author: ANNA DIGGS TAYLOR, District Judge.

text:
    Roosevelt HUDSON, Jr., Bruce Dye, William Martin-El, Charles Henderson, Plaintiffs, v. Perry JOHNSON, individually and in his capacity as Director of the Michigan Department of Corrections, Barry Mintzes, individually and in his capacity as Regional Administrator of Southern Michigan Prison, Daniel Trudell, individually and in his capacity as Deputy Warden of Southern Michigan Prison, Duane Sholes, individually and in his capacity as Deputy Warden of Southern Michigan Prison, Tom Taylor, individually and in his capacity as Resident Unit Manager of Southern Michigan Prison, Tim Bailey, individually and in his capacity as Resident Unit Manager Aid of Southern Michigan Prison, Tom Wojton, individually and in his capacity as Resident Unit Manager Aid of Southern Michigan Prison, Larry Burkhart, individually and in his capacity as Correctional Specialist of Southern Michigan Prison, Simon Morris, individually and in his capacity as Correctional Specialist of Southern Michigan Prison, Frank J. Kelly, individually and in his capacity as Attorney General for the State of Michigan, Defendants.
    No. 81 71171.
    United States District Court, E.D. Michigan, S.D.
    Oct. 21, 1985.

      William D. Martin-El, Roosevelt Hudson, Bruce Dye, Charles Henderson, plaintiffs in pro per.

      Robert Willis, Jr. Asst. Atty. Gen., Lansing, Mich., for defendants.
   MEMORANDUM OPINION AND ORDER

ANNA DIGGS TAYLOR, District Judge.

Plaintiffs in this 42 U.S.C. § 1983 action are Roosevelt Hudson, Jr., Bruce Dye, William Martin-El and Charles Henderson; all of whom were inmates at the State Prison of Southern Michigan (SPSM) at the time the complaint was filed. Plaintiffs allege that various officials and employees of the Michigan Department of Corrections and the State Attorney General violated plaintiffs’ constitutional rights in connection with the following chain of events.

On January 17, 1981, while all plaintiffs were residents of housing unit number 7, defendant Burkhart confiscated a 10 and lk inch long prison-made weapon similar to an ice pick from a trash container located on the unit. Approximately ten minutes later, while both were working at a desk in a common area, defendant Burkhart, apparently in an attempt to gain plaintiff Dye’s attention, poked him in his side twice with the weapon. It is also alleged that defendant Morris, the officer in charge of unit 7 at the time, witnessed the incident but made no attempt to prevent it; nor did he report it.

Plaintiffs Martin-El and Henderson witnessed the incident and conferred with plaintiff Dye regarding what action to take to prevent this type of conduct. Plaintiff Dye, with the help of plaintiff Hudson (who was not a witness to the incident), wrote a grievance and gave it to plaintiff Hudson. Plaintiffs Dye, Martin-El and Henderson executed written statements regarding the assault in the presence of Department of Corrections’ investigators.

On January 21, 1981, plaintiff Dye was transferred to Northside Complex. Prior to the transfer, plaintiffs allege that defendant Taylor called plaintiffs Dye and Hudson into his office and demanded that they give him the grievance. Plaintiffs refused and the grievance was sent to Lansing in accordance with Dye's wishes. While being escorted to Northside Complex, plaintiff Dye alleges that defendant Trudell repeatedly suggested that he drop the grievance and forget about the incident.

Plaintiffs further alleged that on the morning of January 21, 1981, defendant Burkhart threatened plaintiff Martin-El, telling him to expect future harassment. That afternoon, Martin-El received a ticket from Burkhart for possession of non-dangerous contraband and a warning or threat that this was the first of many tickets he would receive. On the same day, plaintiffs claim that for no apparent reason, plaintiff Henderson was searched four times by defendant Burkhart and his cell also was repeatedly searched. Plaintiff Hudson alleges that defendant Morris has threatened him and plaintiff interprets these threats to mean he will be killed. He informed defendants Johnson, Mintzes and Kelley of his need for protection from retaliation but received no response.

An administrative investigation of the incident involving defendant Burkhart and the ice pick was conducted under the direction of defendant Trudell. As a result of the investigation, defendant Burkhart was given a written reprimand and a transfer to a different housing unit.

Plaintiffs claim violation of their First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendment rights. They allege denial of access to the courts, pain, suffering, psychological distress, deprivation of medical attention and denial of meaningful rehabilitation as a result of their fear of retaliation. They specifically allege that they have been denied equal protection and due process of law by Attorney General Frank Kelley in his dereliction of the duty to protect them. Plaintiff Dye asserts that his transfer to another housing unit resulted in denial of his rights to education and employment with resultant loss of earnings. Plaintiffs seek injunctive and declaratory relief and damages of one billion dollars.

Defendants have filed a motion for judgment on the pleadings seeking dismissal pursuant to Federal Rule of Civil Procedure 17(a), asserting that plaintiff Dye is the only plaintiff who is a real party in interest because he is the only party who can claim injury.

Dismissal on these grounds, however, is improper.

[W]hen governmental action is attacked on the ground that it violates private rights or some constitutional principle, the question whether the challenger is a proper party plaintiff to assert the claim rarely is analyzed in terms of real party in interest or capacity principles.

6 Wright & Miller, § 1542 (1971) and Supp. 1985.

To determine whether the requirement that the action be brought by the real party in interest has been satisfied, the court must look to the substantive law creating the right being sued upon to see if the action has been instituted by the party possessing the substantive right.

Id. § 1544.

Plaintiffs Hudson, Martin-El and Henderson brought this action pursuant to 42 U.S.C. § 1983 which imposes liability on persons acting under color of state law for injuries resulting from actions which deprive others of their constitutional rights. All plaintiffs in this case have clearly alleged constitutional deprivation. The sufficiency of their claims is properly challenged in a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to F.R.C.P. 12(b)(6) or in a motion for summary judgment pursuant to F.R.C.P. 56. Thus, the court will analyze plaintiffs’ allegations in accordance with the governing law applicable to those provisions.

The complaint does not specify which constitutional provision plaintiffs believe was violated by defendant Burkhart’s alleged assault on plaintiff Dye. Construing the complaint liberally as it must under Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the court will assume that plaintiff Dye is asserting a claim under the Eighth Amendment’s prescription against cruel and unusual punishment.

In Estelle v. Gamble, 429 U.S. 97, 102, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), the Supreme Court established the standard for evaluating Eighth Amendment claims as “punishments which are, incompatible with ‘the evolving standards of decency that mark the progress of a maturing society,’ (citations omitted) or which ‘involve the unnecessary and wanton infliction of pain’ (citation omitted).”

Plaintiff Dye’s complaint states no such injury. He does not allege an attempt on defendant Burkhart’s part to physically injure him. In his affidavit of July 21, 1981, plaintiff Dye states: “defendant Burkhart assaulted me with that 10 and V2 inch prison made knife to cause me fear of harm not physical harm but mental anguish, if his intention were to merely gain my attention he could have used his free arm for that ...”

Defendant Burkhart, in his sworn affidavit asserts that indeed it was his intention to gain plaintiff’s attention. Plaintiff Martin-El’s written statements on January 19 and 21, 1981 support defendant Burkhart’s assertion of intent. Martin-El describes Burkhart as smiling, refers to his manner as “joking or playing” and even his condemnation of the action is characterized as “irresponsible” and “disrespectful” rather than hostile. Plaintiff Henderson’s statement is similar. Likewise, in a letter to defendant Johnson, plaintiff Hudson states that the jab or poke did not break plaintiff Dye’s skin and that defendant Burkhart laughed the incident off.

In Johnson v. Glick, 481 F.2d 1028 (2d Cir.1973), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973), the court found that a prisoner’s allegation that an officer rushed into his cell, grabbed him by the collar and struck him twice in the head with something enclosed in his fist, stated a claim under the Eighth Amendment. In reaching its decision the court stated:

Certainly the constitutional protection is nowhere nearly so extensive as that afforded by the common law tort action for battery, which makes actionable any intentional and unpermitted contact with the plaintiffs person or anything attached to it (citation omitted) ...; still less is it as extensive as that afforded by the common law tort action for assault, redressing ‘Any act of such a nature as to excite an apprehension of battery’ (citation omitted). Although ‘the least touching of another in anger is a battery,’ (citation omitted) it is not a violation of a constitutional right actionable under 42 U.S.C. § 1983____ Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violated a prisoner’s constitutional rights. In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Id. at 1033.

A case within this circuit which relied upon Johnson is particularly applicable to the ease now before the court. In Howse v. DeBerry Correctional Institute, 537 F.Supp. 1177 (M.D.Tenn.1982), the complaint alleged that one prison employee shoved plaintiff and grabbed him so tightly by his shirt front that he suffered pain, and that another employee similarly grabbed plaintiff, pushed him down a corridor and poked him “harshly” in the chest while threatening him. In light of the Second Circuit’s reasoning in Johnson, the court determined that it must examine the totality of the factual setting in which the alleged constitutional violation occurred. After balancing all the factors and “considering especially the fact that plaintiff was in no way injured,” the court found no constitutional deprivation. Howse, at 1182.

Similarly, in Cotton v. Hutto, 540 F.2d 412 (8th Cir.1976), the court dismissed a claim based on allegations that “sadistic wardens” turned air conditioners on in the cell area while prisoners where showering because the charge alleged no substantial harm to anyone.

Considering the totality of the circumstances, the court finds no injury which rises to the level of a constitutional violation. There is no question that defendant Burkhart neither intended to, nor did he cause any injury to plaintiff Dye. Thus, defendants are entitled to summary judgment on this issue.

Plaintiff Dye next contends that his transfer from housing unit number 7 to Northside Complex violated unspecified constitutional rights. He claims that the transfer was in retaliation for his filing the grievance against defendant Burkhart and that it resulted in a loss of educational, economic and rehabilitative opportunities.

Plaintiff Dye does not specifically argue that he was entitled to a hearing prior to transfer. In fact, plaintiffs’ complaint, at paragraph 42, recognizes the unconditional right of prison officials to impose lateral transfers which do not involve an increase in the level of custody. In Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L. Ed.2d 451 (1976), the Supreme Court held that no liberty interest of a duly convicted prison inmate is infringed when he is transferred from one prison to another within a state, whether with or without a hearing, absent some right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrance of other specified events. “To hold that any substantial deprivation imposed by prison authorities triggers the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that have traditionally been the business of prison administrators rather than of the federal courts.” Id. at 225, 96 S.Ct. at 2538.

In this case, plaintiff Dye is protesting not a transfer to a different prison within the state, but a transfer to a different unit within the same facility. Neither M. C.L.A. § 791.265 nor Rule 791.4401 of the Michigan Administrative Code, which govern the transfer of prisoners in Michigan, limit the discretion of prison officials regarding intra-state prison transfers. Applying the reasoning in Meachum, plaintiff Dye’s complaint presents an issue even less appropriate for review by the federal judiciary. Referring to intra-state transfer, the Meachum court noted that “[transfers ... are made for a variety of reasons and often involve no more than informed predictions as to what would best serve institutional security or the safety and welfare of the inmate.” Id.

Moreover, plaintiff Dye’s allegations are contradicted by the affidavits of defendants Taylor and Bailey which state that plaintiff was actually transferred to a lower custody level. According to defendant Taylor’s uncontradicted affidavit, plaintiff Dye had been screened, cleared for, and placed on a waiting list for transfer from close to medium custody. His transfer was effectuated in compliance with the departmental policy of placing residents in the least restrictive level of custody and control. Thus, plaintiff did not even experience more burdensome conditions as a result of the transfer and therefore, cannot claim that he was subjected to disciplinary action in retaliation for filing his grievance. Prison officials have the authority to make such discretionary decisions regarding inmate transfers and therefore, plaintiff Dye’s claim must be dismissed for failure to state a claim upon which relief can be granted.

The claim common to all plaintiffs is that prison officials subjected them to threats and harassment in retaliation for reporting and filing a grievance regarding the January 17th incident. Plaintiffs claim that the retaliatory conduct has deprived them of their First Amendment right of access to the courts.

“It is now established beyond doubt that prisoners have a constitutional right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977). That right must be “adequate, effective and meaningful.” Id. at 822, 97 S.Ct. at 1495. In order to state a claim of constitutional deprivation, however, “it must first be shown that the proceeding involved access to the courts, Kershner [v. Mazurkiewicz], 670 F.2d [440] at 444, and that some actual injury, that is, an ‘instance in which an inmate was actually denied access to the court,’ Id., has occurred.” Hudson v. Robinson, 678 F.2d 462, 466 (3rd Cir.1982).

Addressing the issue of whether a prison’s photocopying policy restricted an inmate’s access to the courts, the Seventh Circuit held that the reasonableness of the policy “becomes relevant only after the prisoner has shown that the policy is impeding that access, for if it is unreasonable but not impeding he has not made out a prima facie case of violation of his constitutional rights.” Jones v. Franzen, 697 F.2d 801, 803 (7th Cir.1983). See also Kendrick v. Bland, 586 F.Supp. 1536 (W.D.Ky. 1984). Applying this standard, the court will examine each plaintiff’s claim individually.

A diligent reading of the complaint necessitates a finding that plaintiff Dye has failed to state a claim upon which relief can be granted because he has alleged no injury. He has pled no facts to indicate that his access to the courts was impeded. Plaintiff Dye does not allege that anyone threatened him. Rather, he bases his claim on the actions of defendant Taylor who “demanded” to see the grievance and the actions of defendant Trudell who repeatedly “suggested” that plaintiff drop the grievance.

It must be noted at the outset that plaintiff Dye did send his grievance to Lansing and it was acted upon. An investigation was commenced which resulted in defendant Burkhart being reprimanded and transferred. Thus, plaintiff cannot claim that he was denied access to the grievance procedure. Furthermore, plaintiff’s claim alleges official interference only with his use of the prison grievance procedure. The First Amendment, however, protects an inmate’s right of access to the courts. Plaintiff Dye has not alleged that anyone hampered his efforts to file a civil rights suit in district court. The action now before this court was filed in 1981 and has proceeded without incident. A federal civil rights action does not require exhaustion of administrative remedies. Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968) (per curiam); Wilword-ing v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam). Thus, regardless of whether defendant’s actions inhibited pursuit of plaintiff’s grievance, his access to the courts was unaffected.

The allegations of the remaining plaintiffs are equally without merit. None allege interference or reprisal as a result of filing a federal civil rights suit. Moreover, neither plaintiffs Martin-El, Henderson nor Hudson ever even filed a grievance. Plaintiffs Martin-El and Henderson merely executed written statements based on their witnessing of the incident and plaintiff Hudson’s role was to assist plaintiff Dye in preparing the grievance.

Finally, the discipline allegedly imposed on plaintiffs which they characterize as retaliatory, was in each case, justifiable discretionary action. Plaintiff MartinEl recites one incident in which he was issued a ticket for the possession of non-dangerous contraband as the retaliatory action to which he was subjected. Yet, the complaint admits that plaintiff did indeed possess the contraband article. An allegation that the imposition of the appropriate disciplinary sanction for an admitted rule violation constitutes retaliation is frivolous.

Plaintiff Henderson’s . claim is premised on repeated searches of his person and his cell on January 21st. The uncontroverted affidavit of • defendant Burkhart, however, states that plaintiff Henderson and a group of other inmates were searched because the odor of marijuana was emanating from the area in which they were located. Such a search is reasonable under the standard of Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). Clearly, the need for a “shakedown” under these circumstances outweighs the invasion of personal rights it entails. Additionally, the Supreme Court has held that “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.” Hudson v. Palmer, — U.S. —, —, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393, 403 (1984). Therefore, even if plaintiff Henderson’s cell was searched, the action does not state a cognizable constitutional claim.

Plaintiff Hudson’s claim is based on vague allegations of “threatening remarks” directed at him by defendant Morris. He asserts that defendant Morris called him a “troublemaker” and in referring to plaintiff stated that “one day he will get his.” Plaintiff Hudson admittedly “take[s] this to mean” the taking of his life, (emphasis added) Needless to say, this ascription of intent is conclusory. Even if the remark was made, there is nothing to connect the implied threat with plaintiff Hudson’s role in prosecuting plaintiff Dye’s grievance. Furthermore, there is no basis for plaintiff Hudson’s interpretation of the remark as a. murder threat. Although the court does not condone such remarks made by prison officials, it refuses to infer from such vague statements a violation of constitutional dimension.

The court having determined that plaintiffs in fact were not subjected to retaliatory action on the part of prison officials, it is unnecessary to address plaintiffs’ claim that they were denied equal protection and due process of law by Attorney General Kelley. Plaintiffs being in no danger, the Attorney General was not derelict in his duty to protect them.

Finding no claim cognizable under the Constitution, the court need not address the defense of governmental immunity as to defendants Johnson, Mintzes, Trudell and Sholes.

For the foregoing reasons, IT IS HEREBY ORDERED that plaintiff’s complaint and all pending motions be dismissed.

IT IS SO ORDERED.


source: Caselaw Access Project

author: BRIEANT, District Judge.

license: Public Domain

text:
    SHELBY RESOURCES, INC., Plaintiff, v. UNITED STATES POSTAL SERVICE and Postal Rate Commission, Defendants.
    No. 84 Civ. 8479 (CLB).
    United States District Court, S.D. New York.
    Oct. 21, 1985.
    Myron Engelman, White Plains, N.Y., for plaintiff.
    Richard Mark, Asst. U.S. Atty., Joseph F. Wackerman, U.S. Postal Service, David L. Ruderman, Postal Rate Com’n, Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

BRIEANT, District Judge.

During the Great Depression, there was a notice in common use sent out with past due invoices. This notice read: “Please pay us now, so that we can pay them, so that they can pay him, and he can pay you.” This notice called to the attention of the reader the well-known effect of the velocity of money. Prompt movement of money from customer to supplier, and investor to user is an essential cornerstone of our prosperity. As the velocity of money slows down, so does the gross national product of goods and services diminish.

The greatest single factor affecting the velocity of money is the Postal Service, because even today, notwithstanding the availability of wire services and automatic electronic transfer of funds, large quantities of payments are made by first class mail. Other activities affecting the level of economic activity, including the placement and receipt of orders for goods and services, are largely dependent on the United States mails.

No reasonable person denies that good, prompt and reliable postal service is essential to the welfare of our nation. It would also follow that such service should be furnished at a level of performance substantially equal to all business customers, and that the quality of service should not so vary between locations and communities as to discriminate in favor of some locations and communities and those who do business therein, as against others.

Having stated all of these self-evident truths, we must follow with another; not every wrongful omission or failure on the part of the government bureaucracy can be redressed in the United States District Court. The Executive Branch, and also the Legislative Branch in its legislative oversight activities, each bear a great responsibility for the quality and the equality of such services, and in the final analysis performance of governmental services in a fair and equal manner rests essentially on the sense of duty and moral obligation of those men and women who actually render the service.

As will be noted below, plaintiff, Shelby Resources, states a real and substantial grievance insofar as concerns its postal service. With minor exceptions, defendants do not dispute the factual contentions of Shelby. Defendant United States Postal Service moves for summary judgment in its favor and the Postal Rate Commission moves separately to dismiss for want of subject matter jurisdiction.

Shelby describes itself as a “full service financial organization.” As such, it receives at its office by first class mail, a substantial amount of payments, and frequent requests from patrons for service. Like most such businesses, Shelby starts its office operations at 9:00 A.M. or earlier, and opening the mail ordinarily would be the first order of business. Receipts must be recorded on the books and carried to the bank in order to obtain interest from day of deposit; requests for services must be placed in the course of fulfillment; and other business matters which arrive by mail, require attention of office personnel.

Plaintiff formerly had its office at Great Neck, New York where daily mail delivery was made to Shelby almost without exception, between 9:00 A.M. and 9:30 A.M. (Answering Affirmation, 1126).

On April 1, 1983 Shelby commenced doing business at No. 5 Waller Avenue, White Plains, New York. These premises are a brand new, substantial office building, recently constructed in what theretofore had been a largely residential or vacant area. The building is occupied by a number of unrelated tenants, besides Shelby, all of whom are dependent to one degree or another on mail service.

The premises are on a carrier route known as Route 0110, assigned to the White Plains Post Office. This route has existed for a long time, and at least prior to 1978. As of April 1985 it contained a total of 305 possible deliveries on the route. The business deliveries account for 63% of the total deliveries (the rest being residential), and the mail person arrives at 5 Waller Avenue when approximately 60% of the route has been served. Only 12 non-business or residential deliveries are made before the carrier arrives at Shelby’s building.

It is pointed out that although the official delivery policy and criteria for the establishment and extension' of delivery service to business areas do not specify a time of day when a business must receive delivery, it is clearly Post Office department policy to facilitate delivery to businesses “as early as possible, if it is economically feasible.” Essentially this means that when routes are created or adjusted, the business sections will be located insofar as possible at the portion of the route to be served first.

Shelby found that initially its mail arrived no earlier than 11:30 A.M. and as time passed it began to arrive later and later in the business day, sometimes as late as 3:00 P.M. Shelby has made numerous complaints to the Postal Service and also filed a complaint with the Postal Rate Commission. Within reason the officials have attempted to respond to these complaints, but it is clear that Shelby is not now receiving and is unlikely to receive in the near future, mail service of the same quality which it enjoyed in Great Neck, New York. This in turn creates a discrimination which is unwarranted, and unfair, having an adverse impact on businesses such as Shelby and its landlord, who compete in turn for customers and tenants with those other premises which enjoy the type of postal service which Shelby formerly had in Great Neck.

We need not look too far to find the cause of this breakdown in service. The Postmaster’s Affidavit, essentially the local response, made the point that the managing agents of the building could have participated in a voluntary program for centralized delivery points within this multi-tenanted office building, but refused to do so, so that the carrier is obliged to go from office to office on all three floors of the new building, delivering mail to the various tenants. Furthermore, plaintiff was invited to rent a Post Office box at its own expense, or to pay an additional charge for call privileges. This type of mail services gives the addressee immediate access whenever the Post Office is open, to all mail which has been sorted. Apart from the additional postal service fees connected with this service, personnel of the addressee must leave the place of business and go physically to the Post Office. A single trip at 9:00 A.M. will not be satisfactory, because all mail has not been placed in the post boxes or sorted by that hour. Accordingly, if window privileges or a post box were used, this plaintiff would have to make several trips to the Post Office during a business day at considerable expense not incurred by those similarly situated who are fortunate enough to have retained their offices in Great Neck.

It is also apparent that the particular carrier route, 0110, is overloaded with mail. According to the schedule for the route, the carrier should arrive at the building between 12:45 P.M. and 1:15 P.M.

Increased prosperity and new construction have increased the mail volume substantially in White Plains, according to the Postmaster, 22.4% compared to the last fiscal year. This naturally resulted in carriers being held at the Post Office longer than usual, sorting their routes and casing their mail for delivery. The later the carrier leaves the Post Office, the later he is likely to arrive at any particular customer. Essentially, the carrier will arrive at 5 Waller Avenue approximately two hours and 35 minutes after leaving the office each day, but the time that he leaves the office is likely to be delayed because of a chronic increase in workload.

The service being provided to Shelby is unlikely to improve and is probably not in violation of Post Office policy. There is no fixed time of day by which mail for business customers is required to have been delivered, in White Plains or anywhere.

The amended complaint herein founds subject matter jurisdiction upon the Postal Reorganization Act of 1976. 39 U.S.C. § 409, et seq. The only grant of district court jurisdiction found therein is § 409(a) of Title 39, which reads as follows:

“Except as provided in section 3628 of this title, the United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service. Any action brought in a State court to which the Postal Service is a party may be removed to the appropriate United States district court under the provisions of chapter 89 of title 28.”

Section 3628 of Title 39 contains a provision for direct review in the Court of Appeals of certain actions of the postal authorities, together with a limitation of judicial power. That section reads as follows:

“A decision of the Governors to approve, allow under protest, or modify the recommended decision of the Postal Rate Commission may be appealed to any court of appeals of the United States, within 15 days after its publication by the Public Printer, by an aggrieved party who appeared in the proceedings under section 3624(a) of this title. The court shall review the decision, in accordance with section 706 of title 5, and chapter 158 and section 2112 of title 28, except as otherwise provided in this section, on the basis of the record before the Commission and the Governors. The court may affirm the decision or order that the entire matter be returned for further consideration, but the court may not modify the decision. The court may not suspend the effectiveness of the changes, or otherwise prevent them from taking effect until final disposition of the suit by the court. No court shall have jurisdiction to review a decision made by the Commission or Governors under this chapter except as provided in this section.”

This Court concludes that these sections, read together, provide the sole remedy for a user of postal services who is not receiving adequate service or service equal to that furnished to others. We find no residual jurisdiction, on a due process theory or otherwise to deal with that portion of the controversy which concerns the United States Postal Service and agree generally with the similar analysis of subject matter jurisdiction expressed in Tedesco v. U.S. Postal Service, 553 F.Supp. 1387, 1390 (W.D.Pa.1983). Although we believe Shelby presents a genuine controversy, and that its rights are being adversely affected, in light of the Congressional expressions quoted above and analyzed in Tedesco, supra, this Court finds it has no subject matter jurisdiction to deal with the injury. Since we find no subject matter jurisdiction, there is no need to engage in the analysis of Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975) for purposes of determining whether a private cause of action exists for a violation of the statutory duty to provide prompt, efficient service, and the implied duty under the statute that customers similarly situated shall be treated equally.

We then consider so much of the complaint as is directed against the Postal Rate Commission.

On May 21, 1984, Shelby filed a complaint with the Commission alleging that consistent late delivery of mail violated certain provisions of the Postal Reorganization Act of 1970. As now interpreted by Shelby, this complaint sought to obtain a national standard for delivery of business mail between 9:00 A.M. and 9:30 A.M. or such other time as the Commission might find proper.

Such a complaint is clearly authorized by § 3662 of Title 39. The Commission apparently gave the complaint short shrift, dismissing it prior to answer, a procedure not permitted in its own regulations, see 39 C.F.R. § 3001.84(a). The Commission apparently regarded Shelby’s request as a “request for preferential treatment to a single postal patron” and therefore not “a question of national scope or importance.” See Postal Service Motion to Dismiss, pp. 14-15. The Commission found that the Postal Service had acted in good faith in considering Shelby’s grievance, that it was “unable to remedy” the grievance, and that there was no arbitrary, capricious or unreasonable action by the Postal Service.

Insofar as the Commission is concerned, the complaint asks this Court to reverse the order of dismissal prior to answer and direct the Commission to consider the complaint as required by the Act. There is no showing that the Commission did not consider the complaint. The Commission may have misinterpreted the grievance and may be incorrect in regarding it as purely local in'nature, but the conclusion on the part of the Commission that the Postal Service is unable to remedy the grievance, while shocking and disappointing, is hardly clearly erroneous.

Our analysis of the statute indicates that there is no federal district court subject matter jurisdiction over actions against the Postal Rate Commission to review its rulings or compel it to follow its own regulations, and a fair reading of the statute suggests that all such efforts to review decision or orders of the Commission are within the original subject matter jurisdiction of the Court of Appeals. On the merits, such review in the Court of Appeals could very well be an exercise in futility. The standard of such review is limited expressly to that set forth in 5 U.S.C. § 706.

Accordingly, while we applaud the efforts of Shelby, and its attorney, Myron Engelman, Esq., to light a candle in this case, rather than merely cursing the darkness, we are constrained to dismiss as to both defendants for want of subject matter jurisdiction in this Court.

The Clerk shall enter final judgment dismissing the complaint. No costs.

So Ordered.

      . The same overburdened postal route 0110 serves the Office of the Clerk of this Court, at White Plains, also long after 9:30 A.M. Our enterprise is, however, non-profit, and our backlog large enough so that unlike Shelby, our efficiency would not be improved by earlier delivery.

      . Attorney Engelman’s office is also served by the same postal route 0110.


author: LUONGO, Chief Judge.

text:
    William A. HODGIN v. AGENTS OF MONTGOMERY COUNTY, et al.
    Civ. A. No. 83-5638.
    United States District Court, E.D. Pennsylvania.
    Oct. 21, 1985.

      William A. Hodgin, pro se.
    Mary E. Butler, Deputy Atty. Gen., Philadelphia, Pa., for defendants.
   OPINION

LUONGO, Chief Judge.

Plaintiff William Hodgin brought this action claiming his civil rights were violated while he was incarcerated in the State Correctional Institution at Graterford. Named as defendants are Graterford correction officers Ronald Lucas, John Wills, Martin Earhart, Edward Moskal, Oleb Mason, John Novak, John Murray, Frank Cascino, Gabriel White and an Officer Boylan. Also named are certain supervisory officials, including Julius Cuyler, former Superintendent of Graterford; Laurence Reid, former Deputy Superintendent of Treatment; Thomas Stachelek, former Classification and Treatment Manager; and Adrian Calendar, Director of the Eastern Diagnostic and Classification Center at Graterford. Presently before me is defendants’ motion for summary judgment.

Plaintiff’s claim for relief is based on several incidents described in the “statement of facts” section of his complaint. The first incident occurred on January 15, 1982. According to the complaint, plaintiff went to the food line to get a bowl of soup. A correction officer behind the counter grabbed plaintiff’s hand to prevent him from pouring the soup. As plaintiff attempted to leave, defendant Lucas confronted him with a pair of handcuffs. Plaintiff claims that, although he did not resist, Lucas “nodded his head” and a number of officers began to punch and kick plaintiff. Plaintiff was handcuffed and removed from the dining room. According to the complaint, plaintiff was pushed down the stairs and beaten by a group of correction officers including defendants Mason, Earhart, Moskal and Lucas. Plaintiff claims to have suffered cuts, abrasions, a broken rib, back pain and psychological disorientation. Plaintiff also alleges that on January 16 defendant Novak turned away a visitor in order to prevent her from seeing plaintiff’s condition.

The next incident occurred on January 23. Plaintiff felt dizzy after breakfast and claims that correction officer Boylan was outside his cell with another officer and a medic. The medic held a hypodermic needle. Plaintiff’s deposition makes clear that he believes he was drugged. Plaintiff also claims that defendant White attempted to provoke a fight with him on February 16. On March 8, after defendants Earhart and Murray had searched plaintiff’s cell, plaintiff discovered that some of his legal materials were miss.ing.

Plaintiff states that he reported these incidents to the FBI and to certain supervisory officials at Graterford. He claims he was repeatedly threatened and abused, and as a result he withdrew several civil rights complaints that he had filed.

Defendants, in support of their motion for summary judgment, have submitted incident reports, affidavits, excerpts from plaintiff’s deposition and other documentary evidence. They allege that plaintiff provoked the January 15 incident by creating a disturbance in the dining room. Plaintiff refused to be handcuffed and became violent. Defendants claim they used only the amount of force necessary to subdue plaintiff and remove him to his cell. Plaintiff’s visitor of January 16 was turned away because serious misconduct charges were pending against plaintiff and he was in the restrictive housing unit. Defendants also deny that plaintiff was forced to withdraw any civil rights complaints. Finally, a number of defendants claim they are entitled to summary judgment because they were not personally involved in any of the challenged incidents.

Plaintiff has declined to file a response to defendants’ motion for summary judgment. He should, of course, have submitted a countervailing affidavit or the equivalent in support of his claim. See Fed.R.Civ.P. 56(e); Lockhart v. Hoenstine, 411 F.2d 455, 458-59 (3d Cir.), cert. denied, 396 U.S. 941, 90 S.Ct. 378, 24 L.Ed.2d 244 (1969). Because plaintiff is proceeding pro se, however, I will construe his submissions and the record evidence in his favor liberally. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972); Boyd v. Werner, 416 F.Supp. 1222 (W.D.Pa.1976). I note that plaintiff’s complaint concludes with the statement, “I declare under penalty of perjury that the foregoing is true and correct.” The Third Circuit has treated a pro se complaint containing such a declaration as an affidavit in opposition to summary judgment. Reese v. Sparks, 760 F.2d 64, 67 & n. 3 (3d Cir. 1985). In addition, the portions of plaintiff’s deposition attached to defendants’ memorandum of law offer some general support for the allegations in the complaint.

According to the complaint, defendants Lucas, Earhart, Moskal and Mason were involved in the January 15 incident. Defendants claim they are entitled to summary judgment because they used force only to the extent, that plaintiff’s violent and disruptive conduct made force necessary. They claim the record shows that plaintiff received slight injuries consistent with the use of minimal force, not with a severe beating.

Defendants correctly contend that not every use of force against a prisoner violates his constitutional rights. See Sampley v. Ruettgers, 704 F.2d 491, 495 (10th Cir.1983); Ricketts v. Derello, 574 F.Supp. 645 (E.D.Pa.1983). Use of force is, however, actionable under 42 U.S.C. § 1983 when it exceeds “that which is reasonable and necessary under the circumstances.” Davidson v. O’Lone, 752 F.2d 817, 827 (3d Cir. 1984), cert, granted, — U.S. —, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985). See also Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976).

Plaintiffs verified complaint contains specific, detailed allegations of an unprovoked and brutal beating. In his deposition, plaintiff states that he was surrounded by officers who struck him and pulled his hair. He denied doing anything to provoke the attack. Plaintiffs Deposition at 35 (April 16, 1985). Contrary to defendants’ contentions, plaintiff’s failure to submit evidence of severe or permanent injury is not fatal to his claim. “In general, courts have indicated that when a prison officer uses force that is ‘excessive,’ ‘undue,’ or ‘unjustified,’ plaintiff states a constitutional claim regardless of whether an injury of threshold severity and duration is alleged.” Norris v. District of Columbia, 737 F.2d 1148, 1151 (D.C.Cir.1984).

A material issue of fact exists as to whether defendants Lucas, Earhart, Moskal and Mason used excessive force not justified by a need to maintain discipline. Their motion for summary judgment must therefore be denied. See Martinez v. Rosado, 614 F.2d 829 (2d Cir.1980).

I must also deny summary judgment as to defendant Novak. I recognize that prison officials have substantial discretion in regulating visiting privileges. See, e.g., Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). Restrictions cannot, however, be imposed arbitrarily or unreasonably. See Thomas v. Brierley, 481 F.2d 660 (3d Cir.1973); McMurry v. Phelps, 533 F.Supp. 742, 764 (W.D.La.1982); Tunnell v. Robinson, 486 F.Supp. 1265, 1270-71 (W.D.Pa.1980). Plaintiffs deposition states that he and other inmate's in the restrictive housing unit were generally permitted regular visits. He claims that on January 16 Novak turned away a visitor “in an attempt to cover up the beating and the damage that Plaintiff sustained.” Plaintiff’s Answer to Interrogatories II21 (July 26, 1984). See also Plaintiff’s Deposition at 81-82. Whether Novak’s refusal to permit the visit was unreasonable and designed to prevent discovery of a violation of plaintiff’s rights is an issue of fact.

The next incident of which plaintiff complains occurred on January 23, 1982. Plaintiff alleges that defendant Boylan and two unnamed individuals drugged his food. The record reveals that defendant Boylan has not been served with the complaint, which was filed May 17, 1984. Since the 120-day time limit for service has expired, I will dismiss the complaint against Boylan without prejudice. See Fed.R.Civ.P. 4(j).

Plaintiff also asserts that defendants White, Cascino and others threatened and harassed him. Mere threats and verbal harassment, without more, are not actionable under § 1983. Ricketts, 574 F.Supp. at 647; Harold X (Smith) v. Smith, 561 F.Supp. 416, 418 n. 6 (E.D.Pa. 1983). A threat of violence could give rise to a constitutional violation “if fulfillment of the threat were conditioned on the victim’s exercise of a constitutionally protected right.” Ricketts, 574 F.Supp. at 647. The record does not show, however, that defendants’ threats were of such a nature. Because defendants White and Cascino are not named as participants in any of the other challenged incidents, their motions for summary judgment will be granted.

Defendants Earhart and Murray are entitled to summary judgment as to the claim that they took legal materials from plaintiff’s cell. Defendants could be held liable under § 1983 if they confiscated plaintiff’s legal materials in retaliation for his exercise of constitutional rights or if they actually deprived him of access to the courts. See, e.g., Smith v. Smith, 578 F.Supp. 1373, 1375 (E.D.Pa.1984). Plaintiff, however, has presented no facts which would support such a charge. His claim is therefore subject to the rule of Hudson v. Palmer, — U.S. —, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984), that even intentional deprivations of property do not violate due process if the state provides a meaningful postdeprivation remedy. Defendants are not shielded by sovereign immunity for their intentional misconduct. 42 Pa.C.S.A. § 8550. Plaintiff can pursue common law remedies for wrongful deprivation of his property.

Plaintiff does claim that defendants forced him to withdraw certain civil rights complaints in Civil Action No. 81-0227. As defendants note, that action was brought against officials of the Montgomery County Prison. On March 30, 1982 I dismissed part of the case and granted summary judgment in favor of certain defendants. Hodgin v. Roth, 536 F.Supp. 454 (E.D.Pa.1982). Plaintiff has not stated which complaints he withdrew, nor has he specified the actions which pressured him into doing so. In light of plaintiffs inconclusive factual allegations and the fact that the complaints were not even against these defendants, an inference that defendants harassed plaintiff in order to force him to withdraw those complaints is simply too attenuated. Defendants are entitled to summary judgment as to this claim.

I must also grant summary judgment in favor of the supervisory defendants. Supervisory officials “cannot be held liable under § 1983 unless there has been some showing that they were either directly involved in, or had knowledge of and acquiesced in, the constitutional violations.” Hodgin v. Roth, 536 F.Supp. at 460. There is nothing in the record establishing that defendants Cuyler, Reid, Stachelek and Callendar were personally involved in the challenged incidents. In fact, plaintiffs statements at his deposition show that he sued these defendants because he felt they were indifferent to his problems and should be held responsible for their subordinates’ actions. Such allegations are an insufficient ground for liability under § 1983.

Defendant Wills is also entitled to summary judgment. His name is not mentioned in the complaint’s statement of facts and he is nowhere alleged to have participated in any violations of plaintiff’s rights.

In conclusion, the motions of defendants Lucas, Moskal, Mason and Novak for summary judgment will be denied. Defendant Earhart’s motion will be denied as to the claim involving use of excessive force and granted as to the claim that he took plaintiff’s property. The motions of defendants Wills, Murray, Caseino, White, Cuyler, Reid, Stachelek and Callendar for summary judgment will be granted. The complaint against defendant Boylan will be dismissed without prejudice.

      . Upon inquiring of the United States Marshal as to why Boylan was not served, I was informed that neither Graterford prison nor the Pennsylvania Bureau of Correction has any record of a prison officer named Boylan. Moreover, the Marshal could locate no record that an individual named Boylan had ever been employed by the Commonwealth of Pennsylvania.


author: HAROLD A. ACKERMAN, District Judge.

text:
    Vinnie McBRIDE on Behalf of Yvonne McBRIDE, Plaintiffs, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 84-4176.
    United States District Court, D. New Jersey.
    Oct. 22, 1985.

      Elizabeth Inserra, Newark, N.J., for plaintiffs.
    Mary G. Courtney, Asst. U.S. Atty., Newark, N.J., for defendant.
   OPINION

HAROLD A. ACKERMAN, District Judge.

This case is before me under section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), .to review the final determination of the Secretary denying plaintiff the surviving child’s benefits which she is seeking. Plaintiff has exhausted the administrative channels, and this case is properly before me for review. The AU determined that the plaintiff, Yvonne McBride, an infant, is not a “child” for the purposes of 42 U.S.C. § 416(h)(2)(A) or (B) or 42 U.S.C. 416(h)(3)(C). This finding for reason stated infra was not based on substantial evidence. The AU, in an error of substantive law, excluded admissible evidence on the issue of paternity. Additional evidence supportive of plaintiff’s position was not developed by the AU. Claimant first applied for benefits when she was less than two years old. At the time of the hearing before the AU, the claimant had attained the age of 5 and testified on her own behalf. (Plaintiff’s Brief at 5. This testimony is not included in the record). This court can see no compelling reasons for leaving claimant suspended in the morass of bureaucracy while her childhood trickles by. The AU’s decision was not based on substantial evidence. It is the opinion of this court, therefore, that the decision of the AU is reversed. Claimant is hereby awarded surviving child’s benefit under 42 U.S.C. § 416(h)(2)(A).

I. Procedural History

The plaintiff Vinnie McBride is proceeding on behalf of her infant daughter Yvonne McBride. Yvonne was born on July 3, 1978 (Tr. 56). The wage earner in this case is Alvina Derrick, now deceased, the alleged father of Yvonne. Alvina Derrick died on February 23, 1980, at the age of 36, from visceral congestion, cause pending toxicological examination (Tr. at 53). On March 6, 1980, plaintiff filed for surviving child’s benefits (Tr. at 41-44). This application was denied on May 5, 1980, and no appeal was taken (Tr. at 41-44). Plaintiff made a new application for benefits on September 1, 1982, which was denied on October 28, 1982 (Tr. at 9). On December 6, 1982, plaintiff made a request for reconsideration. (Id.). A reconsideration determination was handed down on February 12, 1983, but plaintiff’s claim was again denied on the grounds that “Yvonne did not qualify as a ‘child’ of the wage earner under the Social Security Act.” (Tr. at 9). On November 29,1983, plaintiff requested a hearing before the AU; this hearing occurred on February 1, 1984. (Tr. at 19). Vinnie McBride proceeded pro se. The AU denied plaintiff’s application for benefits on the following grounds: 1) Yvonne failed to qualify as a “child” of the wage earner under 42 U.S.C. § 416(h)(2)(A) or (B); and 2) Yvonne did not qualify as a “child” under 42 U.S.C. § 416(h)(3)(C). On April 11, 1984, plaintiff made a request for review; (Tr. at 13) the Appeals Council denied this request on August 3, 1984. (Tr. at 3). This case is now properly before me for review.

II. Statement of Facts

Yvonne T. McBride was born on July 3, 1978. Her parents were not married. (Tr. 38). Yvonne’s birth certificate lists Vinnie McBride as her mother; however, the information space for “father" is blank. (Tr. 56). At the hearing on February 1, 1984, the AU questioned Vinnie McBride about the birth certificate. Ms. McBride stated that when she first saw the birth certificate, she was “very much upset” because the father’s name was omitted. (Tr. 36). Upon receiving the birth certificate in the mail, she visited the Bureau of Vital Statistics who informed her that the name “Alvi-na Derrick” could not be listed on the Birth certificate “because father isn’t given”. (Tr. 36).

When Yvonne was born, Ms. McBride applied for welfare for her. It was her understanding that the welfare department would take the alleged father to court upon the initial application for benefits. (Tr. 36). (Ms. McBride has an older child whose father was in this manner adjudicated to be Alvina Derrick). An action to establish paternity was filed on August 15, 1978 in the Essex County Juvenile and Domestic Relations Court, Docket No. 97195. This complaint to establish paternity and support was drawn pursuant to N.J.S.A. 9:17. (Now repealed). The complaint listed Alvi-na Derrick as defendant and was signed by a designated representative of the Essex County Welfare Board. (Tr. 80). This case was never adjudicated. (Tr. 17).'

At the hearing before the AU, Vinnie McBride presented sworn statements from family members as evidence of paternity. Bernice Derrick Ford, Alvina’s mother; Gertrude Price, Alvina’s grandmother; and Glenn Derrick, Alvina’s brother, all stated 1) that at the time of his death Alvina was living with and supporting Yvonne; 2) that Alvina acknowledged paternity of Yvonne, and that 3) the family members, considered themselves to be respectively, the grandmother, great-grandmother, and uncle of Yvonne. (Tr. 74-77). The AU did not accept these statements as satisfactory evidence on the grounds that they were based on hearsay (Tr. 18). As explained infra, this ruling was error on the part of the AU.

Vinnie McBride stated at the hearing that Alvina Derrick was living with her; however, this arrangement was clandestine so as not to disrupt her welfare payments. (Tr. 35). As his mailing address, Alvina Derrick used the address of his mother or grandmother in Newark. Id. The plaintiff stated that her sole proof that Alvina Derrick resided with her at the time of his death was statements of family members and the fact that people from work dropped him off at their home. (Tr. 33). In September 1982, the plaintiff stated that her cousin Cheryl Moses lived with her and could attest to the fact that Alvina Derrick was living in the home with Vinnie, Hason, and Yvonne McBride. (Tr. 17). Cheryl Moses did not offer any testimony in the mstant claim, nor in the previous claim. The AU ruled that the plaintiff could not support her allegations that Alvina Derrick was residing with Yvonne at the time of his death. The ALJ relied upon Alvina’s obituary notice in the newspaper which listed Alvina Derrick’s address as that of his mother. (Tr. 18). (This obituary notice also stated that Alvina Derrick was the father of Yvonne, but the AU did not choose to rely on this portion of the article.) (Tr. 55).

Of relevance also in the instant determination, is the issue of child support. The claimant testified at the hearing that Alvina Derrick contributed to the support of both Hason McBride and Yvonne McBride (Tr. 34). The sworn testimony of Bernice Derrick Ford, Gertrude Price, and Glenn Derrick support this contention, and the Secretary presented no evidence to refute it. Alvina Derrick was under a court order to provide support for Hason McBride and this was in arrears. Vinnie McBride stated that every 2 weeks, when Alvina Derrick was paid, he gave her $40-60 for the support of Hason and Yvonne. These payments were always in cash, and Ms. McBride had no receipts, checks, or written proof. Id. Ms. McBride was unable to gain access to Alvina Derrick’s employment records to ascertain whether he had listed Yvonne as a dependent. (Tr. 37-38). This was because she was not the decedent’s wife. (Tr. 38). On September 17,1982, a representative of the wage earner’s employer was contacted. She stated that a co-employee of Alvina Derrick stated that Alvina had mentioned dependents named “McBride”. This was supported by the payroll and employment record office located in Maryland, although the office stated that further investigation was needed to verify that Yvonne’s name was listed in the records. (Tr. 69). No further development of this evidence was included in the record. However, in his determination, the AU erroneously stated that the employment records showed no recognition of Yvonne by Alvina Derrick. (Tr. 17). It is not alleged by the plaintiff that lack of counsel prejudiced her right to a fair hearing. However, the AU has a heightened responsibility in pro se claims. Livingston v. Califano, 614 F.2d 342 (3d Cir.1980). Clearly, the AU failed in his duty with respect to the development of the decedent’s employment records. The claimant was thwarted in her attempts to secure the employment records, and the AU made no effort to develop the record. “A social security judge acts as an examiner charged with developing the facts ... and is under an affirmative duty to inquire into all the matters at issue.” Coulter v. Weinberger, 527 F.2d 224 (3d Cir.1975) (citations omitted). Failure to consider evidence favorable to the claimant without giving reasons for the rejection of such evidence violates the 3d Circuit standards enunciated in Cotter v. Harris, 642 F.2d 700 (3d Cir.1981) and is grounds for reversal.

III. Analysis

A. Who is a “child”?

I turn now to a consideration of the law relevant to the instant determination. To qualify for benefits as a surviving child, a claimant must be determined to be a “child” under 42 U.S.C. § 416(h)(2)(A) and (B) which states in pertinent part:

(2)(A) In determining whether an applicant is the child ... of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property ..., if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death____
(B) If an applicant is a son or daughter of a fully or currently insured individual but is not (and is not deemed to be) the child of such insured individual under subparagraph (A), such applicant shall nevertheless be deemed to be the child of such insured individual if such insured individual and the mother or father, as the case may be, of such applicant went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment described in the last sentence of paragraph

(1) (B), would have been a valid marriage. I need not consider § 416(h)(2)(B), for Alvi-na Derrick and Yinnie McBride did not participate in a marriage ceremony. I therefore turn my attention to § 416(h)(2)(A).

It is uncontested that Alvina Derrick was domiciled in the state of New Jersey at the time of his death. Therefore, the controlling law is New Jersey intestacy law. There is a question in this case as to which year’s form of the New Jersey intestacy statute is applicable. The AU applied the 1978 version of the statute which required that the parents intermarry or that paternity be established by clear and convincing proof. (Tr. 17). However, at the time of the hearing on February 1, 1984, the 1983 revision of the law had been in effect since April 1983.

The harsh common law rule on illegitimate children prevented their inheriting from either parent in intestacy. N.J.S.A. 3A:4-7, modified the common law by providing that illegitimate children could inherit by and through the mother. Such children could only inherit from an intestate father if the parents had subsequently married and the child was recognized. In 1977, N.J.S.A. 3A:4-7 was ruled unconstitutional following Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). In the Matter of the Estate of Sharp, 151 N.J.Super. 579, 377 A.2d 730 (Ch.Div.1977). Like the Texas statute in Trimble, the New Jersey statute applicable in Sharp, N.J.S.A. 3A:4-7, was found unconstitutional because it failed to grant illegitimate children the same rights vis-a-vis their father as it granted vis-a-vis the mother, thereby violating the due process requirements of the Amendment. Sharp, 377 A.2d at 732. N.J.S.A. 3A:4-7 was repealed by P.L.1977, C. 412, § 90, eff. September 1, 1978, and replaced in the new Probate Code by N.J.S.A. 3A:2A-41, P.L. 1977, C. 412, § 44, eff. September 1, 1978.

At the time of Alvina’s death in 1980, the New Jersey law on intestate succession was broader than N.J.S.A. 3A:4-7. N.J. S.A. 3A:2A-41 permitted succession if paternity had been adjudicated before the death of the father or was established by clear and convincing proof. • N.J.S.A. 3A:2A-41(b)(2) (1978). However, in 1983 the law on succession had been further expanded to include the “New Jersey Parentage Act.” In its present form, the law reads, in pertinent part:

3A:2A-41. Meaning of child and related terms
If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person, ... (b). In cases riot covered by subsection a, a person is the child of its natural parents regardless of their marital status. The parent and child relationship may be established by proof that parentage has been adjudicated under prior law, under the laws governing probate, by an order of a court in another state or pursuant to the “New Jersey Parentage Act,” P.L. ........, c...... (C...........) (now pending before the Legislature as Senate Bill No. 888 of 1982).

Before commencing an analysis of the “New Jersey Parentage Act”, I turn to a consideration of which rendition of N.J.S.A. 3A:2A-41 should apply in the instant case. Under the 1978 version of the statute, Yvonne must show that before the death of Alvina, he was adjudicated to be her father, or she must establish his paternity by clear and convincing proof. However, under the 1983 statute, the clear and convincing proof standard was abandoned. Thus, if Yvonne can meet the requirements of the “New Jersey Parentage Act” which permits a presumption of paternity which is rebut-table only by clear and convincing proof, she need not go through the formal adjudication process. The burden of proof in New Jersey has shifted from the alleging to the denying party. This is especially significant, here, for the Secretary has not presented a breath of suggestion, much less any clear and convincing proof, that Alvina was not the father of Yvonne.

The court in Sharp, supra in considering the question of retroactivity and prospective application, stated “... prospective application may be particularly fair in a property case where persons have justifiably relied on prior law.” Sharp at 733 (citations omitted). In the case before me, the question of reliance is moot, for Alvina Derrick died intestate. Of greater relevance, therefore, is the matter of judicial fulfillment of legislative intent, as the Sharp court noted:

The final issue is the consequence of the invalidation. Plaintiff cites Schmoll v. Creecy [104 N.J.Super. 126, 249 A.2d 3 (1969)], supra, in which the Appellate Division in a dictum indicated that were N.J.S.A. 3A:4-7 unenforceable, an illegitimate child would be relegated to his common law status and be able to inherit from neither intestate parent. 104 N.J. Super, at 137-38, 249 A.2d 3. Yet the Supreme Court on the further appeal in an analogous situation considered the overall legislative intent and would not let the wrongful death statute fall even though its class of beneficiaries had to be expanded to save it. 54 N.J. [194] at 202-205, 254 A.2d 525. The approach of the Supreme Court does not seem consistent with the Appellate Division dictum. In this era of expanding legislative condemnation of discriminatory practices, including the forbidding of discrimination of the basis of ancestry under the Law Against Discrimination, the court believes that the Legislature would not want the court to deny to illegitimate children the rights granted under N.J.S.A. 3A:4-7. See N.J.S.A. 10:5-3; Hammond v. Pennsylvania R.R. Co., 31 N.J. 244, 156 A.2d 689 (1959). The legislative intent may be best observed by construing N.J.S.A. 3A:4-7 to include the right of an illegitimate child to inherit from his father as well as his father’s ancestors, descendants and collaterals. Thus, the illegitimate child of a male decedent will be considered his issue within N.J.S.A. 3A:3-10. Accordingly, the will of Willie J. Sharp is denied probate.

Sharp 377 A.2d at 733 (emphasis added).

The evolution of the New Jersey law on intestacy evinces legislative tempering in New Jersey of the harsh common law rule. This temperate attitude has also been demonstrated by the New Jersey courts. In 1967, in the case of In the Matter of the Guardianship of C., 98 NJ.Super. 474, 237 A.2d 652 (Juv. & Dom.Rel.Ct., Union County, 1967) the court stated the following:

“We choose to solve the problem upon the modern and more humanitarian view that these little unfortunates, who play no part in their conception, are entitled to the law’s utmost favor.” In the Matter of C. at 491, 237 A.2d 654, quoting French v. Catholic Community League, 69 Ohio App. 442, 44 N.E.2d 113, 114-15 (Ct.App.1942). This view was reiterated in 1976, “It is irrefutable that our courts have construed statutes pertaining to legitimation of children quite liberally in order to spare children who are innocent of any wrongdoing from being burdened with the stigma of illegitimacy.” In re Estate of Dussell, 145 N.J.Super. 363, 366 (Camden County 1976), 367 A.2d 1188 (A.D.1976). Nor is this humane design limited to New Jersey. In the oft-cited Supreme Court case Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), the court expressed a modern concern for children born out-of-wedlock:

The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disability on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these helpless children, but the Equal Protection clause does enable us to strike down discriminatory laws relating to status of birth where — as in this case — the classification is justified by no legitimate state interest, compelling or otherwise.

406 U.S. at 175-76, 92 S.Ct. at 1406-07 (1971) (footnote omitted).

Therefore, I see no purpose to be served by requiring Yvonne to establish entitlement under the narrower 1978 version of N.J.S.A. 3A:2A-41.

In addition, I wish to emphasize here that this court is not intervening in a filiation proceeding, but is reviewing a case of entitlement to Federal benefits. Any consideration of the “New Jersey Parentage Act” which I undertake in the instant case is for the purpose of establishing paternity in the context of this Social Security claim only. The question of entitlement arose when Yvonne presented her case to the ALJ in 1984. It is, therefore, more fitting to apply the intestacy law in effect at that time.

I turn now to a consideration of the “New Jersey Parentage Act”, which includes methods of proof acceptable under the currently applicable N.J.S.A. 3A:2A-41.

The “New Jersey Parentage Act”, P.L. 1983, c. 17 § 1, is codified at N.J.S.A. 9:17-38 to 9:17-59 (West 1985). The pertinent Section reads as follows:

9:17-41. Proof of parent-child relationship: termination of natural parental rights.
The parent and child relationship between a child and
a. the natural mother may be established by proof of her having given birth to the child, or under this act;
b. The natural father may be established by proof that his paternity has been adjudicated under prior law; under the laws governing probate; by an order of a court of competent jurisdiction in another state or under this act; ...

N.J.S.A. 9:17-41.

Therefore, Yvonne McBride could establish paternity through adjudication under N.J.S.A. 9:17 — 41(b). She is not barred by the death of the alleged father, N.J.S.A. 9:17-45(c), nor is she precluded by the statute of limitations. N.J.S.A. 9:17-45(c); Eisler v. Toms, 160 N.J.Super. 272, 274 (Salem County 1978), 389 A.2d 529, (citing an 1851 case to show that filiation proceedings are not barred by the statute of limitations applicable in other actions).

Under the Act, formal courtroom proceedings are not required to prove parentage. This was also true under prior law. In the Matter of C., supra, 98 N.J.Super. at 491, 237 A.2d 654. Vinnie McBride may proceed to establish paternity through nonjudicial means:

9:17-43. Presumptions
a. A man is presumed to be the natural father of a child if:
(4) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child; or
(5) While the child is under the age of majority he provides support for the child and openly holds out the child as his natural child; or
b. A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court order terminating the presumed father’s paternal rights or by establishing that another man is the child’s natural or adoptive father.

N.J.S.A. 9:17-43(a)(4-6) and (b) emphasis added). A feasible explanation for the statutory establishment of these presumptions was aptly expressed as long ago as 1967:

When the father of such a child publicly acknowledges its paternity, and continuously contributes to its support and welfare (here $10.00 per month), and is a proper person, he is next in law entitled to its custody, when the mother relinquishes or abandons its control. To say that such a father must first, by a public spectacle in a bastardy proceeding, acknowledge paternity or be adjudged the reputed father of the illegitimate child, before he can be considered the child’s father and in his order entitled to the child’s custody, is to require the doing of a useless and rather despicable thing. The public parading of the sexual misstep is not conducive of the infant’s welfare or its peace of mind after it passes adolescence. It cannot enlarge the father’s sense of responsibility. It might deter him from performance of his moral and legal duty. The question comes: Why require one to prove that which he freely admits? Such a course is far from the rule of modern practice.

In the Matter of C., supra., at 491, 237 A.2d 654, quoting French v. Catholic Community League, supra. See also R. v. F, 113 N.J.Super. 396, 273 A.2d 808 (Juv. & Dom.Rel.Ct., Union County 1971) at 408, 273 A.2d 808 (living together lends credence to asserted paternity).

It is my opinion that the AU committed an error in refusing to concede Alvina Derrick’s open acknowledgement of Yvonne. The AU committed reversable error in dismissing as hearsay the sworn statements of Alvina’s family. Rather than being dismissible as hearsay, such statements fall under the hearsay exception:

(19) Reputation concerning personal or family history. Reputation among members of his family by blood, adoption, or marriage, or among his associates, or in the community, concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of his personal or family history.

Fed.Rules Evid.Rule 803(19), 28 U.S.C.A. Indeed, even neighborhood reputation is admissible evidence of legitimacy. 5 Wig-more, Evidence § 1605 (Chadbourn Rev. 1974).

The family statements are proof that Alvina Derrick lived with Yvonne and openly held her out as his natural child. This would establish paternity under N.J. S.A. 9:17-43(a)(4), supra. The family statements also satisfy N.J.S.A. 9:17-43(a)(5), supra, for they show that Alvina supported Yvonne and openly held her out as his child. After a careful search, this court can find no New Jersey case law for guidance in construing N.J.S.A. 9:17-43(a)(4) and (5). I rely, therefore, on the legislative design previously discussed, and on judicial precedent in New Jersey favoring the liberal construction of statutes pertaining to legitimation. Dussell, supra.

Under N.J.S.A. 9:17-43(b), the presumption of paternity is rebuttable only by clear and convincing proof. Clearly, the Secretary has failed to meet that standard. No denial of Yvonne by Alvina or any other family member was presented by the Secretary. No appearance of protest was made by Alvina’s former wife who, as the mother of his legitimate child now receiving benefits, was an interested party in the instant action. Rather, all the available evidence, coupled with the fact that Yvonne’s brother, Hason McBride, is acknowledged to be the child of Alvina Derrick and is currently receiving benefits, strongly and logically suggests that Alvina was the father of Yvonne.

I therefore find that the ALJ’s denial of Yvonne’s claim for benefits under 42 U.S. C.A. § 416(h)(2)(A) was not based upon substantial evidence, and this decision of the AU is reversed.

B. A “child” by another standard: Federal law

As an alternative to qualifying for benefits under the state law standards pursuant to 42 U.S.C. § 416(h)(2)(A), an applicant may claim entitlement under the Federal Standards delineated in 42 U.S.C.A. § 416(h)(3)(C):

(C) in the case of a deceased individual—
(i) such insured individual—
(I) had acknowledged in writing that the applicant is his or her son. or daughter,
(II) had been decreed by a court to be the mother or father of the applicant, or
(III) had been ordered by a court decree, or court order was made before the death of such insured individual, or
(ii) such insured individual is shown by evidence satisfactory to the Secretary to have been the mother or father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.

(emphasis added).

The AU denied Yvonne’s application on the additional grounds that she did not present satisfactory evidence of paternity required by 42 U.S.C.A. § 416(h)(3)(C)(ii).

This court has found no Third Circuit cases on the issue of what constitutes satisfactory evidence under 42 U.S.C.A. § 416(h)(3)(C)(ii). However, in an especially opposite case, the First Circuit stated:

The phrase “evidence satisfactory to the Secretary” could conceivably mean that the Secretary has unbridled discretion to determine what evidence is sufficient. But discretion does not usually include the right to act arbitrarily or without criteria, Appalachian Power Co. v. Environmental Protection Agency, 477 F.2d 495, 507 (4th Cir.1973). We think Congress meant to grant to the Secretary considerable latitude to determine the type and extent of evidence deemed satisfactory to establish paternity so long as such standards were reasonable. Our understanding in this regard is buttressed by 42 U.S.C. § 405(a) which states that “The Secretary ... shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence----”
(Emphasis supplied).
Thus we review the Secretary’s findings of failure of proof in terms of its reasonableness. If it is supported by substantial- evidence, we must affirm it. 42 U.S.C. § 405(g). But substantial evidence itself means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938).

Mendoza v. HHS, 655 F.2d 10, 13 (1st Cir. 1981).

I hold that, for the reasons set forth earlier in this opinion, the sworn statements of Alvina Derrick’s family members should have been accepted by the Secretary as satisfactory evidence under 42 U.S.C.A. § 416(h)(3)(C)(ii). I find, therefore, that the AU’s denial of Yvonne’s claim under 42 U.S.C.A. § 416(h)(3)(C)(ii) was not based upon substantial evidence. I therefore reverse this decision of the ALJ.

C. Dependency

Once Yvonne has cleared the paternity hurdle, she must face the issue of dependency. Under 42 U.S.C.A. § 402(d)(1) dependency is required before a child is entitled to survivor’s benefits. However, under 42 U.S.C.A. § 402(d)(3),

Certain children ... are relieved of the burden of such individualized proof of dependency. Unless the child has been adopted by some other individual, a child who is legitimate, or a child who would be entitled to inherit personal property from' the insured parent’s estate under the applicable state intestacy law, is considered to have been dependent at the time of the parent’s death. Even lacking this relationship under state law, a child, unless adopted by some other individual, is entitled to a presumption of dependency if the decedent, before death, (a) had gone through a marriage ceremony with the other parent, resulting in a purported marriage between them which, but for a non-obvious legal, defect, would have been valid, or (b) in writing had acknowledged the child to be his, or (c) had been decreed by a court to be the child’s father, or (d) had been ordered by a court to support the child because the child was his.

Mathews v. Lucas, 427 U.S. 495 at 498-99, 96 S.Ct. 2755 at 2759, 49 L.Ed.2d 651 (1976), citing 42 U.S.C.A. 402(d)(3) (footnotes omitted) (emphasis added). Because Yvonne meets the standards of the New Jersey intestacy law, N.J.S.A. 3A:2A-41, supra, she is entitled to the presumption of dependency. Therefore, I need not reach the question of proof of support.

IV. Conclusion.

For the reasons set forth in this opinion, it is the decision of this court that Yvonne McBride is entitled to surviving child’s benefits under 42 U.S.C.A. § 416(h)(2)(A) and 42 U.S.C.A. § 402(d)(3). The decision of the AU is reversed and the Secretary is ordered to provide Yvonne McBride with surviving child’s benefits in accordance with the applicable statutes.

       My decision to apply the existing law at the time of the administrative hearing can be distinguished from the decision of the Third Circuit in Adens v. Schweiker, 773 F.2d 545 (3rd Cir. 1985). In Adens the Court applied the state intestacy law in effect at the time of death because it found that the state in question, Pennsylvania, fixes intestate rights at the time of the decedent’s demise. Slip op. at 547. The Court’s determination was primarily based on the existence of a non-retroactivity clause contained in the Pennsylvania intestacy statute which was in effect at the time of claimant's application for benefits. (The Court also referred to a 1983 Pennsylvania Superior Court decision applying the intestate law in effect at the time of death, rather than the time of suit.) In the instant case, however, the 1983 New Jersey statute does not contain a non-retroactivity clause.