author: MURRAY M. SCHWARTZ, District Judge.

text:
    Joseph James SCHORAH, Plaintiff, v. The BALTIMORE AND OHIO RAILROAD COMPANY, a corporation of the State of Maryland, Defendant.
    Civ. A. No. 82-844 MMS.
    United States District Court, D. Delaware.
    Oct. 19, 1984.
    Ben T. Castle, and Donald Elihu Evans, Young, Conaway, Stargatt & Taylor, Wilmington, Del., for plaintiff.
    Robert G. Carey, Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for defendant.
   OPINION

MURRAY M. SCHWARTZ, District Judge.

In this diversity action, plaintiff Joseph Schorah seeks to recover for injuries sustained in a motorcycle accident that occurred on defendant Baltimore and Ohio Railroad Co.’s (hereinafter “B & 0”) property. The defendant has moved for summary judgment pursuant to Fed.R.Civ.P. 56. Because there remain material issues of fact, defendant’s motion will be denied.

The events which gave rise to this lawsuit took place on a dirt roadway on B & 0 property in the Elsmere, Wilmington, Delaware railroad yard. The roadway was primarily used by railroad maintenance workers for access to a railroad construction site, but was also subject to what has been described as “at times ... quite extensive” vehicular and pedestrian traffic. Railroad employees were particularly aware of the frequent use of the area by local motorcyclists. Indeed, plaintiff asserts that he had received permission from these workers to ride his motorcycle on the roadway so long as he did not do so after 5:00 p.m. The railroad denies consenting to such use and claims it had posted “no trespassing” signs to prevent these allegedly unwanted intrusions.

In August, 1982, B & 0 erected a gate across the western end of the road to prevent outsiders from entering the railroad work area and to force vehicles to approach the area slowly. The two gateposts and the crossbar were initially constructed from spare steel rails. When the crossbar proved too heavy for railroad workers to maneuver, B & 0 promptly replaced it with a piece of gray galvanized pipe. Although the original gate had been painted yellow, the new crossbar was never similarly painted. There is conflicting testimony as to whether yellow streamers were hung from the pipe as a warning, but for purposes of this motion it must be assumed that the crossbar was nearly invisible to travelers. The record also reflects that the original crossrail was left on the ground next to the gate, perhaps signalling that the passage was clear. Plaintiff asserts that although he had traveled the roadway in the past, he was unaware the gate had been erected. One afternoon in October, 1982, as plaintiff was driving his motorcycle on the road, he collided with the gray crossbar, suffering severe injuries.

Plaintiff argues that the property was open to public use and that he was present on the premises as either a public invitee or a licensee. He urges defendant was negligent in failing either to warn of the existence of the crossbar or to ensure that it was visible. Moreover, plaintiff asserts that even if he was only a trespasser, his presence should have been known to defendant and a negligence standard must still apply. Defendant counters that Delaware law prescribes a like standard for trespassers and licensees — liability ensues only for the landowner’s wilful or wanton misconduct, not for mere negligence — and that plaintiff could have been no more than a licensee as a matter of law.

The characterization of plaintiff’s status on the property is crucial to the determination of defendant’s motion for summary judgment. This Court, in exercising its diversity jurisdiction, must make such substantive determinations pursuant to Delaware law. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Until recently, Delaware had legislatively eliminated the distinction between the duty owed a trespasser and a licensee and obviated the need for the Delaware courts to differentiate between the two classes. See Delaware Premises Guest Statute, 25 Del.C. § 1501 (1974), amended by 62 Del. Laws ch. 322, § 1, effective July 8, 1980. A 1980 amendment to that statute has limited its application to “private residential or farm premises.” As a result of the amendment the common law classifications have been resurrected with respect to occurrences on all other property. The hazardous task of this Court is to determine how the Supreme Court of Delaware would define trespasser, licensee, invitee, and the respective duties owed to each under the common law.

The few Delaware decisions issued prior to the enactment of the Premises Guest Statute comport with the principles of the Restatement (Second) of Torts with respect to the rights and liabilities of owners and users of land. See, e.g., Maher v. Voss, 48 Del. 45, 98 A.2d 499, 504 (1953) (landowner has duty to warn licensee of any known unappreciable risk); Villani v. Wilmington Housing Authority, 48 Del. 450, 106 A.2d 211, 213 (1954) (landowner need only refrain from wilful or wanton injury of a trespasser). In recent years, the Delaware Supreme Court has turned to the Restatement in this context. See, e.g., Malin v. Consolidated Rail Corp., 438 A.2d 1221, 1223 (Del.1981) (applying Restatement §§ 330, 332(2)); Acton v. Wilmington & Northern R.R., 407 A.2d 204, 205 (Del.1979) (applying Restatement § 329); Caine v. New Castle County, 379 A.2d 1112, 1114-15 (Del.1977) (applying Restatement §§ 329, 330, 332). Although these cases are not directly applicable to the case at bar, they are persuasive evidence that the Delaware Supreme Court would apply the Restatement in determining the status of landowners.

A trespasser is defined under the Restatement as one who “enters or remains upon the land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” Restatement (Second) of Torts § 329 (1965). Unless the landowner knows of the trespasser’s presence on the premises, he or she is under no duty to make the property reasonably safe or to carry on activities so as not to endanger the trespasser. Id. § 333. In contrast, a licensee is defined as one who is “privileged to enter or remain on land only by virtue of the possessor’s consent.” Id. § 330. The landowner must warn a licensee of any known unreasonable risk which he or she may not discover or appreciate. Id. § 342. Finally, the Restatement defines a public invitee as anyone “invited to remain on land as a member of the public for a purpose for which the land is held open to the public.” Id. § 332(2). A public invitee may hold the landowner liable for failure either to inspect the property or to exercise reasonable care to make it safe. Id. § 343.

In light of the above definitions, the Court rejects defendant’s argument that the common law affords licensees only the identical minimal protection given to trespassers. Defendant’s position is based on an application of the law derived under the Premises Guest Statute. That statute was in derogation of, not in accordance with, common law doctrine and has been rendered inapplicable to the parties at bar by virtue of the 1980 statutory amendment. Since this Court concludes that the standard of care varies with one’s status on the property, the issue becomes whether under the Restatement plaintiff’s status may be assessed as a matter of law.

Construing the facts in the light most favorable to the non-moving party as must be done in a motion for summary judgment, Space v. National Railroad Passenger Corp., 555 F.Supp. 163, 164 (D.Del.1983), there remains, on the basis of the present record, a question whether plaintiff was a public invitee, a licensee or a trespasser. The crucial difference between the protection afforded a public invitee and a licensee is the right of the former to recover for a landowner’s failure to inspect the property for hazardous conditions, rather than only for a failure to warn against known hazards. Compare Restatement § 343 with § 342. The parties have not argued for purposes of this motion that the risk to which plaintiff was exposed — that of an allegedly invisible barrier blocking the roadway — was unknown to the defendant. Instead, the arguments have focused on whether plaintiff believed he was privileged to enter the property at all, and if so, what duty was owed him. Nevertheless, a factual question of defendant’s knowledge of the risk has surfaced in the parties’ briefs and is likely to arise again at trial. More specifically, defendant has asserted that yellow flags or streamers were hanging from the crossbar as a warning to travelers. Plaintiff’s witness denies that such streamers were present at the time of the accident. Apart from the obvious question of credibility, this factual discrepancy suggests that perhaps the streamers were removed some time between defendant’s last inspection of the premises and the day of plaintiff’s accident. It is because of this factual question that the distinction between licensee and public invitee may be critical to the outcome of plaintiff’s claim.

The concept of public invitee, though of only recent origin, has already taken root in Delaware’s jurisprudence. See Malin v. Consolidated Rail Corp:, 438 A.2d 1221, 1224 (Del.1981), and Caine v. New Castle County, supra, at 1115, both applying Restatement (Second) of Torts § 332(2). Defendant contends that public licensee status is precluded by Acton v. Wilmington & Northern Railroad, supra, and Brackin v. National Railroad Passenger Travel Co., No. 78C-MR-30, letter opinion (Del.Super. Jan. 16, 1980), which defendant alleges are factually indistinguishable from the case at bar. In both decisions plaintiffs were held to be licensees at best. Acton, Brackin, and the instant case are indeed similar, all involving accidents on railroad property either on or near the railroad tracks. Nevertheless, these Delaware decisions are not controlling. The private nature of the premises appears to have been fatal to the claim of public invitee in both Acton and Brackin. The Delaware Supreme Court has since explained that the concept of public invitee, while perhaps more obviously applicable to occurrences on public land, Caine v. New Castle County, supra, may pertain to incidents on private property as well. Malin, supra, at 1223. Moreover, from the facts of record, it is possible to infer that the road in question is more than the dirt “paths” which the Acton and Brackin courts considered closed to public vehicular traffic. The present case involves a dirt roadway intersecting a public thoroughfare and improved with speed bumps and rumble strips. Perhaps most important, there is deposition testimony that for years, local commuters have been using the road as a short cut. If, as the facts suggest, the roadway is held open to public traffic, then plaintiff conceivably falls within the purview of § 332 of the Restatement and must be accorded the protection given to a public invitee. As such, a showing that defendant had negligently failed to inspect the property for any risks which the plaintiff might not perceive or appreciate would be a sufficient basis for liability.

Defendant’s motion also put into issue the more obvious question whether plaintiff was upon the railroad property as a licensee or a trespasser. In order to qualify as a licensee, there must be some indication that the possessor is “in fact willing that the other shall enter or remain on the land or that his conduct is such as to give the other reason to believe that he is willing that he shall enter if he desires to do so.” Restatement (Second) of Torts § 330 comment c. The record supports more than one conclusion as to whether plaintiff might reasonably have believed that he was privileged to enter the premises, whether or not he was invited to use them as a member of the public. The defendant’s employees have stated that they had long been aware that local residents were using the roadway for various purposes. Both plaintiff and his witness, a passenger on the motorcycle at the time of the accident, have stated that they were granted permission to ride in the area, so long as they avoided passing too close to the work zone. Moreover, defendant’s construction of speed bumps on the roadway so as to slow down (although not prevent) traffic may be construed as a willingness to admit outsiders onto the property. Indeed the existence of the gate in question might suggest that while travelers were prohibited from entering the work area, they were not similarly precluded from using the access road. On the other hand, a jury may ultimately conclude that no trespassing signs were in fact posted as alleged and that plaintiff was no more than a trespasser. In any event, these facts are not so unequivocal as to compel a finding that plaintiff was either a trespasser or a licensee as a matter of law.

Nor can the Court conclusively determine whether defendant has breached the duty of care owed to a licensee. As previously stated, a landowner has a duty to warn a licensee of any known unreasonable risk which may not otherwise be discovered or appreciated, or to take steps necessary to make the condition reasonably safe. Maher v. Voss, supra, 98 A.2d at 504 (citing Restatement of Torts % 342). This essentially amounts to a standard of ordinary negligence. Questions of negligence are rarely decided on a motion for summary judgment, Caine v. New Castle County, 379 A.2d 1112, 1116 (Del.1977), and this case can be no exception. There is at least an inference on the facts of record that B & 0 knew of the dangers posed by a roadblock that could not be seen by travelers on the roadway. Whether at the time of the accident there were warning signs posted on the property or flags hanging from the bar, or indeed whether plaintiff should have seen the bar in time to avoid contact with it, is strictly within the province of the jury.

Finally, plaintiff asserts that even if he was trespassing on defendant’s property, he was certainly a known or constant trespasser to whom a duty of reasonable care to warn of highly dangerous artificial conditions was owed. Plaintiff’s argument is supported by both the early Delaware common law, see Beaston v. James Julian, Inc., 10 Terry 521, 49 Del. 521, 120 A.2d 317, 320 (Del.Super.1956), and the modern Restatement, see Restatement (Second) of Torts §§ 335-336. The record reflects ample evidence of B & O’s awareness of the frequent motorcycle traffic on its property. Moreover, it cannot be doubted that an undiscernible roadblock could cause death or serious injury to any of these unwitting travelers. Restatement (Second) of Torts § 335(a)(ii). It again must be left to the jury to determine whether the crossbar was in fact nearly invisible and whether defendant had breached its duty to warn of the inherent risk it posed.

Based on the foregoing, this Court is unable to determine as a matter of law whether plaintiff crossed defendant’s property as a trespasser, a licensee, or a public invitee. Only upon resolution of this first issue can the more critical question of defendant’s liability for breach of the applicable standard of care be considered. Accordingly, the Court will enter an order denying defendant’s motion for summary judgment.

      . Wirosloff Deposition at 15.

      . Id.

      . Affidavit of Joseph Schorah at 2. Defendant urges this testimony be stricken as inadmissible hearsay. The statement has not, however, been considered for the truth of the matter asserted, but merely to show it was said and that plaintiff could reasonably have believed he had defendant’s consent to enter the property. Under the Federal Rules of Evidence, such a statement is not hearsay. See Fed.R.Evid. 801.

      . Gray Deposition at 36-37; Wirosloff Deposition at 20.

      . It is unclear from the record whether the accident occurred on the first, sixth or twelfth of October, 1982. The exact date is, however, immaterial to the disposition of this motion.

      . Until 1980, the statute provided:
      No person who enters onto the premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injuries or damages sustained by such person while on the premises unless such accident was intentional on the part of the owner or occupier or was caused by the wilful or wanton disregard of the rights of others.
      25 Del. C. § 1501. The Delaware Supreme Court has construed "guest without payment" to be the equivalent of licensee. Acton v. Wilmington & Northern R.R., 407 A.2d 204, 206 (Del.1979).

      . 25 DeLC. § 1501, 62 DelLaws ch. 322, § 1 (1980).

      . The defendant cites Acton v. Wilmington & Northern R.R., supra, 4 (Del.1970), and Rennick v. Glasgow Realty, Inc., 510 F.Supp. 638 (D.Del. 1981), for the proposition that “an owner or occupier of land owed the same limited duty to all licensees ... as to trespassers.” Defendant’s Opening Brief at 13 (quoting Acton at 640 (emphasis by the Acton court)), and posits that those decisions comport with the “early common law decisions of the Delaware Courts on the duty owed by a landowner to a trespasser." Defendant’s Opening Brief at 14 (emphasis added). Defendant fails, however, to provide any authority as to the early common law view of the duty owed by a landowner to a licensee. Although defendant suggests that Acton and Rennick articulate the common law standard, there is no indication that either court has done more than apply the clear mandate of the Delaware Premises Guest Statute. While in some respects that provision codified the common law, see, e.g., Bailey v. Pennington, 406 A.2d 44 (Del.1979), appeal dismissed, 444 U.S. 1061, 100 S.Ct. 1000, 62 L.Ed.2d 744 (1980) (common law classifications that existed at time of enactment were retained), it was in other respects a departure from the traditional view, see, e.g., Stratford Apartments, Inc. v. Fleming, 305 A.2d 624 (Del.1973) (legislative intent to protect landowner from suits by guests based on simple acts of negligence is in derogation of the common law). If defendant had some other authority for the principle that a licensee was afforded no greater protection under the common law than was a trespasser, the Court is unable to discern it. Moreover, there is no evidence in the decisions of Delaware to support defendant's view.

      . Affidavit of Juanita Schorah at 2.

      . Affidavit of Joseph Schorah at 2; Carmean Deposition at 24.

      . Wirosloff Deposition at 34.

      . Section 342 of the first Restatement was adopted materially unchanged in the second Restatement. See Restatement (Second) of Torts § 342 (1965).

      . Plaintiffs Brief in Opposition to Defendant’s Motion at 15.


source: Caselaw Access Project

author: ROBERT F. COLLINS, District Judge.

license: Public Domain

text:
    Barb POLLITT, et al. v. Harry CONNICK, et al.
    Civ. A. No. 83-3794.
    United States District Court, E.D. Louisiana.
    Oct. 19, 1984.

      H. Louis Sirkin, Cincinnati, Ohio, Ronald J. Rakosky, New Orleans, La., for plaintiffs, Barb Pollitt, et al.
    William Campbell, Jr., and Thomas W. Milliner, New Orleans, La., for defendants, Harry Connick, et al.
   ROBERT F. COLLINS, District Judge.

This matter is before the Court on motion for summary judgment, filed by plaintiffs. By this motion, plaintiffs request the Court to declare LSA-R.S. §§ 14:106 and 13:4711-4716 unconstitutional.

Plaintiffs contend that LSA-R.S. § 14:106 suffers from four constitutional infirmities and that LSA-R.S. §§ 13:4711-4716 suffer from one constitutional infirmity. First, plaintiffs contend that LSA-R.S. § 14:106 is unconstitutionally vague and overbroad and, therefore, violates the first, fifth, and fourteenth amendments to the United States Constitution. Second, plaintiffs contend that paragraph D of LSA-R.S. § 14:106, which exempts certain categories of institutions and their employees and all projectionists from prosecution, violates the equal protection clause of the fourteenth amendment to the United States Constitution, and paragraph D is not sever-able. Third, plaintiffs contend that paragraph F of LSA-R.S. § 14:106, which requires an adversarial hearing prior to the issuance of an arrest warrant in some instances of alleged obscenity violations but not in others, violates the equal protection clause of the fourteenth amendment to the United States Constitution, and paragraph F is not severable. Fourth, plaintiffs contend that LSA-R.S. § 14:106 constitutes an impermissible prior restraint and has a chilling effect on presumptively protected conduct, because violation of the statute is in all instances a felony carrying cruel, unusual, and excessive punishment. Finally, plaintiffs also contend that LSA-R.S.. §§ 13:4711 through 4716, as they reíate to obscenity, impose a prior restraint upon presumptively protected activity and, therefore, must be declared unconstitutional. The Court will address each of plaintiffs’ five contentions seriatim.

I. LSA-R.S. § 14:106 Not Vague or Over-broad

The Court disagrees with plaintiffs’ first assertion that LSA-R.S. § 14:106 is unconstitutionally vague and overbroad. In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court set forth the basic guidelines to be applied in the determination of obscenity. The precise language used in the Miller definition has been incorporated into Louisiana’s obscenity statute —LSA-R.S. § 14:106. See State v. Walden Book Co., 386 So.2d 342, 344 (La.1980). Therefore, in light of this Court’s duty to follow majority positions of the United States Supreme Court, LSA-R.S. § 14:106 simply cannot be considered either vague or overbroad.

ll. Paragraph D of LSA-R.S. § 14:106 Unconstitutional But Severable

Plaintiffs next contend that paragraph D of LSA-R.S. § 14:106 denies them the equal protection of the laws insofar as it exempts listed institutions and their employees, and also exempts movie projectionists, from prosecution for the criminal offense of obscenity. In State v. Luck, 353 So.2d 225 (La.1977), the Supreme Court of Louisiana declared that paragraph D’s exemption of particular institutions and their employees from prosecution under LSA-R.S. § 14:106 was unconstitutional. The Luck court stated that:

“The nonexempt persons or entities are deprived of the equal protection of the laws by a classification so made without rational basis for differentiation reasonably related to a valid governmental purpose. Louisiana has no legitimate interest in allowing a college, etc., to sell pornography for commercial gain, while prosecuting a commercial establishment next door for the same activity.”

This Court agrees with the Louisiana Supreme Court’s ruling in Luck, and, there-' fore, this Court finds that paragraph D of LSA-R.S. § 14:106 violates the constitution to the extent that it exempts certain categories of institutions and their employees. However, to the extent that paragraph D exempts projectionists, it does not violate the equal protection clause of the United States Constitution. There is a definite distinction between the duties and relationship to the public of a projectionist as compared to the duties and relationship to the public of, e.g., a cashier in a bookstore. The projectionist merely changes motion picture reels, which have previously been selected by the manager, runs the projector, and is generally isolated from theater customers. On the other hand, the cashier in a bookstore is frequently in direct contact with customers and, by his actions, allows the material he sells to be taken out of the store and circulated unchecked among the public at large. The legislation sub judice draws upon this distinction in duties and relationship to the public by imposing criminal liability only upon those persons truly responsible for the unrestrained dissemination of obscene material to the public at large. Therefore, the Court finds that subsection D of the statute does not, in this respect, deny plaintiffs’ the equal protection of the law, since there does exist a rational relationship between the statutorily created distinction and the State’s legitimate interest in the social welfare of its citizens. See, e.g., People v. Victoria, 96 Misc.2d 926, 409 N.Y.S.2d 937, 938 (N.Y.Crim.Ct.1978).

Although the Court finds that paragraph D is unconstitutional to the extent that it exempts from its strictures certain categories of institutions and their employees but not to the extent that it exempts projectionists, the Court does not agree with plaintiffs’ contention that this judicial determination of invalidity as to a portion of the statute so eviscerates the legislation that it must fall as a whole. On the contrary, this Court finds that the repugnant portion is severable from the remainder of the statute, which therefore must be upheld.

The constitutional portion of a statute is separately enforceable if it is independent from the unconstitutional portion, forms a complete act within itself, and after separation is reasonable in light of the act as originally enacted. “ ‘The test is whether or not the legislature would have passed the statute had it been presented with the invalid features removed.’ ” State v. Johnson, 343 So.2d 705, 708 (La. 1977) (quoting 2 Sutherland, Statutes and Statutory Construction, §§ 44.04 at 341-42 (Sands 4th ed. 1973)). This test is primarily one of ascertaining legislative intent by determining the main or dominant purpose of the enactment. “ ‘Where the purpose of the statute is defeated by the invalidity of part of the act, the entire act is void. Conversely, when the general object of the act can be achieved without the invalid part, the act will be upheld.’ ” Id. at 709 (quoting 2 Sutherland, Statutes and Statutory Construction, §§ 44.07 at 347 (Sands 4th ed. 1973)).

The obscenity statute was originally enacted by Act No. 274 of the 1974 regular session of the legislature. Louisiana legal scholars recognized that it was designed to fill the void created by two 1974 Louisiana Supreme Court decisions invalidating the state’s then existing obscenity statutes, as mandated in light of the United States Supreme Court’s landmark decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See Highlights of the 1974 Regular Session, 35 La.L.Rev. 597, 601-05 (1975). Both the title and the text of the 1974 act indicate that the main purpose of the legislation was to provide the state with an obscenity statute that would be valid and enforceable in light of Miller. The legislature attempted to accomplish this purpose by adopting the Miller definition of obscenity and by specifying the types of depictions or descriptions of sexual conduct that could constitute obscenity under the act.

The Court is convinced that the principal purpose of LSA-R.S. § 14:106 will not be defeated by the invalidation of that portion of paragraph D not concerning projectionists. The practical impact of eliminating paragraph D will be almost nil, because the types of institutions explicitly exempted by paragraph D will be effectively exempted anyway, under the definition of obscenity itself, found at LSA-R.S. § 14:106 A(2) and (3), since such institutions will rarely display hard core sexual material that “taken as a whole lacks serious literary, artistic, political, or scientific value,” and even more rarely display such material “for its own sake, and for ensuing commercial gain.” Without the invalid portion of paragraph D, LSA-R.S. § 14:106 forms a complete act within itself, and is reasonable in light of the act as originally enacted. Since the principal purpose of LSA-R.S. § 14:106 was and is to provide the state with a valid and enforceable obscenity statute, this Court concludes that the legislature would have passed the statute had it been presented with the invalid portion of paragraph D removed. Accordingly, the Court finds that, although the portion of paragraph D exempting the enumerated institutions and their employees is unconstitutional, the invalid portion of paragraph D is severable from the remainder of paragraph D and from the remainder of LSA-R.S. § 14:106.

III. Paragraph F(l) of LSA-R.S. § 14:106 Does Not Deny Plaintiffs The Equal Protection Of The Laws

Plaintiffs’ third contention is that paragraph F(l) of LSA-R.S. § 14:106 denies them the equal protection of the laws, because it grants a pre-arrest adversarial hearing, to determine if the material involved is obscene, to all purveyors of allegedly obscene material except those purveying material that shows “actual ultimate sexual acts or simulated or animated ultimate sexual acts when there is an explicit, closeup depiction of human genital organs so as to give the appearance of the consummation of ultimate sexual acts.” LSA-R.S. § 14:106 F(l). The Court disagrees.

The basic question before the Court is whether or not this disparate procedural treatment of purveyors of one type of obscene material and the purveyors of all other types of obscene material is supported by a sufficiently weighty governmental purpose and whether the means chosen in paragraph F(l) for achieving that purpose are sufficiently related to that end. Plaintiffs argue that this disparate treatment must be analyzed under the strict scrutiny standard, because it impinges upon their fundamental first amendment rights of free speech and the press, and cannot withstand such scrutiny, because it serves no compelling governmental interest. This argument is without merit.

Since obscenity statutes do impinge upon the fundamental rights of free speech and the press, the line between that material which is obscene and that material which is not obscene (i.e., between that which is not constitutionally protected and that which is constitutionally protected) must be very precisely drawn to serve the compelling governmental interest in safeguarding the public health, safety, and welfare against crime, antisocial behavior, and the other arguably ill effects of obscenity. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Pans Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). The Louisiana legislature has very precisely drawn that line by explicitly incorporating the Miller definition of obscenity. See LSA-R.S. § 14:106 A(2)(a), (b).

Plaintiffs’ equal protection challenge to paragraph F(l), however, does not concern the line-between the obscene and the not obscene, between the constitutionally unprotected and the constitutionally protected. Rather, the challenged legislative classification in paragraph F(l) procedurally divides the obscene from the arguably more obscene, neither of which is constitutionally protected. Miller, 413 U.S. at 23, 93 S.Ct. at 2614 (“This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment.” Id.). Thus, this Court is not called upon to function in the role of guardian of the line against legislative encroachment on precious first amendment liberties, which role mandates and justifies judicial wielding of the burdensome strict scrutiny standard. Instead, the Court will give greater deference to the judgment of the legislature and test paragraph F(l) for mere rationality.

Applying the rational review standard, the Court finds that the disparate procedural treatment accorded by paragraph F(l) of LSA-R.S. § 14:106 to purveyors of different types of obscene materials is constitutional. Paragraph F(l) provides a pre-arrest hearing in all instances of alleged obscenity offenses except when the offense charged is portrayal of ultimate sex acts “when there is an explicit, closeup depiction of human genital organs so as to give the appearance of the consummation of ultimate sexual acts.” (emphasis added). The exception created in paragraph F(l) enables the authorities to take immediate legal action against purveyors of material that the legislature has determined is blatently and presumptively obscene, without the delays inherent in a prearrest adversarial hearing, thereby minimizing public harm. Simultaneously, paragraph F(l) helps to protect the first amendment rights of purveyors of material that is not blatently and presumptively obscene, that may arguably fall within the gray area straddling the border between the obscene and the not obscene, and that may arguably not even be obscene at all. Thus, through paragraph F(l)’s disparate procedural treatment of purveyors of presumptively obscene material and purveyors of material that is not presumptively obscene, the legislature has attempted to achieve a rational balance between protection of the public health, safety and welfare and protection of individual rights. Moreover, the Court is unable to find that the legislature chose an irrational point for drawing the line between the presumptively obscene and the not presumptively obscene. The legislature could rationally have concluded that material showing ultimate sexual acts with explicit, eloseup depictions of the genitals and giving the appearance of consummation of ultimate sexual acts was blatently and presumptively obscene, while concluding that the other types of hard core sexual conduct described in LSA-R.S. § 14:106 A(2)(b) were not blatently and presumptively obscene. That the legislature might have drawn the line more rationally is of no moment. So long as the legislative classification at issue bears some fair relationship to a legitimate public purpose, as paragraph F(l) clearly does here, this Court is not free to substitute its judgment for that of the legislature. Accordingly, the Court rejects plaintiffs’ contention that LSA-R.S. 14:106 F denies them the equal protection of the laws.

IV. LSA-R.S. § If 106 Is Not A Prior Restraint And Has No Chilling Effect

Plaintiffs’ fourth contention is that LSA-R.S. § 14:106 constitutes an impermissible prior restraint and has a chilling effect on presumptively protected conduct, because violation of the statute is “a felony carrying cruel, unusual and excessive punishment.” Plaintiffs’ Memorandum In Support of Motion For Summary Judgment at 9. The Court disagrees.

This fourth contention is a confused juxtaposition of two common, but entirely distinct, grounds for challenging the constitutionality of a criminal statute, neither of which has merit in this instance. The first constitutional challenge raised by this contention is that the statute has a “chilling effect” and is a “prior restraint” on conduct that is presumptively protected by the first amendment. However, that challenge is essentially a reiteration of plaintiffs’ first contention that the statute is unconstitutionally vague and overbroad. The Court, as previously indicated, has rejected that contention and, therefore, must reject this contention as well. The second constitutional challenge raised by this contention is that the penalty provision of the statute imposes a cruel, unusual, and excessive punishment on offenders. This contention merits little discussion. Suffice it to say that this Court does not find the penalties imposed for violation of the statute to be cruel, unusual, or excessive. Accordingly, the Court rejects plaintiffs’ contention that LSA-R.S. § 14:106 constitutes a prior restraint and has a chilling effect on presumptively protected conduct, since its violators can be punished by neither cruel, unusual, nor excessive punishment.

V. Injunctions Under LSA-R.S. §§ 13:j711 et seq. Constitutional; Abatements Unconstitutional

Plaintiffs’ final contention is that LSA-R.S. §§ 13:4711 through 4716 are unconstitutional as they relate to obscenity, because the granting of an injunction or order of abatement thereunder would operate as a prior restraint on presumptively protected communicative activity. Defendant Harry Connick contends that the prior restraint problems asserted by plaintiffs are cured by the pre-injunction adversarial hearing required by LSA-R.S. § 13:4713 E when the subject of the injunction is obscenity. The Court agrees in part and disagrees in part with the contentions of both plaintiffs and defendant.

The question is whether the statutes under attack operate as an unconstitutional prior restraint on presumptively protected free speech. In answering this question, this Court is guided by a long and unwavering line of United States Supreme Court decisions and a vastly overwhelming majority of lower court decisions. These decisions establish that the first amendment permits injunctions against the future dissemination of particular items that have previously been judicially determined obscene, but it does not permit blanket injunctions against dissemination of materials not yet judicially determined obscene, regardless of the increased probability, due to the disseminator’s prior track record, that the materials will actually be obscene. The rationale for this distinction has been set forth by the Fifth Circuit as follows:

An order banning the exhibition of unnamed “obscene” films would prohibit the showing of films that have not been judicially declared obscene, as well as films that may not have been even produced. Such a blanket ban is not rendered unobjectionable by the interweaving of threa[d]s of language from obscenity statutes, for the end result is a sweeping prohibition against the screening of obscene films in general. Incorporation of the statutory definition of obscenity — usually a listing of forbidden sexual acts or acrobatics — merely begs the question, for few of us have the omniscience to determine, in advance of a final judicial ruling, whether a film is legally obscene. Moreover, it is possible that a film containing many of the acts listed in the statute may eventually be held not to be obscene, since the work must be taken as a whole, Miller v. California, supra, and since state law cannot define the “contemporary community standards” that must be applied by the fact finder. Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977). An injunction that forbids the showing of any film portraying the particular acts enumerated in the obscenity statute suppresses future films because past films have been deemed offensive. As Chief Justice Hughes wrote in Near v. Minnesota, supra, 283 U.S. at 713, 51 S.Ct. at 630, “[t]his is of the essence of censorship.”

Universal Amusement Co., Inc. v. Vance, 587 F.2d 159, 169 (5th Cir.1978).

These decisions compel this Court to conclude that the injunctive remedy provided for in the challenged statutes is constitutional, but the abatement remedy is unconstitutional as it relates to obscenity. The injunctive remedy, provided for in LSA-R.S. §§ 13:4711 B, 4712, 4713 & 4714, is constitutional, because this Court finds it can only be utilized to enjoin the displaying of particular materials that previously have been judicially determined to be obscene. See LSA-R.S. § 13:4713 E. The injunctive remedy cannot be utilized to obtain a blanket injunction against materials not yet judicially found obscene. Id. On the other hand, the abatement remedy, provided for in LSA-R.S. § 13:4711 C, 4712, 4715 & 4716, is unconstitutional as it relates to obscenity, because it can be utilized to stop, based solely on past performance, the future operations of a business that disseminates presumptively protected materials. Since LSA-R.S. § 13:4713 E clearly does not apply to abatement proceedings, the abate remedy, unlike the injunction remedy, can be utilized to obtain a blanket ban against materials not yet judicially found obscene. Accordingly, the abatement remedy, as it relates to obscenity, must fail.

VI. Summary

The Court’s findings hereinabove can be summarized as follows:

(1) LSA-R.S. § 14:106 is not unconstitutionally vague or overbroad.

(2) LSA-R.S. § 14:106 D is unconstitutional in its exemption of the enumerated categories of institution. LSA-R.S. § 14:106 D is not unconstitutional in its exemption of projectionists. The unconstitutional portion of paragraph D is severable from the remainder of paragraph D and from the remainder of LSA-R.S. § 14:106.

(3) LSA-R.S. § 14:106 is not unconstitutional in its disparate procedural treatment of alleged disseminators of different types of obscene materials.

(4) LSA-R.S. § 14:106 is not an unconstitutional prior restraint, and has no unconstitutional chilling effect, on presumptively protected conduct. Paragraph G does not provide for cruel, unusual, or excessive punishment of violators of LSA-R.S. § 14:106.

(5) The injunctive remedy, available under LSA-R.S. §§ 13:4711 B, 4712, 4713 & 4714, is constitutional as it relates to the enjoining of the dissemination of particular materials previously judicially found obscene. The abatement remedy, available under LSA-R.S. §§ 13:4711 C, 4712, 4715 & 4716, is unconstitutional as it relates to the closing of a premises for obscenity violations by the owner.

      . The Court notes that none of the plaintiffs has actually had an injunction or abatement order sought or imposed against them or their property under LSA-R.S. §§ 13:4711 to 4716. However, plaintiffs contend that defendant Harry Connick has threatened them with enforcement of those provisions. Defendant has not denied making this threat. Accordingly, the Court is satisfied that a sufficiently concrete controversy exists to warrant judicial resolution of the matter, and plaintiffs have standing to seek that judicial resolution.

      . Preliminarily, the Court notes that defendant Harry Connick contends that this Court should decline, under the Younger branch of the abstention doctrine, to rule on the constitutionality of these statutes, because "virtually all of the plaintiffs in this suit have active criminal cases pending in the state criminal court for violations of La.R.S. 14:106, the statute that they are attacking in this federal proceeding.” Defendant Harry Connick’s Memorandum In Opposition To Motion For Summary Judgment at 2. However, defendant’s contention oversimplifies and misstates the situation facing this Court. Plaintiffs and plaintiff-intervenors have complained of a pattern of enforcement in which the police have arrested and rearrested them for alleged obscenity violations, but in most instances the district attorney has then either refused the charges or, if charges were accepted, did not actively prosecute the cases. The defendants have not denied that such is the case, although they have vehemently denied that any such pattern is the result of any concerted action, conspiracy, or other intentional and improper acts on their part. In light of these circumstances, it is apparent that active criminal actions are not pending against most of the plaintiffs and plaintiff-intervenors, and it may well be that most of the plaintiffs and plaintiffintervenors will not have an adequate opportunity to raise these constitutional challenges in a state proceeding. Accordingly, abstention under Younger is inappropriate. See Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (absent extraordinary circumstances, abstention under Younger is appropriate when there are ongoing state proceedings that implicate important state interests and in which adequate opportunity exists to raise constitutional challenges).

      . LSA-R.S. § 14:106 D provides:
      The provisions of this Section do not apply to recognized and established schools, churches, museums, medical clinics, hospitals, physicians, public libraries, governmental agencies, quasi-governmental sponsored organizations and persons acting in their capacity as employees or agents of such organizations, or a person solely employed to operate a movie projector in a duly licensed theatre.

      . State v. McNutt, 287 So.2d 478 (La.1974) and State v. Shreveport News Agency, Inc., 287 So.2d 464 (La.1974).

      . “The title of the 1974 act declares that its purpose was ‘to define the crime of obscenity, to provide penalties therefor, to provide for the applicability and construction of the Act, and to provide otherwise with respect thereto.” State v. Johnson, 343 So.2d at 709 (quoting Acts 1974, No. 274, title).

      . The Court notes that the legislature’s most recent attempt at fine tuning LSA-R.S. § 14:106 does not contain a severability clause. Compare Acts 1977, No. 97, § 4; Acts 1977, No. 717, § 4; Acts 1980, No. 464, § 2; Acts 1981, No. 159, § 2; Acts 1982, No. 680, § 2; with Acts 1983, No. 384. The presence of a severability clause raises the presumption of severability in fact. See State v. Brown, 389 So.2d 48, 51 (La.1980) (citing State v. City of Baton Rouge, 40 So.2d 477 (1949)). However, the absence of a severability clause does not necessitate a finding of nonseverability; it merely eliminates the presumption of severability. Without the benefit of the presumption of severability provided by the presence of a severability clause, the Court- looks to the test for separate enforcement discussed in the text supra. Given the principal purpose of LSA-R.S. § 14:106 and the essential redundancy of paragraph D as it relates to the enumerated institutions, the Court reiterates its conclusion that the legislature would have passed the statute even without the invalid portion and, accordingly, the remainder of the statute is separately enforceable.

      . In answering this basic question, which in generic form is common to all equal protection challenges, the Courts have analyzed the legislative classification then at issue under one of three levels of judicial scrutiny — strict scrutiny, intermediate scrutiny, or rational review — depending on the classification at issue. Cleburne Living Center v. City of Cleburne, Texas, 726 F.2d 191, 195 (5th Cir.1984). The strict scrutiny standard is applied if the classification at issue disadvantages a suspect class or impinges upon the exercise of a fundamental right. Id. at 195-96. Under the strict scrutiny standard, a statute must fall unless the classification at issue was precisely tailored to serve a compelling governmental interest. Id. at 196. The intermediate scrutiny standard applies when the line drawn though not facially invidious gives rise to recurring constitutional difficulties. Id. Under the intermediate scrutiny standard, a statute will fall unless it serves an important governmental objective and is substantially related to the achievement of that objective. Id. Finally, the rational review, or deferential scrutiny, standard applies if neither the strict nor intermediate scrutiny standards apply. Id. Under the rational review standard, the classification at issue need only bear some fair relationship to a legitimate public purpose. Id.

      . The Court notes that the intermediate scrutiny standard is clearly inapplicable. That standard is usually employed in connection with so-called "semi-suspect” classes. See, e.g., Cleburne Living Center v. City of Cleburne, Texas, 726 F.2d 191, 196 n. 7, 197 (5th Cir.1984) (mental retardation); see also, Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976) (gender). Thus, since no semi-suspect class is involved here, the Court will not apply the intermediate scrutiny standard in its analysis of the challenged classification.

      . The Court notes that a pre-arrest hearing, as opposed to a pre-seizure hearing, is not constitutionally compelled in any instance. State v. Johnson, 343 So.2d at 710 (citing Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288 (S.D.N.Y.1969), aff'd per curiam sub nom. New York Feed Co. v. Leary, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970)). Thus, the legislature’s provision of a pre-arrest hearing for purveyors of material that may arguably be protected by the first amendment deserves praise, not condemnation.

      . LSA-R.S. § 14:106 A(2)(b) defines “hard core sexual conduct” as:
      the public portrayal, for its own sake, and for ensuing commercial gain of:
      (i) Ultimate sexual acts, normal or perverted, actual, simulated, or animated, whether between human beings, animals, or an animal and a human being; or
      (ii) Masturbation, excretory functions or lewd exhibition, actual, simulated, or animated, of the genitals, pubic hair, anus, vulva, or female breast nipples; or
      (iii) Sadomasochistic abuse, meaning actual, simulated or animated, flagellation, or torture by or upon a person who is nude or clad in undergarments or in a costume that reveals the pubic hair, anus, vulva, genitals, or female breast nipples, or in the condition of being fettered, bound, or otherwise physically restrained, on the part of one so clothed; or
      (iv) Actual, simulated, or animated touching, caressing, or fondling of, or other similar physical contact with a pubic area, anus, female breast nipple, covered or exposed, whether alone or between humans, animals, or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification; or
      (v) Actual, simulated, or animated stimulation of a human genital organ by any device whether or not the device is designed, manufactured, or marketed for such purpose.

      . For example, LSA-R.S. § 14:106 A(2)(b)(i) refers simply to portrayal of "ultimate sexual acts,” but makes no mention of "explicit, closeup depiction of human genital organs” or of giving “the appearance of the consummation of ultimate sexual acts," as found in paragraph F(l). Clearly, the legislature could rationally have concluded that the latter, but not the former, is presumptively obscene.

      . Even if the Court found that paragraph F’s disparate procedural treatment did violate the equal protection clause, that would not be helpful to plaintiffs. Since a pre-arrest hearing, as opposed to a pre-seizure hearing, is not constitutionally mandated in any instance, see supra n. 9, the Court could cure any equal protection defect by simply striking down paragraph F and severing it (assuming it is severable), thereby eliminating the pre-arrest hearing for all alleged violators of the obscenity statute.

      . The penalties that can be imposed on violators of LSA-R.S. § 14:106 are found at paragraph G of the statute, which provides:
      (1) On a first conviction, whoever commits the crime of obscenity shall be fined not less than one thousand dollars nor more than two thousand five hundred dollars, or imprisoned, with or without hard labor, for not less than six months nor more than three years, or both.
      (2) (a) On a second conviction, the offender shall be imprisoned with or without hard labor for not less than six months nor more than three years, without benefit of probation, parole, or suspension of sentence, and in addition may be fined not less than two thousand five hundred dollars nor more than five thousand dollars.
      (b) The imprisonment provided for in Sub-paragraph (a), may be imposed at court discretion if the court determines that the offender, due to his employment, could not avoid engagement in the offense. This Sub-paragraph (b) shall not apply to the manager or other person in charge of an establishment selling or exhibiting obscene material.
      (3) On a third or subsequent conviction, the offender shall be imprisoned with or without hard labor for not less than two years nor more than five years, without benefit of probation, parole, or suspension of sentence, and in addition may be fined not less than five thousand dollars nor more than ten thousand dollars.
      (4) When a violation of Paragraph (1), (2), or (3) of Subsection A of this Section is with or in the presence of an unmarried person under the age of seventeen years, the offender shall be fined not more than ten thousand dollars and shall be imprisoned, with or without hard labor, for not less than two years nor more than five years, without benefit of parole, probation, or suspension of sentence.

      . LSA-R.S. §§ 13:4711-4716, which together constitute Subpart A of Part I of Chapter 32 of Title 13, provide in full:
      § 4711. Definitions; right to enjoin; abatement
      A. For the purposes of this Subpart, the following terms shall have the following definitions:
      (1) "Maintenance of a nuisance” means to conduct, carry on, or knowingly permit to exist on one’s premises a prohibited activity as defined in this Subsection.
      (2) "Prohibited activity” means prostitution, as defined in this Subsection, or obscenity, as now or hereafter defined by the criminal laws of this state.
      (3) "Proprietary party” means an owner, lessee, sublessee, or occupant of any premises covered by this Subpart.
      (4) "Representative” means an officer, agent, employee, or other representative of a proprietary party.
      (5) "Premises” means any building, structure, land, watercraft, or movable owned or occupied by any proprietary party or representative thereof.
      (6) "Prostitution” means the practice by a person of indiscriminate sexual intercourse with another for compensation, or the solicitation by one person of another with the intent to engage in indiscriminate sexual intercourse with the latter for compensation.
      B. Maintenance of a nuisance in or upon any premises by a proprietary party, his representative, or any person acting in active concert with him or them may be enjoined as provided in this Subpart. Maintenance of the same nuisance at any other location within the jurisdictional area of the court issuing the injunction by such individuals may be enjoined in such action.
      C. An order of abatement directing the effectual closing of the premises in question may be entered as part of the judgment in the case as provided in R.S. 13:4715.
      § 4712. Right to petition for injunction or order of abatement
      The issuance of an injunction or order of abatement pursuant to this Subpart may be petitioned for by the following parties: • the attorney general of the state of Louisiana, in the name of the state and of the respective parish and without payment of any costs; the district attorney, in the name of the respective parish and without payment of any costs; the sheriff, through his attorney or designated representative, in the name of the respective parish and without the payment of any costs; the governing authority of the respective municipality, parish, or consolidated city-parish government, through its attorney or other designated representative in the name of the respective municipality, parish, or city-parish government and without payment of any costs.
      § 4713. Injunction proceedings; procedure
      A. Application for injunctive relief afforded by this Section shall be by petition.
      B. After a petition for an injunction has been filed, notice thereof shall be promptly served on the adverse party and a preliminary hearing shall be held within twenty-four hours from the time such notice is served. If, following the preliminary hearing, an independent judicial determination is made that there is probable cause to believe that maintenance of a nuisance, as defined in R.S. 13:4711, exists, an order granting a preliminary injunction may issue describing on its face in reasonable detail the conduct sought to be permanently enjoined.
      C. Regardless of whether or not a preliminary injunction has been granted, an adversary hearing shall be held not less than five days nor more than ten days after the preliminary hearing, or within such additional reasonable time to which the adverse party consents. The court shall render its judgment within forty-eight hours following the conclusion of the adversary hearing. If, following the adversary hearing, an independent judicial determination is made that maintenance of a nuisance, as defined in R.S. 13:4711, does in fact exist, an order granting a final injunction may issue describing on its face in reasonable detail the conduct permanently enjoined.
      D. An order granting the preliminary or final injunctive relief afforded by this Section shall be effective against the parties enjoined, their officers, agents, representatives, employees, counsel or any other person or persons in active concert or participating with them, from the time actual knowledge of the order is received by personal service or otherwise. E. In all cases when the prohibited activity alleged is obscenity, no injunction shall be granted unless the court determines in a prior contradictory hearing that the conduct or activities alleged to be obscene are not protected by the constitutions of the United States or the state of Louisiana.
      F. The defendant in the injunction proceedings may appeal to the court of competent jurisdiction an order granting a final injunction, but the appeal shall not stay the enforcement of the injunctive relief or an order of abatement granted in the order. Such appeal shall be perfected within five calendar days from the rendition of the order and shall be made returnable to the appropriate appellate court in not more than fifteen calendar days from the rendition of the order. The appeal shall be heard with the greatest possible expedition, giving the proceedings preference over all matters except other matters of the same character. The applicant for the injunction may appeal to the court of competent jurisdiction an order denying the final injunction or denying an order of abatement.
      § 4714. Violations of injunction; punishment
      A violation of the provisions of an injunction issued in a cause instituted under the provisions of this Subpart shall constitute a contempt of court. A person found guilty of such contempt shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the parish prison for a period of not more than one year, or both. On conviction for a second or subsequent contempt the offender shall be punished by both fine and imprisonment.
      § 4715. Order of abatement
      If it is established in an action under the provisions of this Subpart that maintenance of a nuisance exists and that the owner knew of its existence, an order of abatement may be entered as part of the judgment rendered in the case. The order of abatement shall direct the effectual closing of the premises for a period of five years, unless sooner released. Any person who in any manner uses premises he knows have been so directed to be closed shall be guilty of contempt of court and punished therefor as provided in R.S. 13:4714.
      § 4716. Release of property and discontinuance of action upon giving of bond; violations
      A. If, after an order of abatement has been entered, the owner appears and pays all costs of the proceeding and files a bond with surety or sureties, bond in solido, to be approved by the clerk, in an amount to be ascertained by the court but said bond shall not exceed the sum of fifty thousand dollars, conditioned that he will immediately abate the nuisance for a period of five years thereafter, the court may, if satisfied of his good faith, order the release of the premises so closed under the order of abatement. Such release shall not affect any action against any person whatsoever.
      B. If the bond is given and all costs therein are paid before judgment and order of abatement, the action shall be thereby discontinued as to only the premises.
      C. In the event such bond is given and the premises released, each day that the owner knowingly permits the premises or any part thereof to be used for such prohibited activity during the term of the bond shall warrant a forfeiture of one hundred dollars under the bond for each day on which the premises are so used. Collection thereof shall be had by rule taken in the original action against the principal and sureties thereon, or either of them, and the release shall be revoked.
      No forfeiture under the bond shall relieve the owner from .any prosecution for contempt, and the consequences thereof. The penalty under the bond and the penalty for contempt shall be cumulative. The release of the property under the provisions of this Section shall not release it from any judgment, penalty, lien or liability to which it may be subject by law.

      . See, e.g., Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 85 S.Ct. 631, 9 L.Ed.2d 584 (1963); Times Film Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).

      . See, e.g., Universal Amusement Co. v. Vance, 587 F.2d 159 (5th Cir.1978); Cornflower Entertainment, Inc. v. Salt Lake City Corp., 485 F.Supp. 777 (D.Utah 1980); Genusa v. City of Peoria, 475 F.Supp. 1199 (C.D.Ill.1979); Bayside Enterprises, Inc. v. Carson, 470 F.Supp. 1140 (M.D.Fla.1979); Natco Theatres, Inc., v. Ratner, 463 F.Supp. 1124 (S.D.N.Y.1979); Fehlhaber v. North Carolina, 445 F.Supp. 130 (E.D.N.C.1978); Avon 42nd Street Corp. v. Myerson, 352 F.Supp. 994 (S.D.N.Y.1972); Mini Cinema 16 Inc. of Fort Dodge v. Habhab, 326 F.Supp. 1162 (N.D.Iowa 1970); Oregon Bookmark Corp. v. Schrunk, 321 F.Supp. 639 (D.Or.1970); Parish of Jefferson v. Bayou Landing Ltd., Inc., 350 So.2d 158 (La. 1977); Gulf States Theatre of Louisiana, Inc. v. Richardson, 287 So.2d 480 (La. 1973); Giarrusso v. D’Iberville Gallery, 295 So.2d 891 (La.App. 1974). But see, 106 Forsyth Corp. v. Bishop, 482 F.2d 280 (5th Cir.1973); Bay Area News, Inc. v. Poe, 364 So.2d 830 (Fla.App.1978).

      . The Court notes preliminarily that the Pullman branch of the abstention doctrine does not compel this Court to decline to rule on the constitutionality of these injunction and abatement statutes. Under Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), federal courts should ordinarily refrain from ruling on the constitutionality of a state statute if the state law is unclear and is capable of construction by state courts in a manner that would avoid the constitutional question. Pullman does not require abstention here, because: (1) as to the injunctive remedy, the Court’s own interpretation of those statutory provisions enables them to withstand constitutional challenge: and, (2) as to the abatement remedy, the Court is convinced that no possible interpretation of those statutory provisions can withstand constitutional challenge.

      . Thus, in short, LSA-R.S. § 13:4713 E provides the procedural safeguards necessary for the enjoining of obscene materials, thereby saving the Louisiana obscene nuisance injunction provisions from the defects found fatal to similar Texas provisions in Vance.

      . It is certainly arguable that “the application of this [abatement remedy] is based on penalty for illegal use, not prior restraint of a possible future permissible use.” Giarrusso v. D’Iberville Gallery, 295 So.2d 891, 894 (La.App.1974) (Boutall, J. concurring in result). Nevertheless, like the author of the quote, this Court feels constrained by precedent to reject this argument.

      . Thus, in short, the abatement provisions contain none of the safeguards necessary in this area and, therefore, suffers from essentially the same constitutional infirmities as the Texas stat- • utes struck down in Vance.


author: LEE, District Judge.

text:
    Richard G. BLAIR and Joanne E. Blair, Plaintiffs, v. U.S. TREASURY DEPARTMENT, et al., Defendants. Richard G. BLAIR and Joanne E. Blair, Plaintiffs, v. COMMISSIONER OF the INTERNAL REVENUE SERVICE, et al., Defendants.
    Civ. Nos. F 84-83, F 84-95.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    Oct. 19, 1984.

      Richard G. Blair, Huntington, Ind., pro se.
    Peter Sklarew, Civ. Trial Sec., Tax Div., Dept, of Justice, Washington, D.C., Christina McKee, Asst. U.S. Atty., Fort Wayne, Ind., for defendants.
   ORDER

LEE, District Judge.

These matters are before the court on the motions to dismiss and motions for the award of attorney fees and costs filed by the defendants in these two actions. Because these motions contain very similar arguments, and disposition of the issues will require discussion of the same lines of analysis, the concerns of judicial economy require that these two motions be ruled upon in a single order. For the following reasons, defendants’ motion to dismiss will be granted in both causes of action, and defendants’ motion for attorney fees will be denied.

Plaintiffs are proceeding pro se. Pro se pleadings are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). This court also recognizes that federal courts have historically exercised great tolerance to insure that an impartial forum remains available to plaintiffs invoking the jurisdiction of the court without the guidance of trained counsel. Pro se complaints, such as plaintiffs’, are held to less stringent pleading requirements; technical rigor in the examination of such pleadings is inappropriate.

Liberally construed, the complaints in these two cases challenge the validity of several actions taken by the defendants in levying against plaintiffs’ property and in assessing taxes against the plaintiffs. The original complaint in No. F 84-83 was entitled “Request for Injunction to Prevent Seizure of Property,” and sought to enjoin the Internal Revenue Service (“IRS”) from seizing the contents of plaintiffs’ medical practice office, claiming that the IRS knew the value of the office equipment was stated at $750.00 in 1973, and that by trying to seize the assets of the office, the IRS deliberately intended to violate the “Tools of the Trade" exception to the levy and seizure provision of the Internal Revenue Code (“Code”), 26 U.S.C. § 6334. In No. F 84-95, the initial complaint alleged that the defendants had been harassing the plaintiffs since 1973, and alleged an increase in the harassment “by phone calls, letters, meetings, seizures and levies.” Plaintiffs seek $10 million in damages.

On March 14, 1984, the procedural histories of these two causes of action began to merge by the simultaneous filing in both No. F 84-83 and No. F 84-95 of a document entitled “Complaint to Reclaim Property.” This complaint challenges the IRS seizure of certain real property, the contents of a safe deposit box at the Community State Bank of Huntington, Indiana, and a 1981 Pontiac LeMans. The complaint alleges that the house and car were previously encumbered by liens, and that the plaintiffs had no interest in the contents of the safety deposit box. This “Complaint” seeks the release of all seizures and levies and the return of all properties and monies to the plaintiffs. Once the defendants were made aware of this filing, all parties began filing joint pleadings and papers in both actions. This “combination” of the two actions was a primary factor in the combination of the two actions in this order.

Defendants have opposed these complaints on two grounds: (1) that none of the parties named in either of the initial complaints can be sued because of sovereign immunity; and (2) the claims asserted in all three complaints are meritless and should be dismissed. Defendants have also moved for an award of attorney fees in both actions, and plaintiffs have requested sanctions against the defendants under Rule 11.

The court begins by analyzing the motions to dismiss.

I. MOTION TO DISMISS

Although the defendants have characterized their motion as a motion to dismiss, it is clear that the issues presented by this motion are best addressed after reference is made to the exhibits and pleadings in this case. When matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss will be converted into a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 12(b).

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may only be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, 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.” Fed.R.Civ.P. 56(c). Thus, summary judgment serves as a vehicle with which the court “can determine whether further exploration of the facts is necessary.” Hahn v. Sargent, 528 F.2d 461, 464 (1st Cir.1975).

In making this determination, the court must keep in mind that the entry of summary judgment terminates the litigation, or an aspect thereof, and must draw all inferences from the established or asserted facts in favor of the non-moving party. Peoples Outfitting Co. ¶. General Electric Credit Corp., 549 F.2d 42 (7th Cir.1977. A party may not rest on the mere allegations of his pleadings or the bare contentions that an issue of fact exists. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, — U.S.-, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See also Atchison, Topeka & Santa Fe Railway v. United Transportation Union, 734 F.2d 317 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222 (7th Cir.1984). See generally C. Wright, Law of Federal Courts, § 99 (4th ed. 1983); 6 Moore’s Federal Practice, § 56.15 (2d ed. 1984).

Thus, the moving party must demonstrate the absence of a genuine issue of material fact. The court views all evidence submitted in favor of the non-moving party. Even if there are some disputed facts, where’ the undisputed facts are the material facts involved and those facts show one party is entitled to judgment as a matter of law, summary judgment is appropriate. Egger v. Phillips, 710 F.2d 292, 296-97 (7th Cir.1983); Collins v. American Optometric Assn., 693 F.2d 636, 639 (7th Cir.1982). Further, if the court resolves all factual disputes in favor of the non-moving party and still finds summary judgment in favor of the moving party is correct as a matter of law, then the moving party is entitled to summary judgment in his favor. Egger, 710 F.2d at 297. See also Bishop v. Wood, 426 U.S. 341, 348, 348 n. 11, 96 S.Ct. 2074, 2079, 2079 n. 11, 48 L.Ed.2d 684 (1976).

Although not raised by the defendants directly in their motion to dismiss, the court turns first to the issue of whether a proper basis for jurisdiction exists for hearing this cause. Because of the limited nature of a district court’s jurisdiction, the court may inquire into its jurisdiction sua sponte. Rice v. Rice Foundation, 610 F.2d 471 (7th Cir.1979).

A. Jurisdiction

The plaintiffs do not assert a jurisdictional basis for their claims in any of the three complaints. This court is therefore required to analyze the potential jurisdictional bases available to the plaintiffs. This task can be carried out by asking whether this court has jurisdiction to (1) issue an injunction against the levy of plaintiffs’ property and medical practice assets; (2) award of damages for alleged violations of plaintiffs’ rights by the defendants; and (3) order a return of property seized.

1. Injunctive Relief

The Code contains an anti-injunction provision which provides:

Except as provided in sections. 6212(a) and (c), 6213(a), 6672(b), 6694(c), and 7426(a) and (b)(1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.

Thus, the general rule is that injunctive relief is not available to prevent the collection of a tax unless one of the exceptions applies. Here, none of the statutory or judicially created exceptions apply. The only one which might apply is § 7426(b)(1), which allows' injunctions against levy or sale of property upon a showing of irreparable injury. However, as the defendants point out, § 7426 injunctive relief is limited to persons who claim an interest in the property “other than the person against whom is assessed the tax out of which such levy arose.” 26 U.S.C. § 7426(a). Plaintiffs therefore fall outside the provisions of this exception, and therefore cannot rely on it to obtain injunctive relief. Without any exception to the anti-injunction provision available, this court is without jurisdiction to grant injunctive relief. Hutchinson v. United States, 677 F.2d 1322 (9th Cir.1982).

2. Damages

Plaintiffs seek damages for the alleged harassment by the defendants. Assuming for the moment that plaintiffs could show that this harassment violates a constitutional right, so as to give rise to some kind of federal question jurisdiction, this court is nevertheless without jurisdiction to award damages.

Plaintiffs can obtain damages against the defendants under only one of two theories: a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680; or an implied cause of action under the principles of Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). As will be more fully discussed in section I.B. of this order, a claim under the Federal Tort Claims Act will fail on principles of sovereign immunity. Furthermore, in Seibert v. Baptist, 594 F.2d 423, 429-32 (5th Cir.1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980), the court refused to recognize a Bivens-type cause of action against the IRS and IRS officials and agents. This court has also refused to recognize a Bivens cause of action for the assessment or collection of taxes. See Cameron v. IRS, 593 F.Supp. 1540 (N.D.Ind.1984); Young v. IRS, 596 F.Supp. 141 (N.D.Ind.1984). The acts of harassment— “phone calls, letters, meetings, seizures and levies” — are nothing more than the normal acts necessary to enforce the tax laws, and are not of the outrageous nature of the acts committed in Bivens. Therefore, the court lacks the ability to award damages against the defendants.

3. Return of Property

Plaintiffs seek the return of certain properties alleged to have been seized in wrongful levies. However, the Secretary has power to levy all property belonging to the taxpayer upon ten day notice and demand for payment. 26 U.S.C. § 6331(a). The person in possession of the property shall surrender it upon demand of the Secretary, § 6332(a). The owner may redeem the property by paying the amount due, § 6337(a), or may get the property back if the Secretary determines that the levy was wrongful, § 6343(b). None of these methods, however, involve court action. A third avenue for reacquiring the property would be to seek a refund of taxes paid. However, that requires the payment of the taxes owed and then the filing of a claim with the Secretary. § 7422(a). This court cannot take jurisdiction of a refund suit until these prerequisites are met. Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958); White v. Commissioner, 537 F.Supp. 679 (D.Colo.1982); Glauber Valve Co. v. United States, 536 F.Supp. 68 (E.D.Ark.1982). Prepayment of the tax clearly has not yet occurred in this case. Therefore, this court finds it is without jurisdiction to order the return of the property seized in this case.

In short, this court has no jurisdiction to award any of the relief requested in this case, whether it be injunctive, monetary damages, or return of the property. Without jurisdiction, this court cannot decide the merits of this cause of action. However, out of an abundance of caution and a desire to give these pro se litigants a full review of their claims, the court continues its analysis.

B. The “Suability” of the Defendants

In No. F 84-83, plaintiffs have named four defendants: the United States Treasury Department; the IRS; the Director of the IRS; and Madaline Cook, an IRS agent. In No. F 84-93, plaintiffs have named the Commissioner of the IRS; Paul D. Williams, District Director of the IRS; C.B. Cooperman (referred to elsewhere as Gail C. Cooperman), an IRS employee; and Madaline Cook. The defendants have challenged the ability of the plaintiffs to sue these defendants on grounds of immunity. The court analyzes these arguments as they apply to the different defendants.

1. The Treasury Department and the IRS

The core of defendants’ argument about the inability of plaintiffs to sue the Treasury Department or the IRS is the doctrine of sovereign immunity. It is well settled that the United States is a sovereign and, as such, is immune from suit without its prior consent. United States v. Shaw, 309 U.S. 495, 500-01, 60 S.Ct. 659, 661, 84 L.Ed. 888 (1940); Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir.1982); Akers v. United States, 539 F.Supp. 831, 832 (D.Conn.1982), affd, 718 F.2d 1084 (2d Cir.1983). Absent consent to sue, dismissal of the action is required. Hutchinson, 677 F.2d at 1327. The United States has waived its immunity with respect to some causes of action in the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671-2680. However, the Act, in § 2680(c), specifically excluded “any claim arising in respect of the assessment or collection of any tax or customs duty____” It is thus clear that the United States has specifically reserved its immunity with respect to claims arising out of tax collection and assessment. Thus, to the extent that any part of plaintiff’s complaint can be construed as a claim against the United States, it is barred by the doctrine of sovereign immunity. See Hutchinson; Seibert v. Baptist, 594 F.2d 423 (5th Cir.1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980); White v. Commissioner, 537 F.Supp. 679, 684 (D.Colo.1982).

The attempt to name the agencies as defendants does not remove the bar of sovereign immunity. Courts have found that the actions of the IRS or its agents fall under the Federal Tort Claims Act exception for collection and assessment of taxes. See Morris v. United States, 521 F.2d 872, 874 (9th Cir.1975); Spilman v. Crebo, 561 F.Supp. 652, 654-55 (D.Mont. 1982). It is therefore clear that the IRS is immune from suit for tax collection or assessment activities. Likewise, the Treasury Department has been found to be immune from suit. Castleberry v. Alcohol, Tobacco and Firearms Division, Treasury Department, 530 F.2d 672, 673 n. 3 (5th Cir.1976); Krouse v. United States Treasury Department, 380 F.Supp. 219 (C.D.Cal.1974). Therefore, neither of these governmental agencies can be sued by the plaintiffs.

2. The Individual Defendants

The individual defendants named in the three complaints are all IRS officials or agents. The complained of acts allegedly committed by these defendants are all acts committed within their official capacities as government officials. The defendants have argued that these individual defendants are protected by immunity as well.

As was noted earlier, the United States has not waived its sovereign immunity with respect to claims arising out of tax assessment or collection. One cannot avoid this sovereign immunity by simply naming officials when the judgment would impact upon the public treasury. Vishnevsky v. United States, 581 F.2d 1249, 1255 (7th Cir.1978). At least one court has held that a suit against IRS officials in their official capacity is a suit against the United States, see Nelson v. Regan, 560 F.Supp. 1101 (D.Conn.1983), so that sovereign immunity would preclude the suit.

The United States Supreme Court, in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), discussed the extent of the immunity that a federal executive officer enjoys within the parameters of a federal agency position. The Court found that a federal official enjoys only a qualified immunity, so that he could be liable individually if he knows or should have known that he is acting outside the law. Id. at 506-07, 98 S.Ct. at 2911. The Court recognized, however, that some officials need absolute immunity because it is “essential for the conduct of the public business.” Id. at 507, 98 S.Ct. at 2911. Some courts have read Butz as giving absolute immunity to IRS officials in actions for damages. Hutchinson v. United States, 677 F.2d 1322 (9th Cir.1982); Stankevitz v. IRS, 640 F.2d 205 (9th Cir.1981); Krzyske v. Commissioner, 548 F.Supp. 101 (E.D.Mich.1982); White v. Commissioner, 537 F.Supp. 679, 684 (D.Colo.1982). If the officials are alleged to have exceeded their authority and to have operated outside the scope of their official duties, then only the qualified immunity applies. Hutchinson, 677 F.2d at 1328; Nelson v. Regan, 560 F.Supp. 1101 (D.Conn.1983); Spilman v. Crebo, 561 F.Supp. 652, 655-56 (D.Mont. 1982). In order to present a situation where only the qualified immunity will apply, the complaint must contain specific allegations of the unconstitutional conduct by the official, White, 537 F.Supp. at 684, and must allege the specific statutory provisions under which the official exceeded his authority. Spilman, 561 F.Supp. at 655-56.

The tenor of plaintiffs’ complaint is that they seek damages and injunctive relief for acts done by the individual defendants in their official capacities. The acts complained of are statutorily permitted levies and attempts to assess and collect taxes. In situations such as this, the absolute immunity applies and the suit against the individual defendants must fail.

Even if the complaint can be viewed as somehow implying an argument that the defendants are not entitled to absolute immunity because they exceeded their official authority, the claim would fail for lack of specificity. Plaintiffs claim that the defendants “harassed” them by phone calls, letters, meetings and levies. None of these allegations specified the individual defendants who engaged in particular activities. These allegations fail to show how these acts violated the plaintiffs’ rights. Thus, the complaint does not contain specific allegations of the unconstitutional conduct by the official, White, 537 F.Supp. at 684. Nor does the complaint allege the specific statutory provision under which the official exceeded his authority. Spilman, 561 F.Supp. at 655-56. In fact, these allegations only reinforce the conclusion that the thrust of plaintiffs’ complaint is against IRS officials performing their official duties. Even under the liberal construction principles of Haines v. Kerner, this complaint does not make out a claim against the individual defendants for exceeding their official authority. Therefore, the absolute immunity applies, and the defendants cannot be sued.

It is clear that all of the defendants cannot be sued because all are protected by immunity. There is no material fact in dispute, and the defendants are entitled to judgment as a matter of law, Therefore, the defendants are entitled to summary judgment on the basis of their inability to be sued. Out of an abundance of caution, however, the court turns to the merits of plaintiffs’ suit in case the court’s analysis of jurisdiction and immunity is incomplete. C. Merits of the Claim

The plaintiffs have filed three complaints in these two actions, each of which presents a claim against the defendants. Each of these claims will be considered in turn.

1. No. F 84-83 — Tools of the Trade

The initial complaint filed in No. F 84-83 sought an injunction to prevent a levy on the assets of plaintiffs’ medical office because the defendants intended to violate the “Tools of the Trade” exception to the provisions of the Code defining what property may be seized in a levy. Ignoring for a moment the jurisdictional bar to injunctive relief, this court finds that concern for the Tools of the Trade exception would not afford plaintiffs a cause of action.

As was noted before, the Secretary has authority to levy all property belonging to the taxpayer in order to collect the taxes due. 26 U.S.C. § 6331(a). However, this broad power to levy is subject to the exemptions of § 6334, which exclude certain property from levy. Section 6334(a)(3) exempts the following:

So many of the books and tools necessary for the trade, business, or profession of the taxpayer as do not exceed in the aggregate $1,000 in value.

Plaintiffs’ initial complaint was based on the alleged intent of the IRS to seize plaintiffs’ assets when those assets did not equal $1,000.00 in value. To support the implied claim that all of their assets are exempt under § 6334(a)(3), plaintiffs claim that their assets were valued at $750.00 by a bankruptcy court in 1973.

The court is unpersuaded by the plaintiffs’ arguments. First, there is no reason to believe that the bankruptcy court’s assessment has any relevance today. It was made eleven years ago, and it is certainly possible that plaintiffs have purchased or obtained new or additional assets in the interim. Second, even if the $750.00 valuation is accurate, there is no reason to believe that the defendants will seize the assets in violation of the $1,000.00 Tools of the Trade exception. Section 6334(b) requires that

The officer seizing property of the type described in subsection (a) shall appraise and set aside to the owner the amount of such property declared to be exempt. If the taxpayer objects at the time of the seizure to the valuation fixed by the officer making the seizure, the Secretary shall summon three disinterested individuals who shall make the valuation.

Thus, the law requires that the seizing officers set aside $1,000.00 of plaintiffs’ assets, and allows for independent appraisals if the plaintiffs disagree with the valuation assigned to the assets. This court has no reason to believe that the IRS agents will act in any other way but in accordance with the law. In fact, plaintiffs cannot claim any harm until a seizure in fact occurs. No seizure has yet occurred in this case. As such, plaintiffs’ claim is premature.

2. No. F 84-95 — Harassment

The initial complaint in No. F 84-95 alleged an eleven year period of “harassment.” As has been discussed before, the acts of harassment were “phone calls, letters, meetings, seizures and levies.” All of these activities, without any allegations that they were done outside the scope of usual procedure, are perfectly valid activities of IRS officials involved in the performance of their official duties. Nothing in the complaint indicates that these activities were done in any way other than in strict compliance with the Code and IRS regulations. Despite the notice pleading requirements of the Federal Rules of Civil Procedure, and the liberal pleading requirements for pro se litigants under Haines v. Kerner, this complaint simply fails to state a set of facts which would entitle the plaintiffs to relief. This court will not fancifully speculate on what defendants may or may not have done; if the plaintiffs cannot specify the defendants’ wrongful conduct, then the court will not take cognizance of their claims.

3. Combined Complaint — Improper Seizure of Property

The “Complaint to Reclaim Property” filed in both cases alleges that the defendants improperly seized a residence, a safety deposit box, and an automobile. The court examines each claim in turn.

Plaintiffs claim that the defendants attached an illegal notice of seizure to real estate in Huntington, Indiana which the plaintiffs were purchasing on contract. The alleged impropriety of this notice of seizure is two fold: (1) there were prior liens on the property (which the IRS knew of) that will prevent the realization of a “benefit to the alleged tax liability” — in short, the seizure was improper because the sale of the property would not generate any funds which could reduce plaintiffs’ tax liability; and (2) the notice of seizure was “improperly worded.” In response to the first claim, defendants have submitted: a Seizure and Sale Worksheet prepared by the IRS which values the house at $20,-000.00 and shows that the only prior claim against the property is a $2,400.00 claim under a land contract (Government Exhibit A); a letter from the plaintiffs rejecting the figures of the Worksheet as unrealistic and requesting a professional appraiser (Government Exhibit C); and a copy of the appraiser’s report stating that the value of the property is $36,200.00 (Government Exhibit D). The defendants argue that these exhibits show that the plaintiffs had substantial equity in the real estate, and therefore seizure was proper.

The court is convinced that the plaintiffs had some equity in the property. The plaintiffs’ argument rests upon an assumption that the prior liens on the property were equal to the value of the property. However, the only evidence of any prior liens is the $2,400.00 lien listed on the Seizure and Sale Worksheet. Under either of the property valuations presented in defendants’ exhibits, there is substantial unencumbered equity in the property which could be used to reduce plaintiffs’ tax liability. The plaintiffs have failed to offer any evidence to contest this conclusion. Therefore, the seizure of the Huntington property by the IRS would be proper, and plaintiffs’ claim is without merit.

Plaintiffs have also challenged the seizure of the Huntington real estate on the grounds that the Notice of Seizure was improperly worded. However, the plaintiffs have failed to point out any deficiency with the wording of the notice, and this court cannot find any. Therefore, plaintiffs’ claim as to the wording of the notice is without merit. Furthermore, this analysis applies to the claims that the Notices of Seizure for the safety deposit box and the 1981 LeMans were improperly worded.

Plaintiffs allege that the seizure of a safety deposit box at the Community State Bank of Huntington, Indiana was improper because the box was not rented by either of the plaintiffs, but rather by the plaintiffs’ daughter, Julie A. Richards. Whether or not the seizure was wrongful, the plaintiffs have no standing to assert a claim concerning the seizure. If in fact the plaintiffs had no property or interest in the box, then nothing of theirs was seized; the correct plaintiff would be Julie A. Richards, and not the current plaintiffs, as no property interest of theirs was violated by the seizure. The Code, in § 7426(a)(1), permits a cause of action for wrongful levy for any person who claims an interest in the property “other than the person against whom is assessed the tax out of which such levy arose” (emphasis supplied). Thus, the plaintiffs have no standing to complain about the seizure of Julie Richards’ property. On the other hand, if the property in the safety deposit box was property of the plaintiffs, then § 6332(a) requires that the person in possession of the property turn it over to the IRS, and § 7426(a)(1) prevents the plaintiffs from suing the IRS on the propriety of the levy. In short, plaintiffs cannot assert a claim concerning the seizure of the safety deposit box.

The plaintiffs’ last claim concerns the 1981 LeMans.. As with the Huntington real estate, plaintiffs assert that there were prior liens on the car so that the seizure was improper because the IRS could not realize any money for reducing plaintiffs’ tax liability. Again, plaintiffs offer no evidence in support of their claim, and the defendants’ evidence establishes that unencumbered equity was present in the car. The Certificate of Sale of Seized Property (Government Exhibit K), issued upon sale of the car, shows that the car was sold for $2,037.16. That Certificate shows that the purchaser took the car subject to all prior liens, so that none of the monies realized through the sale need to be diverted to paying off the prior liens. Further, the government asserted that the pri- or liens totalled only $962.84, a figure never contested by the plaintiffs. This indicates that there is at least $1,000.00 in unencumbered equity realized in the sale of the car. In either case, the IRS received proceeds which can be used to reduce plaintiffs’ tax liability, and thus the seizure was not improper.

An overall analysis of defendants’ converted motion to dismiss reveals that the plaintiffs have not asserted a competent basis for jurisdiction, cannot sue any of the defendants because they are immune, and even if the plaintiffs could overcome these two legal hurdles, could not prevail because their three complaints contain meritless claims. It is abundantly clear that there are no issues of material fact and that the defendants are entitled to judgment as a matter of law. The court will therefore grant the defendants summary judgment on the entire complaint.

II. MOTIONS FOR FEES AND COSTS

The defendants have moved to have attorney fees and costs awarded in both F 84-83 and F 84-95, claiming that both actions are not well grounded in fact as required under Rule 11 of the Federal Rules of Civil Procedure. Plaintiffs have also asked for Rule 11 sanctions against the defendants, but because the defendants have prevailed on every claim, no Rule 11 sanctions will be levied against them.

Under the Seventh Circuit’s interpretation of Rule 11, the court must find subjective bad faith on the part of the party against whom fees are to be assessed. Suslick v. Rothschild Securities Corp., 741 F.2d 1000, at 1007 (7th Cir. 1984). This court has not hesitated in the past to award fees and assess additional sanctions under Rule 11. See Cameron v. IRS, 593 F.Supp. 1540, 1552 (N.D.Ind.1984); Young v. IRS, 596 F.Supp. 141, at 152 (N.D.Ind.1984). However, the plaintiffs here have not engaged in the same kind of objectionable conduct as in Cameron or Young. They have not made specious arguments long ago rejected by the courts of this country. Although their arguments do not prevail here, the plaintiffs have not engaged in the advancement of outrageous arguments which disregard the well-settled tax laws of this country. Thus, this court will not assess fees or sanctions against the plaintiffs.

Conclusion

For the reasons set out above, defendants’ motions to dismiss in both F 84-83 and F 84-95 are converted into motions for summary judgment, and the court hereby GRANTS the defendants summary judgment in both F 84-83 and F 84-95. The court hereby DENIES all motions or requests for fees or sanctions against either party.

      . Section 6212(a) and (c) prevents the Secretary from making any more determinations of a taxpayer's liability for a given year after the taxpayer petitions the Tax Court for a redetermination of liability. Section 6213(a) prevents the Secretary from executing a levy during the pendency of a petition to the Tax Court to redetermine liability. Section 6672(b) prohibits a levy during the pendency of a suit to determine the taxpayer's liability for penalties assessed for failure to pay taxes or for evading taxes. Section 6694(c) prevents levy or proceedings against an income tax return preparer fined for willfully understating liability when the preparer has paid 15 per cent of the fine and sued for a refund. None of these exceptions apply here.
      The Supreme Court has recognized one judicially-created exception to the anti-injunction provisions of the Code. Under Enochs v. Williams Packing and Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), an injunction may be granted if the plaintiff can show that (1) under the most liberal view of the facts and law, the government cannot prevail on the merits, and (2) special circumstances indicate that the plaintiff does not have an adequate remedy at law. Here, the first element is absent because the government will in fact prevail on the merits (see Section I.C. infra). The second element is also absent because the plaintiff could sue for a refund. Therefore, the Enochs exception does not apply.