author: GOETTEL, District Judge:

text:
    Eugene MEZETIN, Plaintiff, v. John CUNNINGHAM, Warden, Bronx H.D.M., Department of Correction, City of New York, Sheriff of the City of New York, Defendants.
    No. 84 Civ. 6275 (GLG).
    United States District Court, S.D. New York.
    Feb. 19, 1986.

      Eugene Mezetin, pro se.
    Frederick A.O. Schwarz, Jr., Corp. Counsel of City of New York, New York City (Antonia Levine and Bonnie Goldsmith, of counsel), for defendants.
   GOETTEL, District Judge:

The plaintiff, a former prisoner at the Bronx House of Detention for Men, brought this action, pursuant to 42 U.S.C. § 1983 (1982), alleging that the defendants deprived him of his civil rights in denying him good time credit against his term of incarceration for contempt of court. Following this Court’s order of March 20, 1985, denying the defendants’ motion for summary judgment, the parties engaged in discovery. They now cross-move for summary judgment. The defendants have somewhat altered their position as to the facts giving rise to this case. However, the defendants’ 3(g) statement has not been contraverted by the plaintiff and, consequently, must be accepted by the Court. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983). Indeed, the facts set forth therein all appear undisputed. These facts are as follows:

1. On October 27, 1983, the Honorable Jawn A. Sandifer, Justice of the Supreme Court of New York, New York County, signed a Warrant of Commitment declaring the plaintiff in contempt of court for wilfully interfering with the duties of a court-appointed receiver and for disobeying a prior order of the Honorable Robert E. White of the Supreme Court of the State of New York, New York County, which directed plaintiff to pay a fine of $20,362.81.

2. On March 12, 1984, the plaintiff appeared before Justice White. Following a hearing at which both the plaintiff and his attorney were present, Justice White found that, although the plaintiff was financially capable of paying the fine imposed upon him by the Court, the plaintiff had nevertheless failed to do so. Justice White ordered that pursuant to the Warrant of Commitment dated October 27, 1983, the plaintiff be “committed to the custody of the Sheriff of the City of New York to be remanded to the Department of Correction until he pays the fine of $20,362.81 ... or pursuant to statute, for 180 days, or until further Order of this Court.”

3. On March 12, 1984, the plaintiff was incarcerated at the Bronx House of Detention for Men as a civil prisoner.

4. On June 7, 1984, a hearing was held before Justice White for the purpose of reviewing the plaintiffs confinement. At the conclusion of the hearing, which was attended by the plaintiff, Justice White ordered that the plaintiff once again be remanded to the custody of the Department of Correction until such time as he fully complied with the Court’s prior order directing that he pay the fine imposed upon him or was otherwise discharged according to law.

5. On or about July 12, 1984, the plaintiff petitioned the Supreme Court of New York, Bronx County, for a writ of habeas corpus. In his petition, the plaintiff claimed that his contempt commitment constituted a definite sentence of 180 days and that pursuant to §§ 803 and 804 of the New York State Correction Law, he was entitled to have one-third of his sentence, or 60 days, subtracted from this sentence based upon his good behavior. Plaintiff further claimed that, having served 120 days of his sentence, he was entitled to be discharged.

6. On or about July 25, 1984, the defendants produced the plaintiff before Justice Nardelli of the Supreme Court of New York, Bronx County in connection with his petition for a writ of habeas corpus. In a decision, dated July 27, 1984, Justice Nardelli dismissed the plaintiff’s petition in its entirety.

7. On or about July 29, 1984, the plaintiff filed a grievance with the New York City Board of Correction’s Inmate Grievance Resolution Program, alleging that the Department of Correction had wrongfully denied him credit against his sentence for good behavior. On July 12, 1984, the petitioner’s grievance was denied. This decision was subsequently appealed to the Board of Correction. In a written decision dated August 8, 1984, the Board of Correction again denied the plaintiff’s grievance on the ground that the Department of Correction was bound by the Court’s rulings to retain custody of the plaintiff for the 180-day statutory period unless the plaintiff chose, by his own action, to purge himself of his contempt of court.

8. On September 7, 1984, after having been imprisoned for 180 days, the plaintiff was discharged from the Bronx House of Detention for Men.

9. During the period of his incarceration, the plaintiff did not pay the fine ordered by the Supreme Court of New York, New York County and thus did not purge himself of his contempt.

10. The Department of Correction granted an allowance for good behavior to approximately eleven contemnors who were imprisoned during the period of the plaintiff’s incarceration. Each of the eleven contemnors who received good time credit had been committed pursuant to a court order which provided for a definite term of imprisonment.

11. The Department denied good time credit to the plaintiff and to one other contempt prisoner who, like the plaintiff, had been imprisoned pursuant to a court order which provided that the contemnor could purge his contempt by performing a specified act during the term of his commitment, and thereby gain his release from prison.

Upon the foregoing facts, the matter is ripe for a ruling on the legal issues presented.

We note first that the plaintiff has no right under New York State law to time off for good behavior. Reductions in sentence for good behavior in New York State are awarded pursuant to Article 24 of the New York State Correction Law. The awards are discretionary and are expressly limited to persons serving sentences imposed under the provisions of the Penal Law. However, these provisions do not apply to persons in prison for contempt under the Judiciary Law. N.Y. Correct. Law § 800 (McKinney 1968). Trice v. duros, 127 Misc.2d 289, 485 N.Y.S.2d 689 (Sup.Ct. Onondaga County 1985). Since the plaintiff was committed for contempt pursuant to section 774 of New York’s Judiciary Law, he had no entitlement to good time under Article 24.

The plaintiff is left to his claim that since certain civil eontemnors are being afforded good time by the New York prison authorities, he is being denied equal protection under the laws in violation of the fourteenth amendment. Consideration of an equal protection claim starts with a determination of whether the conduct operates to the disadvantage of a suspect class or violates a fundamental right protected by the Constitution. Maher v. Rowe, 432 U.S. 464, 470, 97 S.Ct. 2376, 2380, 53 L.Ed.2d 484 (1977). It cannot be said that persons who commit contempt of court are a suspect class. Nor is there a constitutional right to good time credits while in prison. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). Consequently, the distinctions afforded different types of contempt sentences need only be subject to minimum judicial scrutiny. So long as the challenged practice is reasonably calculated to further a legitimate state interest, it should be sustained. Bacon v. Toia, 648 F.2d 801 (2d Cir.1981), aff'd, 457 U.S. 132, 102 S.Ct. 2355, 72 L.Ed.2d 728 (1982).

The New York Department of Corrections distinguishes between prisoners whose contempt citations are for a fixed period and those, like the plaintiff, who can obtain their release by complying with an outstanding order of the court. When the order of commitment directs the contemnor to serve a definite term of imprisonment, a reduction in the term will generally be awarded for good behavior. On the other hand, when the commitment order provides for a flexible term, credit for good behavior will not be granted.

The defendants’ policy is both logical and consistent with the well-established principles that distinguish between punitive and coercive contempt confinements. Where the contempt commitment is for a specific period of time, and the contemnor does not hold the key to the prison in his hands, his sentence resembles that of a criminal conviction. Since the purpose of the sentence is punitive in nature, there is need for providing him with an incentive for good behavior. The allowance for good time provides the incentive. On the other hand, a contemnor who can secure his release simply by obeying the Court’s order needs no further incentive. Moreover, to classify his continued willful violation of the Court order as “good behavior” is inherently contradictory.

The plaintiff has not demonstrated that the distinction in affording good time allowances to “criminal contemnors” but not to “civil contemnors” is entirely irrational and unrelated to a legitimate governmental purpose. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314-316, 96 S.Ct. 2562, 2567-2568, 49 L.Ed.2d 520 (1976). Thus, he has not stated a claim under the Constitution, and his civil rights complaint is dismissed.

We need not, therefore, reach the alternative arguments that the claims against the Warden are barred by the doctrine of the good faith immunity, or that this action is barred by the doctrine of res judicata because of the adverse decision in state court of Justice Nardelli. We are, however, in substantial agreement with the decision of Judge Conner in both of those regards in an almost identical action. Mirtuono v. Cunningham, No. 85-533, slip op. (S.D.N.Y. July 23, 1985) (Conner, J.)

The petition is dismissed. The Clerk will enter judgment for the defendants.

SO ORDERED.

      . The plaintiff also seeks an order directing additional discovery on issues that are rendered moot by this decision.

      . A fixed term of imprisonment for contempt may be imposed only when the act of contempt is completed. Wides v. Wides, 96 A.D.2d 592, 465 N.Y.S.2d 285 (2d Dep’t 1983). Contempts resulting from completed acts are sometimes referred to as "criminal contempts," whereas those based upon a continuing wrong are often referred to as “civil contempts." Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183, 235-236 (1970).

      . That the plaintiff could be held no more than 180 days does not fix the period of his imprisonment, since he could have been released at any time prior thereto.

      . Plaintiff has made no claim to a liberty interest protected by the due process clause of the fourteenth amendment. Had he done so, we would find that none exists since there is no state-created right to receive good time credit. Mirtuono v. Cunningham, No. 85-533, slip op. (S.D.N.Y. July 23, 1985) (Conner, J.)

      . In addition to suing the Warden, the plaintiff has also sued, by title but not name, the "Sheriff of the City of New York.” His reason for adding the Sheriff to this case is unclear. He has brought another case against the Sheriff and a number of city officials and judges in which he alleges violations of his due process rights and false imprisonment in holding him in contempt of court and imprisoning him in the first place. Mezetin v. Michels, No. 85-3210 (DNE). A Magistrate’s report and recommendation dated November 20, 1985, recommends that the Sheriffs motion to dismiss the action against him should be granted for failure to state a claim upon which relief can be granted.


source: Caselaw Access Project

author: LUONGO, Chief Judge.

license: Public Domain

text:
    Franklin E. SKEPTON v. COUNTY OF BUCKS, PENNSYLVANIA, Andrew L. Warren and Carl F. Fonash, in their official capacities as Commissioners of Bucks County, Elaine P. Zettick, Peter A. Naccarato, P.E., O’Donnell and Naccarato, Inc., McClymont Associates, Vaughn Organization.
    No. 84-4395.
    United States District Court, E.D. Pennsylvania.
    Feb. 19, 1986.

      Harris F. Goldich, King of Prussia, Pa., for plaintiff.
    Richard D. Adamson, Morrisville, Pa., for defendants Naccarato and O’Donnell & Naccarato.
   OPINION

LUONGO, Chief Judge.

Plaintiff Franklin E. Skepton was the general contractor for the construction of a new correctional facility for Bucks County, Pennsylvania. Shortly after he began work on the project, his contract was terminated. On September 13,1984 he filed suit against Bucks County, certain County Commissioners, and private parties who were involved in the project. He asserted claims under the antitrust laws, 42 U.S.C. § 1983, the First Amendment and the due process clause of the Fourteenth Amendment. In an Opinion and Order dated July 18, 1985 I dismissed the complaint for failure to state a cause of action, granting plaintiff leave to amend his claims under § 1983 and the First Amendment if he could do so within the strictures of Fed.R.Civ.P. 11. Skepton v. County of Bucks, 613 F.Supp. 1013 (E.D.Pa.1985). Plaintiff has now filed an amended complaint, which defendants Peter A. Naccarato, P.E. and O’Donnell & Naccarato, Inc. have moved to dismiss. For the reasons stated below, the motion will be denied.

The allegations of the amended complaint, which I must accept for the purposes of this motion, are as follows. Defendants O’Donnell & Naccarato, a structural engineering firm, and Peter Naccarato, an engineer and an agent of O’Donnell & Naccarato, were employed by Bucks County in connection with the correctional facility project. On March 22, 1983, Skepton was awarded a contract for general construction of the project. When he began excavation work, he encountered topsoil depths of twelve to twenty-four inches, as opposed to the four inches reported by the County’s designated soils engineer. Skepton informed the County Commissioners and Naccarato of the discrepancy. Because they refused to permit him to replace the soils engineer, he, at his own expense, hired an independent soils testing agency. The agency reported topsoil at a depth of twelve to twenty-four inches. The amended complaint further alleges that on April 13, 1983 Skepton informed Naccarato of the agency’s findings. Skepton claims Naccarato directed him to remain silent and to “play ball” or someone else would build the prison. Naccarato also offered to arrange for the award of extra work to Skepton if he remained silent. At an April 18 meeting of the Commissioners, Naccarato and other project participants, Skepton announced that a building constructed according to existing contract specifications, without removal of the excess topsoil, would be structurally unsound. According to the amended complaint, Skepton was directed to continue with construction as specified and to remain silent about the problem he had encountered. He agreed to continue, but declared that he would make a public announcement concerning the defective specifications. The next day he informed the building inspector of Doylestown Township that the County’s specifications were defective and probably in violation of the Township’s building code. On April 22, Skepton was directed to suspend operations at the project site. He alleges that defendants thereafter held a closed meeting and decided to terminate his contract. The contract was terminated April 25, 1983.

According to Skepton, he was removed from the project because he intended to and did publicize the defects in the County’s specifications. He alleges that the termination of his contract violated his First and Fourteenth Amendment right to “speak out freely as to matters of great public importance and concern.” Amended Complaint at 1136.

In order to recover, plaintiff must establish that defendants, acting under color of state law, terminated his contract on a basis that infringed his constitutionally protected right to freedom of speech. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Robb v. City of Philadelphia, 733 F.2d 286, 295 (3d Cir.1984). Defendants Naccarato and O’Donnell & Naccarato have moved to dismiss the complaint on the ground that they did not act under color of state law. According to the Supreme Court, however, “an otherwise private person acts ‘under color of’ state law when engaged in a conspiracy with state officials to deprive another of federal rights.” Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984). See also Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980); Darr v. Wolfe, 767 F.2d 79, 80 (3d Cir.1985). Plaintiff, to survive a motion to dismiss, must allege with sufficient factual particularity that the private and state actors “directed themselves toward an unconstitutional act by virtue of a mutual understanding or agreement.” Hauptmann v. Wilentz, 570 F.Supp. 351, 382 (D.N.J.1983), aff'd mem., 770 F.2d 1070 (3d Cir.1985). See also Annunziato v. The Gan, Inc., 744 F.2d 244, 250-52 (2d Cir.1984); Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1206-07 (7th Cir.1980); Chicarelli v. Plymouth Garden Apartments, 551 F.Supp. 532, 539-40 (E.D.Pa.1982).

Although the facts as set forth in Skepton’s amended complaint do not directly establish the existence of an agreement between the moving defendants and Bucks County officials, they could, if proven, constitute adequate circumstantial evidence of conspiracy. See Hauptmann, 570 F.Supp. at 382 (conspiracy may be established through circumstantial evidence). Plaintiff alleges that Naccarato, and therefore his principal, O’Donnell & Naccarato, worked closely with Bucks County Commissioners in connection with the prison project. The amended complaint does not describe Naccarato’s precise role. For purposes of this motion, however, I find it reasonable to infer that Naccarato, as Project Manager, had supervisory responsibilities.

Skepton asserts that Naccarato threatened to have his contract terminated if he publicized the excess topsoil problem. This, if proven, could constitute evidence that Naccarato’s position gave him a voice in whether Skepton would be retained as general contractor, and that Naccarato felt Skepton’s contract should be terminated if he did not cooperate. Skepton further alleges that Naccarato participated in the meeting at which Skepton announced the topsoil problem and his intent to publicize it, and in the meeting at which the Commissioners decided to terminate Skepton’s contract.

As the moving defendants contend, it is not enough for Skepton to show that the private and state actors had a common goal, or that the private parties attempted to influence governmental action. See, e.g., Annunziato, 744 F.2d at 251-52; Scott v. Greenville County, 716 F.2d 1409, 1424 (4th Cir.1983); Hauptmann, 570 F.Supp. at 384; Tarkowski, 644 F.2d at 1206; Chicarelli, 551 F.Supp. at 539-40. Here, however, Skepton’s factual assertions suggest that Naccarato was intimately involved in the County Commissioners’ administration of the prison project. The allegations in the amended complaint, if proven, could establish that Naccarato had both the opportunity and the inclination to be a “willful participant” in the Commissioners’ decision to terminate Skepton’s contract. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605-06, 26 L.Ed.2d 142 (1970). See also Robb, 733 F.2d at 295 & n. 3; Black v. Bayer, 672 F.2d 309, 318 (3d Cir.), cert. denied, 459 U.S. 916, 103 S.Ct. 230, 74 L.Ed.2d 182 (1982); Three Rivers Cablevision, Inc. v. City of Pittsburgh, 502 F.Supp. 1118, 1135 (W.D.Pa.1980). Skepton’s allegations are thus sufficient to withstand defendants’ motion to dismiss.

Plaintiff’s allegation that he was deprived of a constitutionally protected right also passes muster at this preliminary stage, and defendants have not contended otherwise. The law is clear that a government entity cannot deprive a person of a benefit on a basis that infringes his constitutionally protected interest in freedom of speech. Connick, 461 U.S. at 142, 103 S.Ct. at 1687; Johnson v. Lincoln University, 776 F.2d 443, 450 (3d Cir.1985); Robb, 733 F.2d at 295. A public employee’s speech is protected if it relates to matters of public concern. Connick, 461 U.S. at 146, 103 S.Ct. at 1689-1690. Skepton claims he intended to and did disclose information showing that the County’s specifications for the prison project would result in a dangerously defective building. The safety and structural soundness of a County correctional facility is clearly a matter of public concern. See Czurlanis v. Albanese, 721 F.2d 98, 104 (3d Cir.1983) (plaintiff’s challenge to government practices “he considered inefficient, wasteful, and possibly fraudulent” is protected as speech involving matters of public concern). See also Brasslett v. Cota, 761 F.2d 827, 844 (1st Cir.1985); Monsanto v. Quinn, 674 F.2d 990, 996-97 (3d Cir.1982). Skepton’s claim that he was discharged in retaliation for exposing governmental inefficiency states a cause of action under § 1983.

Naccarato and O’Donnell & Naccarato have also requested an award of sanctions under Fed.R.Civ.P. 11. While I conclude that the allegations of the amended complaint are sufficient to survive this motion to dismiss, and that sanctions are thus not warranted at this stage, I will reserve for another day the question whether plaintiff’s allegations have a sufficient factual basis to satisfy the requirements of Rule 11.

      . The original complaint alleged that Naccarato acted as Project or Construction Manager. Complaint at ¶ 14.


author: HENRY WOODS, District Judge.

text:
    Tracy STRICKLAND, Plaintiff, v. J. DYER, C. Sloan, CO-I Tolbert, and Clifford Terry, Disciplinary Committee Members, and A.L. Lockhart, Director, Arkansas Department of Correction, Defendants.
    No. PB-C-85-485.
    United States District Court, E.D. Arkansas, Pine Bluff Division.
    Feb. 19, 1986.

      Tracy Strickland, pro se.
    Sandra Johnson Buchanan, Asst. Atty. Gen., Little Rock, Ark., for defendants.
   ORDER

HENRY WOODS, District Judge.

This case is pending before the Court on defendants’ motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants have submitted various documents for the Court’s consideration and the motion will be treated as one for summary judgment. Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972).

Mr. Strickland, who was released from prison in October, 1985, contends that in March, 1985 he appeared before the disciplinary committee which found him guilty of violating Rule 14 (staying in his living quarters without permission when he was scheduled to work). This decision was affirmed by Assistant Warden Terry and Assistant Director Morgan. Petitioner disagrees with the decision and alleges in his complaint that he was deprived of due process and has sustained mental injuries as the result.

It is a well-settled proposition of law that the right of due process does not attach unless there is “some legal entitlement, right, or liberty interest that is protected under state or federal law.” Peck v. Hoff, 660 F.2d 371, 373 (8th Cir.1981). The report of the disciplinary hearing reveals the committee recommended a reduction of two steps in class as Strickland’s penalty for the rule violation. In Arkansas, classification of inmates is governed by Ark.Stat. Ann. § 46-120.3 (1985 Cum.Supp.) which establishes a classification committee and provides that “[ijnmates may be reclassified as often as the committee(s) deems necessary and/or in accordance with current Department regulations to carry out the purpose of this Act and to maintain good discipline and efficiency at the institutions.” Thus state law does not protect plaintiff’s right to any particular classification.

The United States Supreme Court stated in reference to federal prisons that prisoner classification was delegated by Congress to the discretion of prison officials and thus implicates “no legitimate statutory or constitutional entitlement sufficient to invoke due process.” Moody v. Daggett, 429 U.S 78, 88 n. 9, 97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236 (1976) Therefore, no federally protected right exists in this situatiop/

Where a prisoner’s complaints^merely reflect an administrative-classification issue ... inquiry of federal courts ... must be limited to the issue of whether a particular system violated any prohibitions of the Constitution.” Peck v. Hoff, 660 F.2d 371, 373 (8th Cir.1981).

No such violations exist and, therefore defendants are entitled to judgment as a matter of law.


author: EDWARD C. REED, Jr., District Judge.

text:
    Stewart BYERS, et ux., Plaintiffs, v. CITY OF RENO, et al., Defendants.
    No. CV-R-84-141-ECR.
    United States District Court, D. Nevada.
    Feb. 19, 1986.
    Lawrence J. Semenza, Reno, Nev., for plaintiffs.
    Robert L. Van Wagoner, of Shamberger, Georgeson, McQuaid & Thompson, Reno, Nev., for defendants City of Reno & Bradshaw.
    Gary G. Bullis, Reno, Nev., for defendants Washoe County and Two Unknown Washoe Medical Center Employees.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

The Amended complaint in this action asks for damages pursuant to 42 U.S.C. § 1983 and pendent State claims. Among the defendants are Washoe County, individual County Commissioners and “Two Unknown Washoe Medical Center Employees.” At the time of the incidents about which the plaintiffs complain, the Washoe Medical Center was a County facility and the two unknown employees allegedly were employees of the County. Those two employees, according to the Amended Complaint, instigated a false arrest of plaintiff Stewart Byers by falsely reporting to the police that he had tampered with his wife’s respiratory equipment while she was a patient at the Washoe Medical Center.

The attorney for Washoe County and the two unknown employees has moved for a protective order to prevent the plaintiffs’ attorneys and those attorneys’ employees or agents from interviewing the Director of Social Services at Washoe Medical Center or any other employees of the Medical Center. The moving papers argue that said Director or any other employee of the Medical Center may be named as a defendant herein. Thus, it is asserted, any interview could interfere with future attorney-client privilege. Nevada Supreme Court Rule 190 also is cited, for the principle that an attorney should “not in any way communicate upon the subject of controversy with a party represented by counsel____”

It is not necessary to rule on the attorney-client privilege argument, because the rules against an attorney communicating with an adverse party who is represented by counsel are applicable. In addition to Rule 190, the Code of Professional Responsibility of the American Bar Association provides standards of conduct by reason of its incorporation into Rule 4(h) of the Rules of Practice of this United States District Court. Ethical Consideration (EC) 7-18 of the Code parallels Nevada Supreme Court Rule 190. The principle is reinforced by the Code’s Disciplinary Rule (DR) 7-104(A), which reads: “A lawyer shall not communicate regarding a legal matter with an adverse party who the lawyer knows is represented in that matter by an attorney, unless the lawyer has been authorized to do so by that [party’s] attorney____”

In the present posture of this case, the identities of the two Medical Center employees who are defendants remain unknown. It would seem appropriate that they be identified and named, either through formal discovery or informal cooperation by the defendants’ attorney, before the plaintiffs’ attorneys attempt any interviews of. Medical Center employees. In that way, the spirit of Rule 90 and the Code of Professional Responsibility can be honored without thwarting the plaintiffs’ right to obtain information through investigation.

IT IS, THEREFORE, HEREBY ORDERED that neither the plaintiffs’ attorneys, nor any employee or agent thereof, may interview any employee of the Washoe Medical Center until the identities of the “Two Unknown Washoe Medical Center Employees” referred to in the Amended Complaint have been ascertained by the plaintiffs.


author: HATFIELD, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Renato R. PASQUALINO, Defendant.
    No. CR-85-076-GF.
    United States District Court, D. Montana, Great Falls Division.
    Feb. 20, 1986.

      Byron H. Dunbar, U.S. Atty., Billings, Mont., Carl H. Rostad, Asst. U.S. Atty., Dist. of Mont., Great Falls, Mont., for plaintiff.
    Michael W. Cotter, Great Falls, Mont., for defendant.
   MEMORANDUM AND ORDER

HATFIELD, District Judge.

The defendant, Renato Pasqualino, having been indicted for numerous violations of the Gun Control Act of 1968 (26 U.S.C. § 5861), moves the court to suppress from the introduction into evidence the prohibited firearm, i.e., .380 caliber “machine” gun, upon which the charges are predicated. Pasqualino asserts the gun is the fruit of an illegal detention and search. Having considered the evidence presented with respect to Pasqualino’s motion, the court concludes that the initial detention and subsequent search leading to the discovery of the firearm comported with the proscriptions of the Fourth Amendment.

FACTUAL BACKGROUND

On October 23, 1985, a threat was anonymously communicated by telephone to an official of Amtrak, in Chicago. The caller informed the official that an explosive device had been placed upon one of Amtrak’s trains, i.e., The “Empire Builder”. Amtrak promptly notified the appropriate law enforcement agencies, including the Toole County Sheriff’s Department in Shelby, Montana; the next station site at which the train was scheduled to arrive only minutes after the threat was received. Personnel of the Sheriffs Department were immediately dispatched to the station. In an effort to facilitate detection of the purported explosive device, Amtrak promptly secured the use of a “sniffer dog” belonging to the United States Air Force. The dog was to be available for use at the Shelby station approximately one hour and forty-five minutes after a request was officially made.

Upon its arrival at the depot, the train was evacuated and immediately moved to a remote location where a search was conducted with negative results. In the meantime, all passengers, including Pasqualino, were requested to deposit at the loading platform any luggage, bags, etc., they had in their possession, in order that an inspection of the luggage could be conducted prior to reboarding. Immediately prior to the inspection, Sheriffs deputies observed Pasqualino nervously attempting to exit the depot with a “military” type duffel bag. One of the deputies directed Pasqualino to return to the platform where the inspection proceeded. A short time later, when it came time for the inspection of Pasqualino’s belongings, one of the deputies asked Pasqualino if he would allow the deputy to inspect the duffel bag, whereupon the following colloquy occurred:

Pasqualino: Before you do, I want to know what my legal rights are.
Deputy: Do you have some kind of contraband in the bag?
Pasqualino: I want to know what you are going to do before I let you go through my bag and what if I refused to let you.
Deputy: In view of what is going on, we are going to have to go through the bag for the safety of the passengers and if you refuse we will have to get a search warrant.
Pasqualino: Am I going to get busted for what’s in there?
Deputy: If it turns out to be a small amount of marijuana or pills it will probably just be seized and no charges filed.
Pasqualino: Well, it’s not marijuana.
Deputy: What is it?
Pasqualino: I have an Ingram MAC 10 in a case.
Deputy: Is it full auto?
Pasqualino: It’s been converted.

At the conclusion of the conversation, the deputy removed a locked container from the duffel bag. Having obtained a key from Pasqualino, the deputy opened the container to find, among other things, the firearm at issue.

DISCUSSION

Pasqualino contends that both his initial detention and the subsequent search of his duffel bag were accomplished without probable cause in violation of the Fourth Amendment. Resolution of the issue presented requires the court to undertake a two-step analysis: First, the court must determine whether the initial detention of Pasqualino infringed upon his Fourth Amendment rights. If the detention was improper, the firearm at issue must be suppressed as the product of an illegal seizure. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). If, on the other hand, the court concludes that the search of Pasqualino’s duffel bag was not preceded by an impermissible stop, it must, nonetheless, proceed to determine whether the warrantless search of the duffel bag was justified under the circumstances.

INITIAL DETENTION

A person may not be detained by law enforcement officials, even momentarily, unless there exists reasonable, objective grounds to support the detention. United States v. Mendenhall, 446 U.S. 544, 556, 100 S.Ct. 1870, 1878, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). Not all detentions amounting to the seizure of a person, however, must be justified by probable cause to arrest for a crime. See, Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Temporary detention for questioning on less than probable cause satisfies the ultimate test of reasonableness under the Fourth Amendment where the public interest in the suppression of any serious crime is involved. Florida v. Royer, 460 U.S. at 498-99, 103 S.Ct. at 1324-25. As noted by the Court in Royer, however, the exceptions to the probable cause requirement are limited, and law enforcement personnel may not carry out a full search of a person or his effects in the name of investigating a person who is no more than suspected of criminal activity. Id., at 499, 103 S.Ct. at 1325. While the scope of a detention on less than probable cause will vary to some extent with the particular facts and circumstances of each case, the detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Id., at 500, 103 S.Ct. at 1325-26.

There is no question but that Pasqualino was subjected to a seizure, within the meaning of the Fourth Amendment, on less than probable cause. The record further evinces that the initial detention was of limited duration, lasting no longer than necessary to effectuate the purpose of the stop. Consequently, the validity of Pasqualino’s initial detention hinges on whether there existed reasonable, articulable suspicion to justify a temporary detention. The court finds that the Terry- stop rationale, as expanded and refined in the Terry progeny, see e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 881-86, 95 S.Ct. 2574, 2580-82, 45 L.Ed.2d 607 (1975) (reasonable suspicion of criminal activity warranted temporary seizure), justified the restraint to which Pasqualino was subjected in the first instance.

Given the circumstances in which the officers were operating, and the inherently exigent nature of a bomb threat investigation, Pasqualino’s conduct in attempting to exit the station with a "military” type duffel bag, coupled with his nervous appearance, provided adequately reasonable grounds for the officers to suspect that he was involved in the purported criminal activity under investigation. Consequently, the officers were justified in temporarily detaining Pasqualino to “verify or dispel their suspicions in a manner that did not exceed the limits of any investigative detention.” Florida v. Royer, 460 U.S. at 502, 103 S.Ct. at 1326.

Review of the record convinces the court that the officers did not exceed the bounds of a permissible Terry- type detention. The scope of the detention was “carefully tailored to its underlying justification,” Florida v. Royer, 460 U.S. at 500, 103 S.Ct. at 1325. Pasqualino was initially detained for a legitimate purpose; there existing absolutely no indication that the detention was a subterfuge. The manner and length of the detention satisfied the ultimate test of reasonableness under the Fourth Amendment.

THE SEARCH

The validity of Pasqualino’s initial detention established, there remains the separate issue of whether the search of his duffel bag satisfied the proscriptions of the Fourth Amendment. Pasqualino’s statements aside, the record indisputably establishes that the “probable cause” necessary to justify a warrantless search of Pasqualino’s duffel bag was lacking. Consequently, the validity of the search conducted hinges on whether Pasqualino’s purported “consent", in the form of an admission of criminal activity, was valid.

The journals are replete with cases evidencing the consternation courts have faced in determining the validity of a consent to search, obtained after law enforcement personnel have “threatened” to seek or obtain a warrant if consent is withheld. The determinative issue is voluntariness. The voluntariness of any purported consent, given in response to such a threat, presents a factual question to be determined under the totality of the circumstances. See, United States v. Agosto, supra, at 614 (9th Cir.1974), citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); cf., United States v. Ocheltree, supra, at 992 (9th Cir.1980). The language utilized by the officer in communicating his intent to procure a search warrant if consent is withheld is not dispositive. See, United States v. Ocheltree, supra. Evaluation of the circumstances in the case sub judice convinces the court that the statements of Pasqualino were voluntary.

The detention of Pasqualino, and the subsequent inquiry regarding consent, occurred in a public place within the plain view of numerous witnesses. At no point in time did the inquiry escalate into an investigatory procedure in an interrogation room, where the innate, intimidating power of law enforcement was brought to bear upon the suspect. See, Florida v. Royer, 460 U.S. at 503, 103 S.Ct. at 1327. The coercive atmosphere which compelled the decision in Ocheltree is absent in the case at bar. The officer’s statement regarding the procurement of a search warrant was a spontaneous response invited by Pasqualino, rather than a threat of unreasonable detention communicated simultaneously with an otherwise permissible request to search.

A final point bears comment. The rationale upon which Ocheltree is predicated must be assessed in light of the recent decisions rendered by the Supreme Court in Royer and Place. Application of Royer to the present facts establishes that the temporary detention of both Pasqualino and his duffel bag was valid. Place, in turn, holds that a “canine sniff” is not a search within the meaning of the Fourth Amendment. Consequently, Pasqualino’s “duffel” bag could have legitimately been subjected to a “canine sniff” for the purpose of detecting the presence of explosives. The record establishes that this means of investigating the contents of Pasqualino’s bag was not only feasible, but was imminent. Unlike the situation in Ocheltree, the possibility of obtaining a search warrant was real, and not a mere threat beyond the officer’s capabilities under the circumstances. Obviously, recognition of the validity of subjecting luggage, etc., to “canine sniffs”, precludes application of the Ocheltree rule on a per se basis as urged by Pasqualino.

For the reasons set forth herein, IT IS HEREBY ORDERED that the defendant’s motion to suppress be, and the same hereby is, DENIED.

      . In light of the rationale espoused in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), one may be tempted to speculate whether the period of time necessary to subject Pasqualino’s duffel bag to a "sniff test” would have been unreasonable per se. Had Pasqualino simply refused to allow a search, the rationale of Place may have become pertinent. The events which actually transpired, however, obviate the need for such speculation.

      . It is irrelevant whether the statement made by Pasqualino regarding his possession of the illegal firearm is characterized as a “consent” to search or an admission of criminal activity since, as a practical matter, the two are equivalent under the circumstances. The determinative inquiry is whether the statement was voluntarily made. See, United States v. Agosto, 502 F.2d 612 (9th Cir.1974); cf., United States v. Ocheltree, 622 F.2d 992 (9th Cir.1980).


author: DORSEY, District Judge.

text:
    Grace GOODRICH, et al. v. Margaret M. HECKLER, Secretary of Health and Human Services.
    Civ. No. H-84-1054 (PCD).
    United States District Court, D. Connecticut.
    Feb. 24, 1986.

      Charles C. Hulin, Sheldon A. Mossberg, Legal Assistance to Medicare Patients, Willimantic, Conn., for plaintiffs.
    Leslie C. Ohta, Asst. U.S. Atty., Clifford Pierce, Asst. Reg. Atty., U.S. Dept, of Health & Human Services, Boston, Mass., for defendant.
   RULING ON MOTION FOR PROTECTIVE ORDER

DORSEY, District Judge.

Plaintiffs have brought this action challenging the Secretary’s denial of their claims for Medicare skilled nursing facility benefits. The claims are asserted individually, as well as on behalf of all persons residing in New England who have been denied these benefits. Specifically, plaintiffs challenge the Secretary’s alleged policy of refusing to provide benefits for patients whose need for daily insulin injections allegedly require that they reside in a skilled nursing facility. In order to prove their claims, plaintiffs seek discovery of agency documents, answers to interrogatories and answers to requests to admit. In their words, they “seek to learn the nature, extent and history of the illegal actions taken by the Defendant with respect to the Plaintiff class.” Plaintiffs’ Memorandum in Opposition at 2. Defendant has moved for a protective order, arguing that discovery of the additional information sought is precluded by the strictures of 42 U.S.C. § 405(g), incorporated into the Medicare Act by 42 U.S.C. § 1395ff, wherein the district court’s review is limited to the evidence contained in the administrative record filed by the Secretary.

The court undisputedly has jurisdiction over this matter under 42 U.S.C. § 405(g). The other jurisdictional bases asserted are inapplicable in this case. Title 42 U.S.C. § 1361 is not applicable since plaintiffs are not challenging a procedure of the Social Security administration, rather they are challenging adverse decisions made by the Secretary. They challenge the statutory interpretation of 42 U.S.C. § 1395 adopted and applied by the Secretary in making the challenged adverse decisions. It is not claimed that the Secretary failed to perform a non-discretionary duty or maintained an improper procedure, but rather that claimants disagree with the manner in which it was performed. Cf. Ellis v. Blum, 643 F.2d 68, 80 (2d Cir.1981).

The scope of the court’s review under 42 U.S.C. § 405(g) is limited to a determination of whether the Secretary’s decision is supported by substantial evidence in the record on which the decision was based, including the evidence considered by the Administrative Law Judge (“ALJ”). Mathews v. Weber, 423 U.S. 261, 263, 96 S.Ct. 549, 551, 46 L.Ed.2d 483 (1976). The only evidence not presented to the AU which the court may consider is material evidence which was not previously presented for which good cause is shown as to why same was not so presented. 42 U.S.C. § 405(g). Such additional evidence may be the basis for the district court to order the Secretary to reconsider the matter in light of the additional evidence. This provision is inapplicable to the case at bar. It is not material to the Secretary’s underlying decision that similar decisions were made in other cases, nor is there any showing that any of the information sought could not have been presented previously. Plaintiffs’ reliance on Hummel v. Heckler, 736 F.2d 91 (3d Cir.1984), is misplaced. There the Court of Appeals solely found error in issuing the decision prior to ruling on a pending discovery motion. There was no implication that discovery was deemed to be necessarily appropriate in all Social Security cases, such as that at bar. Rather, it was held that discovery motions should be considered and decided prior to making a dispositive ruling. Evidence outside the record received in the course of discovery is received under § 405(g) for a determination as to the propriety of requiring the AU to consider it and only upon a showing of good cause. Plaintiffs here are asking this court to consider additional evidence, contrary to the statutory provision upon which they rely.

Although mindful of the practical implications of the granting of the protective order, no persuasive authority has been presented for allowing the requested discovery to proceed on the basis that what is sought comes within the rule set forth above. The issue here involves statutory interpretation and application which does not require the requested information. Without intimating what relief, if any, plaintiffs or the still unknown parties who may have been affected by adverse rulings by the Secretary implicating 42 U.S.C. § 1395f may be entitled to, defendant’s motion for a protective order is granted.

SO ORDERED.

      . Nothing in the record, except plaintiffs’ claim, suggests that applicants would be denied benefits in all cases where insulin injections are required. Plaintiffs have attempted to frame the issues as a universal policy of the Secretary. If plaintiffs' claim is sustained, there would be an entitlement to benefits solely based on the need for insulin injections. Yet, the complaint alleges a refusal “to recognize insulin injections as a benefit triggering ‘skilled service,’ despite the fact that the plaintiffs are so ill that they are unable to self-administer insulin, and must as a practical matter be cared for in a skilled nursing facility. " Complaint, ¶ 1 (emphasis added). In short, what plaintiffs claim is the benefit of care in a skilled nursing facility, qualification for which is set forth in 42 U.S.C. § 1395f(a)(2). See 42 C.F.R. §§ 409.30 and 409.31. While the need for insulin is a factor in determining such entitlement, it alone is not determinative. Monmouth Medical Center v. Harris, 646 F.2d 74, 80 (3d Cir.1981). Thus, each case must depend on its own facts and not, solely, the need for insulin injection which, for many, is self-administrable.


author: EDWARD WEINFELD, District Judge.

text:
    UNITED STATES of America, v. Carlo HERNANDEZ, Defendant.
    No. 86 Crim. 099 (EW).
    United States District Court, S.D. New York.
    Feb. 24, 1986.

      Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y. New York City, for the U.S.; Mark C. Hansen, of counsel.
    Higgins & Viviani, New York City, for defendant; Arthur J. Viviani, of counsel.
   OPINION

EDWARD WEINFELD, District Judge.

Defendant Carlo Hernandez is charged in a three-count indictment with conspiracy to use or traffic in one or more counterfeit credit cards, using or trafficking in one or more unauthorized credit cards, and possession of fifteen or more counterfeit or unauthorized credit cards. Defendant moves to suppress credit cards seized at the time of his arrest on the ground that the police lacked probable cause to conduct the search that yielded the credit cards. A suppression hearing was held on February 20 and 21, 1986.

On December 23, 1985, Hernandez and a friend named Brea were driving in Hernandez’s father’s car across the 207th Street bridge connecting Manhattan and the Bronx. Hernandez testified that earlier that day he and Brea used credit cards Hernandez had purchased from a man nicknamed El Gordito to buy items at Alexander’s. The credit cards were in the car with them when they drove across the bridge.

As they approached a New York City Police Department drunk driving roadblock on the Manhattan side of the bridge, Brea was observed exiting the car by Officer Daniel Donovan. Donovan approached Brea to ask him where he was going. According to Donovan, whose testimony the Court finds credible, Brea claimed he was simply walking across the bridge and denied having exited from the car driven by Hernandez.

After Donovan noticed that the car lacked a front license plate and had a temporary paper license plate taped to the rear window, the car was signaled to pull off into a safe area on a sidestreet. Donovan testified that based on his experience as an officer assigned to the Manhattan North Task Force, he was aware that paper temporary license plates were sold in stores in the area to persons seeking to evade the requirement that their cars be registered and insured.

As Donovan approached the car from the rear, he observed Hernandez through the hatchback window stuffing something between the front seats of the car and looking into the rearview mirror. He noticed various items of merchandise on the rear seat, including a videocassette recorder, an electric razor and boxes of shoes. Donovan asked Hernandez to produce his driver’s license, registration and insurance certificate. Donovan testified that Hernandez groped around in the darkened car for a few minutes, placing Donovan in fear that Hernandez might be looking for a weapon. When Hernandez was unable to produce any of these documents, Donovan asked Hernandez to identify himself. Hernandez replied that his name was Alberto Martinez and stated that he did not have a driver’s license. Donovan then asked Hernandez to step out of the car, where he patted him down for possible weapons.

When Hernandez opened the car door to comply with the officer’s request, the car’s interior light went on, enabling Donovan to see two credit cards lying face up on the floor of the car. Donovan retrieved the two credit cards and, looking for possible weapons or contraband, searched the area between the seats where he had observed Hernandez placing something. He seized ten credit cards.

Defendant contends that Officer Donovan’s search of the car was conducted without probable cause and therefore the twelve credit cards should be suppressed. Hernandez testified that all twelve credit cards were under the passenger’s seat in the front of the car as he drove across the bridge and denied stuffing any credit cards between the seats of the car while waiting to pass through the roadblock. The Court finds that Hernandez was not a credible witness. Hernandez was evasive and gave inconsistent answers to questions posed by the government and the Court.

Probable cause is a “practical, nontechnical conception.” Based on the “totality of the circumstances,” the Court concludes that Officer Donovan had probable cause to search the front of the car.

Donovan observed Brea leave the car shortly before it reached the roadblock; when he questioned Brea, Donovan received demonstrably false answers. He observed Hernandez placing something between the seats of the car and acting furtively. In addition, Donovan saw two credit cards on the floor of the car and various goods on the back seat, all in plain view. Hernandez groped around the car while failing to produce his driver’s license. These factors, combined with the absence of permanent license plates on the car and Hernandez’s inability to produce a driver’s license or the car’s registration or insurance certificate, gave Donovan probable cause to believe the car might contain contraband or weapons. While the New York Court of Appeals has held that a violation of the traffic laws by itself may not justify a search, here there were sufficient factors independent of the traffic infraction to support a finding that Donovan had probable cause to conduct the search. The fact that the search preceded the arrest does not warrant suppression of the credit cards since Donovan had probable cause to arrest Hernandez for driving without a driver’s license before he conducted the search.

Defendant’s motion is denied.

The case is set down for trial on March 5, 1986, at 10:00 a.m.

So ordered.

      . 18 U.S.C. § 1029(b)(2).

      . 18 U.S.C. § 1029(a)(2).

      . 18 U.S.C. § 1029(a)(3).

      . Defendant's motion to suppress statements made to federal agents between December 30, 1985 and January 6, 1986 is rendered moot by the government’s representation on the record that it will not seek to introduce such statements at trial.

      . Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). See also Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983); United States v. Ginsberg, 758 F.2d 823, 828 (2d Cir.1985).

      . Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983).

      . See Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980); see also New York v. Belton, 453 U.S. 454, 460-61, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981); Arkansas v. Sanders, 442 U.S. 753, 760-61, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235 (1979).

      . See People v. Troiano, 35 N.Y.2d 476, 363 N.Y.S.2d 943 (1974); People v. Adams, 32 N.Y.2d 451, 346 N.Y.S.2d 229, 299 N.E.2d 653 (1973); People v. Marsh, 20 N.Y.2d 98, 281 N.Y.S.2d 789, 228 N.E.2d 783 (1967).

      . See People v. Belton, 55 N.Y.2d 49, 54-55, 447 N.Y.S.2d 873, 876, 447 N.Y.S.2d 873, 432 N.E.2d 745 (1982).

      . See United States v. Ricard, 563 F.2d 45, 49 (2d Cir.1977), cert. denied, 435 U.S. 916, 98 S.Ct. 1471, 55 L.Ed.2d 507 (1978); United States v. Jenkins, 496 F.2d 57, 73 (2d Cir.1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1119, 43 L.Ed.2d 394 (1975); United States v. Riggs, 474 F.2d 699, 704 (2d Cir.), cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973). Cf. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980). Under New York law, the police have the authority to conduct a warrant-less search incident to an arrest for a traffic violation. See N.Y.Veh. & Traf.Law § 155 (McKinney Supp.1986); N.Y.Crim.Proc.Law § 140.10 (McKinney 1981).


author: NEVAS, District Judge.

text:
    GTE SPRINT COMMUNICATIONS CORPORATION, and MCI Telecommunications Corporation v. John T. DOWNEY, individually and in his capacity as Chairman of the Department of Public Utility Control of the State of Connecticut; Peter G. Boucher, Marvin S. Loewith, Edythe J. Gaines, and David J. Harrigan, each individually and in his or her capacity as a Commissioner of the Department of Public Utility and Control of the State of Connecticut; Joseph Lieberman, individually and in his capacity as Attorney General of the State of Connecticut; Southern New England Telephone Company; and New York Telephone Company.
    Civ. No. H-85-974(AHN).
    United States District Court, D. Connecticut.
    Feb. 24, 1986.
    Charles L. Howard, Thomas M. Bounty, Shipman & Goodwin, Hartford, Conn., Robert L. Sills, Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City, Brad W. Mutchelkanus, Phyllis A. Whitten, GTE Sprint Communications Corp., Washington, D.C., for GTE Sprint Communications Corp.
    Robert Golden, Jr., Phyllis E. Lemell, Asst. Attys. Gen., New Britain, Conn., for Downey, Boucher, Loewith, Gaines, Harrigan & Lieberman.
    Robert K. Cuilla, Tyler, Cooper & Alcorn, James B. Curtin, Gen. Counsel, New Haven, Conn., for Southern New England Telephone.
    Timothy S. Fisher, Robinson & Cole, Hartford, Conn., Henry D. Levine, Morrison & Foerster, Washington, D.C., for MCI Telecommunications Corp.
    John E. Reilly, New York Telephone Co., New York City, Marjorie J. Berger, Updike, Kelly & Spellacy, P.C., Hartford, Conn., for New York Telephone.
   RULING AND ORDER

NEVAS, District Judge.

This action for injunctive and declaratory relief concerns a recently enacted Connecticut public act entitled “An Act Preserving Universal Telephone Service in Connecticut” (“Act”), and a decision by the State of Connecticut Department of Public Utility Control (the “DPUC”) implementing the Act. GTE Sprint Communications Corporation (“Sprint”) filed suit on November 15, 1985. Shortly thereafter, MCI Telecommunications Corporation (“MCI”) intervened as a plaintiff. The plaintiffs seek to enjoin the DPUC Commissioners and the Attorney General from enforcing the Act and the DPUC decision against them and seek a declaration that the Act and the DPUC decision are unenforceable.

The Act is a comprehensive scheme engineered to regulate intrastate telecommunications. The Act prohibits “intrastate interexchange telecommunications service” in Connecticut by carriers not authorized by the State to provide such service on or before January 1, 1984. (Section 3(a) of the Act). The controversial section 3 of the Act requires, among other things, interstate communication carriers (“ICCs”) like Sprint and MCI, operating in Connecticut but unauthorized to provide intrastate service, to (1) inform their customers through “billing notices, advertising campaigns, customer contacts and other similar methods” that they are authorized only to provide interstate services (section 3(b) of the Act); (2) compensate the appropriate local exchange companies, like the defendant Southern New England Telephone Company (“SNETCo”), as directed by the DPUC for any intrastate calls using ICC facilities (section 3(c) of the Act); and (3) “track” all intrastate calls using their ICC facilities if the DPUC so orders (section 3(c) of the Act).

The principal thrust of the plaintiffs’ complaints is that section 3 of the Act and the DPUC decision implementing that section intrude into an area of telecommunications preempted by the Communications Act of 1934, 47 U.S.C. Sections 1 et seq. (1982), and exclusively regulated by the Federal Communications Commission (“FCC”) in contravention of the supremacy clause of the United States Constitution. U.S. Const, art. VI, cl. 2. The Act is also alleged to unduly burden and interfere with interstate commerce in violation of the commerce clause of the Constitution. U.S. Const, art. I, Section 8, cl. 3. Since this action arises under the laws and Constitution of the United States, the court has jurisdiction to hear and decide Sprint and MCI’s complaints.

On November 20, 1985, the court heard the parties on Sprint’s application for a temporary restraining order. The parties filed a Stipulation (filing no. 17) on November 22, 1985, in which the plaintiffs agreed to comply with certain orders in the DPUC decision, the DPUC and State Attorney General agreed not to enforce the Act or DPUC decision against the plaintiffs, and the pending application for a temporary restraining order was withdrawn. The court set December 9, 1985, as a date for a preliminary injunction hearing. The parties then entered into a second Stipulation (filing no. 30) in which the terms of the earlier stipulation were incorporated, the plaintiffs agreed to maintain records that would permit compensation of local exchange companies according to the Act if required, and the motions for a preliminary injunction were withdrawn. As agreed, the stipulation is to remain in effect until this court enters a final judgment.

The essence of this controversy concerns the FCC’s comprehensive regulatory responsibilities in the constantly changing complex telecommunications industry. The plaintiffs do not question that Connecticut may refuse to certify ICCs like Sprint and MCI as intrastate carriers. However, Sprint and MCI do question the State’s authority to regulate their conduct where Sprint or MCI’s Connecticut customers place unpreventable intrastate calls using Sprint or MCI interstate facilities. The court and all the litigants agree that the resolution of the principal legal issue of preemption in this case requires extensive findings of complicated and controverted technical facts. For example, as MCI argues, if MCI’s intrastate traffic in Connecticut is determined to be “incidental” to MCI’s interstate operations, then that traffic would be subject to the FCC’s exclusive jurisdiction pursuant to the Communications Act of 1934, 47 U.S.C. Sections 152(a), 153(a). (MCI’s Memorandum in Opposition to Defendants’ Motion to Dismiss at 4). An additional concern is whether the State’s attempted regulation of Sprint and MCI’s telecommunication services interferes with the FCC’s statutory duties to uniformly regulate the interstate telecommunications industry.

The parties recently raised the appropriateness of referring this matter to the FCC under the doctrine of primary jurisdiction. See, e.g., Macom Products Corp. v. American Telephone & Telegraph Co., 359 F.Supp. 973, 978 (C.D.Cal.1973). Where the court and an administrative agency have concurrent jurisdiction, as in this case, a referral to an agency may be wise. The primary jurisdiction doctrine is a flexible device created by the judiciary to promote the “proper relationship between the courts and administrative agencies charged with particular regulatory duties.” United States v. Western Pacific R. Co., 352 U.S. 59, 63, 77 S.Ct. 161, 164, 1 L.Ed.2d 126 (1956). See generally 5 B. Mezines, J. Stein & J. Gruff, Administrative Law, Sections 47.01 to 47.03 at 47-1 to 47-54 (1979 & Supp.1985). The Second Circuit advises that a court’s discretion invoking this doctrine should be guided “by a desire for uniformity of regulation and the need for initial consideration by a body possessing special expertise in the issue presented.” Board of Education of City School District of City of New York v. Harris, 622 F.2d 599, 606 (2d Cir.1979) (citations omitted), cert. denied sub nom. Hufstedler v. Board of Education of City School District of City of New York, 449 U.S. 1124, 101 S.Ct. 940, 67 L.Ed.2d 110 (1981). When primary jurisdiction is invoked, a court's jurisdiction “is not ousted but merely postponed.” State v. Department of Health, Education and Welfare, 480 F.Supp. 929, 937 (E.D.N.C.1979). A court will “stay its hand until the agency has applied its expertise to the salient questions.” Engelhardt v. Consolidated Rail Corp., 756 F.2d 1368, 1369 (2d Cir.1985), quoting Hansen v. Norfolk & Western Ry. Co., 689 F.2d 707, 710 (7th Cir.1982). Further, a challenge in a district court on constitutional and statutory grounds is “immaterial” to a referral to the FCC. City of Peoria v. General Electric Cablevision Corp., 690 F.2d 116, 121 (7th Cir.1982).

In view of the appropriateness in referring to the FCC a matter requiring a resolution consistent with the FCC’s regulatory-responsibilities and concededly “beyond the conventional experience of judges,” Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952), the court requested the parties’ written positions on referral. On February 21, 1986, the court and counsel met and discussed the method and scope of referral to the FCC, the necessity for surety, and the stay or dismissal of this action pending the receipt of the FCC’s view.

Accordingly, the following is ordered.

1. The plaintiffs are to file a petition for declaratory ruling with the FCC on or before March 27, 1986.

2. The petition is to include a question inquiring whether, under the facts of this action as determined by the FCC, sections 3(b) and 3(c) of the Act and any DPUC decisions implementing those sections of the Act regulate interstate communications within the FCC’s jurisdiction pursuant to the Communications Act of 1934 or pursuant to the rules, regulations, or decisions of the FCC adopted according to its authority.

3. The Stipulation filed December 19, 1985, shall remain in effect except that each plaintiff is ordered to post security with the clerk of this court on or before June 1, 1986, in the form of a renewable surety bond or letter of credit for the compensation payments to the defendant SNETCo envisioned by the Act and ordered by the DPUC. Sprint’s security is to be in the amount of $500,000. MCI’s security is to be in the amount of $1,000,000.

Rules 65(c) and 65.1, Fed.R.Civ.P., will apply to the posting of this security, including the eventual assessment as taxable costs against SNETCo for Sprint and MCI’s expenses incurred in posting the security should the plaintiffs prevail in this action.

4. This order does not preclude any party from moving this court for relief from the stipulated stay during the pendency of this action.

5. Discovery and all pending motions are stayed until the FCC rules on the ordered petition.

      . The Connecticut Public Act 85-187 became effective on its passage on May 23, 1985. (Exhibit A to Sprint complaint). The DPUC held hearings on section 3 of the Act in July, 1985. On August 21, 1985, the DPUC issued its decision which included orders implementing the Act. (Decision docket no. 85-05-23, exhibit B to Sprint complaint). The DPUC modified portions of its earlier decision on September 10, 1985. (Entitled Errata, exhibit C to Sprint complaint).

      . In 1934, Congress created the FCC “to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges____" 47 U.S.C. Section 151. Congress charged the FCC with exclusive federal jurisdiction to uniformly regulate interstate transmissions or communications. 47 U.S.C. Section 152(a).

      . The FCC retains exclusive jurisdiction over interstate communication by wire or interstate transmission of energy by radio, 47 U.S.C. Section 152(a). New York Telephone Co. v. FCC, 631 F.2d 1059, 1064-66 (2d Cir.1980). The FCC has no jurisdiction with respect to “charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire or radio of any carrier,____" 47 U.S.C. Sections 152(b)(emphasis added).
      Section 153(e), in relevant part, defines "[¡Interstate communication" or "interstate transmission" as “communication or transmission ... from any State, ... to any other State,____" The telephone service at issue here is "[w]ire communication” or "communication by wire" which is defined as:
      [T]he transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission."

      47 U.S.C. Sections 153(a)(emphasis added).


author: KATZ, District Judge.

text:
    Alonzo STARKEY, James Goins, and John Corporal, all individually and on behalf of all others similarly situated v. TOWNSHIP OF CHESTER, a municipal organization and the Board of Supervisors of the Township of Chester.
    Civ. A. No. 86-0865.
    United States District Court, E.D. Pennsylvania.
    Feb. 25, 1986.
    Clinton L. Johnson, Chester, Pa., for plaintiffs.
    Christopher J. Gorbey, Media, Pa., for defendants.
   MEMORANDUM

KATZ, District Judge.

Plaintiffs seek a preliminary injunction against a Chester Township Ordinance regulating Pit Bull dogs. Township of Chester, Pa, Ordinance No. 1-1986 (Feb. 6, 1986). Counsel advise that no reported case has considered the constitutionality of such a law.

The Ordinance defines the breed of dog by American Kennel terminology and seeks to reach dogs “bred for fighting.” The key finding in the Ordinance is:

“Pit Bulls are considered dangerous dogs and potentially hazardous to the community.”

Any Pit Bull running loose is subject to police action. Licenses for Pit Bulls may be purchased at fees ranging from $500 per year for one dog to $3000 for each Pit Bull above three. Pit Bull keepers must post a $20,000 bond to cover injuries caused by their dogs. Pit Bulls must be confined in a secure place. Pit Bulls removed from confinement must be leashed and muzzled. A Pit Bull which attacks a person must be destroyed or removed from Chester Township. The Ordinance became effective February 12, 1986.

Plaintiffs attack the Ordinance as facially discriminatory for applying just to Pit Bulls, not other breeds of dogs, thus violating the equal protection rights of plaintiffs. There are also claims that the Ordinance violates plaintiffs’ First Amendment rights, due process rights and the interstate commerce clause. Plaintiffs also claim that the Ordinance imposes license fees for Pit Bulls and for no other breed of dog and that these fees “are not reasonably related to the costs of the license fees ...” Complaint, at ¶ 26.

I find that plaintiffs’ chances of prevailing on the merits are too slim to justify a preliminary injunction, weighing the harm to be suffered by plaintiffs from complying with the Ordinance against the risk of harm to the citizens of Chester Township if I grant the relief.

This Ordinance probably meets the traditional rational basis test for judging equal protection claims under the Fourteenth Amendment. Barry v. Barchi, 443 U.S. 55, 67, 99 S.Ct. 2642, 2650, 61 L.Ed.2d 365 (1979); Northeast Bancorp., Inc. v. Board of Governors of the Federal Reserve System et al., — U.S. -, 105 S.Ct. 2545, 2555-56, 86 L.Ed.2d 112 (1985). In this sphere of social regulation, I properly defer to a legislative judgment of necessity and reasonableness. Keystone Bituminous Coal Association v. Duncan, 771 F.2d 707, 718 (3d Cir.1985). The Chief of Police testified at the hearing that there were complaints of Pit Bulls chasing residents, including police, that Pit Bulls were the most dangerous breed of dog in his experience and that he recommended the Ordinance to the Board of Supervisors.

The Township could reasonably determine, as it did, that Pit Bulls are dangerous. The Township’s Health Officer testified that the regulation was necessary in this densely populated Township; the Pit Bull bites to kill without signal. The Township does not have to regulate every dangerous animal at the same time in the same way to pass constitutional muster. The Township has not gone too far, insofar as the present record shows in regulating, licensing and charging fees for Pit Bulls. See Williamson County Regional Planning Commission v. Hamilton Bank, — U.S. -, 105 S.Ct. 3108, 3122-24, 87 L.Ed.2d 126 (1985). The First Amendment and Commerce Clause claims are frivolous on this record.

Accordingly, the motion for a preliminary injunction is DENIED.

      . The experience of the Township Dog Control Officer ranked Pit Bulls at the top of the list of dangerous dogs. Minutes of Township Meeting, 2/6/86, Exhibit D, Motion To Dismiss. At the hearing, plaintiffs’ counsel advised the Court that what led to the Ordinance were complaints that a Pit Bull, Grumpy, had attacked a child. Plaintiff Starkey testified at the hearing that its owner, Mr. Goins had not controlled Grumpy.

      . Wackenhut Corp. v. Calero, 362 F.Supp. 715 (D.C.P.R.1973) is different since the statute prohibiting the use of trained dogs by private detectives was not “reasonably necessary for the accomplishment of the governmental purpose____” 362 F.Supp. at 718 (emphasis in original) (citing Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1959)).