author: ANN ALDRICH, District Judge.

text:
    Kansas E. MURRAY, Plaintiff, v. THISTLEDOWN RACING CLUB, INC., et al., Defendants.
    Civ. A. No. C 82-323.
    United States District Court, N.D. Ohio, E.D.
    Dec. 20, 1983.

      Steven L. Wasserman, Coppins & Schneider, Cleveland, Ohio, for plaintiff.
    John B. Lewis, Squire, Sanders & Dempsey, Cleveland, Ohio, for defendants.
   MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

Plaintiff Kansas Murray, a mutuel clerk who ran up over $60,000 in shortages while working at Thistledown Race Track during 1979 and 1980, brings this reverse discrimination suit against her former employers because they refused to allow her to continue working until she signed a statement acknowledging that further shortages would be grounds for dismissal. Pending before the Court is defendants’ Motion for Summary Judgment. Upon consideration, the motion is granted and the action is dismissed.

Murray contends that defendants Thistledown Racing Club, Inc.; Randall Racing Club, Inc.; Summit Racing Club, Inc.; and Cranwood Racing Club, Inc. (“the Racetrack”) have violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Jurisdiction is invoked pursuant to 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. § 1343(4).

FACTS

The relevant and material facts are not disputed. Kansas Murray is a white female who worked as a mutuel clerk for the Racetrack, which conducts horse racing activities at Thistledown Race Track. (“Thistledown”). During the 1979 racing season, Murray accumulated a total of $31,302.00 in shortages. In 1980, she aggregated $29,501.00 in shortages, more than any other mutuel clerk at the track. Just before Murray was to begin work in 1981, the Racetrack insisted that she sign the following statement:

I _______ do hereby acknowledge that _______ of Thistledown management has formally advised me that after having been previously notified and warned of chronic shortages in my position as mutuel clerk, that any further shortages will clearly define incompetence to be so employed; and such shortages will result in my immediate dismissal from Thistledown Race Track.

She refused and has not worked at the Racetrack since. Murray contends that the Racetrack’s actions constituted a constructive discharge impermissibly based on race. The Racetrack employs approximately 170 mutuel clerks during the week and about 200 on the weekends. Most of the mutuel clerks are white.

Mutuel clerks are assigned certain positions: seller, cashier, messenger (or “runner”) and ticket counter. A seller's duties include taking bets from customers and insuring that the amount of money collected balances with the number of mutuel tickets sold. Cashiers are responsible for cashing winning tickets and balancing the number of tickets cashed with the amount of money paid out by the cashier. A messenger’s duties include delivering money to cashiers as needed and taking the cashier’s cashed tickets to the ticket room. Ticket counters are responsible for balancing the cashier’s count of tickets with the actual number of tickets cashed.

All mutuel clerks are financially responsible for their own proven shortages, according to the terms of the collective bargaining agreement between the Racetrack and the mutuel clerks’ union, (Racing Guild of Ohio, Local No. 304). The Racetrack’s rules governing shortages provide in pertinent part:

18. Shortages will be subject for a warning and continued shortages could result in suspension and/or dismissal. Shortages MUST be paid the next day before beginning to work.

Kansas Murray’s highest shortages occurred when she was working as a seller, collecting money from the persons placing bets. In the last two months that she spent as a seller during the 1980 season, there were six separate occasions on which Murray had shortages of over $1,000 each. ($1,177 on September 5; $1,810 on September 14; $1,498 on September 19; $1,265 on September 21; $1,050 on September 28; and $1,957 on November 1, 1980). Murray was always able to repay her shortages before beginning work the next day, as required by the Racetrack’s rules. However, after her last and highest ever shortage on November 1, 1980 (a Saturday night) Murray told Garvin Wright, Assistant General Manager and Director of Mutuels at Thistledown, that she would be unable to pay the $1,900 shortage in time to work the following day and that she would have to travel to Indiana to get the money. She asked if Wright would allow her to work Sunday without first repaying her shortage. Wright denied her request and Murray did not pay her shortage until the following Thursday or Friday. She was not permitted to work during the interim. (Deposition of Kansas Murray at pp. 47-50). When she next reported for work, Murray was not returned to the seller’s window, but was instead assigned a non-money handling job as a runner. She finished the season as a runner, and did not incur further shortages.

At the beginning of the 1981 season, Murray reported for work and was returned to a money-handling position. Midway through her first day on the job, Murray was called to Wright’s office and told that, because of her history of chronic shortages, she would have to sign a statement acknowledging that she had been warned about her shortage problem and that she recognized that she could be terminated for future shortages. Murray was not terminated; she was merely given a choice between complying with Racetrack policy or forfeiting her right to continue working. Murray chose not to sign the statement and left the track. She has not returned to work at the Racetrack.

Instead, she filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”), alleging that she was discriminated against on the basis of race because the Racetrack asked her to sign the statement, but did not impose the same requirement on four black mutuel clerks who also had shortages. Both commissions found against Murray and the EEOC issued a Right to Sue letter. Murray then filed the instant suit under Title VII and 42 U.S.C. § 1981, alleging the same cause of action.

Murray contends that the Racetrack treated her more harshly than the four black mutuel clerks because the Racetrack feared that the black clerks would claim they were targets of discrimination.

The Racetrack contends that it presented Murray with the shortage statement because she had a continuing history of large shortages, far greater than those of the four black mutuel clerks. Murray’s shortages were the worst that Wright, Director of Mutuel Clerks, had seen in his thirty-five years at the track.

The four black clerks to which Murray compares herself were also removed from money handling positions during the holiday months of November and December of 1980, but there the similarity ends. The four black clerks’ individual shortages for the year totalled $9,021; $9,190; $11,265; and $16,888, respectively. Kansas Murray’s shortages totalled $29,501.

CONCLUSIONS OF LAW

I. Title VII

Title VII of the Civil Rights Act of 1964 proscribes employment discrimination on the basis of race. The burden of proving impermissible discriminatory conduct on the part of an employer rests with the plaintiff. McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To carry this burden, Kansas Murray must initially establish a prima facie case of discrimination. Id. In the Title VII context, the phrase “prima facie case” refers to the “establishment of a legally mandatory, rebuttable presumption” rather than the presentation of “enough evidence to permit the trier of fact to infer the fact at issue”. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 n. 7, 101 S.Ct. 1089, 1094 n. 7, 67 L.Ed.2d 207 (1981).

In McDonnell Douglas, supra, the seminal decision on race discrimination, the Supreme Court delineated four elements, which if proved, establish a prima facie case of race discrimination in hiring. However, the McDonnell Douglas court noted that its rule was flexible and would not apply to all Title VII cases, but would vary according to the differing factual situations. Id., 411 U.S. at 802, n. 13, 93 S.Ct. at 1824, n. 13. What does not vary is plaintiff’s initial burden of “showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a discriminatory criterion illegal under the Act.’ ” Furnco Construction Company Corporation v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978).

In reverse discrimination cases, the first prong of the McDonnell Douglas standard has been interpreted to allow a majority plaintiff to establish a prima facie case of intentionally disparate treatment when “background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority”. Parker v. Baltimore and Ohio Railroad, 652 F.2d 1012, 1017 (D.G.Cir.1981). The remaining elements of the test are modified to reflect the requirement that the plaintiff demonstrate he was treated differently than other similarly situated employees who were not members of the protected group. Id.

This Court finds this definition of a prima facie case, for purposes of reverse discrimination, to be consistent with the holding in McDonald v. Santa Fe Trail Transportation Company, 427 U.S. 273, 279, 96 S.Ct. 2574, 2578, 49 L.Ed.2d 493 (1976), that Title VII prohibits discriminatory preference for any racial group, minority or majority, and that the act covers “white men and white women and all Americans”. Id. at 276, 96 S.Ct. at 2576.

A. Background Circumstances

Murray has not established any background circumstances that would support the suspicion that the Racetrack is the unusual employer who discriminates against the majority. To the contrary, it is undisputed that the majority of mutuel clerks at the track were white. Neither does Murray even hint that practices grounded in an affirmative action program are at issue here. Clearly, she has not met the first prong imposed for establishing a prima facie case. Recognizing that there may be situations in which isolated incidents of discrimination may occur in a setting which does not raise suspicions that the majority is the object of discrimination, this Court finds it appropriate to consider whether Kansas Murray, a white female, was treated differently than other similarly situated mutuel clerks who were black.

B. Similarly Situated Employees

Kansas Murray’s attempt to compare herself to the four black mutuel clerks fails when the relevant facts are examined. She had the largest and most frequent cash shortages among the five clerks for both the 1979 and 1980 racing seasons. Her individual shortages in 1980 exceeded the combined shortages of three of the black mutuel clerks and almost doubled the shortages of the clerk with the second highest shortages in the group. This was virtually a replay of the 1979 season, when her total shortages exceeded the combined shortages of three of her black co-workers and doubled the shortages of the black clerk who incurred the second highest shortages. For two years at Thistledown, Kansas Murray mounted a work record of staggering shortages despite the Racetrack’s rule providing that continued shortages could result in suspension or dismissal. Kansas Murray’s consistent record of large shortages sets her apart from the black mutuel clerks to whom she compares herself.

Moreover, the circumstances surrounding Murray’s last shortage set her apart from the other mutuel clerks. On a Saturday night, Murray incurred the largest single shortage in the history of her employment. She was nearly $2,000 short. She was unable to repay the shortage before she was to begin work the next day, as required, so she was suspended from work. In explaining her inability to pay promptly, Murray said she would have to travel out of state to obtain the money. Clearly, these facts indicate that not only did Murray incur enormous shortages, she also subjected the Racetrack to the very real risk of never recovering this substantial shortage. The circumstances put her in a disciplinary category unparalleled by any facts established regarding the black mutuel clerks.

The law is clear that an employer’s rules and criteria must be applied alike to all members of all races. McDonnell Douglas, supra, 411 U.S. at 804, 93 S.Ct. at 1825. The undisputed facts establish that the Racetrack applied its rules equally to blacks and whites alike.

C. No Genuine Issues of Material Fact Exist

Summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The burden of showing the absence of any genuine factual disputes is on the party seeking summary judgment. Adickes v. S.H. Kress and Company, 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). When considering a motion for summary judgment, the Court must view the material presented by the moving party in the light most favorable to the party opposing summary judgment. Id. After considering the record in a light most favorable to Murray, this Court finds that she has failed to refute the documentary evidence supporting the facts propounded by the Racetrack.

Kansas Murray attempts to suggest that there is some factual dispute over whether all mutuel clerks actually paid their shortages before working, as required by the Racetrack’s rules. She claims, in an affidavit, that she has “personal knowledge” that the four blacks to whom she compares herself were allowed to work without paying their shortages. Her self-serving affidavit, and the affidavit of Robert Doyle, her union' representative, do not meet the standards set forth in Fed.R.Civ.P. 56(e).

The Rule provides that a party opposing a motion for summary judgment which has been supported by affidavits must set forth specific facts in her own affidavits showing that there is a genuine issue for trial. These affidavits “shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Rule 56(e). Neither Murray nor Doyle have stated affirmatively or otherwise that they are the keepers of the records regarding shortages or that they have any basis for knowing when shortages were paid and by whom. Murray’s and Doyle’s averments regarding the timing of shortage payments are insufficient because they failed to state their competence to testify about these matters. Rather, the testimony of Garvin Wright and Robert Harvey, the “over and short man” in the Money Room at Thistledown, established that Wright and Harvey are responsible for the record-keeping and collection of shortages. Wright testified that he never allowed an employee to work unless his or her shortage was paid. (Wright’s deposition at 39-41). He further testified that Harvey, who collected the shortages, must have done so as instructed because the accounts always balanced. Id. at 41. Wright, as director of mutuel clerks, was responsible for enforcing the Racetrack’s rules, and his testimony indicates that he applied the shortages payment rule equally to all employees. Wright’s testimony meets the specificity and competency requirements of Fed.R.Civ.P. 56(e). This Court finds that the facts contained in his testimony are not disputed by Doyle’s and Murray’s insufficient affidavits.

Doyle also contended that Murray’s shortages could not have been the basis for the Racetrack’s actions because in Doyle’s opinion, shortages are “meaningless”. Again, Doyle’s competency to advance this fact is not affirmatively stated in his affidavit. Rather, his characterization of the shortages as “meaningless” is based on his “opinion and belief”. Doyle suggests that, if shortages are a result of a mutuel clerk’s practice of betting on races at the track, the track may actually gain money on a clerk who is short, as long as the clerk pays the shortage the next day prior to the start of work. Doyle’s characterization of the shortages as “meaningless” does not explain why it was necessary for Thistledown to employ a person, i.e., Robert Harvey, specifically to collect and keep track of mutuel clerks’ shortages and overages.

Doyle’s affidavit also avers that Murray was never warned or suspended for shortages. However, Doyle again fails to provide his competency to so state, and his statement directly conflicts with Murray’s own testimony that she was suspended and not allowed to work the Sunday following her $1,957 shortage and that when she returned to work almost a week later, she was relieved of her seller’s duties for the rest of the season after talking to Wright about her shortage. (Murray’s deposition at 46-50). Clearly, Doyle’s affidavit is a lame attempt to raise a factual dispute where Murray’s own testimony indicates otherwise. Mabell Seller’s testimony (that she was suspended when unable to pay her shortages) substantiates Wright’s testimony that the Racetrack’s shortage rules were applied equally to black and white employees.

The undisputed fact that Murray had far greater and more frequent shortages than any other mutuel clerk at the track alone is adequate to establish that she was not similarly situated to the other mutuel clerks to whom she compares herself. Her unique shortage problem prompted the Racetrack to devise a policy to cope with her situation and that of other employees who had large and repeated shortages. It is preposterous for Kansas Murray, the mutuel clerk with the greatest shortages, both in terms of amount and frequency, to allege that, because she was the first person affected by the new policy, she was discriminated against on the basis of race. Murray’s position was not comparable to the black employees to whom she compares herself, hence she is unable to establish that she was treated differently than other similarly situated employees. Moreover, it is clear that the Racetrack’s decision to present Murray with the statement was completely consistent with its posted rule governing shortages. The inference of discriminatory animus outlined in McDonnell Douglas has not been raised by the undisputed relevant facts in this case. As explained in Furnco Construction Company, supra,

... when all legitimate reasons ... have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race.

Id., 438 U.S. at 577, 98 S.Ct. at 2949. This Court concludes that Kansas Murray has not established a prima facie case which raises the inference that the Racetrack’s actions toward her were based on impermissible racial considerations. She has failed to prove the elements necessary to establish a prima facie case or a claim under Title VII. Accordingly, the Racetrack is entitled to summary judgment.

II. Murray’s Section 1981 Claim

In actions premised on 42 U.S.C. § 1981, a plaintiff must prove intentional discrimination based on race. General Building Contractors Association, Inc. v. Pennsyl vania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); Memphis v. Greene, 451 U.S. 100,101 S.Ct. 1584, 67 L.Ed.2d 769 (1981); Payne v. Bobbie Brooks, Inc., 505 F.Supp. 707, 720-21 (N.D.Ohio 1980), aff’d without opinion, 701 F.2d 180 (6th Cir. 1982), cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982); and Arnold v. Ballard, 448 F.Supp. 1025 (N.D.Ohio 1978).

For the reasons outlined above, there is no evidence substantiating Murray’s claim that the Racetrack discriminated against her, nor is there anything in the record which indicates discriminatory intent or improper racial motivation. Accordingly, Murray’s claim under 42 U.S.C. § 1981 must fail. The Racetrack is entitled to summary judgment on Murray’s § 1981 claim as a matter of law.

The Motion for Summary Judgment is granted and the action is dismissed, with prejudice, at plaintiff’s costs.

IT IS SO ORDERED.

      . All figures have been rounded off.

      . It is possible for mutuel clerks working as sellers to gamble on the races, and the Racetrack has no rules forbidding the practice.

      . Cf. McDonald, v. Santa Fe Trail, 427 U.S. at 280 n. 8, 96 S.Ct. at 2579 n. 8 (permissibility of affirmative action program not considered); and Parker v. Baltimore and Ohio Railroad Co., 652 F.2d at 1017 n. 9 (affirmative action program does not equate with discrimination against the majority nor constitute suspicious circumstances inferring discriminatory intent.)

      . Kansas Murray's shortages as a mutuel clerk were not limited to her employment at Thistledown. While working at Northfield Race Track, Murray ran up large shortages; her last shortage totalled $1,100 for one day. She was dismissed shortly thereafter and filed charges of sex discrimination against Northfield.

      . In fact, another mutuel clerk, Gary Mascie, was also presented with the shortage statement on March 20, 1981, the same day it was given to Kansas Murray. However, neither party has explored Mascie’s situation further, or ascertained whether Mascie or Murray was approached first.


source: Caselaw Access Project

author: DITTER, District Judge.

license: Public Domain

text:
    Robert F. GROTHUSEN v. NATIONAL RAILROAD PASSENGER CORPORATION, a/k/a Amtrak.
    Civ. A. No. 80-2902.
    United States District Court, E.D. Pennsylvania.
    March 5, 1984.

      Albert M. Hankin, Meyer, Lasch, Hankin & Poul, Philadelphia, Pa., for plaintiff.
    Richard L. Goerwitz, Jr., Swartz, Campbell & Detweiler, Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

DITTER, District Judge.

Robert Grothusen was injured while working as a railroad lineman for National Railroad Passenger Corporation (Amtrak). Grothusen then brought this action pursuant to the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., against Amtrak alleging that the defendant was liable for failing to provide him with a safe place to work. The case was tried to a jury which returned a verdict in favor of the defendant. Presently before me are plaintiff’s motions to set aside the verdict and for a new trial. For the reasons that follow, these motions will be denied.

On February 17, 1979, Grothusen had been assigned to a converted passenger car which was being used as a work car by Amtrak employees to perform emergency repairs upon the tracks. Each end of this car contained two sets of stairs that were used for boarding and alighting from the car. Along the left set of stairs on the front of the car was a curved handrail. As one descended this set of stairs, the railing was on the lefthand side, but not on the righthand side. At the end of the day, Grothusen was exiting from the front of the car down the left set of stairs. As he was descending, Grothusen slipped on some snow that had accumulated on the stairs. He fell to the ground and allegedly injured his back as a result.

At trial, plaintiff testified extensively about his injuries and the treatment he had received, including traction, a myelogram, and various pain treatments. See Tr. 1-58 to 81. He stated that the effects of the accident continued to the time of trial with persistent pain radiating from his lower back down to his legs. Tr. 1-81. In addition, he stated that he was unable to lift in excess of ten pounds without experiencing discomfort and could not bend at all. Tr. 1-81; 1-89. He further testified that he walked in constant pain. Tr. 1-89. Plaintiff’s movements and postures in court corroborated this testimony. When called to the witness stand to testify, plaintiff exhibited a pronounced limp and sat in apparent discomfort.

Unfortunately for the plaintiff, the defendant offered into evidence a surveillance movie of him that had been taken one day before trial began. This film was decidedly at odds with plaintiff’s testimony. The film showed Grothusen walking to and from his car carrying parcels with no apparent difficulty. See Tr. 3-55. The noticeable limp that he demonstrated in court, which he testified as being a “constant thing”, Tr. 1-89, was absent. The film also showed the plaintiff bending over, an activity he had earlier testified he could no longer perform. Tr. 1-81. Finally, it depicted Grothusen carrying his twenty-one month old son without difficulty, even though he had previously stated he could lift only 5-10 pounds without discomfort. Tr. 1-89. After reviewing the film outside the jury’s presence, and hearing extensive cross-examination regarding the circumstances that surrounded its making, I admitted the movie in evidence and allowed the jury to view it.

The plaintiff then sought a continuance of the trial to attempt to gather evidence to rebut the film. Counsel contended that because of the short notice he had been given regarding the existence of the film, additional time was needed in order to determine if the film had been altered in any way and to locate rebuttal witnesses. Tr. 4-14 to 20. I refused this request for a continuance, but instead permitted plaintiff to have the film examined by his expert after trial to assess its authenticity. In addition, I allowed plaintiff to be recalled in an attempt to rebut the events that had been shown to the jury.

In his post-trial motions, plaintiff seeks relief on essentially three grounds. First, he contends that I erred in failing to instruct the jury regarding the effect of the defendant’s alleged violation of the Federal Safety Appliance Act (SAA), 45 U.S.C. § 1 et seq. Plaintiff contends that the SAA was violated on account of the defendant’s removal of one of the curved handrails from the side of the steps of the railcar. The removal of this curved handrail was allegedly the cause of plaintiff’s injuries because he contends that he reached for this missing railing as he began to fall. If this railing had been present, plaintiff asserts that he would not have been injured. Tr. 1-101.

I refused to adopt plaintiff’s proffered instructions regarding the SAA because, in my view, the plaintiff had not established that the act had been violated. The parties agreed that the regulation regarding the proper number and placement of handholds for the railcar at issue is section 231.12 of the Federal Railroad Administration manual, “United States Safety Appliance Standards and Power Brake Requirements.” Manifestly, this regulation does not contain any provisions regarding curved handrails leading down the steps. Nonetheless, plaintiff argues that having originally installed such rails, the defendant violated the act by removing one of them. I find this argument to be unpersuasive. By placing these rails upon the car Amtrak took action that is beyond what is required by the SAA. To impose liability upon defendant when one of these extra measures is later removed would in practical effect deter railroads from ever taking safety actions beyond the minimum requirements of the SAA, thereby creating a greater risk for the employees. Such a result would be anomalous in light of the purpose behind this act, which is to promote the safety of railroad employees. See Carbon County Railway Co. v. United States, 309 F.2d 938 (10th Cir.1962).

The cases relied upon by plaintiff either do not support his position or are inapposite to the issue of whether the absence of a safety appliance which is not required by the SAA constitutes a violation of this act when it is removed. For example, in Shields v. Atlantic Coast Line Railroad Co., 350 U.S. 318, 76 S.Ct. 386, 100 L.Ed. 364 (1956), the plaintiff was injured when a running board upon which he was standing broke and caused him to fall. The Court held that although the running board was not specifically required by the SAA, it nonetheless constituted a safety appliance for the purposes of the act. Therefore, liability for violating the SAA was proper because once the railroad undertook to provide this board, it had a duty to ensure that the appliance was safe and secure, as required by the SAA. Id. at 322-24, 76 S.Ct. at 390-91. In contrast, in the present case the plaintiff was not injured because of an unsecure or unsafe handrail, but rather as a result of the absence of such a device. Obviously, if Grothusen had fallen after one of the curved handrails had broken or snapped, Shields would require a conclusion that a violation of the SAA had occurred. See also Blazin v. Southern Pacific Co., 127 F.Supp. 20 (N.D.Cal.1954); Thomas v. Kansas City Southern Railway Co., 305 S.W.2d 642 (Tex.Civ.App. 1957), cert. denied, 356 U.S. 959, 78 S.Ct. 995, 2 L.Ed.2d 1066 (1958). However, because of this critical factual distinction, it was proper not to instruct the jury regarding the effect of the SAA.

Plaintiff’s second ground for a new trial is that I erred in refusing his requested jury instruction no. 14 that “the defendant was negligent in this case and ... such negligence contributed in whole or in part to the plaintiff’s injury.” The plaintiff contends that this charge was proper in light of the evidence that the plaintiff had slipped on the snow that had accumulated on the steps of the work ear. This argument is without merit. It was the duty of the jury to decide whether the defendant was negligent in failing to remove this snow. There was no error in refusing this instruction.

Plaintiff’s final argument is that a new trial is necessary because of the “atmosphere” in the courtroom that was allegedly prejudicial to him. He objects primarily to my refusal to grant a continuance after the defendant had screened the surveillance movie. Plaintiff also challenges the fact that I permitted a court appointed medical expert, Richard H. Rothman, M.D., to testify that he had been appointed by me to serve as impartial examiner.

With respect to the refusal to grant a continuance of the trial, this is a matter within my discretion, see Concerned Citizens of Bushkill Township v. Costle, 592 F.2d 164, 172 (3d Cir.1979), which I am convinced was not abused in this instance. The grounds advanced by plaintiff in support of his request were that additional time was needed to examine the film to determine if it had been altered and to locate rebuttal witnesses. In order to balance plaintiff’s interest in examining this film with the legitimate interest of the court and the jurors in completing the trial, I permitted this examination to take place after trial. Obviously, this examination produced no evidence favorable to plaintiff. See supra n. 3. I attempted to strike a similar balance with regard to the rebuttal witnesses by permitting plaintiff to be called back to the stand in order to explain the circumstances surrounding the events that were filmed. Because these matters had already been testified to by the best available witness, any additional testimony would have been cumulative. Therefore, plaintiff was not prejudiced by my refusal to grant a continuance.

Finally, the testimony of Dr. Roth-man that he was an impartial expert appointed by the court was not improper. Rule 706(c) of the Federal Rules of Evidence states, “In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.” In light of the disputed issue of damages in the present case, it was not an abuse of my discretion to permit this information to be disclosed to the jury.

ORDER

AND NOW, this 5th day of March, 1984, for the reasons set forth in the foregoing memorandum, the plaintiff’s motions to set aside the verdict and for a new trial are hereby denied.

      . In contrast, each set of stairs in the rear of the car had curved handrails on both sides of the stairs. See Tr. 1-140.

      . As previously mentioned, the film was made on the day before trial began, Sunday, September 19, 1982. On the first day of trial, defendant's counsel informed counsel for the plaintiff of the film’s existence, but because the film had not yet been developed, he stated that he had not yet decided whether he would use it. The film was developed and became available on Wednesday, September 22, 1982, and was shown to plaintiffs counsel at the luncheon recess on that day. See Tr. 3-49.

      . While the results of this subsequent examination have not been brought to my attention, I can only conclude that plaintiffs conspicuous silence in this regard to mean he has no evidence that the film was other than an accurate representation of the events that transpired.

      . 45 U.S.C. § 4 states in part: “[I]t shall be unlawful for any railroad company to use any car ... that is not provided with secure grab irons or handholds in the ends and sides of each car....” Where an employee relies upon a violation of the SAA in his FELA claim, he is required only to prove the statutory violation and is therefore relieved of the burden of proving negligence. The injured employee need not establish common-law proximate causation, but only that his injury resulted in whole or in part from the railroad's violation of the SAA. The defenses of contributory negligence and assumption of the risk are not available to the railroad. Crane v. Cedar Rapids & Iowa City Railway Co., 395 U.S. 164, 166, 89 S.Ct. 1706, 1708, 23 L.Ed.2d 176 (1969).

      . Plaintiffs argument that I erroneously decided an issue that should have been resolved by the jury is without merit. Because this involves an interpretation of the regulations, the issue of whether the facts as presented constitute a violation of the SAA is a question of law for the court to decide. See United States v. Seaboard Coast Line Railroad Company, 368 F.Supp. 1079, 1083 (M.D.Fla.1973). Only after this legal hurdle is resolved is it appropriate for the jury to decide whether the plaintiffs injuries resulted in whole or in part from the statutory violation.

      . This section states in pertinent part:
      § 231.12 Passenger-train cars with wide vestibules.
      ******
      (b) Side handholds — (1) Number. Eight.
      (2) Dimensions. Minimum diameter, five-eighths of an inch, metal. Minimum clear length, 16 inches. Minimum clearance, 1¼, preferably 1½ inches.

        (3) Location. Vertical, one on each vestibule door post.
      (4) Manner of application. Side handholds shall be securely fastened with bolts, rivets, or screws.
      (c) End handholds — (1) Number. Four.
      (2) Dimensions, (i) Minimum diameter, five-eighths of an inch, wrought iron or steel. Minimum clear length, 16 inches. Minimum clearance, 2, preferably 2½ inches.
      (3) Location. Horizontal, one near each side on each end projecting downward from face of vestibule end sill. Clearance of outer end of handhold shall be not more than 16 inches from side of car.
      (4) Manner of application. End handholds shall be securely fastened with bolts or rivets. When marker sockets or brackets are located so that they can not be conveniently reached from platforms, suitable steps and handholds shall be provided for men to reach such sockets or brackets.

        See Tr. 4-13.

      . In addition, I permitted one of plaintiff’s neighbors to testify regarding the fact that the movie operator had not spoken to him about the plaintiff on the day the film was made.


author: SKINNER, District Judge.

text:
    WATERMAN STEAMSHIP CORPORATION, Plaintiff, v. 350 BUNDLES OF HARDBOARD, V/O Exportles, and Allied International, Inc., Defendants.
    Civ. A. No. 82-0626-S.
    United States District Court, D. Massachusetts.
    April 13, 1984.

      DeLane F. Anderson, Jr., Hoch, Flanagan & Snyder, Boston, Mass., for plaintiff.
    Michael T. Cetrone, Nutter, McClennan & Fish, Boston, Mass., for defendants.
   MEMORANDUM AND ORDER

SKINNER, District Judge.

The plaintiff, Waterman Steamship Corporation, seeks to recover freight charges allegedly due on a shipment of hardboard originating in the Soviet Union and discharging in at least three United States ports. The Soviet exporter, V/O Exportles, initially paid freight charges on the shipment, but the plaintiff now alleges that the charges were improperly computed. The plaintiff has complained against V/O Exportles and the American purchaser of the hardboard, Allied International, Inc. for the deficiency. The plaintiff has moved for summary judgment against Allied. Allied has moved for summary judgment of dismissal.

Allied argues that it is not liable for the freight charge deficiency. The Carriage of Goods by Sea Act does not impose a duty upon a consignee to pay freight charges. States Marine International, Inc. v. Seattle-First National Bank, 524 F.2d 245, 247-248 (9th Cir.1975). Liability arises only on the shipping contract or under general principles of law.

To ascertain what contract was entered into, we look primarily to the bills of lading, bearing in mind that the instrument serves both as a receipt and as a contract.

Louisville & Nashville R.R. v. Central Iron Co., 265 U.S. 59, 67, 44 S.Ct. 441, 443, 68 L.Ed. 900 (1924).

The bill of lading is unambiguous as to the consignee’s liability to pay freight charges. The fine print on the reverse of the shipper’s form includes the following language:

The shipper and consignee shall be jointly and severally liable to the carrier for the payment of all charges and for the performance of the obligations of each of them hereunder.

It is true that

The mere designation in the bill of lading of the consignee as the one liable for the freight charges does not create a contractual relationship between the carrier and the consignee, rendering the latter liable therefor, but rather the consignee becomes liable therefor when an obligation arises on his part from presumptive ownership, acceptance of goods and the services rendered, and the benefits conferred by the carrier for such charges.

States Marine, supra at 248 (quoting Arizona Feeds v. Southern Pacific Transportation Co., 21 Ariz.App. 346, 519 P.2d 199, 206 (1974)). The defendant is liable on the contract because it accepted the goods. Under common law,

The weight of the authority seems to be that the consignee is prima facie liable for the payment of the freight charges when he accepts the goods from the carrier.

Pittsburg, Cincinnati, Chicago and Saint Louis Railway Company v. Fink, 250 U.S. 577, 581, 40 S.Ct. 27, 27, 63 L.Ed. 1151 (1919).

Even where there is no actual acceptance of the goods by the named consignee, presumptive ownership may arise from his exercise of dominion and control over the shipment. [Citing cases].

States Marine, supra at 248. At a minimum, these cases indicate that Allied agreed to be bound by the bill of lading when it accepted the goods.

Allied argues, however, that the markings “C & F” and “Freight prepaid” which appear on the front of the bill represent contractual terms which override the language on the reverse. The term “C & F” in a contract between a shipper and a purchaser indicates that the shipper assumes the responsibilities (1) to pay the freight, and (2) to deliver to the purchaser a receipt from the carrier indicating that the freight has been paid. U.C.C. § 2-320 and Official Comment (1). The bill of lading may include the receipt. U.C.C. § 2-320(2)(b). I find that as they appear on the bills of lading in this case, the terms acknowledge receipt of the original freight charge calculated by V/O Exportles. They do not control the plain language of the bills of lading insofar as they have become contracts between Waterman and Allied.

Finally, Allied argues that the plaintiff should be estopped from proceeding against it, because of the representations “C & F” and “Freight prepaid” on the bill of lading.

In the cases applying the doctrine of estoppel we find not only a bill of lading marked “prepaid”, but also absence of any initial conduct on the part of the carrier that would indicate to the consignee that the carrier was looking to it for payment.

Arizona Feed v. Southern Pacific Transportation, 21 Ariz.App. 346, 519 P.2d 199, 207 (1974). Cf. Southern Pacific Transportation Company v. Campbell Soup Company, 455 F.2d 1219 (8th Cir.1972); Consolidated Freightways Corporation of Delaware v. Admiral Corporation, 442 F.2d 56 (7th Cir.1971); Missouri Pacific Railroad Company v. National Milling Company, Inc., 409 F.2d 882 (3d Cir.1969).

The principal concern in the railroad cases is to prevent the use of estoppel as a cover for freight rate discrimination prohibited by the Interstate Commerce Act. See Campbell Soup, supra at 1222. Although this case is a maritime case, not a railroad case, the policy considerations disfavoring estoppel apply equally. The Carriage of Goods by Sea Act, which the defendant concedes is applicable to this case, also prohibits rate discrimination. 46 U.S.C. §§ 812, 815.

Although the defendant had full notice of the plaintiff’s claim when it took possession of the two shipments which the plaintiff had attached in Boston, it is unclear what the defendant knew several months earlier when it accepted the shipments which arrived in Jacksonville and New Orleans. The record does not show when Allied paid V/O Exportles for the shipments. Waterman brings this action on the bill of lading contract. Estoppel is an affirmative defense in a contract action. The defendant bears the burden of asserting facts which would support the defense.

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall enter against him.

Fed.R.Civ.P. 56(e). The defendant has not produced affidavits or other materials beyond his pleadings which would establish this affirmative defense of estoppel. Accordingly, I find the defendant liable on the bill of lading.

Allied also raises a second allegation of estoppel as to the amount of the deficiency. Allied alleges that the volume of the shipment was properly calculated on a net basis, and that in its long course of prior dealings with the plaintiff, freight charges had always been computed on net volume. According to Allied, the deficiency arises because the plaintiff recalculated the charges on the contested shipments on a gross basis.

Plaintiff relies on the fourteenth article of its bills of lading, which provides in part as follows:

FREIGHT AND OTHER CHARGES: Freight shall be payable on actual gross intake weight or measurement, or at the carrier’s option, on actual gross discharged weight or measurement. Freight may be calculated on the basis of the shipper’s particulars but the carrier may at any time open the packages and examine, weight, measure and value the goods and if such particulars are found to be erroneous and additional freight is payable, the shipper, consignee and the goods shall be liable also for any expense thereby incurred.

The existence of estoppel by course of conduct is a mixed question of law and fact, and to the extent it is an issue of fact, it is apparently genuinely disputed in this case.

Accordingly, no complete summary judgment is appropriate. Partial summary judgment establishing the liability of Allied for any deficiency is warranted on this record and the plaintiff’s motion is ALLOWED to this extent. Both motions are otherwise DENIED. The case shall stand for trial on the issue of the existence and amount of any deficiency, and Allied shall have the burden of proving estoppel by course of conduct.


author: NEESE, Senior District Judge,

text:
    Wendell Gene WATTS, Petitioner, v. STATE OF TENNESSEE, et al., Respondents.
    Civ. A. No. 3:84-0505.
    United States District Court, M.D. Tennessee, Nashville Division.
    May 23, 1984.
    On Motion for Appointment of Counsel June 27, 1984.
    Wendell Gene Watts, pro se, for petitioners.
    William Leach, Atty. Gen., Nashville, Tenn., and Michael Dutton, Warden Tennessee State Penitentiary, for respondents.
   MEMORANDUM OPINION, ORDERS AND CERTIFICATE

NEESE, Senior District Judge,

Sitting by Designation and Assignment.

The petitioner Mr. Wendell Gene Watts seeks the federal writ of habeas corpus, 28 U.S.C. § 2254(a), on the ground he is being deprived of his claimed constitutional right to a transcript of his trial. His conviction was affirmed on direct appeal, and his application for permission to appeal to the Supreme Court of Tennessee was denied on January 31, 1983. State v. Watts, 649 S.W.2d 4 (Tenn.Crim.App.1982).

Mr. Watts was convicted in the Criminal Court of Maury County, Tennessee of aggravated rape and was sentenced to imprisonment for 99 years; the petitioner does not claim he was denied, as an indigent, a transcript to use in connection with such direct appeal of his conviction. Although Mr. Watts does not specify what use he intends to make of a transcript at this late date, the only apparent use therefor would be in any future attempt to attack his conviction collaterally, as in post-conviction or habeas corpus procedures.

The Constitution does not require that an indigent-defendant be provided a free-transcript for use in attacking his conviction collaterally where, as here, such a transcript was available to him on direct appeal. United States v. MacCollom, 426 U.S. 317, 325-326, 96 S.Ct. 2086, 2092[8], 48 L.Ed.2d 666 (1976) (plurality opinion), cited in Johnson v. Hubbard, 698 F.2d 286, 289, n. 1 (6th Cir.1983), cert. den. — U.S. —, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983), for the proposition that due process does not require a free-transcript on appeal for an indigent-plaintiff in a habeas corpus action. A prisoner is not entitled to a free-transcript merely for the purpose of searching it for grounds for a possible application for post-conviction or habeas corpus relief. Bentley v. United States, 431 F.2d 250, 254[3] (6th Cir.1970), cert. den. 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823 (1971); Lucas v. United States, 423 F.2d 683, 684-685[5] (6th Cir.1970); Ellis v. State of Maine, 448 F.2d 1325, 1327[3] (1st Cir. 1971).

It appearing plainly on preliminary consideration, Rule 4, 28 U.S.C. fol. § 2254, from the face of the applicant’s petition and the exhibit appended thereto that he is entitled to no relief in this Court now, it hereby is

ORDERED:

(1) that his petition is DISMISSED summarily, id.;

(2) that the clerk so notify the petitioner forthwith, id.; and,

(3) that copies of such petition be served with copies of this order forthwith by certified mail on the respondent-warden and the attorney general and reporter of the state of Tennessee, id.

Should the applicant give timely notice of an appeal from this order and the judgment to be entered herein, Rule 58(1), F.R.Civ.P., he is authorized to proceed thereon in for-ma pauperis. Rule 24(a), F.R.App.P. Any such notice will be treated also as an application for a certificate of probable cause. Rule 22(b), F.R.App.P.

As the petitioner has not stated a colorable claim for habeas corpus relief, such certificate will NOT issue. Id.

ON MOTION FOR APPOINTMENT OF COUNSEL

The filing by the petitioner of a notice of appeal herein operated to transfer jurisdiction of this action from this Court to the Court of Appeals for this Circuit. Cochran v. Birkel, 651 F.2d 1219, 1221[2] (6th Cir. 1981), cert. den. 454 U.S. 1152, 102 S.Ct. 1020, 71 L.Ed.2d 307 (1982), and this Court is without jurisdiction to consider the motion of the petitioner under Rule 60(b), F.R.Civ.P., in the absence of a remand by such appellate court, S & E Shipping Corp. v. Chesapeake & O. Ry. Co., 678 F.2d 636, 641-642 n. 10 (6th Cir.1982). Accordingly, this Court will not purport to rule on such motion.

The Court has authorized the petitioner already to proceed on his appeal in forma pauperis; thus, his present motion therefor is moot. Since the Court has determined that the petitioner has not stated a colorable claim for habeas-corpus relief and has declined to issue a certificate of probable cause, his application for the appointment of counsel hereby is

DENIED, but without prejudice to his applying therefor to our Court of Appeals.

      . Tennessee makes transcripts available to its indigent-defendants free-of-charge for use on appeal. T.C.A. § 40-14-312 (formerly T.C.A. § 40-2040); State v. Wilson, 530 S.W.2d 766, 768[1] (Tenn.1975); Elliott v. State, 222 Tenn. 294, 435 S.W.2d 812, 817 (1968).

      . Martin v. Rose, 525 F.2d 111 (6th Cir.1975), relied upon by Mr. Watts is inapposite. There, the petitioner was denied a transcript of his federal bank robbery trial (at which trial he was acquitted) for use at his trial in state court for the same bank robbery. This case does not support the view that an indigent-defendant is entitled to a free-transcript to use in a potential collateral proceeding.


author: DECKER, Senior District Judge.

text:
    Raymond PEMPEK, et al., etc., Plaintiffs, v. Jim EDGAR, Secretary of State of Illinois, et al., Defendants.
    No. 83 C 7055.
    United States District Court, N.D. Illinois, E.D.
    June 6, 1984.
    On Motion to Dismiss Dec. 26, 1984.

      Roderick F. Mollison, Jerome J. Adams, Chicago, Ill., for plaintiffs.
    Roger P. Flahaven, Asst. Atty. Gen., Chicago, Ill., for Jim Edgar.
    Robert W. Fioretti, James D. Montgomery, Chicago, Ill., for City of Chicago.
   MEMORANDUM OPINION AND ORDER

DECKER, Senior District Judge.

Raymond Pempek (Pempek) and Gary Sternberg (Sternberg) brought this section 1983 action against the City of Chicago (the City) and Jim Edgar, the Illinois Secretary of State (Edgar or the Secretary). The complaint alleges that the City violated Pempek’s constitutional rights in connection with his arrest for twenty delinquent parking tickets and that Edgar deprived him of his constitutional rights when Edgar suspended his driver’s license. Sternberg charges that the suspension of his driver’s license deprived him of his constitutional rights. Both the City and Edgar move to dismiss.

I. Factual Background

On August 26, 1983, Pempek “was arrested pursuant to [a] warrant issued by the Clerk of the Circuit Court of Cook County, Illinois, charging the Plaintiff with twenty (20) outstanding municipal automobile parking violation notices against him.” Amended Complaint at ¶ 1. The same day, he paid $400.00 as a bail bond. The clerk issued a bail order demanding Pempek’s appearance on October 6, 1983 at 321 North LaSalle Street, Room 103, Chicago, Illinois. On that date, Pempek “appeared before a State Court Judge ... as required by his bail bond conditions, and demanded a trial.” Id. at ¶ 4. The City was not ready, and the judge granted a continuance over Pempek’s objection.

On October 5, 1983, Pempek received notice that Edgar had suspended his license under Ill.Rev.Stat. ch. 95½, § 6-306.1 (section 6-306.1). Edgar also suspended Stern-berg’s license under this provision.

Section 6-306.1 requires Edgar to suspend anyone’s license when Edgar receives notice that the person has an outstanding warrant against him. The suspension occurs without a hearing. Section 6-306.1(a). The Secretary cannot reinstate the license until Edgar receives notice that the licensee has satisfied the warrant. Id. Before the Secretary suspends the license, however, he must also receive notice that the court clerk mailed the licensee notice of the warrant at his last known address sixty days before the suspension. Id. The Secretary must also know the licensee’s full name, date of birth, sex, and driver’s license number as well as the registration number of the motor vehicle registered to the alleged violator. Id.

Plaintiffs claim that these actions by Edgar and the City deprived them of due process under the fifth and fourteenth amendments to the United States Constitution and that the statute and the City’s actions are a bill of attainder prohibited by article I of the Constitution. The complaint seeks injunctive and declaratory relief as well as attorneys’ fees, costs, and the money “collected by the City of Chicago pursuant to the authority of Illinois.” Amended Complaint at 5. Both the City and Edgar move to dismiss on various grounds.

II. Discussion

On a motion to dismiss, the court must “take [the plaintiffs’] allegations to be true, and view them, together with reasonable inferences to be drawn therefrom, in the light most favorable to the plaintiff.” Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir.1981). “[A] complaint should not be dismissed for failure to state a claim 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 v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The complaint, however, must “contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Sutliff, Inc. v. Donovan Companies, 727 F.2d 648, 654 (7th Cir. 1984).

A. Constitutionality of Ill.Rev.Stat. ch. 95½, § 6-306.1

Section 6-306.1 provides in relevant part:

Failure to pay fines for traffic and parking violations, (a) The Secretary of State, upon receipt of a form prescribed by him that there is a warrant outstanding in any one county in Illinois for the arrest of a violator for ten or more parking violations ... shall immediately suspend the drivers license of said violator without a hearing, and shall not remove such suspension, nor issue any license or permit to said violator until notified by the Clerk of the Court in said county that the violator has appeared and satisfied the outstanding warrant against him. (b) The form prescribed by the Secretary shall be certified by the Clerk of the Court and shall contain the following information:
(1) That the violator against whom the warrant is outstanding has been notified of said warrant by mailing it to his last known address at least 60 days prior to certification to the Secretary of State by the Clerk.
(2) The full name, date of birth, sex, and drivers license number of the violat- or, and in the case of parking violations the registration number of the motor vehicle registered to the violator.

Plaintiffs interpret this section to prohibit the Secretary from ever holding a hearing regarding a suspension. Edgar notes that after a suspension, a driver may apply under Ill.Rev.Stat. ch. 95½, ¶¶ 2-118(a) and 2-118(e) for an administrative hearing subject to judicial review. Edgar’s Memorandum Supporting Motion to Dismiss at 3.

In Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), the United States Supreme Court upheld a similar Illinois statute that gave the Secretary power to revoke a driver’s license after three convictions for minor traffic offenses. The Secretary needed to hold no pre-suspension hearing. Id. at 107, 97 S.Ct. at 1724. The procedure encompassed written notification as well as a full evidentiary hearing within twenty days and “ ‘as early as practical’ ” after the licensee requested such a hearing. Id. at 109-10, 97 S.Ct. at 1726 (quoting ¶ 2-118(a)).

“[T]he Due Process Clause applies to the deprivation of a driver’s license by the State.” Dixon, 431 U.S. at 112, 97 S.Ct. at 1727. The Court therefore utilized the three part test of Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976), to determine when the licensee must receive a hearing. To evaluate what process was “due,” the Court looked to “ ‘first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used and probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’” 431 U.S. at 112-113, 97 S.Ct. at 1727 (quoting Mathews, 424 U.S. at 335, 96 S.Ct. at 903).

The Court concluded that the interest in a driver’s license “is not so great as to require [the Court] ... ‘to depart from the ordinary principle’ ... that something less than an evidentiary hearing is sufficient prior to adverse administrative action.” 431 U.S. at 113, 97 S.Ct. at 1728 (quoting Mathews, 424 U.S. at 343, 96 S.Ct. at 907). The risk of an erroneous deprivation was “not great” since it followed three full judicial hearings. Id. The appellee never challenged the sufficiency of these hearings. Id. “Finally, the substantial public interest in administrative efficiency would be impeded by the availability of a predetermination hearing in every case.” Id. 431 U.S. at 114, 97 S.Ct. at 1728. The licensees might use a hearing request to delay proceedings. Id. Therefore, a pre-suspension hearing was unnecessary. Id.

The Court reaffirmed Dixon in Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979), which held that the Illinois law in Dixon was indistinguishable from the Massachusetts law requiring suspension for refusal to undergo a breathylzer examination for drunk driving. “Both cases involvefd] the constitutionality of a statutory scheme for administrative suspension of a driver’s license for statutorily defined cause without a pre-suspension hearing.” Id. at 11, 99 S.Ct. at 2617.

This court finds that section 6-306.1 is similarly indistinguishable from the statutes in either Dixon or Mackey. The private interest is the same as in Dixon and Mackey and does not by itself necessitate a pre-suspension hearing. See 431 U.S. at 113, 97 S.Ct. at 1727. Paragraphs 6-306.1 and 2-118(a) provide numerous safeguards against erroneous deprivation both due to unfounded traffic citations and to clerical mistakes. The Secretary suspends the license only after an Illinois court issues a warrant because the licensee has at least ten outstanding parking tickets. The clerk of the issuing court must send notice of the warrant to the licensee at least sixty days before the Secretary receives any information. The forms used to notify the Secretary whose licenses should be suspended must contain detailed information about the licensee.

These safeguards operate in two ways. First, they ensure that the licensee gets many chances to challenge the underlying allegations of parking violations. Ten tickets and a warrant must issue at least sixty days before the Secretary even receives the information leading to suspension. The licensee has procedures to challenge both the tickets and the warrant. Second, before the deprivation, several different state agencies and many individuals review the licensee’s file. At least ten tickets issue, a court swears out a warrant, and the Secretary gets notice of both. The different procedures provide several opportunities to identify mistakes and preclude individual biases.

The plaintiff argues that these protections are not enough because there is no guarantee that the licensee receives notice of the tickets and the warrant. This argument fails for two reasons. First, the Constitution provides only the right to an opportunity to be heard. E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171-72, 71 S.Ct. 624, 648-49, 95 L.Ed. 817 (1951) (Justice Frankfurter concurring). The court concludes that the many safeguards in the statute provide this opportunity. Second, even if the court assumed that the statute has an unconstitutional result when a licensee failed to receive notice of the tickets or the warrant, Pempek’s complaint lacks any allegations that he was unaware of the pending tickets or the warrant. If he was aware of these charges against him, he lacks standing to raise the claim that the statute is unconstitutional because, in fact, it denies some licensees an opportunity to be heard.

The added value of a pre-suspension hearing before the Secretary is minimal. Given the procedures in the statute and sixty-day waiting period, the driver already has several chances to plead his case before suspension. Adding another notice and hearing procedure would only duplicate those provided in connection with the ten parking ticket violations and the warrant. If the driver learns of his suspension, the chances are great that he knew of the warrant since the court clerk and the Secretary direct their notices to the same address. Requiring the Secretary to repeat what the clerk did sixty days previously creates needless expense.

The State of Illinois (the State) has an interest in keeping drivers off the road who flout enforcement of local parking ordinances. Parking laws protect the smooth flow of traffic and allow a city to make maximum use of limited parking spaces. Those individuals who receive parking ticket after parking ticket without paying the resulting fines or challenging their validity show disrespect for parking laws. The State has an interest in responding to such disrespect. The State needs to retain some control over whom it licenses. Paragraph 6-306.1 requires the Secretary to suspend a license only when a driver refuses to respond to repeated charges that the driver interfered with the safety and efficiency of the roads.

These factors all support the constitutionality of paragraph 6-306.1. Plaintiffs claim that the issuance of a warrant does not mean that the licensee will get a predeprivation hearing because, before the hearing, the person “must surrender to the custody of police and post a bail bond equivalent to the cash fines of all outstanding tickets.” Plaintiffs’ Memorandum at 2. What plaintiffs misunderstand is that the suspension of the license is the deprivation at issue in this case. If licensees fail to receive notice of the warrant or the tickets before they are arrested, the constitutional problem, if any exists at all, is with the ticket and warrant procedure, not the suspension procedure.

Therefore, the court finds that paragraph 6-306.1 survives plaintiffs’ constitutional challenge under the due process clause.

The charge that paragraph 6-306.1 is a bill of attainder poses novel questions. Article 1, section 10, of the United States Constitution states that “[n]o State shall pass any Bill of Attainder.” “A bill of attainder is a legislative act which levies punishment against specified individuals or groups of individuals without a judicial trial.” E.g., Benboe v. Carroll, 494 F.Supp. 462, 465 (W.D.Ky.1977), aff’d, 625 F.2d 737 (6th Cir.1980). This court has noted before that “[a] law of general applicability is not unconstitutional merely because its enactment was inspired by a specific example of the evil which it seeks to suppress.” Collin v. Smith, 447 F.Supp. 676, 682 n. 4 (N.D.Ill.) (Judge Decker), affd, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264 (1978).

Pending before the United States Supreme Court is the case of Selective Service System v. Minnesota Public Interest Research Group, — U.S. —, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984). In that case, the district court held that plaintiffs demonstrated a probability of success on the merits of their claim that section 1113 of the Department of Defense Authorization Act (the Act) is a bill of attainder. Doe v. Selective Service System, 557 F.Supp. 937, 941-46 (D.Minn.1983). That portion of the Act requires male college students to certify they have registered for the draft before they qualify for federal financial aid. Id. The Supreme Court heard arguments on April 23, 1984.

This court feels that the Supreme Court’s disposition of Minnesota Public Interest Research Group will clarify whether section 6-306.1 is a bill of attainder. See 52 U.S.L.W. 3813-14 (U.S. May 15, 1984). Therefore, the court will stay further proceedings on plaintiff’s bill of attainder claims against Edgar until the Supreme Court acts on Minnesota Public Interest Research Group.

B. Constitutionality of Chicago’s Bail Bond Policy

The complaint alleges that the City’s bail bond policy violates the due process clause because the policy conflicts with Illinois law regarding bail. Paragraph 7 of the amended complaint states that “[u]nder Illinois Supreme Court Rule 528, the bail for ordinance violations shall be $50.00 and Illinois Supreme Court Rule 503(a) governing multiple charges specifically provides that bail shall be set at the amount required by only one offense, that offense requiring the most bail.” Rule 503(a) applies only to those cases where “the bail is established for [the] ... offense under Rule 526, 527, or 528.” Ill.Sup.Ct.R. 503(a). Therefore, Pempek argues, his $400.00 bond was excessive.

Pempek fails to explain that the following precedes the bail schedules that he discusses:

PARTB. BAIL SCHEDULES
NOTE: The bail provisions of Rules 526, 527, and 528 do not apply to arrests on warrant____ When the accused is actually brought before a judge, the bail amounts specified in these rules do not control.

Ill.Rev.Stat. ch. 110A; see also Ill.Rev.Stat. ch. 38, 110-5 (establishing criteria for determining the amount of bail). The first paragraph of the complaint alleges that Pempek was arrested pursuant to a warrant. Therefore, Pempek’s arguments about his bail being excessive under the due process clause are meritless.

The bill of attainder arguments are similarly meritless. Pempek asserts in his brief that the bail bond scheme is a mere sham because the bail notice merely refers the driver to a clerk who forces the driver to sign a guilty waiver and pay his delinquent tickets. The complaint, however, alleges that, in fact, Pempek appeared before a judge who continued the trial. The court refuses to incorporate Pempek’s memorandum into his complaint that contains a completely different description of the procedure. A single continuance because the City was unprepared hardly violates the bill of attainder clause. The single continuance was not a legislative act and did not deprive Pempek of a trial.

The court dismisses the claims against the City.

III. Conclusion

For the reasons above, the court grants the City of Chicago’s motion to dismiss and dismisses the claims against the City. In accordance with the above, the court stays further proceedings with respect to the claims against Edgar.

ON MOTION TO DISMISS

Raymond Pempek (Pempek) and Gary Sternberg (Sternberg) brought this section 1983 action against the City of Chicago (the City) and Jim Edgar, the Illinois Secretary of State (Edgar or the Secretary). Plaintiffs claim that Edgar violated their civil rights by revoking their driver’s licenses under Ill.Rev.Stat. ch. 95½, ¶ 6-306.1 (1983). That statute requires the Secretary to revoke a person’s license when Edgar receives notice that the person has ten or more unpaid parking tickets.

On June 6,1984, the court concluded as a matter of law that the statute withstood a procedural due process challenge under the fourteenth amendment. To avoid repetition, the court incorporates the factual discussion in that opinion into this one. Decision was stayed, however, on whether the statute constituted a bill of attainder in violation of art. 1, § 10 of the United States Constitution. On July 5, 1984, the Supreme Court decided Selective Service System v. Minnesota Public Interest Research Group, — U.S. —, 104 S.Ct. 3348, 3358, 82 L.Ed.2d 632 (1984) [hereinafter MPIR ] and clarified what constitutes a bill of attainder. The parties briefed the applicability of that case to Pempek’s complaint and defendants’ motions to dismiss.

I. Discussion

In MPIR, plaintiffs challenged section 1113 of the Department of Defense Authorization Act of 1983 which denied male college students federal financial aid if they failed to register for the draft. The district court found that the law constituted a bill of attainder. 104 S.Ct. at 3352. The Supreme Court disagreed. Id. at 3352-58. After reviewing the history of the bill of attainder clause, the Court listed “three necessary inquiries [to determine whether a statute is a bill of attainder]: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes’; and (3) whether the legislative record ‘evinces a congressional intent to punish.’ ” Id. at 3355-56.

The statute conformed with none of the three criteria that define a bill of attainder. 104 S.Ct. at 3356-58. First, section 1113 imposed no burden historically associated with punishment because it only denied “a non-contractural governmental benefit.” Id. at 3356. In addition, the denial of the benefit was only temporary, and the students could avoid the sanction by registering. Id. Second, Congress furthered the non-punitive goal of encouraging young men to register. Id. at 3356-57. Section 1113 was a rational means of achieving this goal. Id. at 3357. The provision also facilitated fair allocation of resources by limiting aid to students willing to discharge their responsibility as citizens. Id. Finally, Congress evinced no punitive intent. Id. Comments by Congressmen demonstrated a desire to regulate all non-registrants, including those who unintentionally neglected to register. Id.

As in MPIR, paragraph 6-306.1 possesses none of the three characteristics of a bill of attainder. First, Pempek and Sternberg have the power to avoid forfeiture of their licenses by “satisfying” the warrants. Ill.Rev.Stat. ch. 95½ ¶ 6-306.1. Satisfying the warrants means either paying the tickets or posting bond. The loss of the license is not a punitive or permanent confiscation that legislatures historically used to punish. See 104 S.Ct. at 3356. As with section 1113, the statute in this case punishes no one for getting too many tickets. It encourages individuals to pay their tickets and removes from the road individuals who, according to state records, have too many citations.

For similar reasons, the statute furthers non-punitive goals. As discussed in the court’s first opinion, paragraph 6-306.1 allows the state to retain control over whom it licenses. Memorandum Opinion and Order of June 6, 1984 at 10. The law provides a way for the Secretary to react against disrespect for traffic laws and procedures.. By providing this tool to the Secretary, the legislature ensures that only qualified drivers possess driver’s licenses. Paragraph 6-306.1 also provides a rational incentive to aid the Secretary in tracing delinquent drivers and resolving pending traffic tickets.

Plaintiffs provide no persuasive argument that the drafters of paragraph 6-306.1 evinced a punitive intent. The legislature incorporated a simple means for the licensee to avoid the loss of his license: satisfaction of the warrant. Had the legislature intended to punish ticket scofflaws, it would have precluded them from recovering their licenses. It would have confiscated licenses without a way to secure their return.

The MPIR analysis clarifies that paragraph 6-306.1 fails to qualify as a bill of attainder. Based on the allegations in the complaint, the court is unable to conclude that this statute, on its face, is a bill of attainder. Because this was the only claim remaining in the complaint, its dismissal ends the case.

II. Conclusion

For the reasons above, the court grants the motion to dismiss. The case is dismissed.

      . See infra note 2 and accompanying text.

      . The Dixon parties agreed that the licensee eventually received all the hearings to which he was entitled under ¶ 2-118(a) and (e). 431 U.S. at 112, 97 S.Ct. at 1727. The only question was one of timing. Id. Here, the plaintiffs contend that the statute precludes all hearings. Edgar admitted that the State would give a licensee a hearing under ¶ 2-118(a) if asked. Although the statute says the suspension will occur without a hearing, this provision does not preclude a ¶ 2-118(a) hearing to determine whether the Secretary complied with paragraph 6-306.1. The complaint lacks any indication that Pempek asked the Secretary for a hearing regarding the suspension.
      Pempek argues that the Illinois Administrative Review Act (the Act) is inapplicable because the statute requires suspension of the license and the state agency, since it has no discretion regarding the suspension, issues no order as required by the Act. Paragraph 6-306.1 itself does not suspend the license; it requires the Secretary to suspend the license. Therefore, the suspension is an action by the Secretary reviewable under the Act.
      The Secretary cannot lift the suspension until the warrant is satisfied. Satisfaction of the warrant means either that the licensee pays the fines after receiving an opportunity to be heard at a hearing regarding the warrant or the licensee is vindicated at such a hearing. If, however, the Secretary suspends the license without complying with paragraph 6-306.1, an administrative review hearing provides a mechanism for the Secretary to correct his mistake. Therefore, the licensee gets a hearing both on whether the licensee committed the offense charged in the warrant and on whether the Secretary conformed with paragraph 6-306.1.
      With Edgar’s representation, the allegations in the complaint, and the court’s reading of the statute, the court need only consider whether the statute violates the Constitution because it precludes a pre-suspension hearing. See generally Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 165, 71 S.Ct. 624, 645, 95 L.Ed. 817 (1951) (Justice Frankfurter concurring) (”[S]tatutes should be interpreted, if explicit language does not preclude, so as to observe due process in its basic meaning.”) (citations omitted). The only issue is one of timing.

      . Although plaintiffs’ brief denies it, the amended complaint lacks any allegation tying Stern-berg to the City. Therefore, the court concludes that Sternberg raises no cause of action against the City.


author: JOHNSTONE, District Judge.

text:
    Joseph E. DECKER, Plaintiff, v. UNITED STATES POSTAL SERVICE, and William T. Bolger, Postmaster General, United States Postal Service, Individually and in his official capacity, Defendants.
    Civ. A. No. 82-0129-P.
    United States District Court, W.D. Kentucky, at Paducah.
    July 6, 1984.
    Brenda Gail Lowe, Western Kentucky Legal Services, Inc., Paducah, Ky., for plaintiff.
    John Wilson, Asst. U.S. Atty., Louisville, Ky., for defendants.
   MEMORANDUM AND ORDER

JOHNSTONE, District Judge.

Mr. Decker claims that he suffered discriminatory treatment while employed at the United States Post Office in Mayfield, Kentucky. Prior to his complaint in this court, Decker attempted to present his charges through Equal Employment Opportunity channels; however, his administrative complaint was ultimately dismissed as untimely. The matter is now before the court for a determination of whether Decker’s charge should be deemed timely. Jurisdiction is based upon 42 U.S.C. § 2000e-16(c). For the reasons given below, the court concludes that Decker’s claim should be accepted as timely.

BACKGROUND

Decker was hired by the post office on September 6,1980, and discharged on October 31, 1980. After his discharge Decker desired to protest the way he had been treated by the post office; however, although he was aware that some procedure existed for making protests and presenting claims of discrimination, he was not aware of the specific requirements for presenting a claim. (Affidavit of Joseph Decker at 2). Hoping to discover the proper procedures, Decker immediately contacted the Postal Union Steward in Mayfield and his former supervisor in Mayfield. Neither man was able to provide Decker with the information he required. (Decker Affidavit at 2). Decker’s supervisor did permit him to take a look at the employee bulletin board at the post office, but Decker did not discover the necessary information. (Decker Affidavit at 2). The board should have contained an EEO poster informing employees of their rights regarding employment discrimination and specifically indicating the time requirements. In spite of Decker’s failure to find the information, there is evidence that the poster was on the board, based on testimony that the information was routinely posted as it came in, and testimony by an employee hired the same day as Decker that she routinely read the bulletin board and knew how to file a discrimination charge within two months after she was hired. (Testimony of Postmaster Harry Boaz, Pam England).

During the thirty days' after his discharge Decker continued his efforts to ascertain the proper procedures for filing his claim. For example, he sent letters to several local post offices, the Kentucky Human Rights Commission and the local Veterans Service Office, as well as to other offices and officials. (Decker Affidavit, Testimony of Joseph Decker). He also wrote to the Veterans Administration in Washington and the Postmaster General of the United States, William Bolger. (Decker Affidavit, Ptf.Exb. # 2a, 3). In spite of numerous inquiries Decker did not obtain the necessary information for pursuing his claims. (Decker Affidavit at 2-5, Ptf.Exb. # 2b, 3).

Decker continued to seek the needed information even after the thirty-day period immediately following his discharge had expired. (Decker Affidavit, Ptf.Exb. #8). His efforts ultimately led him to contact Mr. John Helem of Chicago, Illinois, in January of 1981. (Decker Affidavit at 5). He explained his situation to Helem and was informed that a charge of discrimination had to be brought within thirty days after the act complained of. (Decker Affidavit at 5). According to Decker, Helem also told him not to worry about the time requirement. (Decker Affidavit at 5). Decker followed his phone conversation with Helem with a brief letter to Helem. (Ptf.Exb. # 6). During their phone conversation, Helem also asked Decker to contact Edward McClellan, an EEO official in Chicago. (Decker Affidavit at 5). Decker did contact McClellan and received a response dated February 10, 1981. (Ptf.Exb. #7). That response described the criteria for filing a discrimination claim and referred Decker to an EEO counselor in Louisville, Kentucky — Mr. John D. Clark. (Ptf.Exb. #7). Decker contacted Clark and Clark assisted him in filling out a complaint. (Decker Affidavit at 6).

After speaking with Clark, Decker was contacted by Anthony Bennett, an EEO counselor. (Decker Affidavit at 6). Bennett investigated Decker’s complaints, but could not resolve the problem. (Ptf.Exb. # 21). He advised Decker of his right to file a formal complaint. (Ptf.Exb. #21). Decker filed a formal complaint on April 15, 1981; however, it was rejected as untimely and non-purview. (Ptf.Exb. #22). Decker appealed the rejection to the Equal Employment Opportunity Commission, but the appeal was unsuccessful. (Ptf.Exb. #28). The EEOC upheld the rejection based upon the finding of untimeliness and chose not to reach the purview issue. (Ptf. Exb. # 28).

DISCUSSION

In order to properly present a claim of discrimination, a claimant must bring his claim to the attention of an EEO counselor within thirty days after occurrence of the alleged discrimination. 29 C.F.R. § 1613.-214(a)(i). As already stated, the question in this case is whether Decker met this requirement or whether he should be excused from complying with the requirement. Decker presents three arguments in support of his contention that his complaint should be deemed timely.

First, Decker argues that because he wrote to Postmaster General Bolger within the required thirty days, and because Bolger is ultimately responsible for all postal employees, including those in the postal EEO, his complaint was sufficiently brought to the attention of the EEO. Decker offers no cases to support this novel theory. The court concludes that Decker’s letter to Bolger was not sufficient to bring the matter “to the attention of the Equal Employment Opportunity Counselor” as required by 29 C.F.R. § 1613.-214(a)(i).

Second, Decker contends that his failure to contact an EEO counselor within thirty days should be excused because he was not made aware of the time requirements. He relies upon an express exception in the regulations stating:

The agency shall extend the time limits in this section: (i) When the complainant shows that he was not notified of the time limits and was not otherwise aware of them, or that he was prevented by circumstances beyond his control from submitting the matter within the time limits; or (ii) for other reasons considered sufficient by the agency.

29 C.F.R. § 1613.214(a)(4). In response to Decker’s argument, defendant contends that the time requirements were posted on the post office bulletin board and that this was sufficient to notify Decker of the requirements and to deprive Decker of any entitlement to the extension contained in 29 C.F.R. § 1613.214(a)(4).

Initially, the court concludes that Decker was subjectively ignorant of the time requirements. This conclusion is based on Decker’s own testimony as bolstered by his demonstrated efforts to present his claim. In other words, Decker’s extensive efforts to discover the proper procedures for bringing his claim go against finding that he knew of the time requirements and merely failed to comply with those requirements. It is unlikely that someone as intent to present a claim as Decker would simply ignore the proper procedures if he was aware of them. Subjective ignorance alone, however, does not automatically entitle Decker to the exception in 29 C.F.R. § 1613.214(a)(4). Myles v. Schlesinger, 436 F.Supp. 8, 16-17 (E.D.Pa. 1976). Instead, the court concludes that subjective ignorance must be viewed against the notification that was provided concerning the time requirements. See generally Myles, 436 F.Supp. at 16-17. The only evidence of notification offered to this court was testimony that an EEO informational poster was routinely kept on the employee bulletin board. The court accepts that the poster was on the board during Decker’s employment; however, this is not conclusive on the issue of Decker’s entitlement to the extension in 29 C.F.R. § 1613.214(a)(4). See Myles, 436 F.Supp. at 16-17. See generally Ettinger v. Johnson, 556 F.2d 692, 698 (3d Cr.1977). But see Golden v. United States Postal Service, No. 83-07-Civ.-J-12 (M.D.Fla. Nov. 18, 1983). In the light of Decker’s subjective ignorance and defendant’s attempted notification by the use of the bulletin board poster, the question becomes whether the bulletin board poster notice was “reasonably geared” to inform Decker of the time requirements. Myles, 436 F.Supp. at 17. See generally Ettinger, 556 F.2d at 698.

The evidence demonstrated that the only notice provided to Decker was a single poster inconspicuously placed upon a bulletin board containing numerous other items. There was no evidence before this court that Decker was informed of his rights in any other manner or that he was informed that his rights were contained on the bulletin board. Based upon these specific circumstances, the court concludes that the notice provided to Decker was insufficient to inform him of the thirty-day requirement. See Ettinger, 556 F.2d at 698; Myles, 436 F.Supp. at 17-18. Therefore, Decker is entitled to the extension in 29 C.F.R. § 1613.214(a)(4).

Third, Decker also argues that the defendant should be estopped from asserting untimeliness as a defense. In light of the holding that Decker was entitled to the statutory extension, the court concludes that there is no reason to reach the estoppel issue. '

Having concluded that Decker’s complaint should be accepted as timely, the court further concludes that the best procedure is to remand this action back to the EEOC for consideration of Decker’s claims. See Bragg v. Reed, 592 F.2d 1136, 1139 (10th Cir.1979).

IT IS ORDERED:

1. Decker is entitled to the exception contained in 29 C.F.R. § 1613.214(a)(4) and his complaint shall be accepted as timely.

2. This action is REMANDED to the Equal Employment Opportunity Commission for consideration of the claims presented.

      . In reaching its decision the court considered the entire record, including the testimony and other evidence presented at the evidentiary hearing conducted on March 1, 1984.


author: RICE, District Judge.

text:
    In the Matter of the Complaint for a Writ of Habeas Corpus for Herbert D. BRUMFIELD, Petitioner.
    No. C-3-83-150.
    United States District Court, S.D. Ohio, W.D.
    July 26, 1984.
    Thomas L. Crowl, Ashley C. Brown, Dayton, Ohio, for petitioner.
    Julia Clay, Child Support Enforcement, Dayton, Ohio, for respondent.
    Catherine B. Wilder, Ken Pohlman, Asst. Pros. Attys., Dayton, Ohio, for defendant.
   DECISION AND ENTRY DISMISSING CAPTIONED CAUSE DUE TO MOOTNESS; TERMINATION ENTRY

RICE, District Judge.

The Petitioner’s Brief, filed on March 17, 1983 (Doc. # 3) on the issue of mootness, reveals the following facts which, although not stipulated to by and between the parties or proven in Court, are adopted as true for the purposes of this Decision and Entry:

1. The Petitioner was divorced in Montgomery County, Ohio, on August 29, 1978, by Order of the Montgomery County Domestic Relations Court. The final Order of that Court required him to pay the sum of $50.00 per week in child support. He was unrepresented in the matter of his divorce and was unemployed at that time.

2. On May 27, 1982, the Montgomery County Prosecutor filed a show cause order, in the Domestic Relations Court, alleging an arrearage for non-payment of support in the sum of $9,552.00. The matter was heard before a Referee of the Domestic Relations Court on June 23, 1982. The testimony indicated that the Petitioner had been unemployed since 1976, that he lived with his sister, and that his sole income consisted of Veterans Administration job-seeking funds and bus tokens. The Domestic Relations Court found Petitioner in contempt and imposed a sentence of ten (10) days in jail. The ten (10) day jail sentence was suspended pending further review on August 22, 1982.

3. On August 25, 1982, the Court again continued the matter upon proof that Petitioner was looking for work, and set November 3,1982, as the new date for review. On that date, Keith Hall, Referee of the Domestic Relations Court, found that Petitioner had secured three weeks of employment during the previous three-month period. Based upon said finding, the Referee, once again, held Petitioner in contempt and recommended sentencing him to serve the ten (10) days originally imposed on June 23, 1982, and ten (10) additional days to be served consecutively. On November 23, 1982, Judge Lillian Kern of the Domestic Relations Court approved the Order of the Referee and issued an Order of Confinement.

4. At all hearings, during all proceedings, and at all times pertinent hereto as described above, Petitioner was not represented by counsel. The Court, at no time, advised Petitioner of any of his rights, including his Sixth Amendment Right to Counsel.

5. On February 12, 1983, Petitioner was confined for twenty (20) days to the Montgomery County jail, pursuant to Judge Kern’s Order of November 23, 1982.

6. On February 22, 1983, the Petitioner filed his Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, asserting that he was in confinement under a State Court Order, that he was denied his right to counsel under the Sixth Amendment to the United States Constitution, that he was indigent and that he was without remedy in the Courts of the State of Ohio.

7. On February 24, 1983, at 2:33 P.M., this Court issued its Order directing the Respondent to show cause why the Petitioner’s application for Writ of Habeas Corpus should not be granted. A Show Cause hearing was set for Friday, February 25, 1983, at 1:30 P.M. On the same date that this Court issued its Show Cause Order, at 3:24 P.M., Judge Guy Cline, a visiting Judge sitting for Judge Lillian Kern in the Court of Domestic Relations of Montgomery County, Ohio, issued an Order suspending the further imposition of sentence and released Petitioner from confinement. Judge Cline’s Order reads, in full, as follows:

For good cause shown the unexecuted portion of the sentence of jail is hereby suspended and HERBERT D. BRUMFIELD is hereby ordered released instanter.

8. The Petitioner was immediately released.

The issue before this Court is whether the Petitioner may continue his action in Habeas Corpus, where the balance of his sentence has been unconditionally suspended and he has been released from confinement.

The captioned cause must be dismissed due to mootness. The language of Judge Cline’s Order, quoted above, clearly reveals that the suspension of the unexecuted portion of the sentence is unconditional and not contingent or conditioned upon a future event or course of conduct on the part of the Petitioner, i.e. conditioned upon the Petitioner obeying further orders of the Court, making payments on the arrearage on child support, etc. Indeed, based upon the wording of the Order in question, it is clear that the Domestic Relations Court would be legally powerless to seek to impose or to execute the suspended portion of the sentence. Therefore, regardless of the wording used by Judge Cline, any purported distinction between his use of the word “suspended” as opposed to “vacated” is a distinction without a difference, in that the legal effect is the same — the balance of the Petitioner’s sentence is suspended. Since no condition is attached to that suspension, same is unconditional and the Petitioner can never legally be required to serve the balance of the sentence.

No collateral consequences of the confinement are possible, given the factual situation as it exists in the case at bar. The Petitioner has not sought to vacate either the conviction or the sentence, but merely the execution thereof. The vacation of the execution of this sentence has already been accomplished by Judge Cline’s Order.

The factual situation that exists in the captioned cause differs from that which existed in two seemingly similar cases decided within the Southern District of Ohio and, therefore, compels a result different than was reached in those cases. In both Young v. Whitworth, 522 F.Supp. 759 (S.D. Ohio, W.D.1981) and Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio, W.D.1981), Judges Hogan and Spiegel, respectively, recognized that when an indigent father is faced with imprisonment on contempt charges for non-support, counsel must be provided to him. However, in both cases, mootness was not at issue, in that there was an agreement in each case to stay the proceedings (the petitioner’s incarceration upon a finding of contempt for non-support), pending the resolution of the underlying litigation testing the question of the Petitioner’s right to court-appointed counsel in civil non-support cases.

WHEREFORE, based upon the aforesaid, generally, and specifically upon the fact that the Petitioner is not in custody at present and that, by virtue of the unconditional suspension of the balance of his sentence for contempt of Court, there are and can be no collateral consequences to the Petitioner from the original sentence of confinement, it is the Opinion of this Court that the captioned cause is moot, within the law and same is, therefore, dismissed, with prejudice to a new action.

The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.

      . The underlying substantive issue (the right of an indigent parent, faced with imprisonment on contempt charges for non-support, to have counsel provided to him, is no longer subject to dispute.) Young v. Whitworth, supra; Mastin v. Fellerhoff, supra; the State ex rel. Cody v. Toner, Judge, 8 Ohio St.3d 22, 456 N.E.2d 813 (1983), holding that "[t]he denial of court-appointed counsel for an indigent paternity defendant who faces the state as an adversary, when the complainant-mother and her child are recipients of public assistance, violates the due process guarantees of the Ohio and United States Constitutions."