source: Caselaw Access Project

author: KANE, District Judge.

license: Public Domain

text:
    Gary RAWSON, Plaintiff, v. SEARS, ROEBUCK AND COMPANY, Defendant.
    Civ. A. No. 81-K-1454.
    United States District Court, D. Colorado.
    Aug. 28, 1985.

      James A. Carleo, Colorado Springs, Colo., for plaintiff.
    Gregory A. Eurich, Holland & Hart, Denver, Colo., for defendant.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

Plaintiff’s Complaint was filed in July, 1981, in the District Court in and for the County of Pueblo. It was removed to the United States District Court for the District of Colorado. On January 27, 1982, all but three of the plaintiff’s claims for relief were dismissed. Ravjson v. Sears, Roebuck and Co., 530 F.Supp. 776 (D.Colo. 1982). In that same opinion, I held that a private right of action could be implied under C.R.S. § 8-2-116.

On January 10,1983,1 granted summary judgment in favor of Sears on two of the plaintiff’s remaining three claims. Rawson v. Sears, Roebuck and Co., 554 F.Supp. 327 (D.Colo.1983). I denied Sears’ motion for summary judgment on plaintiff’s claim of violation of C.R.S. § 8-2-116, holding that the findings and order of the Colorado Industrial Commission, affirmed by the Colorado Court of Appeals, did not collaterally estop plaintiff from litigating the issue of the reason for plaintiff’s discharge. I also denied Sears’ Motion for Reconsideration and Sears’ Motion for Summary Judgment or, in the Alternative, for Certification of Questions of Law.

On January 20, 1984, I issued an order granting and denying pre-trial motions. I granted Sears’ request for a separate trial on the issue of liability, pursuant to Rule 42, Fed.R.Civ.P. I further ordered that because Mr. Jansen had testified at his deposition that the reason for plaintiff’s discharge was the mishandling of inventory, Sears would not be allowed to introduce any statements or testimony relating to incidents or conduct of the plaintiff other than those related to the inventory charges.

On January 30, 1984 a jury of seven found that Sears, Roebuck and Co. violated Colo.Rev.Stat. § 8-2-116 when it terminated Gary Rawson from his job as manager of its Pueblo store in March of 1979. Defendant moved for a directed verdict at the end of plaintiff’s case and at the end of its own case. I denied both motions.

On July 15, 1985 a new jury of six was selected to try the issue of damages. Trial proceeded to conclusion. Instructions of law were given to the jury without objection. On July 19,1985 the jury returned its verdict awarding the plaintiff damages against the defendant in the following amounts:

A. $580,500.00 for lost wages and benefits from the date the plaintiff would have retired.
B. $264,410.00 for future wages and benefits and reduction in the value of pension benefits from the date of verdict discounted to present value.
C. $5,000,000.00 for pain, suffering and humiliation, both past and future.

The jury also found, according to Colorado law, beyond a reasonable doubt that the injuries and losses complained of by the plaintiff were attended by circumstances of malice or a wanton or reckless disregard of the rights and feelings of the plaintiff and awarded $10,000,000.00 as exemplary damages.

Defendant has moved for judgment notwithstanding the verdict or, in the alternative for a new trial or remittitur. Defendant makes the following four arguments:

1. This court should enter judgment in favor of Sears notwithstanding the ver diet with respect to the jury’s award of punitive damages.

Defendant submits that the jury verdict of $10,000,000 for punitive damages is unsupported by the evidence and thus seeks judgment N.O.V. Sears claims that the evidence presented at trial demonstrates that its conduct did not meet the standard required to justify punitive damages (“beyond a reasonable doubt”). It also claims that plaintiff failed to show an evil intent or reckless disregard of his rights and feelings, which is necessary for the award of punitive damages. Rather, defendant points to plaintiffs own misconduct during his employment with Sears, conceded by plaintiff at trial, as supportive of its articulated reasons for discharging plaintiff.

2. The compensatory damages for pain and suffering awarded by the jury are excessive and contrary to the evidence.

Defendant states that $5,000,000 awarded by the jury for pain, suffering and humiliation is grossly excessive and unreasonable. Defendant calls on me to exercise sound discretion to prevent a miscarriage of justice. Defendant states that the “law in this District is clear that a ‘federal trial judge has not only the discretion to grant a new trial in order to prevent a miscarriage of justice, but it is his obligation to do so where it appears to him that the verdict has been arbitrary and against the clear weight of the evidence.’ ” Atchison, Topeka and Santa Fe Railway Company v. Hadley Auto Transport, 216 F.Supp. 94, 97 (D.Colo.1963) (see pp. 6-7 of Defendants’ Brief). Defendant also notes that exercise of such a power by the court “is not in derogation of the right of trial by jury but is one of the historic safeguards of that right.” Holmes v. Wack, 464 F.2d 86, 88 (10th Cir.1972).

Defendant further observes that the Tenth Circuit in Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152, 1168 (10th Cir.1981) has set down guidelines for whether an award by a jury of either compensatory or punitive damages can be set aside.

We have said that absent an award so excessive as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial, the jury’s determination of the damages is considered inviolate. Metcalf v. Atchison, Topeka and Santa Fe Railway Co., 491 F.2d 892, 898 (10th Cir.) ... Such bias, prejudice or passion can be inferred from excessiveness. Wells v. Colorado College, [478 F.2d 158, 162 (10th Cir.)] ... However, a verdict will not be set aside on this basis unless it is so plainly excessive as to suggest that it was the product of such passion or prejudice on the part of the jury. [Id.] ...
Such cases recognize the principle that if the court determines that the verdict was the result of passion or prejudice, or for any other reason it appears that the jury erred or abused its discretion not only on the issue of damages but also on the issue of liability, the court must unconditionally order a new trial and cannot give the plaintiff the option to accept a lesser amount____
However, another remedy is also recognized. Where the court concludes there was error only in an excessive damage award, but not one also tainting the finding of liability, the appellate court may order a remittitur and alternatively direct a new trial if the plaintiff refuses to accept the remittitur, a widely recognized remedy. Holmes v. Wack, 464 F.2d 86, 89 and n. 3 (10th Cir.) ...

While defendant agrees it is an emotional event for plaintiff to lose a job he has held all his working life, it opines that the “award for pain and suffering returned by the jury, however, suggests that Rawson’s depression and despondency has a compensatory value of several times that of a traumatic physical injury such as would render an individual a quadraplegic” (see p. 9 of Defendant’s Brief). (Defendant cites two recent Colorado district court cases awarding quadraplegic plaintiffs $4,900,000 and $4,100,000 for pain and suffering, loss of income, and medical expenses.) {See p. 9 of Defendant’s Brief.) Defendant also notes that plaintiffs counsel suggested a figure of $1,000,000 as appropriate damages for pain and suffering. Thus, defendant claims, the jury’s verdict was excessive and not reasonably based upon the evidence at trial.

3. The damages awarded by the jury for economic loss are also excessive and unreasonable and a new trial should be granted.

Without citing any case law and relying entirely upon the expert testimony of Dr. Wykstra regarding plaintiff’s loss of wages, defendant claims that the jury’s award of damages for lost wages and benefits as well as future wages and benefits was in excess of any evidence in the record. Based on such testimony, defendant asserts that the jury award of $580,500 for lost wages and benefits should be reduced to $314,000. It also asserts that the jury award for economic loss exceeded any evidence on the subject by $101,510. Thus, defendant requests a new trial on all issues relating to wage loss, past and future.

4. The punitive damages awarded by the jury are grossly excessive and unreasonable, and a new trial should be granted.

Defendant states a new trial must be granted because of the extraordinarily excessive amount of punitive damages awarded by the jury. While defendant concedes a jury has discretion in making punitive damages awards, it notes that such damages are subject to the supervision of the court which may order remittitur or a new trial to prevent a miscarriage of justice. Defendant further notes that in Colorado the amount of punitive damages awarded must bear some relation to the gravity of the injuries sustained by plaintiff and to the amount of compensatory damages, Frick v. Abell, 198 Colo. 508, 602 P.2d 852, 854 (1979); and the degree of the defendant’s malice must also be considered in determining the proper relationship between punitive and compensatory damages, Taylor v. Sandoval, 442 F.Supp. 491, 496 (D.Colo.1977).

Defendant calls my attention to several facts to be considered in determining the amount of punitive damages which reasonably could be awarded to plaintiff. Defendant first argues that evidence demonstrating its evil intent or reckless disregard for the feelings of plaintiff is minimal to nonexistent. Second, assuming that I will reduce to some substantial degree the compensatory damage award for pain and suffering, defendant notes that the punitive damage award should be reduced proportionately. Finally, defendant notes that plaintiff only sought punitive damages in the amount equivalent to the compensatory damages requested in his complaint; even if the compensatory damage award is not reduced, this ratio suggests that punitive damages should not exceed the amount of compensatory damages awarded.

In conclusion, defendant asserts that such an excessive award of punitive damages demonstrates that the jury acted out of prejudice, passion and sympathy for the plaintiff. Defendant thus requests a new trial absent the acceptance of a substantial remittitur of the punitive damages.

In the majority of eases, the discussion of remittitur relates only to punitive damages. Several cases, however, address the issue of remittitur of actual damages. In K-B Trucking Co. v. Riss International Corporation, 763 F.2d 1148 (10th Cir.1985), the jury had awarded plaintiffs actual and punitive damages on their fraudulent misrepresentation claims against two defendants. The Court of Appeals found sufficient evidence to support the jury’s findings of liability against both defendants, as well as sufficient evidence to support the actual damage award against one of the defendants; there was insufficient evidence to support an actual damage award against the second defendant, however. The court, therefore, stated that remittitur would be appropriate under the circumstances. The court was guided by the “abuse of discretion” standard enunciated in Garrick v. City and County of Denver, 652 F.2d 969, 971 (10th Cir.1981) which stated:

Under federal law, whether the trial court properly refused to grant remittitur or a new trial on the ground of an excessive damage award is tested by an abuse of discretion.

In Garrick the court found that the trial court had abused its discretion in light of the insufficiency of the evidence to support the actual damage award against the second defendant. The trial court thus should have ordered remittitur and alternatively, directed a new trial if the defendant refused to accept the remittitur.

Blevins v. Cessna Aircraft Co., 728 F.2d 1576 (10th Cir.1984) involved a product liability action against an airplane manufacturer in which the plaintiff sought damages for injuries during an emergency off-field landing after the plane developed engine trouble. After consideration of plaintiffs injuries as detailed in the record and the evidence concerning the extreme pain he endured, the court could not say that the jury’s award of $1.3 million (of the $2 million verdict) for pain, suffering, and disability “shocks the judicial conscience.” The court also refused to find reversible error based on defendant’s argument that plaintiff’s counsel made improper “Golden Rule” remarks (remarks encouraging the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.) The court conceded that plaintiff’s counsel made a few improper remarks, appealing for sympathy and some prejudice, but in considering the remarks and arguments as a whole, and noting the lack of any timely objection, the court found no reversible error. The court concluded that “the $2 million jury award, while very substantial, was not so excessive as to require reversal or remittitur in light of the record as to all the items of damages.” Id. at 1582.

In Hurd v. American Hoist and Derrick Co., 734 F.2d 495 (10th Cir.1984), a successful products liability action was brought against a manufacturer of an oil field safety block, and the district court denied a subsequent motion for a new trial and for remittitur. The defendant appealed, challenging the award of over $60,000 for “severe and permanent injuries, great pain of body and mind and permanent disability.” Id. at 502. In rejecting defendant’s claim, the court held:

In light of the evidence of serious injury and pain and suffering, we are not persuaded that the damage award was excessive or unsupported by the evidence. ‘[A]bsent an award so excessive or inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial, the jury’s determination of the fact is considered inviolate.’ Id. at 503, quoting Garrick v. City and County of Denver, 652 F.2d 969, 971-72 (10th Cir.1981) which quotes Barnes v. Smith, 305 F.2d 226, 228 (10th Cir.1962).
Under our standard, we conclude that here the award was not so plainly excessive that we should infer that it was the result of passion or prejudice, and we cannot hold the award is shocking to the conscience of the court; therefore we should not order a remittitur. Id.

Colorado courts and the Tenth Circuit in Malandris and in other decisions, have consistently held that while bias, prejudice or passion can be inferred from an excessive damage award, a verdict will not be set aside unless it is plainly excessive so as to suggest that it was the product of such passion or prejudice on the part of the jury. Blevins v. Cessna Aircraft Co., 728 F.2d 1576 (10th Cir.1984); Garrick v. City and County of Denver, 652 F.2d 969, 971-72 (10th Cir.1981); Hurd v. American Hoist and Derrick Co., 734 F.2d 495 (10th Cir. 1984); Leo Payne Pontiac, Inc. v. Ratliff, 29 Colo.App. 386, 486 P.2d 477 (1971), rev’d on other grounds, 178 Colo. 361, 497 P.2d 997 (1972).

In Burns v. McGraw-Hill Broadcasting Company, Inc., 659 P.2d 1351 (Colo.1983), the Supreme Court of Colorado held that in a defamation case, it would not set aside the jury’s determination of damages unless they are “so outrageous as to strike everyone with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted with prejudice, partiality or corruption.” Id. at 1356 (quoting Riss & Co. v. Anderson, 108 Colo. 78, 85, 114 P.2d 278, 281 (1941)). The Riss opinion, authored by Mr. Justice Young, in turn quotes heavily from Colorado Springs & Interurban R.R. Co. v. Kelley, 65 Colo. 246, 176 Pac. 307:

As relates to the contention of excessive damage, we must bear in mind and be governed by the rule laid down by Chancellor Kent more than a century since, and generally adhered to by all courts, and by this court; that it is exclusively the province of the jury to estimate and assess the damages, and that the amount to be allowed in such cases rests largely in their sound discretion. He said:
The question of damages was within the proper and peculiar province of the jury. It rested in their sound discretion, under all the circumstances of the case, and unless the damages are so outrageous as to strike everyone with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality or corruption, we cannot, consistently with the precedents, interfere with the verdict. It is not enough to say, that in the opinion of the court, the damages are too high, and that we would have given much less. It is the judgment of the jury and not the judgment of the court, which is to assess the damages in actions for persona] torts and injuries.
And as was well said by Justice Story in Thurston v. Martin, 5 Mason 497, Fed. Cas. No. 14018:
It is one thing for a court to administer its own measure of damages in a case properly before it, and quite another thing to set aside the verdict of a jury because it exceeds that measure.

Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo.1984) involved a products liability action to recover compensatory and punitive damages from a manufacturer of an intrauterine device. In its discussion of punitive damages, the court noted that such damages do not admit of precise determination; thus, the amount of the award must necessarily rest, in the first instance, within the discretion of the fact finder. Id. at 220. While there is no precise formula to determine the relationship between punitive and actual damages, there is a need for judicial scrutiny to ensure that the jury is not impermissibly motivated by prejudice or not properly guided by the purposes for punitive damages. The court noted that

[although a ten-to-one ratio of punitive to compensatory damages warrants close judicial scrutiny, we note that high ratios have been upheld where the record shows that the jury was properly guided by the purposes of a punitive damages award in reaching its verdict. See, e.g., Mailloux v. Bradley, 643 P.2d 797 (Colo. App.1982) (rations of 10:1 and 35:1 upheld); see also, e.g., Vossler v. Richards Mfg. Co., Inc., 143 Cal.App.3d 952, 192 Cal.Rptr. 219 (1983) (20:1 ratio upheld); Ettus v. Orkin Exterminating Co. Inc., 233 Kan. 555, 665 P.2d 730 (1983) (24:1 ratio upheld) ... Id. at 220.

In Palmer, supra, the court saw no reason to view the jury’s verdict

as other than the conscientious decision of a jury to punish a wrongdoer with a penalty commensurate with the seriousness of the misconduct and the financial ability of the offender to pay and, concomitantly, to deter [the defendant] and others from similar acts of misconduct in the future. Id. at 221.

Several Colorado appellate court cases address this same issue. In Martin v. Bralliar, 36 Colo.App. 254, 540 P.2d 1118, 1122 (1975), a medical malpractice action, the court stated that the “assessment of damages is the exclusive province of the jury, and it is only in the clearest cases that its award will be overturned on review.” In Good v. A.B. Chance Co., 39 Colo.App. 70, 565 P.2d 217 (1977), a wrongful death action against the manufacturer and retailer of an aerial boom device, the jury award exceeded by $44,000 the amount of pecuniary loss projected by the plaintiff’s economist. The court did not find the jury’s award to be grossly excessive since the expert had conceded his figures were conservative and the jury was not required to adhere strictly to the expert testimony. Id. at 226.

An A.L.R. annotation addresses the recovery of damages for emotional distress in cases of discrimination based on sex and marital status. Annot., 61 A.L.R.3d 944 (1975). The annotation notes:

By way of background, it should be noted that the courts in most jurisdictions where the question has arisen have in the appropriate circumstances permitted recovery of damages for emotional distress resulting from a variety of forms of discrimination. Id. at 945.

Normally, under common law principles, courts have required a showing of outrageous conduct in order to obtain such recovery. Courts have relaxed this standard, however, where a special relationship was shown between the parties—i.e., employer-employee, “apparently upon the theory that it would be tantamount to extortion to permit a defendant who wields actual or apparent power over the plaintiff to abuse his position.” Id. at 945.

It is to be remembered that this is a case involving the law of Colorado. It is not related in any way to the federal Age Discrimination in Employment Act nor to the congressional history of that Act nor to policies and decisions of federal courts interpreting that Act. Here, the plaintiff filed his case in a state court pursuant to a state statute. The case was removed to the federal court by the defendant. Nevertheless, Colorado law governs.

Indeed, the plaintiffs choices of law and forum set upon him a much higher burden. Under the Colorado statute age discrimination must be shown to be the sole and only reason for termination. Having met that burden, a plaintiff is entitled under Colorado law to recover unliquidated as well as liquidated damages. If plaintiff proves his claim for relief, he may also recover exemplary damages if he can prove beyond a reasonable doubt that the wrong done to him was attended by circumstances of fraud, malice or insult, or a wanton and reckless disregard of his rights and feelings.

I have written three opinions in this case, listened to the evidence in two separate trials before two distinct juries. I find no evidence to suggest that the verdict returned in either trial was the product of passion, prejudice or misconduct. Nor do I find that the verdict on the damages trial was contrary to the evidence. It is obvious that the jury considered the evidence and, in its wisdom, rejected the defendant’s evidence. Issues of credibility are supposed to be resolved by a jury as the finders of fact. Indeed, it is probable that this jury rejected defendant’s evidence because the members of the jury found it was pretextual.

Certainly, evidence was presented which, if believed, would have supported a defense verdict. In equal measure, evidence was presented, and apparently believed, that justified verdicts on actual as well as exemplary damages.

At the time of his firing the plaintiff was almost sixty years old. From completion of his military service in World War II until his termination he devoted his entire working life to the defendant’s business. For thirty-three years his performance was never below satisfactory, was frequently superior and, in some instances, was recognized as excellent. His performance was repeatedly and systematically evaluated. There was ample evidence from which the jury could conclude that the plaintiff was a loyal, dedicated and productive employee.

There was substantial evidence from which the jury could find that the plaintiff was discharged in a callous and demeaning manner; that the method of investigation and termination was insulting and utterly disregarded plaintiff’s rights and feelings; and that the plaintiff was discharged in pursuit of a company-wide plan to reduce the number of older employees in order to make room for promotions of younger employees. The evidence clearly showed that the defendant reaped large financial gains from employee cutbacks.

The question of whether the damages awarded are so excessive as to require a vacation of the verdict or remittitur remains to be addressed. Plaintiffs actual damages are clearly supported by evidence in the record. Both economists testified that they were using conservative estimates. The jury was not bound to those estimates. It was within the jury’s province to determine the plaintiff’s probable retirement date, his predictable pay increases based on earnings history and the appropriate amount to discount to present value. Plaintiff’s Exhibit 498 more than amply provides the basis for the jury’s determinations.

It is not for me to say that a jury’s assessment of unliquidated damages is wrong because I would have arrived at a different figure. Indeed, the constant exposure to death, injury and outrage which confronts judges necessarily jades our vision and immures our emotions. The genius of the jury system is the deliverance of judgment by collective response from members of the community who have ordinary experience.

In its argument the defendant compares the damages awarded by the jury for pain, suffering and humiliation to sums awarded in physical injury cases involving quadraplegia. The comparison is inapposite for a whole host of reasons, not the least of which is the presence in such cases of other sources of compensation and treatment.

The injuries suffered by the plaintiff in this case are more akin to those suffered in defamation cases. Indeed, the plaintiff's reputation in his community was destroyed by the acts of defendant. The plaintiff was totally disgraced to the extent that he contemplated suicide. Large awards in similar circumstances have been awarded.

This case was tried to a jury of six persons. One was a retired college professor, another was a registered professional pharmacist; others were college educated. The members of this jury sat together, consulted with one another and applied their separate experiences in the affairs of life to the facts adduced at trial. There is not even the breath of a suggestion that this jury based its verdict on anything other than the evidence offered at trial. From this trial these six jurors drew a unanimous conclusion which it is the very function of the law to obtain. As Justice Hunt said so well in Sioux City & P. Ry. Co. v. Stout, 84 U.S. 657, 664, 17 Wall. 657, 21 L.Ed. 745 (1874), “It is assumed that twelve men know more of the common affairs of life than does one man: that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge.”

In sum, I think it would be the worst sort of judicial activism to vacate this verdict merely because I might have reached a different result or because the lawyers made different evaluations. The punitive damage award is less than twice the actual damage award; well within the range of reasonableness surveyed by the Tenth Circuit in Malandris v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152 (1981).

I am simply not imperious enough to say that this jury did not know what it was doing or that passion, prejudice or corruption or other improper cause invaded the trial. On the basis of conflicting and sometimes unexplained evidence, this jury found in favor of an individual and against a vast corporate enterprise. Its award of exemplary damages bears a reasonable relationship to the actual damages which it found and yet is large enough to fulfill the purpose of exemplary damages as stated in the instructions of law delivered to it. Based on the evidence I heard, my judicial conscience is not shocked—though my acquired cynicism has received a rather sharp blow.

For these reasons, defendant’s post-trial motions are denied. An amended judgment shall enter this day in the total sum of $19,096,495.01. A stay of execution on the judgment is granted until September 13, 1985. Bond on appeal is set at $24,000,000.


text:
    Kenneth ROBERTS, Ernest Meunier, Anthony Nappi, William I. Moore and Transwestern International, Inc., Plaintiffs, v. The Honorable William P. CLARK, Secretary, United States Department of the Interior, Defendant.
    Civ. A. No. 84-K-2361.
    United States District Court, D. Colorado.
    Aug. 29, 1985.

      Clement Theodore Cooper, Washington, D.C., Martin E. Long, Denver, Colo., for plaintiffs.
    Patricia N. Young, General Litigation Section Land and Natural Resources Div., Dept. of Justice, Washington, D.C., James W. Winchester, Asst. U.S. Atty., Denver, Colo., for defendant.
   ORDER

KANE, District Judge.

In a series of administrative and judicial decisions, defendant invalidated plaintiffs’ unpatented mining claims and quieted title to the public land involved in the United States. Plaintiffs appealed those decisions, and the United States prevailed in all proceedings. Roberts v. Andrus, 434 U.S. 834, 98 S.Ct. 121, 54 L.Ed.2d 95 (1977); Roberts v. Morton, 549 F.2d 158 (10th Cir. 1977); United States v. Zweifel, et al., 508 F.2d 1150 (10th Cir.1975); Roberts v. Morton, 389 F.Supp. 87 (D.Colo.1976).

Plaintiffs then brought suit in the United States Court of Claims charging that defendant had breached his duties under the public trust doctrine by his conduct in invalidating the claims. The Claims Court granted the government’s motion to dismiss, noting that “[although plaintiffs have given titles to their causes of action and have varied somewhat the allegations of government wrongdoing, the fact remains that the basic issue in this case is the validity of plaintiffs’ unpatented mining claims.” See Plaintiffs’ statement of material facts, p. 17. The Court of Appeals for the Federal Circuit affirmed that dismissal in February of 1984.

The complaint now before me requests the following relief: (1) $1,346,390,400.00 in damages due to breach of contract; (2) three hundred billion dollars in damages due to breach of fiduciary duty, bad faith and unfair dealing; (3) unascertained damages and relief from judgment for defendant’s breach of duties arising out of common law public land trust; (4) damages arising out of inverse condemnation and in mandamus to compel payment for unjust taking; and (5) an accounting by trustee under common law public land trust. Defendant has moved to dismiss the complaint for lack of jurisdiction. For numerous reasons, I grant defendant’s motion to dismiss.

I.

Jurisdiction has been invoked under 28 U.S.C. § 1331 and pursuant to Rule 60(b)(3) of the Federal Rules of Civil Procedure. Before this court can take jurisdiction, it must appear in the complaint, by a statement of facts, in legal and logical form, that ,the suit is one which involves a dispute as to a right created by the Constitution, laws, or treaties of the United States. Shoshone Mining Company v. Rutter, 177 U.S. 505, 20 S.Ct. 726, 44 L.Ed. 864 (1900). That right or immunity must be an element, an essential one, of plaintiff’s cause of action. Pan American Petroleum Corporation v. Superior Court of Delaware, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961); Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 94 S.Ct. 1002, 39 L.Ed.2d 209 (1974). Jurisdiction does not arise simply because an averment as to the existence of a constitutional question is made, if it plainly appears that the averment is not real and substantial, but is without color of merit. Newburyport Water Company v. City of Newburyport, 193 U.S. 561, 24 S.Ct. 553, 48 L.Ed. 795 (1904). When jurisdiction under 28 U.S.C. § 1331 is challenged, the issue must be determined by considering the allegations of the complaint. If the allegations disclose a real, substantial federal question, there is jurisdiction. South Covington & C. Street R. Co. v. Newport, 259 U.S. 97, 42 S.Ct. 418, 66 L.Ed. 842 (1922).

In examining a motion to dismiss, however, the complaint is to be construed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Olpin v. Ideal National Insurance Company, 419 F.2d 1250 (10th Cir.1969), cert. denied, 397 U.S. 1074, 90 S.Ct. 1522, 25 L.Ed.2d 809 (1970). When reviewing the sufficiency of the complaint, the issue is not whether the plaintiff is likely to prevail, but whether the claimant is entitled to offer evidence to support the claims. Scheuer, supra. If the claim is patently unsound and without merit, the court may be justified in dismissing the complaint for want of jurisdiction. Duke Power Company v. Carolina Environmental Study Group, Inc. 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062 (1933).

II.

I note at the outset that it is difficult to imagine a more confusing complaint. I have struggled to ascertain plaintiffs’ intention in framing their ninety-page complaint. On the one hand, plaintiffs repeatedly assert that they do not seek review of issues previously determined, such as the validity of the mining claims, but are merely raising new issues such as defendant’s misconduct and breach of fiduciary duties. On the other hand, plaintiffs seek a judgment or order vacating previous judgments or orders under Rule 60(b)(3) and raise countless underlying issues which were resolved in earlier proceedings. For the sake of completeness, I will attempt to read the complaint both as a Rule 60(b) motion for relief for judgment (either under (b)(3) or on independent grounds) and as an independent cause of action for damages based on the alleged “misconduct” of the government.

III.

28 U.S.C. § 2401(a) requires that civil actions against the United States must be filed within six years after the right of action first accrues. The actions or alleged “misconduct” of the government upon which this complaint is based all occurred from the 1950’s through 1974. Even the most liberal interpretation of the statute of limitations would find that the statute could not have begun to run any later than 1977, the year in which the Supreme Court denied certiorari. Further, plaintiffs’ alleged filing of a suit in the United States Court of Claims did not toll the running of that limitations period. Thus, reading the complaint in the most favorable light to the plaintiffs, as presenting new causes of action and seeking damages, the complaint was not filed within six years after the first four causes of action accrued. Claims one through four are thus barred by the statute of limitations.

IV.

Now I turn to examine plaintiffs’ request for relief from judgment pursuant to Rule 60(b)(3). That rule provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

Plaintiffs’ motion for relief under Rule 60(b)(3) must be denied because the rule also provides that “[t]he motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.” Plaintiffs’ “complaint to set aside judgment” was not filed within one year of any alleged fraud or misconduct of any party.

Even assuming, arguendo, that plaintiffs have pleaded an independent action for relief from judgment, and are not subject to the one-year limitations period, relief may not be granted. None of the requirements for an independent action in equity to relieve a party from judgment have been met. See defendant’s brief in support of its motion for dismissal, pp. 13-15. As defendant points out, the alleged fraud or concealment is not fraud upon the court which prevented plaintiffs from obtaining the benefit of their defense. Plaintiffs’ motion for relief from judgment is denied.

V.

Defendant also argues that plaintiffs’ claims are barred by res judicata. To establish that a lawsuit is precluded on these grounds, a party must establish: (1) that the same parties or parties in privity with them were present in the prior litigation; (2) that a court of competent jurisdiction entered a final judgment on the merits; and (3) that the action concerns the same subject matter as the prior suit. Delve v. Three Lakes Water & Sanitation District, 568 F.Supp. 662 (D.Colo.1983); Sworob v. Harris, 451 F.Supp. 96 (E.D.Pa. 1978). To the extent that some of plaintiffs’ claims request relief from prior judgments and reinstatement of plaintiffs’ mining claims, they do concern the same subject matter as the prior suits. Thus, action by this court on those claims is barred under the doctrine of res judicata.

VI.

In the alternative, I also find that the allegations in plaintiffs’ complaint, even when taken as true, do not state any claims upon which relief can be granted. Plaintiffs’ first claim alleges that defendant “unilaterally agreed” to enter a formal contract to place money from competitive leasing in escrow pending resolution of the rights of the parties. If plaintiffs are alleging defendant breached his “unilateral agreement” to make a formal contract, the charge is absurd and demonstrates a fundamental misunderstanding of contract law. If plaintiffs are alleging a breach of the escrow agreement, the charge is equally absurd since plaintiffs did not prevail in the proceedings concerning the validity of the mining claims.

Plaintiffs’ second and third claims also fail to state claims upon which relief can be granted because they do not establish any fiduciary duties on the part of defendant, either as Secretary of the Interior or under the “public land common law trust” doctrine. Further, there are no facts presented which indicate bad faith on the part of the defendant at any time. The arguments are convoluted and do not rise to the threshhold level of credibility which warrants me to allow plaintiffs to present evidence to support their claims.

In their fourth cause of action, plaintiffs argue that the prior decisions invalidating their mining claims constitute condemnation in violation of the Fifth Amendment. They offer no support of this contention, probably because none exists. Plaintiffs’ rights to the mining claims were never established. Therefore, plaintiffs could not be unduly deprived of their rights.

Read in every imaginable fashion, the complaint in this action fails to set forth the jurisdiction of this court. Plaintiffs are obviously unhappy with the outcome of the prior decisions regarding the validity of their mining claims. This does not give them the right, however, to file convoluted pleadings in an attempt to obtain this court’s jurisdiction where there clearly is none.

It is therefore ORDERED that the complaint and civil action in this case be dismissed.

      . Plaintiffs apparently quote from the June 3, 1983, United States Claims Court opinion granting the government’s motion to dismiss, at page 16. Due to plaintiffs’ improper citation practices throughout their briefs, I have no name or citation for this case. Plaintiffs merely cite to exhibit #R, pp. 244-45. No exhibits were submitted to this court with the moving papers. I note this by way of pointing out my frustration in trying to understand plaintiffs’ pleadings, not by way of inviting them to submit the exhibits at some later date.

      . Again, plaintiffs' did not provide me with the name or citation of this decision. On page 17 of plaintiffs’ statement of material facts they refer to exhibit #S, pp. 246-248. On page 13 of plaintiffs’ brief in opposition to defendant’s motion to dismiss they refer to exhibit #Z, pp. 289-292.

      . Plaintiffs’ fifth cause of action simply requests this court order an accounting upon my determination of the existence of a common law public land trust. It is, therefore, a request for a remedy upon finding a breach of duties under the trust, and does not set forth an independent cause of action.


author: BROTMAN, District Judge.

text:
    DIRECT SATELLITE COMMUNICATIONS, INC., Canetic Corporation, Chanticleer Community Association, the Chanticleer Venture, La Bonne Vie Association At Echelon, the Mews at Chanticleer Homeowners Association, and La Bonne Vie Condominium Association, Inc., Plaintiffs, v. The BOARD OF PUBLIC UTILITIES and Office of Cable Television, an agency of the State of New Jersey and a division thereof, NYT Cable TV, a division of The New York Times Company, and the State of New Jersey and Irwin I. Kimmelman, Attorney General of New Jersey, Defendants, and New Jersey Cable Television Association, Defendant-Intervenor.
    Civ. A. No. 84-4990.
    United States District Court, D. New Jersey.
    Aug. 29, 1985.

      Vincent J. Sharkey, Jr., Riker, Danzig, Scherer, Hyland & Perretti, Morristown, N.J., and Phillip L. Spector, Goldberg & Spector, Washington, D.C., for plaintiffs.
    Irwin I. Kimmelman, Atty. Gen. of New Jersey by Raymond C. Barzey and Andrea Silkowitz, Deputy Attys. Gen., Trenton, N.J., for defendants Bd. of Public Utilities, Office of Cable Television, State of N.J. and Irwin I. Kimmelman.
    Peter J. Pizzi, Kevin J. Coakley, Jacqueline Chasey, Connell, Foley & Geiser, Newark, N.J., for defendant NYT Cable TV.
    Francis R. Perkins, Robert St. John Roper, Jeffrey W. Meyers, Cynthia D. Benn, Holzapfel, Perkins & Kelly, New Jersey Partner in the Firm of LeBoeuf, Lamb, Leiby & MacRae, Cranford, N.J., for defendant-intervenor.
   OPINION

BROTMAN, District Judge.

The plaintiffs in this action are a “satellite master antenna” television (“SMATV”) company, two real estate developers (“the Developers”), and four condominium homeowners associations (“the Homeowners Associations”). Direct Satellite Communications, Inc. (“DireetSat”), the SMATV firm, has entered into exclusive agreements with the Homeowners Associations to install cable television systems in four planned residential communities (“the Developments”) constructed by the Developers in Camden County, New Jersey.

The principal defendant in this litigation is New York Times Cable Television (“NYTCA”), a franchised cable television company which operates primarily in Southern New Jersey. NYTCA has sought and failed to gain entry into the four Developments, and thus has been unable to offer its services to homeowners there. Consequently, NYTCA has filed a series of administrative complaints as well as a civil lawsuit at the state level. In these actions the company challenges the validity of DirectSat’s contracts with the Homeowners Associations. NYTCA’s actions are based on N.J.S.A. 48:5A-49 (“Section 49”), the “Mandatory Access Law.” Section 49 guarantees cable television companies access to multi-unit dwellings and condominium developments in order to solicit customers for their services. Plaintiffs also name as defendants the State of New Jersey, the New Jersey Attorney General, Irwin I. Kimmelman, the New Jersey Board of Public Utilities (“BPU”), and the BPU Office of Cable Television. These defendants are being asked to enforce Section 49 against many of the plaintiffs in the state proceedings initiated by NYTCA.

The Complaint, as amended, asserts that Section 49 is unconstitutional on two separate grounds. First, plaintiffs contend that Section 49 is contrary to the equal protection clause of the Fourteenth Amendment to the United States Constitution. The statute allegedly creates rights of access for franchised cable television companies like NYTCA, while denying the same rights to unfranchised companies such as Direct-Sat. Second, plaintiffs maintain that Section 49 violates the First, Fifth and Fourteenth Amendments because it forces individuals and communities to allow certain favored cable television companies to gain access to their private property, regardless of whether the owners desire such access, or approve of the message conveyed. Both of plaintiffs’ claims are founded on 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 1201 et seq. The court’s jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343.

Presently before the court is plaintiffs’ application for a preliminary injunction against enforcement of Section 49 and a declaration that the statute is unconstitutional. In the alternative, plaintiffs request summary judgment on both claims raised in the Complaint, as amended. Fed. R.Civ.P. 56. Defendant NYTCA has filed a cross-motion to dismiss the Complaint, and the State defendants have submitted a cross-motion for summary judgment. According to NYTCA and the State defendants, plaintiffs lack standing to maintain this action and are unable to substantiate their constitutional claims. In the alternative, the defendants ask the court to dismiss the Complaint, or at least to stay further proceedings, pursuant to the doctrine of abstention. On April 4, 1985, the court granted a motion brought by the New Jersey Cable Television Association (“the Association”) to intervene as a party defendant. The Association joins in the cross-motions submitted by the other defendants.

For reasons set forth below, the court will not abstain from exercising its jurisdiction over the issues presented by the parties. The court will grant defendants’ motion to dismiss for lack of standing as to plaintiffs’ first cause of action. In addition, the court will award defendants summary judgment with respect to plaintiffs’ First Amendment claim. Accordingly, plaintiffs’ motion for a preliminary injunction or summary judgment will be denied, and the Complaint will be dismissed.

Factual Background

The parties acknowledge that they concur as to the facts underlying this case, except for a minor disagreement regarding the degree of similarity between the services offered by DirectSat and NYTCA. Accordingly, there exist no genuine issues of material fact in this case, and the following is undisputed.

A. The Developments

This litigation arises out of a battle over rights to provide television service to four newly developed suburban communities in Camden County. Each community has a homeowners association which administers community facilities and collects revenues from each homeowner to finance such activities.

The principal Developer of each of these settlements, John B. Canuso, “considered it vital ... that they have a form of technologically up-to-date cable television service” at the time the new owners moved into the units or as soon as possible thereafter. Affidavit of John B. Canuso (“Canuso Affidavit”) at 2-3. Mr. Canuso selected Direct-Sat because he believed its services to be “at least equal” to those of NYTCA, the franchised purveyor in the area, and because DirectSat could install facilities sooner. Id. at 3. The Homeowners Association for each of the Developments concurred in his judgment and entered into contracts with DirectSat. Id. at 4, 6.

B. The Providers

Plaintiff DirectSat and defendant NYT-CA both perform a variety of functions and offer numerous different services to customers. DirectSat’s operations are typically designed to serve particular multi-unit dwellings or residential Developments. At or near the service locale, DirectSat installs a receive-only satellite earth station which receives television programming transmitted by satellite. The company also sets up a “master antenna” designed to receive traditional television signals. DirectSat combines the two sets of signals and distributes them via cables connecting its reception facility with customers in the community.

NYTCA serves all of its customers from central reception and transmission facilities. Individual homes and apartments gain access to NYTCA programming through a network of underground coaxial cables buried in public rights-of-way in Southern New Jersey. NYTCA receives television signals transmitted by satellite and traditional means and then relays these broadcasts to persons in a variety of communities willing to pay the company to connect their homes to nearby arteries in the NYTCA cable network.

DirectSat and NYTCA select material for transmission to customers. Both companies provide at least twenty channels of programming including local broadcasts, distant satellite broadcasts and various specialty channels which show movies, sports, news and other material. In addition, customers of DirectSat have access to several non-television “interactive” channels, through which they can arrange for home security services, fire and smoke alarm systems and the like.

C. The Contracts

The three television service contracts at issue are substantially similar. In numerous respects, they are virtually identical. In each of the communities involved in this litigation, DirectSat has obtained permission to install and maintain a satellite cable television system on community property under the control of the community’s Homeowners Association. The agreements also grant to DirectSat “exclusive” rights to use the system to transmit pay television and other services, as well as “to solicit and obtain compensation from the individual residents [of the communities] for the services for which they subscribe.” The Homeowners Associations agree to pay DirectSat a monthly service fee equal to the “base service cost times the number of units” using DirectSat services. If any homeowner fails to remit his or her common maintenance charges to the condominium association, the association may request DirectSat to terminate service to that homeowner. DirectSat agrees to provide the four communities with “competitive” service over the life (ten or fifteen years) of the contract. Each of the agreements contains provisions which would allow DirectSat to maintain some degree of responsibility for providing television services for another ten or fifteen years after the expiration of the initial contract term. Canuso Affidavit, Exhibits A, B, C.

D. The Dispute

Defendant NYTCA has received approval from relevant state and local governments to construct and operate cable television systems in Gloucester, Voorhees and Cherry Hill Townships in Camden County, wherein the four Developments are located. “Commencing in September 1983,” NYTCA tried and failed to obtain permission from the Homeowners Associations, the Developers and John B. Canuso himself to enter the Developments to provide cable television service to residents. Pizzi Affidavit, Exhibits A, B, C, D.

In October, 1984, NYTCA filed four administrative complaints with the BPU, Pizzi Affidavit, Exhibits A, B, C, D, and a civil lawsuit with the New Jersey Superior Court, Chancery Division, NYT Cable TV v. Jocan, Inc., et al., Docket No. C-4142-84. The administrative actions, which have been referred to the New Jersey Office of Administrative Law, request an order requiring the respondent Developers, Homeowners Associations and John B. Canuso, to permit NYTCA access to various condominium Developments, including the four at issue in this case. NYTCA wishes (1) to install equipment which allows customers to hook into its system, and (2) to solicit subscribers to its services. Pizzi Affidavit, Exhibits A, B, C, D. In its lawsuit in state court, the principal relief requested by NYTCA is an order “declaring void and enforceable as against [NYTCA] the contracts ... between DirectSat and the defendants [including the homeowners association].” Id., Exhibit F at 7.

E. The Statute

Defendant bases its state court actions and its positions in this litigation on Section 49 of the New Jersey Cable Television Act, N.J.S.A. §§ 48:5A-1, et seq. (“the Act”). Section 49 prohibits the “owner of any dwelling or his agent” from barring “any tenant of such dwelling from receiving cable television service nor demand or accept payment in any form as a condition of permitting installation of such service.” N.J.S.A. 48:5A-49(a). Section 49(b) includes in the definition of “owner” a “condominium association.” N.J.S.A. 48:5A-49(b).

Discussion

The court will first consider defendants’ motion to dismiss for lack of standing to sue, as that portion of defendants’ pleadings question the very power of the court to hear this matter.

Article III of the United States Constitution imposes certain minimum requirements on parties who seek to invoke the federal judicial power. In order to establish the existence of a bona fide “case or controversy,” and thus, a basis for subject matter jurisdiction, a plaintiff must have suffered an “injury-in-fact” causally related to a defendant’s actions. In other words, a plaintiff must have “personally ... suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant[s].” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979). The Supreme Court has also recognized further limits of a prudential nature, which courts may apply in order to “avoid deciding questions of broad social import where no individual rights would be vindicated.” Id. at 99-100, 99 S.Ct. at 1607-1608. Although Congress may not tamper with the constitutional minima, the legislature may grant a right to sue to those otherwise barred by prudential restrictions. Id. at 99-100, 99 S.Ct. at 1607-1608.

Defendants contend plaintiffs have failed to establish that they have suffered any injury attributable to the actions of NYT-CA or State officials responsible for cable television regulation. As to plaintiffs’ equal protection claim, defendants argue that DirectSat already has access to the four communities embroiled in this dispute. Consequently, defendants maintain that even if Section 49 does “discriminate” against unfranchised cable operators, like DirectSat, and in favor of franchised operators, such as NYTCA, plaintiffs have avoided the unequal impact of the law by making arrangements for DirectSat services prior to the arrival of NYTCA on the scene. See, e.g., Defendant NYTCA’s Brief in Opposition to Motion for Summary Judgment or Preliminary Injunction at 5-6. Defendants also charge that Section 49 does not make a distinction between franchised and unfranchised cable television operators, as alleged by plaintiffs. Id. Thus, defendants contend, plaintiffs are unable to show they have suffered an “injury ... as a consequence of the alleged constitutional error.” Valley Forge College v. Americans United for Separation of Church and State, 454 U.S. 464, 485, 102 S.Ct. 752, 765, 70 L.Ed.2d 700 (1982) (emphasis in the original).

Defendant-intervenor Association charges that plaintiffs lack standing to litigate their First Amendment claim. According to the Association, defendants’ second cause of action is also faulty because it is premised on an erroneous reading of Section 49. As the statute does not discriminate against unfranchised cable companies, plaintiffs are not being forced to permit access to a state-favored speaker, as they allege. In any case, the Association argues, Section 49 does not affect the plaintiff Developers as it only applies to “owners” of multi-unit dwellings and condominium Associations.

In responding to defendants’ standing challenge, plaintiffs do not submit evidence-indicating that DirectSat has been denied access to any of the Developments based on a restrictive reading of Section 49, with resulting injury to DirectSat and the other plaintiffs. Such a showing is impossible, as DirectSat is already prepared to provide service in the four Developments. In this case, DirectSat seeks to exclude other cable operators. Nevertheless, plaintiffs argue that they suffer from a threatened injury in that NYTCA’s attempt to enforce Section 49 at the state level may “force plaintiff property owners, against their wishes, to admit NYT[CA] and its cables and equipment onto their property, and to abrogate contracts which allow plaintiff DirectSat access to these Developments.” Plaintiffs’ Reply Brief in Support of Motion for Summary Judgment or Preliminary Injunction at 9-10. Furthermore, “the BPU proceedings initiated by NYT[CA] would, if successful, injure DirectSat in its competition with NYT[CA] and other franchised systems.” Id. at 10. Finally, plaintiffs contend that the State’s favoritism toward franchised operators harms DirectSat “in terms of its ability to demonstrate cable speech protected by the First Amendment.” Id.

Plaintiffs’ contentions are sufficient to state a threatened injury to rights they claim under the First Amendment. Defendants’ actions portend the entry of NYTCA’s equipment and services onto property owned, managed or serviced by the various plaintiffs. DirectSat and the Homeowners Associations, as parties to exclusive service contracts, would plainly be harmed by access for NYTCA, in contravention to such agreements. The existence of a single, unobtrusive, unoffensive cable television service allegedly increases the attractiveness of units in the four Developments to potential customers. Canuso Affidavit at 4. Thus, the record indicates that both Developers are threatened with injury if NYTCA gains access to the Developments. Consequently, plaintiffs are entitled to present legal argument to the effect that enforcement of Section 49 so as to permit access for NYTCA would infringe plaintiffs’ right to exclude undesired state-sponsored “speakers” from private property-

On the other hand, plaintiffs fail to allege a colorable injury related to the State’s alleged denial of “equal protection of the laws.” The court acknowledges that if NYTCA is permitted access to the four Developments, DirectSat’s prospects of profitable operations there will be dimmer. The court also recognizes that opening the Developments to a spectrum of cable operators would deprive the other plaintiffs of their control over the nature of cable television service in the communities. All the same, such injuries have nothing to do with discrimination against unfranchised cable operators. Section 49 threatens to subject DirectSat to competition from franchised operators regardless of whether the statute does or does not apply to unfranchised companies.

The Equal Protection Clause guarantees a remedy to redress certain inequities in the distribution of legal benefits by state governments. Where, as here, the inequity consists of an alleged denial of rights of access, a party has no standing to sue, and suffers to unequal treatment, if access already exists. In order to raise an equal protection claim, DirectSat must wait until another day, when it is faced with an exclusive arrangement like the one from which it now seeks to benefit. Certainly, plaintiffs will benefit from an order enjoining application of Section 49 in favor of NYTCA on the grounds.that the statute violates the Equal Protection Clause. Such relief, however, would redress no injury to plaintiffs attributable to the denial to DirectSat of the rights guaranteed by Section 49.

In light of thé foregoing, the court need not address the question of whether Section 49 applies only to franchised cable operators. Defendants’ motion to dismiss on the grounds that plaintiffs lack standing to sue will be granted as to Count 1 of the Complaint. The motion will be denied as to plaintiffs’ First Amendment claims.

The court now turns to defendants’ motion to dismiss for failure to state a claim, and in the alternative, for abstention. Before reviewing the adequacy of plaintiffs’ First Amendment claims, the court will address the proposed grounds for abstention.

There is no basis for a decision to dismiss this action in order to avoid interference with ongoing state proceedings pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and its progeny. In this Circuit, application of the Younger doctrine in civil cases has been limited to instances in which a state or an agency of the state has begun enforcement proceedings in a state tribunal, judicial or administrative. Where, as here, each of “the pending state proceeding^] is a privately-initiated one, the state’s interest in the proceeding is not strong enough to merit Younger abstention.” Harris v. Pernsley, 755 F.2d 338, 344 (3rd Cir.1985), quoting Williams v. Red Bank Board of Education, 662 F.2d 1008, 1019 (3rd Cir. 1981) . Accord Johnson v. Kelly, 583 F.2d 1242, 1249 (3rd Cir.1978); Bally Manufacturing Corp. v. Casino Control Commission, 534 F.Supp. 1213, 1218-19 (D.N.J. 1982) .

Defendants also ask the court to consider deferring to pending litigation related to this case at the state level in accordance with Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) and Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The court will decline the invitation in both respects.

It would be inappropriate for the court to avoid exercising its jurisdiction in this case based on Burford v. Sun Oil Co., supra, as that case involved much different circumstances. In Burford, the Court considered a due process challenge to state administrative orders. For fear of disrupting a complex regime of economic regulation, the Court declined to intervene. Plaintiffs’ claims pose no such difficulty. In the first place, this action presents a straight-forward challenge to the constitutionality of a state statute. Furthermore, no indepth knowledge of the industry subject to state regulation is required to dispose of this action.

Abstention may be appropriate under Railroad Commission of Texas v. Pullman, supra, when a federal court is asked to address uncertain issues of state law in order to resolve a constitutional challenge to a state statute. The decision to abstain is within the sound discretion of the trial court. D'Iorio v. County of Delaware, 592 F.2d 681, 686 (3rd Cir.1978); Frederick L. v. Thomas, 557 F.2d 373, 382 (3rd Cir.1977). Furthermore, abstention is an expedient to be employed only in extraordinary circumstances. Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). The legal issues raised by plaintiffs’ First Amendment claims are not so complex or unusual as to justify abstention. Accordingly, the court will now proceed to consider defendants’ motions directed at the legal sufficiency of such claims.

Defendant NYTCA originally filed a cross-motion to dismiss the Complaint for failure to state a valid cause of action. Fed.R.Civ.P. 12(b)(6). The State defendants subsequently filed a cross-motion for summary judgment. Fed.R.Civ.P. 56. As the court has received and considered numerous submissions from the parties which allege facts not contained in the pleadings, pursuant to Fed.R.Civ.P. 12(b), the court will treat the defendants’ cross-motions as a single request for summary judgment.

The standard for granting summary judgment is a stringent one. Rule 56(c), Fed.R.Civ.P., provides that summary judgment may be granted only when the materials of record “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Special Jet Services, Inc. v. Federal Insurance Co., 643 F.2d 977 (3rd Cir.1981); Ely v. Hall’s Motor Transit Co., 590 F.2d 62 (3rd Cir.1978). In deciding whether an issue of material fact does exist, the court is obligated to view all doubt in favor of the nonmoving party. Tomalewski v. State Farm Insurance Co., 494 F.2d 882 (3rd Cir.1974); Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 874 (3rd Cir.1972).

It is undisputed that in this case, there exist no significant outstanding issues of material fact. Accordingly, this matter is ripe for summary judgment.

In the second count of the Complaint, plaintiffs allege that Section 49 of the New Jersey Cable Television Act constitutes state action forcing private property owners to admit third-party speakers onto their property, in violation of the First, Fifth and Fourteenth Amendments. Plaintiffs’ argument draws inspiration from two Supreme Court cases involving state regulation of speech on private property. Pruneyard Shopping Center v. Robins (“Prune-yard”), 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977).

In Pruneyard, the Court upheld a California Supreme Court decision which declared that individuals have a right under the California Constitution to engage in speech-related activities in a privately owned shopping center. The Court had previously ruled that the First Amendment to the United States Constitution does not guarantee such access. See Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). Based on a finding that a “State in the exercise of its police power may adopt reasonable restrictions on private property,” the Pruneyard Court rejected the mall owner’s claims that the State’s guarantee of access to his facility (for students wishing to solicit signatures for political petitions) constituted a deprivation of property without due process. 447 U.S. at 81, 100 S.Ct. at 2040. The question at issue in Wooley v. Maynard, supra, was the validity of a New Hampshire law which made it a criminal offense for automobile owners to obscure the portion of their vehicle license plates bearing the State’s motto: “Live Free or Die.” The Court invalidated the state rule as contrary to the First Amendment in an action filed by Jehovah’s Witnesses who considered the motto repugnant to their personal beliefs. 430 U.S. 714-17, 97 S.Ct. at 1435-37.

Plaintiffs ask the court to focus on passages in Pruneyard in which the Court discussed First Amendment limits on rights of access to private property to engage in speech-related activities. In particular, plaintiffs rely on the concurring opinion of Justice Powell, who declared that

Even when no particular message is mandated by the State, First Amendment interests are affected by State action that forces a property owner to admit thirty-party speakers. In many situations, a right of access is no less intrusive than speech compelled by the State itself____
A property owner ... may be faced with speakers who wish to use his premises as a platform for views that he finds morally repugnant.

447 U.S. at 98-100, 100 S.Ct. at 2049-51. Plaintiffs object to three aspects of New Jersey’s decision to mandate access to condominium developments for cable television operators. First, plaintiffs argue that inhabitants of the four Developments may be subjected to forced exposure to third-party messages they abhore. Plaintiffs seem to compare the situation in this case to circumstances in which a state tells “a man, sitting alone, in his own house, what books he may read and what films he may watch.” Plaintiffs’ Brief in Support of Motion for Summary Judgment or Preliminary Injunction at 21, n. 9, quoting Pruneyard, supra, 447 U.S. at 100, n. 4, 100 S.Ct. at 2050, n. 4. Second, plaintiffs assert that the Mandatory Access Law constitutes “state action that transforms privately owned property into a forum for the expression of the public’s views.” Id. at 21, quoting Pruneyard, supra, 447 U.S. at 97, 100 S.Ct. at 2049. Finally, plaintiffs contend that the discriminatory nature of Section 49 renders its intrusive effect all the more offensive.

Plaintiffs go so far as to acknowledge that Pruneyard expressly rejected a broad “First Amendment right not to be forced by the State to use [one’s private] property as a forum for the speech of others.” 447 U.S. at 85, 100 S.Ct. at 2043. Nevertheless, plaintiffs argue that three factors which caused the Court to sustain forced access to private property in Pruneyard do not exist here: that private property was akin to a public space; that no specific message was dictated by the State; and that the property owner could easily disavow any connection with the message. 447 U.S. at 87, 100 S.Ct. at 2044. Accordingly, plaintiffs maintain that this case is analogous to Wooley v. Maynard, supra, and likewise merits a ruling in favor of private property owners.

Each of plaintiffs’ arguments fall apart upon examination of the undisputed facts alleged by the parties. If NYTCA obtains access to the four Developments, individual homeowners therein will have the opportunity to choose to receive programming broadcast by NYTCA. Those homeowners who do not desire NYTCA service may refuse to pay for it. The latter group will only learn of the content of the programs transmitted by NYTCA if they discuss them with their neighbors receiving such service. Because the messages aired by NYTCA are only directed into the homes of persons who choose to receive such information, there is no danger of forced exposure to NYTCA broadcasts. For the same reasons, Section 49 does not threaten infringement of “the right to control one’s speech” or “freedom to maintain [one’s] own beliefs without public disclosure.”

The factors which formed the basis for the Pruneyard decision do not dictate a different result in this case. First, there is no need for the plaintiff Homeowners Associations or Developers to disavow a connection with speech broadcast by NYTCA. There is no reason to believe that anyone will assume the plaintiffs endorse messages transmitted into an individual’s home at the individual’s own request. Plaintiffs have certainly presented no credible evidence indicating otherwise. Second, the Mandatory Access Law does not dictate the entry onto plaintiffs’ property of any particular message. Even if Section 49 discriminates against unfranchised cable operators, it does so without regard to the content of the speech conveyed by such companies. Furthermore, Section 49’s discriminatory nature, if any, does not change the fact that mandatory access causes no reduction in a homeowner’s ability to regulate the entry of speech into his or her home.

NYTCA’s attempt to provide service to the inhabitants of the four Developments, pursuant to the Mandatory Access Law, does not threaten any damage to plaintiffs’ First Amendment interests. Any loss of control over speech-related activities in the Developments will be incurred only by the entrepreneurs seeking to sell homes therein or by organizations representing individual homeowners in the aggregate. Such effects will not be experienced by individual homeowners, and in this action, the First Amendment interests identified by plaintiffs are of the kind which attach to individuals.

The individual homeowners in the four Developments will be protected by some of the charming features of cable television: it is possible to pick and choose program packages one wishes to enjoy; and these programs are delivered directly into the privacy of individual homes. In order to avoid exposure to particular programs, one need only decline to pay for the services of the operator who provides them. In light of the foregoing, the court will grant summary judgment in favor of defendants as to count two of the Complaint.

Conclusion

Defendants’ motion to dismiss the Complaint, as amended, for failure of the plaintiffs to establish standing to sue, is granted as to the first count of the Complaint and denied as to the second count of the Complaint. Defendants’ motion to dismiss, or in the alternative, for a stay of proceedings on grounds of abstention is denied. Defendants’ motion for summary judgment is granted as to the second count of the Complaint, as amended. In light of the foregoing dispositions, the court will deny plaintiffs’ motion for summary judgment or, in the alternative,' for a preliminary injunction. Accordingly, the complaint is dismissed. An appropriate order will be entered.

      . Plaintiff Canetic Corporation developed three of the communities: “La Bonne Vie at Echelon,” in Voorhees, New Jersey; "La Bonne Vie Condominiums,” in Sicklerville, New Jersey; and "The Mews at Chanticleer,” one of several distinct condominium developments in a larger development called "Chanticleer,” located in Cherry Hill, New Jersey. Plaintiff Chanticleer Venture built the fourth community, another condominium development within Chanticleer in Cherry Hill.

      . Mr. Canuso is a principal in Canetic Corp. as well as in both corporations which together constitute the Chanticleer Venture.

      . DirectSat reached an agreement with the La Bonne Vie Condominium Association on April 28, 1983, with the La Bonne Vie at Echelon Association on August 19, 1983 and with the Chanticleer Community Association on May 5, 1984. Canuso Affidavit, Exhibits A, B, C. All three bodies are non-profit corporations; the latter apparently acts for persons in both Chanticleer communities involved in this case.
      It is unclear how active these organizations were or how many members they had at the time they reached agreement with DirectSat. Accordingly, it is difficult to tell how much influence persons other than Mr. Canuso had over the decision to arrange for exclusive DirectSat service. Furthermore, Mr. Canuso is President of the Chanticleer Community Association. Canuso Affidavit at 6. Such factual issues bear on the question of whether the inhabitants of the Developments really “chose” Direct-Sat as their exclusive cable television purveyor. Such questions need not be resolved, however, in order to dispose of the motions now before the court.

      . NYTCA obtained these rights from Audubon Electronics, Inc. (“Audubon”). Audubon received a “municipal consent” to provide cable television service from each of the three townships. The Company then sought and received Certificates of Approval from the BPU sanctioning such service. Subsequently, NYTCA obtained an order from the BPU transferring Audubon’s three franchises to NYTCA. Affidavit of Peter J. Pizzi, Esquire, Counsel for defendant NYTCA, Exhibits A, B, C, D.

      . N.J.S.A. 48:5A-49 provides, in pertinent part:
      a. No owner of any dwelling or his agent shall forbid or prevent any tenant of such dwelling from receiving cable television service, nor demand or accept payment in any form as a condition of permitting the installation of such service in the dwelling or portion thereof occupied by such tenant as his place of residence, nor shall discriminate in rental charges or otherwise against any such tenant receiving cable television service; provided, however, that such owner or his agent may require that the installation of cable television facilities conform to all reasonable conditions necessary to protect the safety, functioning, appearance and value of the premises and the convenience, safety and well-being of other tenants; and further provided, that a cable television company installing any such facilities for the benefit of a tenant in any dwelling shall agree to indemnify the owner thereof for any damage caused by the installation, operator or removal of such facilities and for any liability which may arise out of such installation, operation or removal.
      b. For purposes of this section:
      (1) "Owner" includes, but is not limited to, a condominium association and housing cooperative, and “owner of any dwelling or his agent” includes, but is not limited to, a mobile home park owner or operator.
      (2) “Condominium association" means an entity, either incorporated or unincorporated, responsible for the administration of the form of real property which, under a master deed, provides for ownership by one or more owners of individual units together with an undivided interest in common elements appurtenant to each unit.

      . In fact, plaintiffs fail to offer proof of any instance in which DirectSat has sought to invoke the benefits of Section 49 without success, or in which DirectSat has been refused access to customers due to discriminatory application of Section 49.

      . As for the other plaintiffs, it is hard to imagine an instance in which they would have an interest in raising an equal protection challenge to Section 49 on the grounds that it allows them to exclude an unfranchised cable operator. Of course, individual homeowners seeking access to excluded, unfranchised cable services might wish to join a lawsuit premised on an equal protection theory brought by an excluded, unfranchised operator.

      . In this regard, plaintiffs cite Justice Powell’s warning that
      [t]o require the [property] owner to specify the particular ideas he finds objectionable enough to compel a response would force him to relinquish his 'freedom to maintain his own beliefs without public disclosure.’ Thus the right to control one’s speech may be burdened impermissibly even when listeners will not assume that the messages expressed on private property are those of the owner.
      447 U.S. at 100, 100 S.Ct. at 2050.


author: EGINTON, District Judge.

text:
    Louis C. OSTRER, Plaintiff/Petitioner, v. Dennis LUTHER, Warden, Federal Correctional Institution, Danbury; Norman A. Carlson, Director, Bureau of Prisons; Daniel Lopez, Regional Commissioner, United States Parole Commission; Ben Baer, Chairman, United States Parole Commission; and Donald L. Chamlee, Chief, Division of Probation, Defendants/Respondents.
    No. Civ. B 83-236 (WWE).
    United States District Court, D. Connecticut.
    Aug. 30, 1985.

      Benson B. Weintraub, Bierman, Sonnett, Sbohat & Sale, Miami, Fla., pro bono publico.
    Thomas Riley, Asst.U.S.Atty., New Haven, Conn., for defendants/respondents.
   RULING ON MOTION TO DISMISS

EGINTON, District Judge.

Louis C. Ostrer, through counsel, brings this action to correct alleged inaccuracies in his presentence investigation report (“PSi”) jjjs requests either declaratory judgment that the challenged information is false, or alternatively, a writ of habeas corpus or mandamus to prohibit the United States Bureau of Prisons (“BOP”) from considering the allegedly inaccurate PSI. He argues that he cannot receive a fair parole hearing, consistent with due process, because the Parole Commission (“the Commission”) would be obliged to consider the false PSI.

Plaintiff also alleges that BOP has already relied on the challenged PSI in designating him a Central Inmate Monitoring (“CIM”) case, and that this designation has denied Ostrer his right of equal protection under the law.

Defendants have moved to dismiss the complaint on three grounds: (1) plaintiff’s failure to exhaust his administrative remedies; (2) failure to state a claim upon which relief can be granted; and (3) the court’s lack of subject matter jurisdiction. For the reasons set forth below, the complaint is DISMISSED.

Standard of Review

In ruling on a motion to dismiss for failure to exhaust administrative remedies, the court need not accept plaintiff’s allegations as true. See, e.g., Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967) (plaintiff may overcome motion to dismiss for failure to exhaust administrative remedies only if he can prove certain facts). The motion is determined by a test of the parties’ actual proof. The court may consider affidavits submitted by the parties. Cf. Bowman v. Grolsche Bierbrouwerij B.V., 474 F.Supp. 725, 728 (D.Conn.1979). The court must decide whether plaintiff’s efforts to proceed with administrative remedies would have been “wholly futile.” Glover v. St. Louis-San Francisco Railroad, 393 U.S. 324, 330, 89 S.Ct. 548, 557, 21 L.Ed.2d 519 (1969).

Convictions and Presentence Investigation Reports

On April 23, 1980, Louis C. Ostrer was convicted of conspiracy to embezzle, embezzlement, interstate transportation of stolen property, conspiracy to evade payment of taxes, income tax evasion, and racketeering influence in corrupt organizations, under the RICO statute. On December 15, 1980 he was sentenced by the Honorable Kevin T. Duffy in the Federal District Court, Southern District of New York, to a term of 20 years. Exhibit to the Verified Amended Complaint (“Ex.”) E at 2.

Ostrer challenged the PSI prepared for this sentencing, claiming that it was “replete with error on almost every page.” Ex. B at 3. The sentencing court declined to make the changes in the PSI requested by Ostrer. Ex. B at 9.

Ostrer began service of his twenty year sentence on February 23, 1981.

Subsequently, he was convicted of racketeering conspiracy, in violation of the RICO statute, in the Southern District of Florida. He was sentenced by the Honorable James W. Kehoe on September 14, 1982 to a seven year term. Ex. C. At Ostrer’s request, Judge Kehoe directed the Supervising Probation Officer to prepare a new PSI, based on the officer’s independent investigation.

The two PSIs have substantial differences. See Ex. G. Perhaps the most important of these are the statements of the New York report that Ostrer maintained “a relationship with various reputed organized crime figures,” and that he was “a financial advisor to the underworld.” Complaint par. 45. Plaintiff claims this information is false. The Florida report contains no such statements. Both PSIs are on file with the Commission. Ex. G.

Ostrer contends that BOP designated him a (“CIM”) case because of the allegedly false information in the New York PSI. Ostrer further contends that BOP denied him furlough on four separate occasions because of his CIM designation.

Ostrer has refused an initial parole hearing, so that no parole determination has been made by the Commission. Instead, Ostrer has filed the instant action, seeking to effectively expunge the challenged information from the New York PSI.

Administrative Remedies Sought for Custody Reduction

On December 17, 1981, Plaintiff filed a Request for Administrative Remedy, a “BP 9,” under 28 C.F.R. 542.10, seeking to amend BOP’s decision to deny him “out” custody. The Danbury Warden issued a written response on February 1, 1982, stating that Ostrer was denied out custody because he had completed only one year of incarceration on a 20 year sentence, and that “a custody reduction at this time would be imprudent.” The Warden also stated that Ostrer's CIM status had no bearing on the decision to refuse him out custody.

Finally, the Warden noted that when the Commission, after an initial parole hearing, decreased Plaintiff’s projected length of sentence, then his custody level would be reevaluated. But as Ostrer had waived his initial hearing, his parole guidelines “remained as initially projected,” and his custody level could not be reevaluated. Exhibit 1 to Plaintiff’s Traverse.

Ostrer unsuccessfully appealed this decision to the BOP Regional Board, filing a “BP 10.” The Board reiterated the Warden’s reasoning, stating that out custody was denied because Ostrer had served only the first year of a 20 year sentence. After discussing other factors which might be considered in a custody decision, including prior good behavior, furloughs, and personal recognizant bonds and awards, the Regional Director added that “Information from the PSI is another legitimate consideration since it is an official court document.” Exhibit 2 to Plaintiff’s Traverse.

Ostrer’s final appeal to the BOP Central Board, conducted through a “BP 11” filing procedure, affirmed the Warden’s decision, again noting that custody reduction “would be premature based upon the length of time remaining to be served” on the 20 year sentence. Exhibit 3 to Plaintiff’s Traverse.

Subsequently, Ostrer requested that the Assistant Warden review “additional information” regarding his request for community custody. This “information” included the materials prepared in Ostrer’s efforts to have his New York PSI modified. The Assistant Warden compared the two PSIs and concluded that he “would not object to having the Unit Team entertain a custody reduction when Mr. Ostrer receives a Presumptive Parole date.” Ex. G. This presumptive parole date could only be set after an initial parole hearing. As Plaintiff has continued to waive his initial hearing, no presumptive parole date has been set.

Equal Protection Claims

Plaintiff contends that the decisions to classify him as a CIM case, and the refusal to reduce his custody were both based on the New York PSI’s allegedly false description of his organized crime association. Plaintiff further argues that this reliance on false information has caused him to be “singled out and denied equal protection under the law____” Complaint par. 42. The court denies both contentions.

The central reasoning of the Warden’s decision to deny Ostrer out custody, as well as the Regional and Central affirmations of the Warden’s decision, was that it was inappropriate to grant out custody to a prisoner with 19 years remaining to be served.

The court finds that Ostrer’s custody decisions were not substantially based on the challenged information of the New York PSI. Accordingly, the court dismisses the factual premise of Plaintiff’s equal protection argument.

The court also takes note of the line of cases holding that a prisoner’s interest in obtaining a furlough “cannot be characterized as a ‘liberty’ interest originating in law.” Smith v. Saxbe, 183 U.S.App.D.C. 210, 215, 562 F.2d 729, 734 (D.C.Cir.1977). See, e.g., Pugliese v. Nelson, 617 F.2d 916, 923 (2d Cir.1980) (“a prisoner’s interest in avoiding CMC [Central Inmate Monitoring Case] classification does not entitle him to due process protections”); Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 11, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668 (1979) (a prisoner’s mere hope for parole, unsupported by a basis for claiming entitlement to it, does not create a liberty interest sufficient to warrant due process protection).

Administrative Remedies Sought to Change the PSI

The Code of Federal Regulations states, “The Bureau of Prisons has established an Administrative Remedy Procedure through which an inmate may seek formal review of a complaint which relates to any aspect of his imprisonment if less formal procedures have not resolved the matter. [Emphasis added].” 28 C.F.R. 542.10.

Plaintiff followed the prescribed administrative review in seeking custody reduction, filing the forms BP 9, 10, and 11 in order to appeal his custody decision before the Regional and Central Boards. But Plaintiff did not follow these procedures in seeking to amend his New York PSI. The court notes that Ostrer’s custody appeals did not petition BOP to correct his New York PSI.

An administrative remedy to correct the challenged PSI is not open to Ostrer, because he has refused his initial parole hearing. Having never permitted the Commission to determine whether the New York PSI is correct, Ostrer cannot file an appeal to BOP.

Instead, Ostrer's attorney requested that the Regional Counsel of the Parole Commission and of the Bureau of Prisons stipulate that the agencies “not rely upon demonstrably inaccurate information appearing in the New York PSI.” Ex. L. See also Ex. N. Ostrer’s attorney, Benson Weintraub, sent the two Counsel copies of exhibits submitted in the present action, including a deposition of the Probation Officer who authored the Florida PSI. Through these exhibits, Weintraub hoped to “establish the validity of Ostrer’s claims” of inaccuracy. Ex. L.

Henry Sadowski, Regional Counsel for the Commission, advised Weintraub that it would not be possible to make any determination about possible conflicts between the two PSIs prior to Ostrer’s initial parole hearing. Ex. Q. Ira B. Kirschbaum, Assistant General Counsel, Federal Prison System, informed Weintraub that the information submitted by Ostrer could not “overcome the presumption of regularity that must attach to [a PSI].” Ex. I.

Plaintiff pursued no further administrative remedies in seeking to correct the challenged PSI. Defendants argue that the instant action should therefore be dismissed for Ostrer’s failure to participate in an initial parole hearing and his failure to exhaust the available administrative remedies.

Futility of Plaintiffs Administrative Remedies

The Regional Counsel of the Commission and of BOP have considered Ostrer's claims against the New York PSI, and refused to grant his requested relief. Ostrer therefore contends that any further consideration by examiners at an initial parole hearing would be redundant. He claims that the “substance” of a parole hearing has already occurred.

Certainly a plaintiff need not exhaust his administrative remedies if further efforts would be futile. Glover v. St. Louis-San Francisco Railway, 393 U.S. 324, 330, 89 S.Ct. 548, 551, 21 L.Ed.2d 519 (1969). Yet Plaintiff has not shown that the available administrative remedies would be futile here.

It is well-established that there are “ample administrative remedies to prevent harm due to the allegedly inaccurate [presentence investigative report].” Maynard v. Havenstrite, 727 F.2d 439, 441 (5th Cir. 1984). See, e.g., United States v. Legrano, 659 F.2d 17, 18 (4th Cir. 1981); Exhibit to the Verified Amended Complaint T (“Ex. T”) Rivera v. United States Parole Commission, No. B 83-349 (EBB), mem. dec. at 4 (D.Conn. Mar. 21, 1985).

Ostrer may contest the report at his initial parole hearing, presenting the same evidence which he has submitted to this court. The Federal Regulations provide, “If a prisoner disputes the accuracy of the information presented [in a PSI], the Commission shall resolve such disputes by a preponderance of the evidence standard ... [Emphasis added].” 28 C.F.R. 2.19(c). Should the hearing examiners decide against him, Plaintiff may appeal the decision to the BOP Regional and Central Boards. 28 C.F.R. 542.10.

Ostrer’s request that the Regional Counsel of the Commission and of BOP correct his PSI was refused, because Counsel could not overcome the “presumption of regularity” which attached to the report. Thus the examiners conducting an initial parole hearing have powers beyond those of Regional Counsel; for the examiners can make a factual determination regarding Ostrer’s claims against the PSI.

The court therefore concludes that Ostrer has failed to show that pursuit of available administrative remedies would be futile.

Ability of Parole Hearing Examiners to Resolve Plaintiffs Dispute

Regardless of the Commission’s legal power, as analyzed in the foregoing discussion, to resolve the factual dispute concerning the PSI, Ostrer claims that the Commission is “inadequate” to do so. Citing 18 U.S.C. § 4207(3), Plaintiff notes that the Commission is obliged to consider a prisoner’s presentence investigation report before making a parole decision. Plaintiff argues that the Commission cannot disregard any part of the New York PSI, because it must “consider” all portions of the report.

This argument is refuted by the clear language of 28 C.F.R. 2.19(c): “If a prisoner disputes the accuracy of the information presented [in a PSI], the Commission shall resolve such disputes by a preponderance of the evidence standard____” The Commission is not obliged to rely on a disputed PSI. Rather it is obliged to consider both the report and plaintiff's claims against it, and to resolve the dispute.

Plaintiff also contends that the administrative remedy available under the BP 9, BP 10, BP 11 system is inadequate to afford his requested relief. Specifically, the examiners and the appeal boards cannot expunge portions of the PSI or issue a declaratory judgment that the PSI is inaccurate.

Neither of these remedies are available administratively; both may be granted only by this court. Nevertheless, neither remedy is necessary to give Plaintiff the relief that he seeks. After considering Plaintiffs claims, the Commission and the appeal boards can decide not to rely on the disputed PSI. Such a decision would ensure that the challenged PSI played no part in Ostrer’s parole determinations. Thus the object of this action would be achieved.

Plaintiff’s last argument is that “the initial parole hearing does not afford ... a meaningful opportunity, consistent with due process, to establish his right to requested relief____” Contrary to this assertion, the initial hearing would afford Plaintiff ample opportunity to present his evidence and make full argument against the alleged inaccuracies of the PSI. Maynard, 727 F.2d at 441. Moreover, as Plaintiff is not eligible for parole until October 15, 1987, Exhibit 3 to Plaintiff’s Traverse, he would not be prejudiced by the delay caused by a parole hearing determination. For there is no real likelihood that Plaintiff, even if correct in his claims, would be released within the next six months. Ex. T Rivera, B 83-349 (EBB), mem. dec. at 4-6.

Finally, the court holds, contrary to Plaintiff’s assertion, that plaintiff’s interest in amending the PSI does not entitle him to due process protections. For even if the PSI were to be expunged, the possibility of parole would be within the complete discretion of the Commission. Ostrer can show no likelihood of being granted parole, for no initial parole determination has taken place. Therefore no rights of due process can attach to his interest. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 11, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668 (1979).

Federal Rule of Criminal Procedure 32(c)(3)(D)

Plaintiff urges this court to give retroactive application to Federal Rule of Criminal Procedure 32(c)(3)(D). This subsection of the rule became effective on August 1, 1983, more than two years after Ostrer’s New York sentencing. The amended rule ensures that the sentencing judge will resolve claims of inaccuracy in a PSI.

Rule 32(c)(3)(D) provides:

If the comments of the defendant and his counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission.

The Notes of the Advisory Committee state that the amended rule “is intended to ensure that [the record as to the resolution of the PSI dispute] comes to the attention of the Bureau or Commission when these agencies utilize the presentence investigation report ... New subdivision (c)(3)(D) does not impose an onerous burden. It does not even require the preparation of a transcript.”

It is significant, however, that under the rule a convicted defendant may challenge a PSI, yet no resolution will be made if the controverted matter “will not taken into account in sentencing. ” Ostrer has not claimed that his sentence was based on an inaccurate PSI. Accordingly, the court finds that Rule 32(c)(3)(D) is not applicable to the situation here. United States v. Leath, 711 F.2d 119, 120 (8th Cir.1983) (prisoner sought only to remove allegedly erroneous information from PSI, therefore his motion did not concern sentencing); see also United States v. Rone, 743 F.2d 1169 (7th Cir.1984) (Rule 32(c)(3)(D) applied where prisoner claims incorrect sentencing); United States v. Johnson, 607 F.Supp. 258, 263-64 (N.D.Ill.1985) (Rule 32(c)(3)(D) applied retroactively where prisoner claims incorrect sentencing).

Conclusion

The court DISMISSES Plaintiff’s action for failure to exhaust administrative remedies. To hold otherwise “would only frustrate the remedial scheme.” Maynard, 727 F.2d at 441.

The court will not reach the alternate grounds of the defendants’ motion to dismiss.

      . The court notes that a memorandum from Ostrer's Unit Manager to the Danbury Assistant Warden recommended that Ostrer’s request for custody reduction be denied, partly because his “history is interlaced with questionable business practices. (Documented by PSI).’’ However this rationale was not adopted by the Warden or either of the appeal boards. Ex. H

      . Such a claim would be beyond the jurisdiction of this court, as a "challenge to the sentence itself due to an erroneous PSI under 28 U.S.C. § 2255 is properly made to the sentencing judge.” Ex. T Rivera, B 83-349 (EBB), at 3, see

        Napoles v. United States, 536 F.2d 722, 726 (7th Cir.1976) (a section 2255 motion should be heard in the court whose proceedings are being attacked).