source: Caselaw Access Project

author: GRADY, District Judge.

license: Public Domain

text:
    UNITED STATES of America, ex rel. Donald HOFFER, Petitioner, v. Robert MORROW, et al., Respondents.
    No. 85 C 9078.
    United States District Court, N.D. Illinois, E.D.
    Dec. 20, 1985.
    Randy K. Johnson, Dundee, Ill., Ralph Ruebner, The John Marshall Law School, Chicago, Ill., for petitioner.

      State’s Attorney of Kane County, Geneva, Ill., Jack Donatelli, Asst. Atty. Gen., Chicago, Ill., for respondents.
   MEMORANDUM OPINION

GRADY, District Judge.

The facts involved in determining the merits of this habeas corpus petition are simple; the resolution of the legal issue involved is not.

Petitioner was tried in state court for shooting and killing Harold Peters. He was convicted of murder, voluntary manslaughter and involuntary manslaughter. The trial court entered judgment on the murder verdict and sentenced petitioner. On appeal, the appellate court held that the three verdicts of guilty were legally inconsistent, and, therefore, reversed all the convictions and remanded for a new trial. People v. Hoffer, 122 Ill.App.3d 13, 77 Ill. Dec. 520, 460 N.E.2d 824 (2d Dist.1984). The Illinois Supreme Court affirmed the appellate court’s judgment, also holding that the jury’s verdicts were legally and logically inconsistent, requiring reversal and a new trial. People v. Hoffer, 106 Ill.2d 186, 88 Ill.Dec. 20, 478 N.E.2d 335 (1985). Petitioner, having been released on bond pending the Illinois Supreme Court’s decision, has now been re-arrested, and the state has indicated its intention to retry him for murder.

Throughout the proceedings subsequent to his convictions, petitioner has argued that his conviction for involuntary manslaughter must stand, and that the state cannot retry him for murder and/or voluntary manslaughter without violating the double jeopardy clause of the Fifth Amendment to the United States Constitution. He asserts two arguments in support of his position: (1) by convicting him of involuntary manslaughter, the jury impliedly acquitted him of the greater offenses, and (2) the state is collaterally estopped from relitigating the necessary state of mind element in a murder or voluntary manslaughter charge.

While multiple convictions for murder, voluntary manslaughter and involuntary manslaughter appear to be disturbingly frequent events in Illinois, see Hoffer, 106 Ill.2d at 200, 88 Ill.Dec. at 27, 478 N.E.2d at 342, we have found and the parties have cited no federal cases which discuss whether the double jeopardy clause precludes retrial in this situation. Because we believe that the instant situation involves the principles of continuing jeopardy or procedural error discussed in Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984), and Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 307-08, 104 S.Ct. 1805, 1813, 80 L.Ed.2d 311 (1984), we hold that retrial is not constitutionally barred.

DISCUSSION

In a recent case, the Supreme Court held that when a defendant is convicted of a “compound” offense, but acquitted on the predicate offense, the conviction on the compound offense is unreviewable on double jeopardy grounds. United States v. Powell, — U.S. -, 105 S.Ct. 471, 83 L.Ed.2d 461 (1985). This is because once a defendant is acquitted, he may not be retried on that charge under any circumstances, and “it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course.” Id. at -, 105 S.Ct. at 477. Since the acquittal, whether due to mistake, compromise or lenity, is unreviewable, so also is the conviction. Id. See Will v. Comprehensive Accounting Corp., 776 F.2d 665, 676-77 (7th Cir.1985) (since the double jeopardy clause “blocks any review of a verdict in favor of the defendant,” inconsistent guilty verdicts may stand).

In a footnote in Powell, the Court specifically noted that nothing in the opinion was intended to decide “the proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilty on the other.” Powell, — U.S. at -, n. 8, 105 S.Ct. at 479, n. 8. The court cited United States v. Daigle, 149 F.Supp. 409 (D.D.C.), affd per curiam, 248 F.2d 608 (1957), cert. denied, 355 U.S. 913, 78 S.Ct. 344, 2 L.Ed.2d 274 (1958), as such a situation. In Daigle, the jury found the defendant guilty of both larceny and embezzlement, which the court held was inconsistent. Id. at 414. The court entered a judgment of acquittal on the greater offense, and allowed the conviction on the lesser offense to stand. The defendant’s motion for a new trial was denied. Id.

Here, we have the opposite situation. Petitioner has been inconsistently convicted, as in Daigle, but, instead of moving for a new trial, he wishes to retain the lesser conviction, as the court ordered in Daigle. While, as indicated, we have found no cases on point, we note that both Powell and Daigle at least imply that double jeopardy would not bar a new trial. In Powell, the Court held that a conviction inconsistent with an acquittal may stand because the defendant should not be allowed to retry his conviction. Powell, — U.S. at -, 105 S.Ct. at 477. This at least implies that a new trial on the inconsistent conviction would not violate the Constitution. Similarly, in Daigle, it apparently did not occur to either the defendant or the court that the defendant could not be retried.

Other indications that retrial is permissible here can be found in Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 400-401 n. 11, 92 S.Ct. 2247, 2256 n. 11, 33 L.Ed.2d 11 (1972); Mathews v. Marshall, 754 F.2d 158, 160 n. 3 (6th Cir.1985), cert. granted, — U.S.-, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985); and Crawford v. Fenton, 646 F.2d 810, 817 n. 8 (3d Cir.), cert. denied, 454 U.S. 872, 102 S.Ct. 344, 70 L.Ed.2d 178 (1981).

In Pipefitters, the Court discussed the impact of the jury’s special findings, which were probably inconsistent with its general verdict. The Court stated that if the two were inconsistent, “petitioners would still be entitled at best to a new trial, not acquittal.” Id. Therefore, again, the Court was at least implying that no double jeopardy difficulties would arise in retrying the defendants. In Crawford, the jury’s answers to special interrogatories were inconsistent with its guilty verdict, and the trial judge ordered the jury to resume deliberations. When the jury indicated further confusion and asked to be released, the judge declared a mistrial. Crawford, 646 F.2d at 812. The Third Circuit held that the defendant could be retried because the mistrial was by manifest necessity — a confused jury is similar to a deadlocked jury, permitting retrial. Id. at 817. In a footnote, the court, citing Pipefitters, noted that even if the judge had accepted the verdict and had not declared a mistrial, the defendant “would have been entitled, at most, to a new trial.” Crawford, 646 F.2d at 817.

Finally, in Mathews, the petitioner was convicted of armed robbery on a plea of guilty. He was then indicted and found guilty of aggravated murder. The petitioner argued, and the appellate court eventually agreed, that the aggravated murder conviction violated the double jeopardy clause, since the same elements were involved in armed robbery and aggravated murder. Murder, as opposed to aggravated murder, does not involve the same elements as armed robbery, and the issue in Mathews■ was whether the aggravated murder conviction could simply be reduced to murder (as the state contended), or whether the state had to retry the petitioner for murder (as the petitioner contended). Both the state and the petitioner agreed that the petitioner could still be tried for murder without violating the double jeopardy clause. The court stated that the reason retrial would be permitted was that the reversal of the aggravated murder conviction rested on procedural grounds, and the Supreme Court “has consistently recognized that the reversal of a conviction on procedural grounds does not preclude the government from retrying a defendant.” Mathews, 754 F.2d at 160 n. 3, citing United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1588-89, 12 L.Ed.2d 448 (1964).

All these cases permitted or indicated approval of retrial despite inconsistent guilty verdicts. Only Mathews explains the basis for this permission — the procedural nature of the reversal. It is a longstanding principle of American jurisprudence that when a first trial is terminated in a mistrial because the jury could not reach a verdict, the defendant may be retried, because “the ends of public justice would otherwise be defeated.” Richardson, 468 U.S. at-, 104 S.Ct. at 3086, citing United States v. Perez, 9 Wheat. 579 (1824). It is also clear that the double jeopardy clause does not bar re-prosecution of a defendant whose conviction is overturned on appeal (except if it is overturned based on insufficiency of the evidence). See Lydon, 466 U.S. at 307-08, 104 S.Ct. at 1813, citing United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). In the first situation, mistrial, courts view the jeopardy of the first trial as never having terminated, and, therefore, the second trial does not subject the defendant to double jeopardy. See Richardson, 468 U.S. at -, 104 S.Ct. at 3086. In the second situation, reversal of conviction, while jeopardy may technically have terminated, sound administration of justice still permits retrial. See Lydon, 466 U.S. at 316-18,104 S.Ct. at 1818 (Brennan, J., concurring); Tateo, 377 U.S. at 466, 87 S.Ct. at 1589. Thus, it is only when the government is attempting to attack an acquittal that the double jeopardy clause acts to bar such governmental overreaching. See Ohio v. Johnson, 467 U.S. 493,-, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425 (1984). Otherwise, the “ends of public justice” or “sound administration of justice” precludes application of the clause to bar retrial.

We agree with the court in Crawford that a jury evincing inconsistency most closely parallels a deadlocked jury. A logically inconsistent multiple conviction is the equivalent of no verdict at all. Therefore, pursuant to Richardson and Perez, retrial should be allowed. Alternatively, if the multiple convictions are treated as a verdict, it is a verdict of conviction, which, under the principles of Tateo and Ball may, after it has been set aside, subject the petitioner to a new trial. Under either theory, the ends of justice permit retrial.

Petitioner argues that by convicting him of involuntary manslaughter, the jury made a factual finding that he unintentionally caused Peters’ death. Therefore, the jury impliedly acquitted him of the greater charges, or alternatively, this finding as to his state of mind cannot be relitigated.

When a defendant has been prosecuted and convicted of a lesser included offense, then, as Mathews indicates, he cannot later be prosecuted for the greater offense. See Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). Similarly, when the government initially prosecutes a defendant for the greater offense, and the jury convicts only on the lesser included offense, the government cannot reprosecute for the greater offense. Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). This is because by convicting only on the lesser charge, the jury has “impliedly acquitted” the defendant on the greater charge. Price, 398 U.S. at 328, 90 S.Ct. at 1761; Green, 355 U.S. at 191, 78 S.Ct. at 225.

We agree with the Illinois Supreme Court that the doctrine of implied acquittal does not apply here, where the jury has expressly convicted the petitioner on all the charges. In both Price and Green, when the juries convicted on the lesser included charge, they remained silent as to the greater charges, allowing for the implication of acquittal. Here, obviously the jury did not mean to acquit the petitioner on the greater charges, and it did not in fact acquit him on those charges. As indicated above, because petitioner was expressly convicted of the greater offenses, the jury’s verdicts can be considered as either no verdict or multiple convictions. The verdict cannot be considered an acquittal.

An “acquittal” is a resolution in the defendant’s favor of some or all of the factual elements of the offense charged. United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978) citing United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977). See Will, cited supra at 668-69 (verdicts “in favor” of defendant). Under no rational perspective can a jury’s express finding of guilty be considered a factual resolution in the defendant’s favor, and, therefore, an acquittal. The verdict of guilty on the involuntary manslaughter charge can be viewed as an implied finding of not guilty on the other charges only be ignoring the express findings of guilt on those other charges. There is no rule that in double jeopardy determinations only part of the picture is considered. Since petitioner was not acquitted, he can be retried.

Similarly, petitioner’s collateral estoppel argument must fail. In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court held that “when an issue of ultimate fact has once been determined by a valid and final judgment, the issue cannot again be litigated between the same parties in any future lawsuit.” Id. at 443, 90 S.Ct. at 1194. Therefore, when a jury by its verdict must have found in the defendant’s favor at trial, the state cannot relitigate that issue. Id. at 446, 90 S.Ct. at 1195.

Here, there has been ho valid and final judgment, see Hoffer, 106 Ill.2d at 199, 88 Ill.Dec. at 27, 478 N.E.2d at 342; petitioner was not acquitted (see Ashe, 397 U.S. at 446, 90 S.Ct. at 1195 — collateral estoppel is to “protect a man who has been acquitted”); and the jury did not necessarily find in petitioner’s favor. See United States v. Price, 750 F.2d 363 (5th Cir.), cert. denied, — U.S. -, 105 S.Ct. 3526, 87 L.Ed.2d 651 (1985).

In Price, the defendant, a former employee of the Army Air Force Exchange Service, was indicted on three counts: conspiracy to obtain gratuities, making false statements before the grand jury, and income tax evasion. The jury acquitted him (inconsistently) on the latter two counts, but convicted him on the conspiracy count. On appeal of the first conviction, the Fifth Circuit reversed because of an evidentiary error, and remanded for a new trial on the conspiracy count. In the second trial, the defendant was again convicted for conspiracy to obtain gratuities. The defendant appealed, arguing that under- the doctrine of collateral estoppel, the trial court improperly permitted the introduction of evidence which should have been barred as a result of his acquittal on the perjury and tax evasion charges. The Fifth Circuit affirmed the conviction. Id. at 364. The court held that by convicting him on the conspiracy count in the first trial, the jury necessarily found the defendant culpable and resolved factual issues adversely to him. While he was inconsistently acquitted on the perjury and tax evasion charges, no evidence at the first trial was used solely to prove an income tax evasion or perjury, and, therefore, all the evidence admitted at the first trial could be used against him. The court emphasized that the defendant had been convicted in the first trial, and, therefore, the inconsistent verdicts as to the other counts “are not to be read as a finding of fact favorable [to the defendant] on testimony which overlapped each count.” Id. at 366. Moreover, the court even expressed doubt whether the doctrine of collateral estoppel applies at all when the second trial involves the same offense as the first trial. Id. See also Johnson, 467 U.S. at-, 104 S.Ct. at 2541-42 n. 9.

Here, petitioner was not even acquitted of the greater offenses, and therefore no finding of fact was necessarily made in his favor. As Price indicates, when a defendant is inconsistently convicted and acquitted, the court cannot assume that facts were found in the defendant’s favor when those same facts had to be otherwise resolved to convict him. Certainly when a defendant is inconsistently convicted, with no acquittals, this principle still applies.

CONCLUSION

Petitioner’s habeas corpus petition is denied.

      . The defendant was acquitted of possession and conspiring to possess cocaine with intent to distribute. She was convicted of using the telephone in furtherance of the conspiracy. Powell, — U.S. at - — , 105 S.Ct. at 474.

      . In Illinois, a murder verdict requires a factual finding that the defendant did not believe his conduct was justified. A voluntary manslaughter verdict requires that the defendant did believe, unreasonably, that his conduct was justified. An involuntary manslaughter verdict requires a finding that the defendant’s acts recklessly but unintentionally caused the death of the victim. Here, the jury found all three mental states in the petitioner, and, therefore, the verdict was legally and logically inconsistent. Hoffer, 106 Ill.2d at 195, 88 Ill.2d at 25, 478 N.E.2d at 340.

      . Petitioner cites an Illinois statute which states that "a conviction of an included offense is an acquittal of the offense charged" to support his position that he was acquitted of the greater offenses at his trial. See Ill.Rev.Stat. ch. 38, ¶ 3-4(a). We believe that this statute cannot aid petitioner for three reasons. First, in a habeas corpus petition, we do not determine whether a state has violated its statute. We are only interested in whether the state’s action is a violation of the federal Constitution. Here, Illinois will violate the double jeopardy clause of the Constitution only if its retrial of petitioner occurs after a jury has found in his favor on some or all of the factual elements of the offense charged. It is this definition of "acquittal” given by the United States Supreme Court that guides our determination. See Martin Linen, 430 U.S. at 571, 97 S.Ct. at 1354; United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975); United States v. Sisson, 399 U.S. 267, 270, 290, 90 S.Ct. 2117, 2119, 2129-30, 26 L.Ed.2d 608 (1970) (irrelevant whether trial court's decision is characterized as “acquittal;" issue for double jeopardy purposes is whether trial court ruling was made on the facts).
      Second, even if we do view the state’s statute as having significance to our decision, we defer to the Illinois Supreme Court's interpretation of this statute, and the Court found that it did not apply here. Hoffer, 106 Ill.2d at 198, 88 Ill.2d at 26-27, 478 N.E.2d at 341-42. See United States ex. rel. Young v. Lane, 768 F.2d 834, 840, 841 (7th Cir.1985) (United States Supreme Court allows states to determine degree of finality to be attached to a state proceeding, and states possess substantial latitude to decide which decisions are to be treated as “acquittals").
      Finally, even if we independently determined whether the statute converted the jury’s verdict here to an acquittal of the greater offenses, we would agree with the Illinois Supreme Court that it does not, since the statute is inapplicable to the instant situation. The purpose of the statute was to embody the constitutional principles found in Vitale, Green and Price, and, specifically, to prevent a trial judge, unhappy with a jury’s verdict of guilty on only one offense, from refusing to enter judgment. See Committee Comment — 1961, found in Smith-Hurd Illinois Anno.Stats., ch. 38, ¶ 3-4 at 215. The statute does not apply when a jury has convicted the defendant of the greater offense.


author: McMILLAN, District Judge.

text:
    Jara O. SMITH, S.S. # [ XXX-XX-XXXX ], Plaintiff, v. Margaret M. HECKLER or her successor in office, Secretary, United States Department of Health and Human Services, Defendant.
    No. ST-C-84-226.
    United States District Court, W.D. North Carolina, Statesville Division.
    Dec. 20, 1985.

      Bryce O. Thomas, Jr., Hickory, N.C., for plaintiff.
    Clifford C. Marshall, Asst. U.S. Atty., Asheville, N.C., for defendant.
   McMILLAN, District Judge.

Jara O. Smith, plaintiff, was born on February 23, 1938. He has a high school education and has received technical training in auto and truck diesel repair (Tr. 32). From 1973 to December, 1980, Mr. Smith owned and operated his own mechanic shop (Tr. 37). He had worked steadily in auto repair before establishing his own business. On December 19, 1980, a power steering assembly weighing 135 to 155 pounds fell on Mr. Smith while he was working on it (Tr. 39). His back was injured. He states that he has been in constant pain since that accident. He had a prior history of back problems, including surgery in 1976 to correct a herniated spinal disc.

Plaintiff applied for Social Security disability benefits on March 29, 1982. This application was denied. Plaintiff applied again on July 21, 1983. After that application was also denied, Mr. Smith requested reconsideration. When the denial was affirmed, the plaintiff requested a hearing, which was held before Administrative Law Judge (AU) Charles Brown on April 12, 1984. On June 21, 1984, AU Brown found Mr. Smith ineligible for disability benefits. After properly pursuing his administrative appeals, Mr. Smith filed a complaint in this court on November 28, 1984, seeking judicial review of the denial of disability benefits.

THE AU’S DECISION

The AU found that the medical evidence established that the plaintiff had a severe musculoskeletal impairment of the back. However, he believed that the symptomatology associated with plaintiff’s back problem was not so severe as to preclude the performance of sedentary work. The AU found no decrease in strength or limitation of motion in plaintiff’s lower extremities and stated that plaintiff could drive 45 minutes to an hour, perform household chores, and, based on observation of the plaintiff at the hearing, satisfactorily tolerate sitting. Despite plaintiffs treating physician’s opinion that plaintiff is disabled, the AU found that Mr. Smith had the residual functional capacity to perform all the exertional requirements of sedentary work. The AU noted no non-exertional limitation affecting the assessment of Mr. Smith’s residual functional capacity. Consequently, the AU ruled that the plaintiff was ineligible for disability benefits (Tr. 20).

PLAINTIFF’S TESTIMONY AT THE HEARING

In January, 1973, plaintiff started his own business repairing forklifts and other material handling equipment (Tr. 37). On December 19, 1980, he was rebuilding the power steering assembly on a forklift. He had removed the steering box to work on it and was trying to put the unit back in when it fell. As he caught the slipping box, plaintiff felt his back being “pulled apart” (Tr. 39-40). On his doctor’s advice, plaintiff spent the next four weeks in bed but felt no lessening of his back pain. In February, 1981, plaintiff was admitted to North Carolina Baptist Hospital in Winston-Salem, North Carolina, where a myelogram and other surgery were performed (Tr. 41-2). (Five years earlier, plaintiff had undergone surgery to repair two ruptured discs. After recuperating for six months, he was able to return to work full time (Tr. 42).)

Plaintiff described his understanding of his back problem as scar tissue and bone spurs pressing on the sciatic nerve causing nerve damage affecting his left leg, hip and foot (Tr. 42). Since his December, 1980, accident, he has experienced a burning and stinging sensation in his left hip with pain running down the outside of his leg and into his feet (Tr. 43). Plaintiff feels the pain in his back, left leg and foot all the time. Plaintiff describes the pain as medium to severe depending on the length of time he is up and active. When he lies down, his right foot also begins to hurt (Tr. 43).

To relieve his pain, plaintiff sought treatment at the Duke University Pain Management Clinic. Since June, 1983, plaintiff has used pain management techniques developed by the clinic. Plaintiff stays up for 45 minutes to an hour and lies down for a similar period as he goes through the day. This approach has “helped some” (Tr. 44). Plaintiff also keeps a log of his daily activities so that he can reduce his activity level if his pain increases (Tr. 44-5). Plaintiff stated that sometimes he “can’t be up more than 10 minutes out of an hour without hurting,” but he is trying to build up his tolerance by staying up longer each day (Tr. 45). However, if plaintiff does not follow the prescribed regimen of alternating between periods of rest and activity, he is sometimes unable to get out of bed for three or four days because of the severity of pain brought on by too much continuous activity (Tr. 46).

Plaintiff usually rises at 7:30 or 8:00 each morning and tries to fix breakfast or clean up the house a little. He then lies down for an hour. When he rises again he may then go out to visit his father for an hour and come home to lie down again for an hour. Although the plaintiff tries to do different household tasks, he does not lift anything weighing over five pounds and does only “small stuff” that he can complete in the short intervals he is up (Tr. 49-50). The plaintiff does not do the dishes, make the bed or carry out the trash; he does sometimes hang out some laundry for his wife (Tr. 55). Plaintiff also occasionally goes shopping for small items, such as a loaf of bread or gallon of milk (Tr. 61).

The plaintiff does drive, making one or two trips per day five days a week (Tr. 60). He is most comfortable when he drives his van, which has seats with arm rests that allow him to get “propped up to where it doesn’t jiggle or move [his] back.” He makes such trips within his activity time limits, never riding for more than 45 minutes to an hour. When he drives from his home in Lenoir to the Duke Clinic, he breaks the trip with four or five rest stops, stopping every 25 to 30 minutes and spending 10 to 20 minutes out of the car (Tr. 51-53).

Plaintiff has great difficulty sleeping, often getting no sleep at all at night (Tr. 53). He stated: “I have ... cramps and pains in my legs and feet, throbbing like a real bad toothache ... I get up a lot of nights and have to go sit in the bathtub in hot water to keep my legs from hurting so bad ... I can sleep a couple of hours and have to get up and walk around before I can get back to sleep again” (Tr. 53-4). Plaintiff also stated:

“When I lay down of a night, my right foot goes to hurting. It doesn’t hurt me during the day, but when I lay down, in a different position, it changes, and it makes my right foot go to hurting. And I have this shooting pain and the burning pains in the bottom of my heels. And then my left foot I have the burning in my hip ..., it starts out like I got a stone bruise in the bottom of my heel, and the longer I’m up, the worse it hurts. The less amount of weight that I’m able to put on my leg and foot. It gets to the ■ point where I have to walk on my toe to keep from putting the weight onto the back of my foot. And the longer that I am [up] the worse it hurts.”

(Tr. 56-7.)

Before his accident, the plaintiff worked eight to sixteen hours a day. Since the accident, he has tried to return to work but says “I may be able to work 20 or 15 minutes and I have to go lie down” (Tr. 57). Plaintiff added that he has “always been a doer” (Tr. 51) and says, “[I]t gets depressing. Because I would like to be able to work, it makes my day to be able to do and work. I like to work” (Tr. 58).

MEDICAL EVIDENCE BEFORE THE AU

On August 21, 1976, Dr. Cortland Davis completed a North Carolina Baptist Hospital discharge summary on the plaintiff. Dr. Davis recorded that the plaintiff had a two-year history of back pain from an injury at work. Before his 1976 hospitalization, plaintiff had complained of increasing back pain radiating into his left buttocks and leg. On physical examination at that time, plaintiff displayed a limitation of forward flexion at approximately 50° and had a positive straight leg raising (SLR) test on the left at 30°. Dr. Davis found a vague hypoesthesia (numbness) to pinprick over the lateral aspect of the left leg and foot. Plaintiff's lumbar spine x-rays were normal with the exception of a narrowing at the L4-L5 intervertebral disc space. On August 9, 1976, Dr. Davis performed a lumbar myelogram, which revealed an ex-tradural defect at L5 and L4 with a narrow canal (Tr. 131). On August 12, 1976, Dr. Davis performed a lumbar laminectomy at the L4-5 and L5-S1 level and removed an extruded disc at the L5-S1 level (Tr. 131).

After the December, 1980, accident, plaintiff returned to North Carolina Baptist Hospital and was admitted in February, 1981. Dr. Davis again attended the plaintiff and performed another myelogram as well as another lumbar laminectomy. Describing his surgical findings, Dr. Davis wrote:

“The SI nerve root had a good bit of epidural scar and was kinked, and went down under the sacrum. We unroofed a portion of the sacrum ... There was only epidural scar. We tried to enter the interspace and found that it had collapsed down.”

(Tr. 136.)

No recurrent disc problem was found. X-rays taken before surgery had showed the lumbosacral spine “with degenerative disease at L-4 — L-5 with associated hypertrophic changes and stable slight retrolisthesis. Vertebral bodies of T-12 through L3 are slightly flattened” (Tr. 140). Dr. Davis’s primary discharge diagnosis was lumbar spondylosis (Tr. 134). He noted that x-rays had demonstrated spondylosis and that “findings at the time of surgery consisted of dense scar encasing L5 nerve root on the left side” (Tr. 135). After surgery and upon discharge, plaintiff still complained of persistent pain in the lower back and left hip (Tr. 135).

On March 26, 1981, plaintiff was re-admitted to North Carolina Baptist Hospital for further evaluation of back and leg pain. The admission notes compiled by Drs. Martin and Davis showed a positive straight leg raising test on left at 60° and noted sensation “intact to pinprick and proprioception except some diminished pinprick over the left lateral aspect of the left foot” (Tr. 161). A report on admission x-rays stated:

“There is marked narrowing and sclerosis at the L4-5 disc space which is consistent with severe degenerative disc disease. There is anterior wedging of T12 through L2 which is most likely post traumatic. There are large posterior osteophytes [bone spurs] at the L4-5 interspace. There is limited range of motion on flexion and extension views.

“Lucent area just inferior to articular surface of right femoral head most likely represents degenerative cyst formation.”

(Tr. 152-3.)

On March 31, 1981, a physical therapist’s report recorded that the plaintiff complained of increased pain upon repeated sitting and standing. The therapist remarked that the plaintiff was “very concerned about work limitations” (Tr. 151). In his discharge summary, dated April 1, 1981, Dr. Davis stated that he had consulted with Dr. Nicastro from Orthopedics and that Dr. Nicastro “felt that the patient had diffuse degenerative disc disease.” Dr. Davis agreed with that diagnosis and recorded the other recommendations offered by Dr. Nicastro. These included use of an anti-inflammatory drug, refraining from work for three months, physical therapy and the use of a back brace and corset (Tr. 148).

Plaintiff returned to North Carolina Baptist Hospital from October 4 to October 9, 1981. His admission history states: “[Pjatient says his present pain has been unchanged since his second operation and is worse with standing and sitting and is relieved by lying flat.” Positive straight leg raising test on left at 40° was also noted (Tr. 175).

After several examinations, including a neuropsychological examination by Dr. Frank Wood (who indicated that there was a psychological component to the plaintiff’s pain and recommended enrollment in a pain management group (Tr. 164)), plaintiff was discharged with a diagnosis of failed low back syndrome (Tr. 162).

During 1981 and 1982, Dr. Carey Walton saw the plaintiff many times in his office. On December 14, 1981, Dr. Walton recorded an impression of “chronic back syndrome ... apparent epidural scarring and may be some element of sacroiliac strain or pain.” Dr. Walton noted:

“He is never comfortable. Sometimes better when he up stirring around and can’t sit for long period of time. Drove to Charlotte Friday and this did him for the weekend. He is uncomfortable at rest and certainly if he doesn’t change positions frequently. He is uncomfortable when he is up a great deal. Sitting it [sic] a great problem for him.
“Pain is primarily in his back and his left lower extremity to some extent on the right beginning to have difficulty at least ... Scar over the lumbosacral area from previous surgery and subcutaneous nodular densities are present particularly on the left. He is quite tender in the left lumbar area and pressure in the area on the left produces pain all the way down to his leg. He is tender also in the left sacroiliac space. Pin prick is less perceived on the left than on the right. Straight leg raising on the left at 45 degrees positive with pain to the lumbar area.”

(Tr. 181.)

On December 21, 1981, Dr. Walton wrote, “As far as I’m concerned he is disabled. I think he will gradually improve, but that is to be seen.” (Tr. 180.)

On January 25, 1982, Dr. Walton recorded:

“[H]e is quite tender over the [lumbosacral] area and across the sacroiliac spaces. Straight leg raising at 80 degrees on the left produced pain in the back as well as the hamstring on the left. Sensory modality with decreased pinprick perception in the left extremity and medially and laterally, particularly laterally. No atrophy that I can appreciate though I did not measure his legs. Reflexes, grade II at the left heel and grade at the right. He bends forward 30° only without having pain in his left leg.”

(Tr. 180.)

At that time, Dr. Walton again diagnosed chronic back syndrome, but added “[H]e is somewhat depressed I think. In addition, he talks frequently of his pain problem, and, also, as I watched him walk, he limps and tends to drag the left leg and sort of a flat based gait.” (Tr. 179.) On March 31, 1982, Dr. Walton stated plaintiff “is up and down all night long and pain is involving not only the left extremity but the right lower extremity as well whenever he tries to walk or when is recumbent ... it is getting worse ... he does walk with a limp.” (Tr. 179.)

On April 15, 1982, a Social Security Administration consulting physician, R.S. Spain, examined the plaintiff. In evaluating the plaintiffs residual functional capacity, Dr. Spain found that the plaintiff had the following exertional limitations: During a normal working day, he could stand and/or walk 3 hours, sit up to 6 out of 8 hours, and lift/carry 10 pounds or less occasionally. Dr. Spain added that plaintiff had a limited capacity for pushing/pulling controls requiring more than negligible force, as he found plaintiff to be able only occasionally to use his left leg for pushing and pulling. Dr. Spain observed no non-exertional impairment although he did agree that plaintiff suffered from failed low back syndrome (Tr. 198-200).

From June 13, 1983, through July 2, 1983, plaintiff was a patient in the Clinical Specialty Unit at Duke University Medical Center and participated in the unit’s pain management program (Tr. 211). Before he was admitted, the plaintiff was examined by Dr. Eileen Steinberger. In her “Pain Clinic Note,” she stated:

“He now describes his pain as a dull hurt in the lower part of his back radiating to his left hip. He says that his hip feels as though it is on fire. A burning and stinging sensation goes down the outside of his left leg and into his foot into his first three toes. He has some tingling in this distribution also. He says that it feels as though the heels of both feet are sore and bruised. He describes his back pain as a 5-6 on a scale from 0-10, but says that his leg and hip pain is definitely the worst pain which he rates as an 8. He also has a sensation of numbness on the outside of his leg. The pain is aggravated by being up and around, walking, sitting and standing. It is helped when he lays down.
******
“Patient has a normal gait and is able to get up on his heels and toes without difficulty. There is no pain on palpation of his back. He is able to forward flex so that his finger tips reach below his knees. He does have paraspinal muscle spasms. He has some pain on straight leg raising on the left at 70°. He has decreased pinprick in the distribution on SI on the left.”

(Tr. 219.)

Dr. Steinberger believed plaintiff demonstrated failed disc syndrome and advised that he be admitted to the pain management program (Tr. 219).

On June 14, 1983, plaintiff was examined at Duke by Dr. Francis Keefe. Dr. Keefe recorded this assessment of plaintiff’s condition: “Pain is constant. Increases with activity. Decreases most with heat and bedrest” (Tr. 205). Subsequent observation revealed that plaintiff did not always comply fully with the prescribed regime while at the clinic. For example, he complied poorly with his exercise program (Tr. 202). However, no doubt was ever expressed about the severity or authenticity of plaintiff's pain. Plaintiff’s Duke discharge summary, compiled by Dr. Randal France on July 2, 1983, indicated that laboratory data showed chronic L5-S1 and Sl-2 radiculopathy/bilateral. Dr. France recorded plaintiffs complaints of pain in his left buttocks radiating down his left leg to his foot. The pain, aggravated by activity and relieved by rest, was recorded as sharp (Tr. 201). Dr. France"s discharge diagnoses were: chronic pain syndrome, status post laminectomy times two, obesity, hypertension and depressive reaction (Tr. 202).

On August 12, 1983, Dr. France, plaintiffs attending Pain Clinic physician and assistant professor of psychosomatic medicine at Duke, concluded:

“At present, Mr. Smith continues to complain of pain and there appeared to be no surgical intervention warranted to treat his pain problem. For this reason, a conservative treatment approach including regulation of medications, regulation of activities, physical therapy, biofeedback and pain management group was recommended. At present, Mr. Smith continues to complain of having quite a bit of pain despite his compliance to a pain management program. Presently, he is only able to sit or walk for approximately twenty minutes out of each hour. When he tries to increase this amount of time, there is a sharp increase in his pain problem. It is impossible to state at this time whether he would be able to increase this amount of activity. Based upon this activity level, I would state that he is not able to hold down a part-time or full-time job and I would feel that he is disabled. I would also state that this is for an indefinite period of time.”

(Tr. 211.)

On September 29, 1983, in an out-patient progress report, Dr. France observed:

“Mr. Smith states that he has been much more active. He has gotten married over the last month and has a lot of moving and has had a significant increase in his activity. He has not been sticking with his activity/rest cycling, minimum use of physical therapy, and occasional use of biofeedback techniques____ Spirits improved. Sleeping okay. Appetite normal. Weight stable____
“Affect improved. Pain behaviours present.
“1) Chronic low back pain, basically stable. Increase in pain level secondary to overactivity.”

(Tr. 213.)

On May 7, 1984, Dr. France sent plaintiffs attorney a synopsis of his evaluations of plaintiffs condition since his admission to the Duke Clinic:

“Mr. Smith was last seen in the Duke Pain Clinic on December 1, 1983, which was his third outpatient visit since discharge from the Clinical Specialty Unit where he was admitted for treatment of his chronic low back pain, status post laminectomies.
“After his discharge, on his first outpatient visit he reported that he was doing well with an improvement in his sleep, activity and pain levels. We recommended at that time that he continue on his pain management program including Elavil 200 mg. h.s., weight reduction program, pain medications, biofeedback and physical therapy. He was seen again on September 29th and December 1, 1983. During those elinical visits he was not doing as well as his first outpatient visit after discharge from the hospital. Mr. Smith reported an increase in pain in his lower back and leg and consequently, he had to discontinue some physical therapy secondary to his pain and felt that he was ‘losing ground.’
“It appears that Mr. Smith has reached a level of deterioration that is equal to his admitting clinical condition to the hospital. It was our impression on his last visit that he has reached a maximum level of improvement and would consider him disabled at this point. I would not anticipate any further improvement in his clinical condition. The primary goal of treatment is just management of his pain problem.”

(Tr. 232.)

THE AU’S DECISION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.

The ALJ found that plaintiff could perform sedentary work. According to 20 C.F.R. § 404.1567(a), sedentary work is defined as follows:

(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

Plaintiff’s testimony and the medical evidence from the Duke Pain Management Clinic reveal that plaintiff can only cope with his back pain by frequently alternating between reclining, sitting and standing. Plaintiff’s frequent need to lie down after even a short period of activity in order to lessen his pain to a tolerable level severely limits his residual functional capacity in a manner ignored by the AU. Based on his familiarity with plaintiff’s pain management program, one of plaintiff’s treating physicians, Dr. France, has stated that he believes plaintiff is totally disabled. However, his opinion was not given the appropriate weight by the AU despite the absence of persuasive contradictory evidence. Mitchell v. Schweiker, 699 F.2d 185 (4th Cir.1983).

The only medical testimony that plaintiff is capable of performing sedentary work comes from Dr. Spain, who performed one consultative examination of the plaintiff for the Social Security Administration. Dr. Spam’s evaluation cannot be considered persuasive contradictory evidence because he failed to consider the effect of plaintiff’s- constant pain on his residual functional capacity. Pain itself can be disabling, and it is incumbent on the AU to evaluate the effect of pain on a claimant’s ability to function. See Myers v. Califano, 611 F.2d 980 (4th Cir.1980).

In addition, the AU’s treatment of the effect of plaintiff’s constant pain on his ability to work does not conform to the guidelines outlined in the revised pain standard of the Disability Benefits Reform Act of 1984, 42 U.S.C. § 423(d)(5)(A) (West Supp.1985):

“An individual’s statement as to pain or other symptoms shall not alone be conclusive. There must be medical signs and findings, established by medically acceptable clinical and laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain ... alleged and which, when considered with all evidence required to be furnished ... (including statements of the individual or his physician as to the intensity and persistence of such pain ... which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability.”

The Third Circuit has recently interpreted this new standard to require medical evidence of a condition that could reasonably produce pain, not objective evidence of the pain itself or its severity. Green v. Schweiker, 749 F.2d 1066, 1071 (3rd Cir. 1984). This case clearly presents medical findings documenting a condition to which plaintiff’s pain can reasonably be attributed. The fact that plaintiff has been affected psychologically by his constant pain and has become depressed and anxious about his condition in no way discredits the ample evidence that plaintiff suffers from degenerative disc disease and scar tissue/bone spur pressure on his lumbar nerve roots.

Plaintiff established by substantial evidence that his pain is constant. It may be reduced by his pain management program, but it is never relieved, even at rest. In resorting to a mechanical application of the grids in this case, the AU failed to consider that the plaintiff’s constant pain could be classified as a non-exertional impairment. Compare Hammond v. Heckler, 765 F.2d 424 (4th Cir.1985) (noting that constant severe back pain similar to plaintiff’s should be considered as possible nonexertional impairment). Constant pain can be classified as a non-exertional impairment under the analysis of Gory v. Schweiker, 712 F.2d 929 (4th Cir.1983). When substantial evidence demonstrates the existence of a non-exertional impairment, as it does in this case, the grids become only guides for the evaluation of plaintiffs work capacity. See Wilson v. Heckler, 743 F.2d 218, 221 (4th Cir.1984). Here, the AU failed to give individualized consideration to and make specific findings about the effect of plaintiffs non-exertional impairment on his residual functional capacity, as required by Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.1983). The plaintiffs pain and the program designed to minimize it restricts him from performing the full range of activity covered by the sedentary work categorization. The record will not support a conclusion that plaintiff can perform the full range of functions necessary to do sedentary work. Wilson, supra; Hall v. Harris, 658 F.2d 260, 266 (4th Cir.1981).

The decision of the Secretary affirming the decision of the AU should be reversed.


author: WILLIAM C. CONNER, District Judge:

text:
    Nazaria CRUZ, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 85 Civ. 6208(WCC).
    United States District Court, S.D. New York.
    Dec. 20, 1985.
    Harlem Legal Services, Inc., New York City, for plaintiff; Ishmael Lahab, of counsel.

      Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Neal S. Mann, Sp. Asst. U.S. Atty., of counsel.
   OPINION AND ORDER

WILLIAM C. CONNER, District Judge:

Plaintiff brought this action under section 205(g) of the Social Security Act (“the Act”), as amended, 42 U.S.C. § 405(g) (1982 & Supp. II 1984), seeking review of a final determination of the Secretary of Health and Human Services (“the Secretary”) that plaintiff is not disabled as defined by the Act, and therefore is not entitled to disability insurance benefits. Plaintiff had alleged disability due to a severe schizo-effeetive disorder. In an Order dated November 27, 1985, familiarity with which is presumed, I remanded this action to the Secretary so that plaintiffs application could be readjudieated pursuant to section 5(c)(1) of the Social Security Disability Benefits Reform Act of 1984 (“the Reform Act”), Pub.L. No. 98-460, 98 Stat. 1794, 1801 (codified at 42 U.S.C. § 421 note (Supp. II 1984)). Plaintiff has moved for an order (1) awarding her interim benefits pending the final disposition of this action and (2) requiring the Secretary to complete proceedings on remand within 60 days. For the reasons set forth below, plaintiffs motions are denied.

Plaintiff advances several grounds in support of her motion for an award of interim benefits. First, plaintiff relies on section 228(g) of the Act, captioned “Continued payment of disability benefits during appeal,” which provides in relevant part:

(1) In any case where
(A) an individual is a recipient of disability insurance benefits ...,
(B) the physical or mental impairment on the basis of which such benefits are payable is found to have ceased, not to have existed, or to no longer be disabling, and as a consequence such individual is determined not to be entitled to such benefits, and
(C) a timely request for a hearing ... is pending with respect to the determination that he is not so entitled,
such individual may elect ...to have the payment of such benefits ... continued for an additional period beginning with the first month beginning after January 12, 1983, for which (under such determination) such benefits are no longer otherwise payable, and ending with the earlier of (i) the month preceding the month in which a decision is made after such a hearing (ii) the month preceding the month in which no such request for a hearing or an administrative review is pending, or (iii) June 1988.

42 U.S.C. § 423(g) (1982 & Supp. II 1984) (emphasis added). It is readily apparent that this section is inapplicable in the present context. By its express language, section 223(g) provides for the payment of benefits pending administrative review of a determination that an individual who was receiving benefits is no longer (or never was) entitled to receive such benefits. See City of New York v. Heckler, 742 F.2d 729, 740 (2d Cir.1984), cert. granted, — U.S. -, 106 S.Ct. 57, 88 L.Ed.2d 46 (1985); Thibodeau v. Heckler, 571 F.Supp.- 524, 525 (D.Me.1983). See also H.R.Rep. No. 1039, 98th Cong., 2d Sess. 33, reprinted in 1984 U.S.Code Cong. & Ad.News 3080, 3091; S.Rep. No. 648, 97th Cong., 2d Sess. 6-7, reprinted in 1982 U.S.Code Cong. & Ad. News 4373, 4377-78; H.R.Rep. No. 985, 97th Cong., 2d Sess. 10, reprinted in 1982 U.S.Code Cong. & Ad.News 4399, 4400. Since plaintiff is not challenging a decision terminating her receipt of benefits, section 223(g) is by its terms inapplicable to her.

Plaintiff also relies on section 2(e) of the Reform Act, 42 U.S.C. § 423 note (Supp. II 1984). However, that section is similarly inapposite. Section 2(e) provides that “[a]ny individual whose case is remanded to the Secretary pursuant to [section 2(d) of the Reform Act] may elect, in accordance with section 223(g) ... of the Social Security Act, to have payments made beginning with the month in which he makes such election, and ending as under such section 223(g)....” 42 U.S.C. § 423 note (Supp. II 1984). Under section 2(d), courts are required to remand certain cases in which the Secretary terminated a recipient’s benefits due to medical improvement in the recipient’s condition. Id. Plaintiff is not a recipient whose benefits were terminated due to medical improvement, and she therefore cannot rely upon section 2(e) for an award of interim benefits.

Finally, plaintiff cites numerous cases in which courts exercised their broad remedial powers to award interim benefits absent express statutory authority. However, in each case cited by plaintiff, the claimant was faced with an unreasonable delay attributable to the Secretary. See, e.g., Cohen v. Heckler, 599 F.Supp. 837, 838 (S.D. N.Y.1984). Here, any delay that plaintiff will experience is due to Congress. The Reform Act directed the Secretary to promulgate new regulations for evaluating disability claims based on mental impairments and to reconsider all such claims in which an administrative decision was issued between the effective date of the Reform Act and the promulgation of the new regulations. Reform Act § 5(c)(1), 42 U.S.C. § 421 note (Supp. II 1984). Consequently, this is not an appropriate case for an award of interim benefits.

For substantially the same reasons, it would also be inappropriate for me to place a time limit on the Secretary’s reconsideration. The Reform Act requires the Secretary to redetermine mental impairment claims “as soon as feasible” after the promulgation of the new regulations. Id. Absent unreasonable delay attributable to the Secretary, imposition of a time limit would be an unwarranted intrusion into matters relegated to a coordinate branch of government. See Heckler v. Day, 467 U.S. 104, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984).

For the foregoing reasons, plaintiff’s motions for an order awarding her interim benefits pending the final disposition of this action and requiring the Secretary to complete further administrative proceedings within sixty (60) days is denied.

SO ORDERED.


author: FORRESTER, District Judge.

text:
    Timothy Warren VINCENT, Plaintiff, v. Colonel Jim LYNCH and Cobb County Sheriffs Department, Defendants.
    Civ. A. No. C85-4325A.
    United States District Court, N.D. Georgia, Atlantia Division.
    Dec. 24, 1985.

      Timothy Warren Vincent, pro se.
    No Appearance for defendants.
   ORDER

FORRESTER, District Judge.

This action, brought pursuant to 42 U.S.C. § 1983, is before the court for a frivolity determination pursuant to 28 U.S.C. § 1915(d). According to the complaint, the plaintiff was incarcerated at the Cobb County Jail and was transferred to the Douglas County Jail due to overcrowding. On June 23, 1985, the plaintiff was picked up by a Cobb County Deputy at the Douglas County Jail for a court appearance, and was told to leave his personal belongings behind as he would be returned to the Douglas County Jail. Plaintiff was not returned to the Douglas County Jail, and requested that his personal belongings be forwarded to him. After making several requests, on July 3, 1985, plaintiff was given a box which contained all of his personal belongings except for a pair of shoes which plaintiff valued at $36.00. Plaintiff’s complaint is brought for damages only, and requests compensation for his lost shoes, and punitive damages in the amount of $250,000. The defendants to the action are the Cobb County Sheriff’s Department and Colonel Jim Lynch, the Chief Jailer at the Cobb County Jail.

The question before this court on this frivolity determination is whether the complaint shows, beyond doubt, that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir.1983), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The facts of this complaint, construed liberally in plaintiff’s favor, allege that the Cobb County Sheriff’s Department deprived him of the use of certain items of personal clothing for seven days, from June 26 through July 3, 1985, and permanently deprived him of a pair of shoes valued at $36.00. The complaint does not allege that plaintiff was without clothing during the one-week period he did not have access to certain of his belongings. The court has concluded that those facts do not state a claim on which relief could be granted pursuant to 42 U.S.C. § 1983, and therefore this action is DISMISSED.

The United States Supreme Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), held where a person alleges under Section 1983 a negligent deprivation of property, no due process claim exists unless and until the state fails to provide an adequate remedy for the loss. The State of Georgia provides remedies for state inmates in situations similar to that of this plaintiff. See Irwin v. Arrendale, 117 Ga.App. 1, 159 S.E.2d 719 (1967); accord Heard v. Caldwell, 364 F.Supp. 419 (S.D.Ga.1973). Because state law provides an adequate post-deprivation remedy for the loss in this case, Parratt v. Taylor dictates that the complaint must be dismissed. Indeed, the court is struck by the great similarity between the facts as alleged in this case, and the facts alleged in Parratt, which were that the state officials had negligently deprived the prisoner of a hobby kit valued at $23.50.

An alternative construction of plaintiff’s complaint could be that he is alleging a deprivation of substantive due process, to the extent that he was deprived of the use of certain of his belongings for a week, and of one pair of his shoes permanently. However, any possible substantive due process construction of plaintiff’s complaint is foreclosed by the cases of Williams v. Kelley, 624 F.2d 695, 697-98 (5th Cir.1980), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981), and Gilmere v. City of Atlanta, Georgia, 774 F.2d 1495 (11th Cir.1985) (en banc). In Williams v. Kelley, the court noted that not every deprivation by the state amounts to a constitutional deprivation. The question is whether the deprivation resulted from the sort of abuse of government power which would raise an “ordinary tort by a government agent” to the stature of a violation of the United States Constitution. 624 F.2d at 697. The question is whether the conduct was sufficiently egregious so as to be “constitutionally” tortious. Id. The most that this complaint reveals is negligence on the part of jailers in failing to make sure that plaintiff’s personal belongings were transferred with the plaintiff when he went from one jail to another. Due to negligence, or administrative oversight, or a combination thereof, his belongings did not catch up with him for a week, and when they did a pair of shoes was missing. This is not the type of egregious state conduct which one could construe to be “antithetical to fundamental notions of due process.” Gilmere, 774 F.2d at 1499. For these reasons, the court concludes that plaintiff’s complaint should be dismissed as frivolous, on the grounds that the conduct alleged is not sufficiently egregious to amount to an independent constitutional tort, and to the extent that it is construed as alleging a violation of procedural due process, the state has provided an adequate post-deprivation remedy. For the foregoing reasons, this action is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(d).