducted on June 15, 1984. The administrative law judge found him guilty of illegal horn-honking and fined him $250.00.

By decision dated November 16, 1984, this Court denied the defendants’ motion for summary judgment on the grounds of res judicata. The defendants now move to dismiss the action pursuant to Fed.R.Civ.P. 12(b) for failure to state a-claim on which relief can be granted. The plaintiff cross-moves pursuant to Fed.R.Civ.P. 12(e) for judgment on the pleadings. The plaintiff has also moved pursuant to Fed.R.Civ.P. 15(d) for leave to file a supplemental pleading and pursuant to Fed.R.Civ.P. 12(f) to strike all of the defendants’ affirmative defenses. For the reasons stated below, the defendants’ motion is granted. The plaintiff’s cross-motion is denied. The plaintiff’s other motions are thereby rendered moot.

I. Discussion

A. The Free Expression Claim

The plaintiff first contends that this application of section 1403.3-4.05(1) of the New York City Administrative Code (“the ordinance”) violated his first amendment right to freedom of speech as incorporated in the due process clause of the fourteenth amendment. According to the plaintiff, its application limited his ability to express his desire to communicate with a specific policeman. (For purposes of this motion we will accept his claim that he was seeking to advise the traffic officer of the massive traffic jam — in ease it had not come to the officer’s attention — and that he was not simply expressing his frustration at being impeded by it.)

Of course, simply because conduct has a communicative element does not make a statute prohibiting or limiting that conduct per se unconstitutional. Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464-65, 13 L.Ed.2d 471 (1965). The Supreme Court has recognized the validity of enactments that reasonably limit the time, place, or manner of speech without regard to content; that serve a significant governmental interest; and that leave ample alternative channels for communication. Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 535-36, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980).

The ordinance does not attempt to regulate the “content” of horn-honking. Rather, it prohibits all horn-honking, except in cases of imminent danger, regardless of the user’s intended meaning. The ordinance also leaves open alternative means of attracting the attention of a police officer. It remains for a motorist to flash his lights, signal with his hands, or call out. The plaintiff, nevertheless, asserts that his message was stifled because he had no alternate means to relay his message. However, in the same breath, he admits that his message was not, in fact, stifled; a police officer who acknowledged his hand signal proceeded to ignore it. Thus, the ordinance neither discriminates among messages nor limits the expression of any particular message. It is based on the manner of expression, not on its content.

The ordinance is also reasonably related to two significant governmental interests, reducing noise and maximizing the utility of car horns. The reduction of noise, particularly in a noise polluted city like New York, is a particularly compelling government interest. Kovacs v. Cooper, 336 U.S. 77, 87, 69 S.Ct. 448, 453-54, 93 L.Ed.2d 513 (1949). In this Court’s view, any effort to dim the seemingly unending crescendo of honking horns on New York’s city streets is to be commended. This appears to be the Supreme Court’s view as well. In Kovacs v. Cooper, supra, the Court upheld the constitutionality of an ordinance banning sound trucks from the public streets of Trenton, New Jersey. The Court thought it permissible “to bar sound trucks with broadcasts of public interest, amplified to a loud and racous volume, from the public ways of municipalities.” Id. at 87, 69 S.Ct. at 453-54. To forbid, on first amendment grounds, the regulation of horn honking, which has little if anything to do with the public interest, would be to ignore and, indeed, flaunt, this important precedent.

The honking of ear horns in situations not involving imminent danger not only causes unnecessary noise, but also seriously undercuts the usefulness of such horns as a method of indicating the existence of an actual emergency condition. New York City has a compelling interest in seeing that this does not occur. Limitations on horn honking are a rational means to this end.

The Court, therefore, concludes that the ordinance is a reasonable time, place, or manner restriction that does not violate the first amendment right to freedom of speech as incorporated in the due process clause of the fourteenth amendment.

B. The Vagueness and Overbreadth Claims

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). Of course, language can never provide meaning with mathematical certainty. The test in determining whether or not a statute is unconstitutionally vague is whether “men of common intelligence must necessarily guess at its meaning.” Broadrick v. Oklahoma, 413 U.S. 601, 607, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1973).

The degree of vagueness that the Constitution tolerates ... depends in part on the nature of the enactment.
Thus, economic regulation is subject to a less strict vagueness test____ The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are less severe____
Finally, perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). Although the plaintiff claims that the ordinance inhibited his speech, the ordinance poses little threat to free speech. See supra pp. 1296-97. The relatively light civil penalty to which the plaintiff was subjected further justifies the application of only moderate scrutiny to this regulation.

A statute’s certainty is measured with respect to the actual conduct of the person attacking the statute. diLeo v. Greenfield, 541 F.2d 949, 953 (2d Cir.1976). The plaintiff asserts that the term “imminent danger” — the ordinance forbids all honking except that which signals “imminent danger” — did not clearly indicate to him the conduct that the ordinance proscribes, or, more precisely, that which it did not proscribe. We disagree. The plaintiff readily admits that he honked his horn not to signal danger but to attract attention. Upon reading the statute, a person of ordinary intelligence could not help but discern that the ordinance prohibits such conduct.

Even viewed in the abstract, the phrase “imminent danger” poses little if any interpretative problem to the individual of ordinary intelligence. The word “danger” provides adequate notice in innumerable situations in our everyday lives. Likewise, the courts have consistently upheld the use of the word “imminent” against vagueness challenges. See, e.g., Gregory v. Chicago, 394 U.S. 111, 116-17, 121-22, 89 S.Ct. 946, 949, 951-52, 22 L.Ed.2d 134 (1969) (Black, J., concurring). In Kovacs v. Cooper, supra, a vagueness challenge concerning the words “loud and raucous,” merited “only a passing inference.” Id. at 79, 69 S.Ct. at 449-50. In summarily rejecting the challenge, Justice Reed stated, “While these are abstract words, they have through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden.” Id. Here, where the statute is, in our view, far more definite, the plaintiff cannot be heard to object on vagueness grounds. Even under the most exacting scrutiny, this ordinance is sufficiently definite to avoid constitutional infirmity.

The plaintiff also mounts an “over-breadth” attack against the ordinance. This effort also fails. “A clear and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.” Grayned v. City of Rockford, supra, 408 U.S. at 114, 92 S.Ct. at 2302 (footnote omitted). A finding that a regulation of speech is a valid time, place, or manner regulation precludes an over-breadth attack. Grayned v. City of Rockford, supra, 408 U.S. at 114-21, 92 S.Ct. at 2302-06 (time place and manner analysis cures overbreadth objection). The rationale is apparent. A law that is a reasonable time, place, and manner regulation does not reach constitutionally protected conduct and, therefore, cannot be overbroad.

II. Conclusion

The defendants’ motion to dismiss for failure to state a claim for relief is granted. The plaintiff’s motion for judgment on the pleadings is denied. The Court need not consider the plaintiff’s motion to strike or his motion to supplement the pleadings.

The clerk will enter judgment accordingly.

SO ORDERED.

      . Indeed, whether a honk or honks can ever relay an intelligible message (without the assistance of Morse or some other code) is debatable.

      . We need not consider the propriety of the officer's response. That issue is not before us.

      . Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person or ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policement, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked.”

        Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972) (footnotes omitted).

      . The plaintiffs objection to the defendants’ refusal to turn over its records of all other violations of the ordinance over the last several years is immaterial. The vagueness analysis concerns only the plaintiff. See supra p. 1297. It is also irrelevant to the overbreadth issue, since that issue can be disposed of, in this case, without discovery. See supra pp. 1298.

      . The plaintiffs papers also appear to contend that the ordinance at issue denies him both the equal protection of the laws and due process of law in violation of the fourteenth amendment. Neither of these challenges need long detain us. The failure of the plaintiff's first amendment challenges dooms his due process and equal protection claims.
      Whenever a state law impermissibly burdens the exercise of [freedom of speech] there is actually a violation of the due process guarantee. Since the provisions are made applicable to the states by the due process clause, state laws which burden these rights constitute a denial of liberty as protected by that clause. Because the interpretation of the substantive guarantees of the first amendment are the same regardless of whether the provisions are being applied to state or federal actions, there is little need to discuss substantive due process guarantees in these cases. This same analysis applies in equal protection cases.

        J. Nowak, R. Rotunda, J.N. Young, Constitutional Law 817 (2d Ed.1983).
      The other contentions in the plaintiffs papers have been considered and rejected as without merit.