author: LASKER, District Judge.

text:
    Douglas J. MICHELSON, Plaintiff, v. MERRILL LYNCH PIERCE, FENNER & SMITH, INC., Nelson Bunker Hunt, William Herbert Hunt, Douglas Herbert Hunt, Lamar Hunt, International Metals Investment Co. Ltd., John J. Conheeny, Conti-Commodity Services Inc., Conti-Capital Management Inc., Conti-Capital Ltd., Norton Waltuch, Gilian Financial, ACLI International Commodity Services, Inc., Bache Halsey Stuart Shield Inc., Shiek Mohammed Aboud Al Amoudi, Shiek Ali Bin Mussalem, Mahmoud Fustok, Prince Faisal Bin Abdullah, Naji Robert Nahas, Banque Populaire Suisse, Advicorp Advisory and Financial Corporation S.A., Placid Oil Company, Commodity Exchange, Inc., the Chicago Board of Trade, Defendants.
    No. 83 Civ. 8898 (MEL).
    United States District Court, S.D. New York.
    Oct. 2, 1985.

      Douglas J. Michelson, pro se.

      Rogers & Wells, New York City, for defendants Merrill Lynch, Pierce, Fenner & Smith, Inc. and John J. Conheeney; William R. Glendon, Guy C. Quinlan, Susan A. Garcia, James M. Lane, Peter L. Thoren, New York City, of counsel.
    Paul, Weiss, Rifldnd, Wharton & Garrison, New York City, for ContiCommodity Services Inc., ContiCapital Management, Inc., ContiCapital, Ltd., Richard A. Rosen, New York City, of counsel.
    Kaye, Scholer, Fierman, Hays & Handler, New York City, for defendant Norton Waltuch; Steven J. Glassman, New York City, of counsel.
    Townley & Updike, New York City, Kirkland & Ellis, Chicago, 111., for defendant Bd. of Trade of the City of Chicago; James K. Leader, New York City, and John E. Angle, Garrett B. Johnson, T. Webster Brenner, Chicago, 111., of counsel.
    Baer, Marks & Upham, New York City, for defendant Commodity Exchange, Inc.; Barry J. Mandel, Thomas E. Albright, Kristine M. Reddington, New York City, of counsel.
    Curtis, Mallet-Prevost, Colt & Mosle, New York City, for defendant Mahmoud Fustok; Herbert Stoller, New York City, of counsel.
    Gilbert, Segall & Young, New York City, and Arnold & Porter, Washington, D.C., for defendant Banque Populaire Suisse.
    Shank, Irwin, Conant & Williamson, Dallas, Tex., John R. Bartels, Jr., White Plains, N.Y., for defendants Nelson Bunker Hunt, William Herbert Hunt, Douglas Herbert Hunt, Lamar Hunt and Placid Oil Co.; Robert Everett Wolin, Dallas, Tex., of counsel.
    Morrison, Cohen & Singer, P.C., and Finley, Kumble, Wagner, Heine & Underberg, New York City, for defendant Intern. Metals Inv. Co., Ltd.
    Sullivan & Cromwell, New York City, for Prudential-Bache Sec., Inc. (formerly known as Bache Halsey Stuart Shields Inc.).
   LASKER, District Judge.

Douglas J. Michelson is a resident of New Mexico and a rare metals trader who suffered heavy financial losses when the price of silver increased dramatically in the latter half of 1979 and in early 1980. Michelson, who appears pro se, has filed a sixty-one page complaint asserting thirty-six causes of action against twenty-four named defendants contending that they participated in a conspiracy in 1979-80 to raise the price of silver in an effort to corner the silver market.

Currently pending are motions: (1) by Merrill Lynch to dismiss pursuant to Fed. R.Civ.P. 12(b)(6) twenty-three claims and 22 paragraphs of factual allegations in the complaint based upon the doctrines of res judicata and/or collateral estoppel; (2) by the Exchanges to dismiss under Rule 12(b)(6) all claims against them for failure to state a claim; (3) by nine non-exchange defendants (“Certain Defendants”) to dismiss pursuant to Rule 12(b)(6) eight counts of the complaint for failure to state a claim; (4) by John J. Conheeny to dismiss the complaint under Rules 12(c), 12(b)(2), 12(b)(5), or 12(b)(6) based upon insufficient service of process; and (5) by Norton Wal-tuch and ContiCommodity Services, Inc. under Rule 12(b)(5) to dismiss the complaint on the ground of insufficient service of process. For the reasons set forth below, Merrill Lynch’s motion is granted in part and reserved in part; the motion of the Exchanges will be granted unless within thirty days Michelson amends his complaint; the non-exchange defendants’ motion is granted in part, denied in part, and reserved in part and part will be granted unless Michelson amends his complaint within thirty days; and the motions of Con-heeny, ContiCommodity Services, Inc. and Waltuch are granted.

I.

This action traces its origins back to 1980 when Merrill Lynch filed suit against Michelson in the United States District Court for the District of New Mexico to recover a debt of approximately $118,000. From 1974 until January 9, 1980, Michelson traded silver, gold and copper futures on margin through an account at Merrill Lynch. Beginning in the latter half of 1979 and continuing through the first quarter of 1980, the price of silver rose to unprecedented levels, allegedly as a result of a conspiracy among the named defendants to corner the world’s supply of silver. In January of 1980, Michelson held a number of short positions in the market and, when he failed timely to meet a margin call, Merrill Lynch liquidated his account on January 10, 1980 through purchases of gold and silver contracts. After the liquidation, Michelson continued to owe approximately $118,000 and Merrill Lynch initiated its suit to recover that amount.

Michelson’s answer asserted sixteen counterclaims against Merrill Lynch. Merrill Lynch subsequently moved for summary judgment on its pleading and to dismiss the counterclaims and, in an August 1982 opinion, Judge Bratton dismissed eleven of the counterclaims with prejudice. The dismissed counterclaims alleged that Merrill Lynch was liable to Michelson as a result of its negligence (counts II, IV, VI & IX), breaches of fiduciary duty (counts I & V), failure to issue proper and accurate margin calls (counts III, VII & VIII), and its failure to give effect to a three-party security agreement between Michelson, Merrill Lynch, and the First National Bank of Albuquerque (counts XIII, XIV & XV), all of which allegedly violated Section 4b of the Commodity Exchange Act. 7 U.S.C. § 6b (1982). The remaining portions of Merrill Lynch’s motion were denied due to the presence of material questions of fact. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Michelson, No. 80-0095 HB (D.N.M. Aug. 12, 1982) (hereinafter “Merrill Lynch v. Michelson ”), reprinted in Merrill Lynch’s Memorandum of Law in Support of Its Motion to Dismiss, at Exhibit C.

Merrill Lynch moved for reconsideration of this decision and in an opinion dated August 3, 1983 was awarded summary judgment on its pleading. The opinion was confined to the issue of whether Merrill Lynch was empowered to liquidate Michelson’s account notwithstanding the fact that a statement by the Merrill Lynch official in charge of the account to Michelson created the inference that a partial payment of the margin call would satisfy Merrill Lynch. Judge Bratton found that the agreement between Michelson and Merrill Lynch relating to the account “gave Merrill Lynch the right to liquidate Michelson’s account whenever in its discretion it considered that action necessary for its protection^]” and that “Merrill Lynch considered liquidation ... to be necessary for its protection.” Merrill Lynch v. Michelson, No. 80-095 HB, slip op. at 3 (D.N.M. Aug. 3, 1983), reprinted in Merrill Lynch’s Memorandum of Law, at Exhibit D.

In an accompanying opinion issued at the same time, Judge Bratton also dismissed without prejudice Michelson’s five remaining counterclaims on the ground that Michelson’s pro se pre-trial order submitted sometime in the summer of 1983 did not “inform the court or Merrill Lynch of the factual basis of [Michelson’s] claims or the legal theories on which he relies.” Merrill Lynch v. Michelson, No. 80-095 HB, slip op. at 3 (D.N.M. Aug. 3, 1983), reprinted in Merrill Lynch’s Memorandum of Law, at Exhibit E. Michelson’s counsel had withdrawn from the case in June of 1981 and Michelson has appeared pro se since that time.

Michelson filed the complaint at issue in this case in July of 1983 in the District of New Mexico. The complaint embodies the fifteen counterclaims pleaded in the earlier action and added as defendants various foreign and domestic individuals and institutions who allegedly participated, along with Merrill Lynch, in the conspiracy to manipulate the silver market in 1979-80. In addition, Michelson adopted and expanded upon the thirty-three paragraphs of factual allegations supporting his counterclaims to allege, in 136 paragraphs, inter alia, that the defendants conspired to raise the price of silver so as to force silver traders holding short positions out of the market (para. 70); that the Exchanges acted in bad faith by failing to take “emergency actions” to preserve orderly market conditions (paras. 72-79); and that Merrill Lynch acted in furtherance of the above conspiracy by executing many “wash sales” so as to create volume in the silver market and establish the appearance of a legitimate market (paras. 130-31). Michelson now alleges that one or more defendants have violated the federal Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. §§ 1961-68 (1982), various provisions of the Commodity Exchange Act, extortion, mail and wire fraud statutes, 18 U.S.C. §§ 1951, 1341 & 1343 (1982), and New Mexico’s antitrust, RICO, unfair trade practice and criminal laws.

After the complaint was dismissed as to a number of defendants by Judge Bratton for lack of personal jurisdiction, Michelson’s case was transferred sua sponte to this District in December of 1983. Proceedings were delayed for more than one year owing to a dispute between the parties regarding the sufficiency of Michelson’s service of process upon a number of defendants. At a conference held on January 30, 1985 we granted Michelson until March 15, 1985 to re-serve the defendants and the defendants were subsequently granted until April 15, 1985 to move to dismiss or to answer the complaint. The motions discussed here constitute the fruits of these directives.

II.

MERRILL LYNCH A.

Merrill Lynch’s principal argument in support of its motion to dismiss twenty-three of the claims asserted against it is that res judicata and/or collateral estop-pel, applicable as a result of Judge Brat-ton’s grants of summary judgment in 1982 and 1983, bar Michelson from pleading any claim or alleging any facts in this action which relate to his Merrill Lynch account and which have already been the subject of a final adjudication.

Merrill Lynch contends that Michelson’s complaint consists of four categories of claims precluded on res judicata grounds: (1) claims dismissed with prejudice in the New Mexico proceeding (counts XXV-XXXII & XXXIV); (2) claims asserted only against Merrill Lynch which relate to Michelson’s Merrill Lynch account and which Michelson should have raised in the earlier proceeding (counts XIV-XV, XXIII-XXIV, & XXXV-XXXVI); (3) claims pleaded against all of the defendants but which are precluded to the extent that they relate to Michelson’s account (counts III, VII, IX, XII & XIII); and (4) claims dismissed without prejudice in the earlier proceeding but which should now be dismissed on the merits because Merrill Lynch was awarded judgment on its pleading by Judge Bratton (counts XXI-XXII & XXXIII). Merrill Lynch also argues that collateral estoppel bars the allegations in the complaint relating to Michelson’s account (complaint paras. 90-92, 96, 98, 108-11, 113-18, 121-24, 126-27 & 136).

Although Michelson proffers numerous arguments as to why res judicata or collateral estoppel ought not bar his claims, we find of particular relevance to the issues raised by this motion his assertion that Merrill Lynch did not obtain a final judgment on the merits in the New Mexico proceedings. Michelson contends, inter alia, that the New Mexico judgment is void because the case was decided through summary judgment, thereby denying him his constitutional right to a jury trial, and that there was no final judgment as to his counterclaims which were dismissed without prejudice.

B.

Res judicata bars parties to a lawsuit from relitigating claims or defenses which were actually adjudicated or might have been litigated or adjudicated in an earlier action between them in which there has been a final judgment on the merits. See Commissioner v. Sunnen, 333 U.S. 591, 597-98, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948) (“Once a party has fought out a matter in litigation with the other party, he cannot later renew that duel”); Tucker v. Arthur Anderson & Co., 646 F.2d 721, 727 (2d Cir.1981); Browning Debenture Holders’ Committee v. DASA Corp., 605 F.2d 35, 39 (2d Cir.1978). Whether res judicata bars litigation of claims in a second action depends, as the Court of Appeals for this Circuit has explained, upon

whether a different judgment in the second action would impair or destroy rights or interests established by the judgment entered in the first action, whether the same evidence is necessary to maintain the second cause of action as was required in the first, and whether the essential facts and issues in the second were present m the first.

Herendeen v. Champion International Corp., 525 F.2d 130, 133-34 (2d Cir.1975) (footnotes omitted).

C.

In this case, res judicata bars many of the claims asserted against Merrill Lynch notwithstanding the fact that Michelson was not afforded an opportunity to present his case to a jury in New Mexico, or the fact that five of Michelson’s counterclaims were dismissed without prejudice. Merrill Lynch obtained a final judgment on the merits in the New Mexico proceeding dismissing with prejudice eleven of Michelson’s counterclaims (counts I-VIII & XIII-XV), and awarding Merrill Lynch summary judgment on its pleading. See Merrill Lynch v. Michelson, No. 80-095 HB (D.N.M. Oct. 21, 1983), affd mem., Nos. 83-2473 & 83-2595 (10th Cir. Jan. 22,1985), reprinted in Merrill Lynch’s Reply Letter in Support of Its Motion to Dismiss, May 29, 1985, at Exhibits 1 and 3. Claims adjudicated through summary judgment are regarded as final judgments on the merits, see, e.g., Weston Funding Corp. v. Lafayette Towers, Inc., 550 F.2d 710, 713-15 (2d Cir.1977) (noting that dismissals of claims prior to trial may be on the merits), and thus may be accorded res judicata effect. While Michelson is correct that the five counterclaims dismissed without prejudice were not final adjudications on the merits, see In re Greenwald, 48 B.R. 263, 270 (S.D.N.Y.1984), res judicata bars Michelson from attempting to litigate again claims of his which were dismissed with prejudice after full consideration in the New Mexico proceeding.

The claims in Michelson’s complaint most obviously barred on res judicata grounds are those which Judge Bratton previously dismissed with prejudice in his 1982 decision. See Merrill Lynch v. Michelson, No. 80-0095 (D.N.M. Aug. 12, 1982), reprinted in Merrill Lynch’s Memorandum of Law, at Exhibit C. Michelson seeks to re-plead these claims in this action as counts XXV-XXXII and they are dismissed with prejudice.

Similarly precluded for reasons of res judicata are the counts in the complaint relating to Merrill Lynch’s issuance of proper and accurate margin calls and the propriety of Merrill Lynch’s decision to liquidate Michelson’s account that might have been litigated or adjudicated in the New Mexico proceedings. Count XXII falls into this category by alleging that Merrill Lynch breached its contract with Michelson when it liquidated his account. Although Judge Bratton found that a fact question existed as to this issue, see note 3 supra, and dismissed the corresponding counterclaim without prejudice, we now hold that res judicata bars Michelson’s claim because a finding adverse to Merrill Lynch on this issue would impair or destroy rights or interests acquired when Judge Bratton awarded Merrill Lynch judgment on its pleading.

The same reasoning applies to counts XXIII and XXIV, which allege that Merrill Lynch did not take delivery of silver related to Miehelson’s account and that this conduct was a breach of contract (count XXIII) and a fraud perpretrated upon Michelson contrary to Section 4b of the Commodity Exchange Act, 7 U.S.C. § 6b (1982), (count XXIV). Additionally, counts XXXV and XXXVI allege that Merrill Lynch conducted unauthorized trades in Michelson’s account which respectively were in violation of Commodity Exchange Act Section 4b and were negligent. All four claims relate exclusively to the fact that Merrill Lynch actually liquidated Michelson’s account and therefore cannot be re-litigated here. Accordingly, counts XXII-XXIV and XXXV-XXXVI are also dismissed with prejudice.

Merrill Lynch also moves to dismiss on res judicata grounds five claims asserted against all the defendants to the extent that they relate to or arise out of Michelson’s account with Merrill Lynch. Counts III and VII allege that Merrill Lynch, its fellow brokers, and the Exchanges respectively violated the Robinson-Patman Act, 15 U.S.C. § 13 (1982), and New Mexico’s anti-price discrimination statute, N.M. STAT.ANN. §§ 57-14-1 to 57-14-9, by discriminating on the basis of price among purchasers of silver. While these claims appear to relate to the complaint’s allegations that Merrill Lynch participated in the general conspiracy among the defendants to increase silver prices, Merrill Lynch’s motion to dismiss these claims is granted in part to the extent that they relate to Merrill Lynch’s decision to liquidate Michelson’s account.

Merrill Lynch’s motion to dismiss counts XII, XIII, and that portion of count IX asserted against all the defendants is also granted in part to the same extent and for the same reason discussed above. In addition, the remaining portion of count IX, which alleges that Merrill Lynch accelerated Michelson’s payment on his account in bad faith contrary to New Mexico law, N.M.STAT.ANN. § 55-1-208, is barred for reasons of res judicata in light of Judge Bratton’s finding that Merrill Lynch’s margin calls upon Michelson’s account were not improper. See Merrill Lynch v. Michelson, No. 80-0095 HB, slip op. at 3 (D.N.M. Aug. 12, 1982), reprinted in Merrill Lynch’s Memorandum of Law, at Exhibit C.

As to the remaining claims which Merrill Lynch moves to dismiss, while they may be based upon unlawful conduct other than Merrill Lynch’s decisions to issue margin calls and to liquidate Michelson’s account — issues conclusively adjudicated in the New Mexico proceedings, Michelson has not described with sufficient particularity the acts of Merrill Lynch that purport to be the bases for these claims. Accordingly, counts XIV-XV, XXI and XXXIII will be dismissed with prejudice unless within thirty days of the date of filing of this Memorandum Michelson amends his complaint to re-plead these claims with required particularity.

Finally, Merrill Lynch moves to strike twenty-two paragraphs of factual allegations (complaint paras. 90-92, 96, 98, 108-111, 113-18, 121-24, 126-27 & 136, at 29-31, 33-36 & 38) on the ground that they are prohibited by collateral estoppel as a result of Judge Bratton’s findings. In light of the foregoing findings, we question the utility of undertaking a lengthy analysis of which of the above paragraphs are precluded by the New Mexico proceedings. A decision as to this aspect of Merrill Lynch’s motion is accordingly reserved pending a conference with counsel to consider further the issue.

Accordingly, Merrill Lynch’s motion to dismiss counts III, VII, IX, XII-XV and XXI-XXXVI is granted and decision is reserved as to the remainder of its motion.

III.

THE EXCHANGES

The Exchange defendants, the Chicago Board of Trade (“CBOT”) and the Commodity Exchange, Inc. (“COMEX”), move to dismiss the entire complaint against them on the ground that Michelson has not alleged that bad faith tantamount to fraud was the dominant motivation underlying their conduct. They cite in support of their position Sam Wong & Son v. New York Mercantile Exchange, 735 F.2d 653 (2d Cir. 1984) (hereinafter “Sam Wong ”), affg in part and rev’g in part, Jordan v. New York Mercantile Exchange, 571 F.Supp. 1530 (S.D.N.Y.1983). The Exchanges contend that the complaint fails to plead that the actions taken by them during the period in issue were motivated predominantly by self-interest.

The complaint pleads both that the Exchanges undertook actions in order to further the conspiracy among the defendants to corner the supply of silver in the world market, and also that the Exchanges failed to take emergency action soon enough to preserve an orderly silver market. The allegedly wrongful acts of the Exchanges include: that in September 1979, the Exchanges, aware of unusual trading activity in the silver market, wilfully or negligently increased the maximum permissible limits for daily price fluctuations (complaint paras. 27-29, at 17-18); that the Exchanges altered margin requirements in furtherance of the conspiracy (complaint para. 41, at 20); and that the Exchanges finally took action in January of 1980 when silver prices reached their peak (complaint para. 51, at 22).

The Court of Appeals for this Circuit has recently established the pleading standard for claims against commodity exchanges and their officials who have taken unlawful actions. “[W]hen self-interest or other ulterior motive unrelated to proper regulatory concerns is alleged to constitute the sole or the dominant reason for the exchange action, a complaint is sufficient even though the action was not beyond the bounds of reason.” Sam Wong, supra, 735 F.2d at 677; see also Bishop v. Commodity Exchange, Inc., 581 F.Supp. 1278, 1279 (S.D.N.Y.1984). We agree with the defendants that Michelson has not alleged that “the sole or the dominant reason” supporting the Exchanges’ actions was self-interest or ulterior motive, and we accordingly find that the complaint’s allegations of Exchange misconduct are insufficient to state a claim against them.

As to Michelson’s allegations regarding the Exchanges’ failure to take emergency actions, the complaint’s principal allegation is that the Exchanges were aware of the unusual silver trading activity responsible for the rise in prices and instability in the market, that the Exchanges were under a duty to take “emergency actions” to preserve an orderly market in view of the past business practices of the Hunts and Conti, and that such actions were either not taken, untimely, piecemeal, or were taken in bad faith (complaint para. 78, at 27).

The Exchanges argue that the thrust of Michelson’s complaint seems to be that action was not taken soon enough. See Exchanges’ Memorandum of Law in Support of Motion to Dismiss at 7. They urge us to adopt Judge Friendly’s reasoning in Sam Wong, supra, and hold that there exists no private right of action under the Commodity Exchange Act against an exchange for not acting “soon enough.”

Judge Friendly, writing for the Sam Wong court, pointed out that Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982) (hereinafter “Curran ”), endorsed a line of cases holding that a private right of action may be brought against an exchange for failing to maintain an orderly silver market by not enforcing provisions of the CEA, CFTC regulations or contract market rules. Sam Wong, supra, 735 F.2d at 670 (citing Miller v. New York Produce Exchange, 550 F.2d 762, 766-67 (2d Cir.), cert. denied, 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80 (1977)); accord Gordon v. Hunt, 558 F.Supp. 122, 123-24 (S.D.N.Y.1983); Strax v. Commodity Exchange, Inc., 524 F.Supp. 936, 943 (S.D.N. Y.1981). He went on to note:

The question whether a private right of action should be available for failure by the [New York Produce] Exchange to take emergency action as soon as it should is closer. Although Miller [v. New York Produce Exchange] assumed such a right of action, substantial arguments can be made to the contrary. No rule of the Exchange expressly required it to take such action. Just as we have concluded that Congress deemed § 8a(7), 7 U.S.C. § 12a(7), empowering the CFTC to order the making of new rules, to be a sufficient remedy for an exchange’s failure to do this, it could well have considered § 8a(9), 7 U.S.C. § 12a(9), empowering the CFTC to direct a contract market to take emergency action, to be sufficient to deal with the problem of an exchange’s dilatoriness in exercising its own powers. Here again the silence of the 1982 statute is evidence that Congress has no wish for a private cause of action for a failure by an exchange to exercise its discretionary power to declare an emergency as soon as plaintiff thinks it should.

Sam Wong, supra, 735 F.2d at 670.

The foregoing analysis has led us recently to question whether a plaintiff in another one of the silver cases could state a claim against an exchange based upon the allegation that the exchange acted too late when it acted in January of 1980 to stabilize the volatile silver market. See de

Atucha v. Commodity Exchange, Inc., 608 F.Supp. 510, 512 & n. 5 (S.D.N.Y.1985) (citing Sam Wong). In this case we agree with the Exchanges that for the reasons stated above by Judge Friendly, the allegation of failure by an exchange to take emergency action is insufficient in itself to state a claim against the Exchanges.

On the other hand, a complaint alleging that an exchange, out of its own self-interest, intentionally failed to maintain an orderly market in silver futures contracts, in violation of the Commodity Exchange Act and the CFTC’s and exchange’s rules and regulations, would appear to state a viable private right of action against the exchange. See, e.g., Gordon v. Hunt, supra, 558 F.Supp. at 123-24; see also Curran, supra, 456 U.S. at 371, 102 S.Ct. at 1835; Minpeco, S.A. v. ContiCommodity Services, Inc., 552 F.Supp. 332, 340 (S.D.N.Y.1982). In view of the difficulties confronting pro se litigants like Michelson, the complaint against the Exchanges will be dismissed with prejudice unless within thirty days of the date of filing of this Memorandum Michelson amends his complaint in order to cure the deficiencies noted herein.

IV.

“CERTAIN DEFENDANTS”

Nine of the non-exchange defendants listed in note 2 supra move to dismiss eight of the counts asserted against them (counts III, VII, IX-XIII & XVI) for failure to state claims upon which relief can be granted.

A. The Robinson-Patman Act (Count III)

Count III of the complaint alleges that the broker and exchange defendants discriminated in price “or in other ways” among purchasers of silver in violation of 15 U.S.C. § 13. The defendants contend that this allegation fails to state a claim under the Robinson-Patman Act, 15 U.S.C. § 13 (1982), because the Act prohibits price discrimination among “purchasers of commodities” and the services provided by brokers are not considered “commodities” within the scope of the Act. They cite in support of their position Gordon v. New York Stock Exchange, Inc., 498 F.2d 1303, 1305 n. 7 (2d Cir.1974), aff'd on other grounds, 422 U.S. 659, 95 S.Ct. 2598, 45 L.Ed.2d 463 (1975).

The Robinson-Patman Act makes it “unlawful for any person engaged in commerce ... to discriminate in price between different purchasers of commodities of like grade and quality.” 15 U.S.C. § 13(a) (1982). In Gordon v. New York Stock Exchange, supra, then-Chief Judge Kaufman noted that “there is no precedent for the assertion that brokerage services are ‘commodities’ within the meaning of the Robinson-Patman Act.” 498 F.2d at 1305 n. 7.

Count III fails to specify the manner in which the broker and exchange defendants discriminated on the basis of price among silver purchasers. As a result, the only inference which can be drawn from a fair reading of the complaint is that these defendants provided services to their customers which differed depending upon the size of the customer account. We agree with the defendants that such an inference, discrimination among purchasers of brokerage services, does not support a claim under the Robinson-Patman Act and accordingly dismiss count III.

B. New Mexico Law (Counts VII, IX & XVI)

While the non-exchange defendants have moved to dismiss three of Michelson’s pendent state law claims on the merits for failure to state causes of action, we find that the Constitution’s due process clause bars the application of New Mexico law as to six of these defendants: ACLI, Placid Oil, and the four Hunts. In Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (2d Cir.1962), cert, denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963), the Court of Appeals held:

[A] state with substantial ties to a transaction in dispute has a legitimate constitutional interest in the application of its own rules of law. If, indeed, those connections are wholly lacking or at best tenuous, then it may be proper to conclude that the state has exceeded its constitutional power in applying its local law. See, e.g., Home Insurance Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930); Currie, “The Constitution and the Choice of Law: Governmental Interests and the Judicial Function,” 26 U.Chi. L.Rev. 9, 75 (1958).

309 F.2d at 559.

In this case, the six non-exchange defendants listed above were dismissed from the New Mexico proceeding which Michelson initiated in July of 1983, before the court sua sponte ordered the action transferred to this District, because, inter alia, they lacked the requisite “minimum contacts” with New Mexico to establish personal jurisdiction over them via the state’s long-arm statute. See Michelson v. Merrill Lynch, Pierce, Fenner and Smith, No. 83-1099-M Civil (D.N.M. Oct. 7, 1983); id. (D.N.M. Oct. 28, 1983); id. (D.N.M. Nov. 10, 1983). Notwithstanding that Michelson resides in New Mexico and was allegedly injured there, the New Mexico court held that the facts were insufficient to establish that a cause of action had arisen in New Mexico. See id., slip op. at 3-5 (D.N.M. Oct. 7, 1983), reprinted in the Exchange Defendants’ Memorandum of Law in Support of Their Motion to Dismiss, at Exhibit C.

In light of this determination, we now find that the nexus between the Hunts, Placid Oil, ACLI and New Mexico is sufficiently tenuous so as to preclude Michelson as a matter of due process from relying upon the law of New Mexico as a basis for recovering from them. Although it is not a premise of the foregoing determination, we note that it is unlikely Michelson will be prejudiced by this finding because many of the New Mexico claims simply mirror his surviving federal causes of action. Accordingly, the complaint’s pendent state law claims will be dismissed with prejudice as to the Hunts, Placid Oil and ACLI, unless Michelson amends his complaint within thirty days of the filing of this Memorandum to assert pendent claims under the law of New York.

With regard to the four remaining moving defendants (Merrill Lynch, Fustok, Prudential Bache and International Metals), we have not been presented with the necessary facts to determine whether claims against them based upon New Mexico law can survive. Accordingly, we reach no decision on their motion on this ground but leave it to the parties to file supplementary affidavits relating to the relevant facts if they wish to do so.

C. The Commodity Exchange Act (“CEA”) (Counts X and XI)

1. Private Rights of Action Under CEA §§ 6(c) & 13(b)

Count X of the complaint alleges that the acts of all of the defendants constituted an illegal manipulation, an attempt to manipulate, or a conspiracy to manipulate the price of silver in violation of Sections 6(c), 9(b) and 13(b) of the Commodity Exchange Act. 7 U.S.C. §§ 13b, 13(b) & 13c(b). The defendants move to dismiss the portion of this claim based on CEA Sections 6(c) and 13(b) on the ground that there exists no private right of action under those sections.

Section 13(b) provides in relevant part: Any person who, directly or indirectly, controls any person who has violated any provision of this chapter or any of the rules, regulations, or orders issued pursuant to this chapter may be held liable for such violation in any action brought by the [Commodities Futures Trading] Commission to the same extent as such controlled person.

7 U.S.C. § 13c(b) (1982) (emphasis added).

The section unambiguously provides for an administrative forum, that is, the Commodities Futures Trading Commission (“CFTC”), to impose sanctions upon principals who control agents engaging in prohibited activities. We therefore find, for the reasons set forth in Strax v. Commodity Exchange, Inc., supra, 524 F.Supp. at 944, that there exists no private right of action under Section 13(b) of the CEA.

The same reasoning applies to CEA Section 6(c), which provides in relevant part:

If any person (other than a contract market) is manipulating or attempting to manipulate or has manipulated or attempted to manipulate the market price of any commodity, in interstate commerce, or for future delivery on or subject to the rules of any contract market, or otherwise is violating or has violated any of the provisions of this chapter or of the rules, regulations, or orders of the [Commodities Futures Trading] Commission thereunder, the Commission may, upon notice and hearing ... make and enter an order directing that such person shall cease and desist therefrom

7 U.S.C. § 13b (1982) (emphasis added).

Again, the language of the provision unambiguously states that the CFTC is empowered to issue cease and desist orders and provides no basis for a private right of action. Cf. Strax v. Commodity Exchange, Inc., supra, 524 F.Supp. at 944. Accordingly, the defendants’ motion to dismiss portions of count X is granted.

2. CEA § 4b

The non-exchange defendants also move to dismiss that portion of count XI alleging that the acts and conduct of all of the defendants “operated as a devise [sic] to cheat or defraud” contrary to Section 4b of the CEA, 7 U.S.C. § 6b (1982), through their creation of a corner, or attempt to corner the silver market. The defendants contend that the complaint does not plead the elements necessary to state a claim under Section 4b.

In ACLI International Commodity Services, Inc. v. Banque Populaire Suisse, 550 F.Supp. 144 (S.D.N.Y.1982), Judge Sofaer relied upon Judge Friendly’s analysis of Section 4b in Leist v. Simplot, 638 F.2d 283, 322-23 (2d Cir.1980), aff'd sub nom. Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982), as a basis for noting that “plaintiffs under § 4b must be persons defrauded in connection with a futures transaction conducted on their behalf, not simply any person defrauded in connection with any futures contract.” ACLI, 550 F.Supp. at 145. Judge Sofaer went on to hold that a plaintiff who wishes to state a claim under CEA Section 4b “must allege fraud in a commodities transaction conducted for himself, or on his own behalf.” See id. at 146.

We adopt this analysis and find that count XI does not allege facts sufficient to satisfy this pleading standard. Michelson’s complaint relies upon a conclusory allegation that the defendants’ acts amounted to fraud as a result of their efforts to corner the silver market. This allegation fails to specify the relationship between the parties so as to give rise to a cause of action under Section 4b. See Leist v. Simplot, supra, 638 F.2d at 323. That portion of count XI will accordingly be dismissed with prejudice unless within thirty days of the filing of this Memorandum Michelson re-pleads the claim to allege the nature of his relationship with the defendants which gives rise to a Section 4b claim.

We note the possibility that because res judicata prevents Michelson from challenging the propriety of Merrill Lynch’s decision to issue margin calls or to liquidate his account, he may be unable to allege a cause of action under this provision.

D. RICO (Counts XII and XIII)

Defendants’ motion to dismiss counts XII and XIII, alleging that all of the defendants violated the federal RICO statute, 18 U.S.C. §§ 1961-68 (1982), is denied. Defendants’ rely upon the pleading standard set forth by the Court of Appeals for the Second Circuit in Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482 (2d Cir.1984), which has since been overturned by the Supreme Court’s recent decision. Id., — U.S. —, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). The criminal conviction of a defendant is no longer one of the predicate allegations necessary to support a RICO claim.

Accordingly, the nine non-exchange defendants’ motion to dismiss is granted as to counts III and X, will be granted as to count XI unless Michelson re-pleads the claim within thirty days, granted in part and reserved in part as to counts VII, IX and XVI, and denied as to counts XII and XIII.

V.

CONHEENY, CONTICOMMODITY SERVICES INC. & WALTUCH

The motions of defendants John J. Con-heeny, ContiCommodity Services Inc. (“Conti”) and Norton Waltuch to quash service and to dismiss the complaint are granted. So as to place the motions, and this decision, in context, we recount some of the finer details of the action’s procedural history.

After this case was transferred here from New Mexico in December of 1983, Michelson was ordered, at a status conference held on February 3, 1984, to re-serve process upon those defendants who had been dismissed from the New Mexico proceeding for lack of personal jurisdiction. Michelson attempted to effect personal service upon these defendants by mailing copies of a summons and complaint to their respective law firms in March of 1984. Counsel to the defendants then wrote to us to object to the form of service on the ground that they were not authorized by their clients to accept service of process on their behalf. Michelson contested these assertions by, inter alia, filing default motions and “Requests for Admissions” directed at a number of defendants during the summer of 1984, and in September of 1984 we advised all counsel by letter that defendants contesting the sufficiency of Miehelson’s service should move to dismiss. Motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) were subsequently filed by ACLI, Conheeny, Conti, the Exchanges, the Hunts, Placid Oil, and Waltuch.

In December of 1984, we advised counsel of the need to conduct a hearing to resolve factual disputes between the parties. At the hearing conducted on January 30, 1985 Michelson was granted until March 15, 1985 to re-serve the defendants. After the hearing concluded, we attempted to assist Michelson by ordering the United States Marshal to “serve copies of the summons and complaint in this action on such defendants as the plaintiff requests the marshal to serve.” Michelson v. Merrill Lynch, No. 83 Civ. 8898 (MEL) (S.D.N.Y. hearing of Jan. 30, 1985).

Conheeny, Conti and Waltuch premise their motions upon Michelson’s continuing inability to perfect service of process upon them. The supporting affidavit of Richard Rosen of Paul, Weiss, Rifkind, Wharton & Garrison, then counsel to Conti and Wal-tuch, states that Michelson attempted to re-serve these defendants by leaving copies of a summons and complaint at an address in New York City, Four World Trade Center, at which the defendants no longer conduct business. William R. Glendon of Rogers & Wells, counsel to Conheeny, has submitted an affidavit stating that he received an envelope addressed to him in care of his law firm postmarked March 13, 1985 containing a copy of the complaint and a document entitled “certificate of service.” Glendon goes on to state that neither he nor his law firm has ever been authorized by Conheeny to accept service of process on his behalf. In addition, Conheeny has submitted an affidavit stating that he has never been personally served in this action in either New York or New Mexico.

Michelson, in a response filed on May 13, 1985 to Conti’s and Waltuch’s motion, concedes that the Marshal’s office returned to him a summons and complaint noting that Conti and Waltuch no longer conducted business at Four World Trade Center. He also states that he attempted to reserve both defendants on the same date that he prepared his response to their motion to dismiss.

While we are not unmindful of the special difficulties which confront pro se litigants, Michelson, like all parties to a litigation, cannot rely upon his pro se status as a shield from all mistakes but must at some point bear the consequences of his procedural errors. That point has been reached in this case. Michelson has been afforded numerous opportunities, over a period of more than one year, to correct the deficiencies in his methods of service. The defendants have repeatedly alerted Michelson to the flaws in his service of process and we have undertaken special efforts to assist him. Regrettably, however, Michelson has been unable or unwilling to cure the problems which prevent the attachment of jurisdiction over the moving defendants. See SEC v. Gilbert, 82 F.R.D. 723, 726 (S.D.N.Y.1979) (“jurisdiction attaches only when a defendant is properly served with the summons and complaint in an action.”).

Michelson’s attempt to re-serve Conheeny through his law firm fails to satisfy the requirements of Federal Rule of Civil Procedure 4 or New York law, which is governed by CPLR Section 308. Glen-don’s affidavit establishes that neither he nor Rogers & Wells are agents “authorized by appointment or by law to receive service of process.” Fed.R.Civ.P. 4(d)(1); see also Gibbs v. Hawaiian Eugenia Corp., 581 F.Supp. 1269, 1271 (S.D.N.Y.1984). The affidavit submitted by Conheeny further establishes that he was not personally served.

Similarly, the Rosen affidavit demonstrates that Michelson’s service of process upon Conti’s and Waltuch’s former place of business was insufficient both under Rule 4 and New York law. See generally Leab v. Streit, 584 F.Supp. 748, 759-60 (S.D.N.Y.1984) (discussing New York cases). Additionally, Michelson failed to make any effort to correct his problem as to Conti and Waltuch until some time in early May of 1985, more than six weeks after the March 15 cut-off date for re-serving the defendants.

For the foregoing reasons, Conheeny’s, Conti’s and Waltuch’s motions to quash service of process are granted, and because jurisdiction has not attached, their motions to dismiss the complaint are also granted.

* sfc sis * % *

In sum, Merrill Lynch’s motion to dismiss counts III, VII, IX, XII-XV and XXI-XXXVI is granted in part, and decision is reserved as to that portion seeking to strike factual allegations; the motion to dismiss by the nine nonexchange defendants is granted as to counts III and X, granted in part and reserved in part as to counts VII, IX and XVI, and denied as to counts XII and XIII; the motions of John J. Conheeny, ContiCommodity Services Inc., and Norton Waltuch to quash service and dismiss the complaint are granted. Finally, Merrill Lynch’s motion to dismiss counts XIV-XV, XXI and XXXIII, the motion made by the Hunts, Placid Oil and ACLI to dismiss the pendent state law claims, the Exchange defendants’ motion to dismiss the complaint against them and the nine non-exchange defendants’ motion to dismiss count XI will be granted unless within thirty days of the filing of this Memorandum Michelson amends his complaint in accordance with the ruling above. The defendants should submit appropriate orders of dismissal on November 1, 1985 if Michelson has not filed an amended complaint by that date.

It is so ordered.

      . They are: Merrill Lynch, Pierce, Fenner & Smith, Inc. ("Merrill Lynch”), Nelson Bunker Hunt, William Herbert Hunt, Douglas Herbert Hunt, Lamar Hunt (hereinafter collectively referred to as "the Hunts”), International Metals Investment Co. Ltd. ("International Metals”), John J. Conheeny, Conti-Commodity Services Inc., Conti-Capital Management Inc., Conti-Capi-tal Ltd., Norton Waltuch, Gilian Financial, ACLI International Commodity Services Inc. (“ACLI"), Prudential-Bache Securities, Inc. ■ ("Prudential-Bache”), Sheik Mohammed Aboud Al Amoudi, Sheik Ali Bin Mussalem, Mahmoud Fustok, Prince Faisal Bin Abdullah, Naji Robert Nahas, Banque Populaire Suisse, Advicorp Advisory and Financial Corp. S.A. ("Advicorp"), Placid Oil Co. ("Placid Oil”), and Commodity Exchange, Inc. and the Chicago Board of Trade (hereinafter collectively referred to as “the Exchanges”).

      . ACLI, International Metals, the Hunts, Placid Oil, Fustok, and Prudential-Bache.

      . The five counterclaims determined to involve fact questions were based upon breach of contract (counts IX & X), Merrill Lynch’s efforts to manipulate the silver market contrary to Sections 8, 9 and 13 of the Commodity Exchange Act (count XI), Merrill Lynch’s alleged execution of a fictitious sale and/or an accommodation trade in violation of Section 4c of the Commodity Exchange Act (count XII), and violations of federal antitrust law (count XVI). Judge Bratton did not elaborate on the nature of these fact questions.

      . Merrill Lynch does not move to dismiss those claims alleging violations of federal and New Mexico antitrust laws (counts I — II, IV-VI & VIII). Merrill Lynch also joins in most of the motion of "Certain Defendants" to dismiss all or part of eight claims in the complaint, three of which (counts X, XI & XVI) are in addition to the twenty-three claims covered by Merrill Lynch’s motion. Disposition of the motion of “Certain Defendants” is discussed infra.

      . See summary sheet attached to Merrill Lynch’s Reply Letter in Support of Its Motion to Dismiss, May 29, 1985, at Exhibit 4.

      . The related doctrine of collateral estoppel also bars parties from relitigating an issue of law or fact "that was raised, litigated, and actually decided by a judgment in a prior proceeding between the parties, if the determination of that issue was essential to the judgment, regardless of whether or not the two proceedings are based on the same claim.” NLRB v. United Technologies Corp., 706 F.2d 1254, 1260 (2d Cir. 1983).

      . The following claims in Michelson’s current complaint match the counterclaims dismissed with prejudice by Judge Bratton in his August 12, 1982 opinion:
      Current Claim Dismissed Counter-Claim
      XXV XXXI
      XXVI II
      XXVII III
      XXVIII IV
      XXIX V
      XXX VI
      XXXI XIII
      XXXII XIV
      XXXIV XV

        See Merrill Lynch's Memorandum of Law in Support of Its Motion To Dismiss, at Exhibit F.

      . That portion of count IX alleges that all of the defendants engaged in deceptive and unconscionable trade practices contrary to New Mexico law, N.M.STAT.ANN. § 57-12-3. Counts XII and XIII allege that all of the defendants have violated the federal RICO statute, 18 U.S.C. §§ 1961-68 (1982), based upon unlawful interference with commerce by violence, threats or extortion contrary to 18 U.S.C. § 1951 (1982) (count XII), and by mail or wire fraud contrary to 18 U.S.C. §§ 1341 & 1343 (1982) (count XIII).

      . Counts XIV and XV seek treble damages under New Mexico’s civil RICO law, N.M.STAT. ANN. §§ 30-42-1 to 30-42-6, by alleging respectively that Merrill Lynch engaged in, and attempted to engage in, acts of fraud and/or extortion prohibited under New Mexico criminal statutes, N.M.STAT.ANN. §§ 30-16-6 (fraud) & 30-16-9 (extortion). Count XXI alleges that Merrill Lynch breached its contract with Michelson as a result of the manner in which it dealt with his account from 1976 through January 10, 1980.
      Count XXXIII alleges that Merrill Lynch and the Exchanges violated section 4c of the Commodity Exchange Act, 7 U.S.C. § 6c (1982), because on January 10, 1980, the day his account was liquidated, there were no bona fide buyers and sellers in the Chicago Board of Trade’s silver market. As a result, the execution of the trade liquidating his account was a fictitious sale and/or accommodation trade prohibited under the Act. We note that Michelson has alleged Merrill Lynch executed “wash sales" to maintain the appearance of a legitimate silver market, see complaint paras. 130-31, at 37, and that such a claim might support a section 4c claim, provided, of course, that a private right of action is available under this provision. Count XXXIII, however, addresses only Merrill Lynch’s act of liquidating Michelson’s account and, for the reasons discussed above, is barred by res judicata. In light of this finding, we do not address Merrill Lynch’s arguments that CEA section 4c does not confer a private right of action upon Michelson.

      . Merrill Lynch also argues that counts XIV, XV and XXXIII should be dismissed for failure to state a claim. We reserve decision as to these issues in light of the above disposition, although Merrill Lynch is referred to our denial of the non-exchange defendants’ motion to dismiss Michelson’s federal RICO claims discussed infra.

      . Judge Friendly concluded, however, that it was unnecessary for the court to decide this question because even if there did indeed exist a private right of action for "failure to declare or undue delay in declaring an emergency” the complaint in issue had failed to allege that the defendants acted in bad faith. See Sam Wong & Son v. New York Mercantile Exchange, 735 F.2d 653, 670 (2d Cir.1984).

      . See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (per curiam) (noting that pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers).

      . In light of the above disposition we do not reach the merits of the additional arguments raised by the Exchanges in support of dismissing individual claims asserted against them. However, since these arguments may have to be addressed in the not-too-distant future, and since Michelson will have the opportunity to propose amendments to his pleading, it is worthwhile to make the following observations: (1) It is questionable whether the complaint adequately alleges antitrust claims against the Exchanges for the reasons set forth in Minpeco, S.A. v. ContiCommodity Services, Inc., 552 F.Supp. 327, 331-32 (S.D.N.Y.1982). (2) Michelson’s Commodity Exchange Act claims may not be untimely as a matter of law because a question of fact appears to exist as to whether the equitable doctrine of tolling precludes the application of the relevant statute of limitations, see Stephens v. Clayton Brokerage Co., No. 82-5786, slip op. at 11-12 (N.D.Ill. Jan. 6, 1984), reprinted in the Exchange Defendants’ Memorandum of Law In Support of Their Motion To Dismiss, at Exhibit B. In any event, for the reasons discussed infra, the complaint fails to allege a private right of action under Sections 6(c) and 13(b) of the Commodity Exchange Act. (3) The dismissal of the Exchanges from the New Mexico proceeding for lack of personal jurisdiction before the case was transferred here suggests that the Exchanges cannot be held liable to Michelson under New Mexico law, see Pearson v. Northeast Airlines, Inc., 309 F.2d 553, 559 (2d Cir.1962), cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963). Finally, (4) the Supreme Court's recent ruling in Sedima, S.P.R.L. v. lmrex Co., — U.S. —, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), may allow Michelson to assert a RICO claim against the Exchanges.

      . The complaint alleges a violation of the Clayton Act.

      . The Fourteenth Amendment bars any state from depriving "any person of life, liberty, or property, without due process of law." U.S. Const, amend. XIV, § 1.

      . This argument was made by the Exchange defendants in support of their motion to dismiss the complaint’s New Mexico state law claims.

      . Although the complaint alleges violations of CEA sections 6c, 9b and 13b, we agree with the defendants that Michelson intended to allege the violations of the provisions noted in the text.

      . Although the parties make no mention of the fact in their briefs, we note that Section 13(b) of the CEA was not in effect in 1979-80 when the acts Michelson complains of are alleged to have taken place. See Futures Trading Act of 1982, § 230, Pub.L. No. 97-444, 96 Stat. 2294, 2319 (effective Jan. 11, 1983). This provides yet another ground for a finding that there exists no private right of action under Section 13(b).

      . Our records contain no response by Michelson to Conheeny’s motion to dismiss. Nevertheless, it is highly unlikely that Michelson could proffer an argument that would justify denying Conheeny’s motion.


source: Caselaw Access Project

author: FEIKENS, Chief Judge.

license: Public Domain

text:
    Mearl L. LEE, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. A. No. 85-CV-70020-DT.
    United States District Court, E.D. Michigan, S.D.
    Oct. 3, 1985.

      Jack A. Nolish, Meklir, Schreier & Nol-' ish, Southfield, Mich., for plaintiff-
    Ross I. Mackenzie, Asst. U.S. Atty., Detroit, Mich., for defendant.
   MEMORANDUM OPINION AND ORDER

FEIKENS, Chief Judge.

I have reviewed the record and Magistrate Binder’s Report and Recommendation in this case. Although I have decided to accept the Magistrate’s Report and Recommendation, the recent decision of Farris v. Secretary of Health and Human Services, 773 F.2d 85 (6th Cir.1985), requires that I add to the Magistrate’s analysis.

In Farris, a panel of the Sixth Circuit limited the operation of the severity regulation, 20 C.F.R. § 416.921 (1985), by ruling that an impairment is not severe “only if the impairment is a ‘slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education and work experience.’ ” Farris, supra, at 89 (quoting Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.1984)). In the case now before me, the AU did not apply the “slight abnormality” standard of severity, but rather the literal standard of the regulation, finding that the claimant suffered from no impairment or combination of impairments that “significantly limit her ability to perform basic work-related activities. . . .” (TR 12). Although I find that the record contains substantial evidence to support this finding of the AU, the Farris severity standard prevents me from entering judgment for the Secretary on the sole basis of this fact.

Because the AU applied an improper standard of severity, I must decide whether to remand the case to the Secretary for additional findings, or to decide the case myself on the parties’ cross motions for summary judgment. Under 42 U.S. C.A. § 405(g) (West 1983), I have the power to do either:

The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.

Cf. Guy v. Schweiker, 532 F.Supp. 493, 498 n. 1 (S.D.Ohio 1982) (where the ALJ applied an improper legal standard, remand to the Secretary lies within the discretion of the court); Bailey v. Secretary of H.E.W., 472 F.Supp. 399, 401 (E.D.Pa.1979) (remand to the Secretary not required where “remand would afford the plaintiff no realistic possibility of altering the Secretary’s decision” because the record contained substantial evidence to support denial of disability on grounds other than the incorrect grounds relied upon by the AU).

In the instant ease, as in Bailey, remand would accomplish nothing but the unnecessary waste of already scarce administrative and judicial time. Although the plaintiff herself testified to impairments that would preclude her return to work, the AU was justified in discounting this testimony because of a lack of supporting medical and clinical evidence. (TR 11-12). Without such medical and clinical evidence to support her testimony, the plaintiff fails to make out her prima facie case of inability to perform her usual work. Cf. Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980) (“Convincing proof, consisting of lay testimony supported by clinical studies and medical evidence, that pain occasions a claimant’s inability to perform his or her usual work is sufficient to make a prima facie case.”). Of course, since the plaintiff failed to make out a prima facie case, she also failed to carry her burden of persuading the trier of fact that she suffers from a disability which prevents her from performing any substantial gainful employment. Cf. Allen, 613 F.2d at 145 (plaintiff bears burden of proving a disability preventing her pursuit of gainful employment).

Even assuming that the plaintiff established a prima facie case, the record contains substantial evidence upon which the AU could base a conclusion that the plaintiff is not disabled because she is able to perform work, other than her usual work, available in the national economy. The plaintiff is of advanced age (being 58 years old at the time of hearing), possesses a limited education, and possesses skills transferable into available light work jobs. (TR 25, 50-57). Light work requires the ability to lift up to 20 pounds, and the ability to lift or carry up to 10 pounds frequently. See 20 C.F.R. § 404.1567(b) (1985). The record contains substantial evidence to support a finding that the plaintiff is able to perform light work. Using these factors, the Medical-Vocational Guidelines (Rule 202.03) dictate a finding of “not disabled.” See 20 C.F.R. § 404, Subpart P, Appendix 2 (1985).

The words of Bailey, 472 F.Supp. at 402, provide a fitting summary:

In short, although the administrative decision was not free from error, I am persuaded that the Secretary’s critical finding — the finding that plaintiff is not under a disability — is supported by substantial evidence. While a remand would allow the Secretary to correct the problems discussed earlier, it seems clear that the critical finding would remain unchanged, and that it would still be supported by substantial evidence. Under these circumstances, rather than remanding the claim for further proceedings, I shall grant the Secretary’s motion for summary judgment.

Accordingly, Plaintiff’s Motion for Summary Judgment is DENIED, and the Secretary’s Motion for Summary Judgment is GRANTED.

IT IS SO ORDERED.


author: SHADUR, District Judge.

text:
    John THOMSON, Plaintiff, v. Lieutenant Earl JONES, et al., Defendants.
    No. 81 C 1279.
    United States District Court, N.D. Illinois, E.D.
    Oct. 4, 1985.
    Sara Johnson, Schiff Hardin & Waite, Chicago, Ill., for plaintiff.
    Thomas A. Ioppolo, Asst. Atty. Gen., Chicago, Ill., for defendants.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

SHADUR, District Judge.

John Thomson (“Thomson”) has sued Stateville Correctional Center (“Stateville”) Lieutenant Earl Jones (“Jones”), Correctional Officer Marvin Baskin (“Baskin”), Sergeant William Sheldon (“Sheldon”) and Warden Richard DeRobertis (“DeRober-tis”) under 42 U.S.C. § 1983 (“Section 1983”), asserting various violations of Thomson’s constitutional rights while Thomson was in custody at Stateville. After a bench trial the parties have supplemented their extensive pretrial submissions by tendering proposed post-trial findings of fact and conclusions of law.

In accordance with Fed.R.Civ.P. (“Rule”) 52(a), this Court finds the facts specially as set forth in the following Findings of Fact (“Findings”) and states the following Conclusions of Law (“Conclusions”). To the extent if any the Findings as stated reflect legal conclusions, they shall be deemed Conclusions; to the extent if any the Conclusions as stated reflect factual findings, they shall be deemed Findings.

Findings of Fact

I. Stipulated Facts and Related Background

1. From April or May 1980 through June 2, 1982 Thomson was an inmate at Stateville in Joliet, Illinois. Since that time Thomson has been an inmate at Pontiac Correctional Center (“Pontiac”).

2. DeRobertis was Acting Warden at Stateville from July 1980 through March 26, 1981. On March 26, 1981 DeRobertis became Warden at Stateville, and he served in that capacity until November 19, 1983.

3. Since some time before January 22, 1981 Baskin has been, and he still is, a guard at Stateville. Baskin was on a medical leave of absence from Stateville between October 13, 1981 and November 1982 because of an automobile accident.

4. For some time before January 22, 1981 Jones, was a guard at Stateville. Jones continued as a guard at Stateville until he resigned September 30, 1981.

5. For some time before January 22, 1981 Sheldon was a guard at Stateville. Sheldon continued as a guard at Stateville until June 8, 1981.

6. Security personnel at Stateville range upward from Correctional Officer or guard (the lowest level) successively through the ranks of Sergeant, Lieutenant, Captain, Major, Unit Superintendent, Assistant Warden for Programs and Operations, and Warden.

7. For some time before January 22, 1981 Thomson resided in Stateville Cell House B-West. He was a maintenance (“cellhouse help”) worker in B-West until that date. At that time Jones told Thomson he was fired from that job and charged Thomson in a resident disciplinary report (“ticket”), which was later dismissed by the Adjustment Committee (PX 10-11). Thomson was returned to cellhouse help work status January 24, the day before the episode that is the main focus of this action and is described in later Findings.

8. Thomson was seen by medical personnel at Stateville on January 25 and 26 and February 5, 1981 (after the January 25 episode to be described later).

9. Illinois Department of Corrections (“Department”) Administrative Regulation (“A.R.”) 410 both (a) forbids prison personnel from using unnecessary force against an inmate and (b) provides that employees who improperly use force against an inmate shall be subjected to immediate disciplinary action. A.R. 803 forbids prison personnel from administering corporal punishment to an inmate. Both those A.R.s are designed for the protection of inmates.

10. A.R. 804 forbids inmates from violating institutional rules.

11. DeRobertis never discussed Thomson, his lawsuit or the facts alleged in Thomson’s Complaint in this action with Jones, Baskin or Sheldon.

12. On October 19, 1981 Department’s Internal Investigations Department concluded Jones and Baskin had used excessive force toward Thomson on at least two separate occasions on January 25, 1981.

13. No disciplinary action was instituted against Jones as a result of his use of excessive force against Thomson. No disciplinary action was imposed on Baskin for his use of excessive force against Thomson or on Sheldon for his alleged harassment of Thomson.

14. All tickets prepared on January 25, 1981 by Stateville employees as to Thomson were either dismissed or expunged.

15. Stateville’s policy requires that all correctional officers be formally reviewed annually.

II. Thomson’s Behavior and His Credibility

16. Thomson received 57 tickets (exclusive of the tickets referred to in Finding 14) between August 1980 and February 1983, for violations of various rules stated in A.R. 804. Except for the November 20, 1981 ticket referred to below (see DX 98 and 99), Thomson was found guilty by the institutional Adjustment Committee of each of the following charges:

DATE OF REPORT REPORTING OFFICER CHARGE
1. August 14, 1980 (DX 12, 13) Off. Holt cursing an officer
2. October 16, 1980 (DX 14, 15) Off. Choate hitting another resident in the eye
3. January 12, 1981 (DX 16, 17) (1:30 p.m.) Off. Holt disrespect to staff and disobeying an order
4. January 12, 1981 (DX 18, 19) (7:36 p.m.) Off. Rosen disobeying an order
5. February 23, 1981 (DX 20, 21) Off. Thomas refusal of transfer to Cell-house C
6. February 26, 1981 (DX 22, 23) Off. Sheldon refusal of transfer to Cell-house C
7. March 4, 1981 (DX 24, 25) Off. Sheldon refusal of transfer to Cell-house C
8. March 7, 1981 (DX 26, 27) Off. Rabideau refusal of authorized transfer
9. March 8, 1981 (DX 28, 29) (7:05 p.m.) Off. DeMeulemeister refusal to be locked up
10. March 8, 1981 (DX 30, 31, 32, 33) (7:55 p.m.) two reports Off. DeMeulemeister Off. Sweet running away from officer in the cellhouse
11. March 9, 1981 (DX 34, 35) Off. Bush running between emergency room and hospital gate
12. March 27, 1981 (DX 36, 37) Off. Comp eating in the dining room at an unauthorized time, failing to lock up
13. April 1, 1981 (DX 38, 39) Off. Sheldon refusal of transfer to Cell-house C
14. April 4, 1981 (DX 40, 41) Off. Sheldon refusal of transfer to Cell-house C
15. April 5, 1981 (DX 42, 43) Off. Bak cursing, exposing his penis to correctional officer
16. April 12, 1981 (DX 44, 45, 46, 47) Off. Farmer Off. Keefe cursing, running on gallery
DATE OF REPORT REPORTING OFFICER CHARGE
17. April 12, 1981 (DX 48, 49) (8:45 p.m.) Off. Keefe cursing
18. April 19, 1981 (DX 50, 51) Off. Carter kicking officer in left knee when being shaken down
19. May 20, 1981 (DX 52, 53) Lt. Tazelaar cursing at the Lieutenant
20. May 22, 1981 (DX 54, 55, 56) Off. Sheldon cursing at the officer, breaking a light, spraying glass over the cellhouse, swinging light fixture in a threatening manner
21. September 9, 1981 (DX 57, 58) Off. Manning cursing at correctional officer
22. September 13, 1981 (DX 59, 60, 61) Off. Langlois throwing food at officers
23. September 14, 1981 (DX 62, 63) (6:45 p.m.) Joretta Ibarra-Lim throwing hot water on staff
24. September 14, 1981 (DX 64, 65) (9:00 a.m.) T. Peterson throwing hot water on med. tech.
25. September 18, 1981 (DX 66, 67, 68) Off. Keefe possession of contraband
26. October 7, 1981 (DX 69, 70) Off. Wilson theft, insolence, disobeying a direct order
27. . October 27, 1981 (DX 71, 72) Off. Evans throwing a bucket of water on an officer
28. October 27, 1981 (DX 73, 74) (9:30 p.m.) Off. Lender possession of contraband
29. October 27, 1981 (DX 75, 76) (9:35 p.m.) Lt. Davis throwing objects at officers
30. October 27, 1981 (DX 77, 78) (10:50 p.m.) Off. Evans throwing a bucket of water on officer
31. October 27, 1981 (DX 79, 80, 81, 82) (11:50 p.m.) Off. Bak Off. Howell (2 reports) throwing liquid substance on officer
32. November 3, 1981 (DX 83, 84) Off. Muhammad threatening to stab an officer
33. November 4, 1981 (DX 85, 86, 87) Off. Craddock damage to property
34. November 13, 1981 (DX 88, 89) Off. Jordan hitting an officer with milk carton
35. November 17, 1981 (DX 90, 91) Georgia Dockery theft
36. November 18, 1981 (DX 92, 93) Off. Wilson disobeying a direct order
37. November 19, 1981 (DX 94, 95) (12:30 p.m.) Off. Wicks disobeying a direct order
DATE OF REPORT REPORTING OFFICER CHARGE
38. November 19, 1981 (DX 96, 97) (1:45 p.m.) Off. Simpson threats, disobeying an order
39. November 20, 1981 (DX 98, 99) (Thomson found not guilty) Off. Gibson threatening to kill correctional officer
40. November 21, 1981 (DX 100, 101) Off. Craddock throwing liquid substance on officer
41. December 2, 1981 (DX 102, 103) Off. Farmer intimidation, insolence, threats
42. December 4, 1981 (DX 104, 105, 106, 107) Off. Jordan Off. Farmer throwing hot water on officers
43. December 9, 1981 (DX 108, 109) Judy Pedersen cursing at staff
44. December 20, 1981 (DX 110, 111) Off. Satterlee unauthorized movement, threatening employee
45. January 13, 1982 (DX 112, 113, 114, 115) Off. Raines intimidation, threats, locking up on the yard
46. January 13, 1982 (DX 112, 113, 114, 115) Sgt. Newton assaulting an officer
47. January 16, 1982 (DX 116, 117) Off. Robertson throwing hot water at officer
48. May 22, 1982 (DX 118, 119) Off. Farmer damage or misuse of property
49. December 9, 1982 (DX 120, 121, 122) Off. Bernardoni (Pontiac) disobeying a direct order
50. December 30, 1982 (DX 123, 124) Off. Stark (Pontiac) possession of unauthorized medications
51. January 21, 1983 (DX 125, 126) Off. Buizak (Pontiac) assaulting correctional officer
52. February 1, 1983 (DX 127, 128) Off. Buizak (Pontiac) possession of unauthorized property
53. February 15, 1983 (DX 129, 130) Off. Sutherland (Pontiac) refusal to give up security belt and cuffs
54. February 15, 1983 (DX 131, 132) Off. Roper (Pontiac) refusal to be cuffed and leave segregation yard
55. February 16, 1983 (DX 133, 134) Off. Dailey (Pontiac) disobeying a direct order
56. February 22, 1983 (DX 135, 136) Off. Elzey (Pontiac) refusal to give up his handcuffs
57. February 23, 1983 (DX 137, 138) Off. Ruhlander (Pontiac) disobeying a direct order

17. On January 22, 1981 Thomson was seen by medical personnel at Stateville. At that time Thomson said “he was dragged down gallery saying he could walk.” In addition the doctor’s note stated (DX 170 at 1-2):

Inmate says he’s engaged in passive resistance. Says he’s not yet injured except minor abrasions both wrists. Says he anticipated being beaten and now wants his ... (illegible) condition recorded.

Thomson’s self-announced policy of “passive resistance” and its implementation (by active as well as passive resistance), and not the January 25, 1981 incident or any conduct of any defendant, were the cause for the escalation of disciplinary incidents involving Thomson after January 25 (as reflected in Finding 16).

18. Thomson has been a substantial disciplinary problem at both Stateville and Pontiac. As evidenced by Finding 17, Thomson’s rebelliousness antedated the January 25, 1981 incident. Though inmate provocation does not of course justify or excuse misconduct (most particularly physical abuse) by correctional officers, it is clear (a) Thomson's post-January 25, 1981 rule violations are not the result of the incident on that date and (b) no defendant, including DeRobertis, caused Thomson’s continuously disruptive and assaultive behavior.

19. Thomson’s denial that he spat water at Jones during the January 25 incident (a denial this Court specifically discredits) exemplifies his unwillingness to accept responsibility for his own conduct. Thomson’s limited pre-January 25 conduct and extensive post-January 25 conduct as a troublemaker are matters for which he must accept responsibility. Thomson was neither singled out as a troublemaker nor harassed by any defendant because of the January 25 incident or because he filed this action.

20. Thomson’s exaggerations of certain aspects of his injuries, his refusal to acknowledge responsibility for his own conduct and his clearly unbelievable testimony as to DeRobertis, coupled with his plain hostility toward correctional staff and administrators, have caused this Court to conclude he is not a credible witness in those and a number of other respects.

III. January 25, 1981 Incident

21. Excessive physical force was used against Thomson by Jones and Baskin January 25, 1981 (PX 70). At that time Thomson was about 5'8" tall and weighed about 125 pounds, while Jones was at least 6' tall and weighed 40-50 pounds more than Thomson, and Baskin was about 6' tall and well over 200 pounds.

22. On the night of January 24 Jones had said Thomson had to have his property packed up to change cells the following morning. Early in the morning of January 25 Jones appeared and dragged Thomson (who had not yet packed his property) out of his bunk (Tr. 38). Baskin and Thomson’s cellmate Joseph Sims (“Sims”) were present at the time (Tr. 39). After Thomson packed his personal items, Jones told Thomson he had to choose whether to go to the segregation unit or the protective custody unit. Thomson refused to make a choice, and Jones ordered him to go up to 9 Gallery (the protective custody area) (Tr. 40-41).

23. Though Thomson went up to 9 Gallery, he refused the protective custody cell assignment there (Tr. 42) and went back down to 1 Gallery, where he continued to dispute the proposed alternative cell assignments with Jones (Tr. 43).

24. Jones then told Baskin to find Thomson a cell in the segregation unit and to take him there (Tr. 44). Baskin handcuffed Thomson behind his back and pulled him toward the staircase by the chain between the handcuffs. Though Thomson claims Baskin then kicked his legs out from under him without provocation (Tr. 44), it is more likely the incident was provoked by Thomson’s going limp as another manifestation of his premeditated passive resistance (see Finding 17). Nonetheless Baskin was wholly unjustified in his conduct described in Findings 25 and 26.

25. In any event, Baskin then dragged Thomson to the stairway. Baskin continued to drag Thomson by the handcuffs behind his back all the way up the flight of stairs to 3 Gallery (Tr. 45-46), then around the corner and up the flight of stairs from 3 Gallery to 5 Gallery (Tr. 46-47), then around that landing and up the next flight of stairs from 5 Gallery to 7 Gallery. All during that time the handcuffs were digging into Thomson’s wrists (Tr. 47-48). Even though the episode was more likely triggered by Thomson’s conduct (see Finding 24), rather than representing unprovoked and gratuitous violence (as Thomson would have it), Baskin clearly engaged in excessive force in his own conduct described in this Finding.

26. Baskin then dragged Thomson backwards down 7 Gallery (Tr. 48) and put him in a cell. At trial Thomson claimed the cell was completely flooded and otherwise uninhabitable (allegedly the toilet didn’t work, there was no light, the light fixture was ripped out and the bed was destroyed) (Tr. 49), while Baskin claimed it was Thomson who was flooding and destroying the cell interior. In any ease, after Thomson began to bang on a metal cabinet in the cell to attract attention (id.), Baskin reappeared at the cell, took Thomson out, handcuffed him again behind the back and dragged Thomson down the 7 Gallery.

27. At that time Jones appeared on 7 Gallery, and Thomson was placed in another cell on 7 Gallery (Tr. 50-51) already occupied by Charles Lewis (“Lewis”) (Tr. 51, 53). Thomson went to the back of the cell and drank some water (he was still handcuffed behind the back, but he could press a button so that the water would run) (Tr. 51). Then he spat out the water onto Jones’ shirt at the front of the cell (this Court discredits Thomson’s wholly improbable testimony that it was Jones’ punching Thomson in the side that caused Thomson to regurgitate onto Jones’ shirt the water Thomson had just drunk some 15 feet away) (Tr. 51).

28. Jones then ordered Baskin to remove Lewis from the cell. Jones punched Thomson, pushing him against the wall and punching him in the ear among other places. Jones yelled at Thomson, “I should kill you, I should kill you,” and continued to strike, kick and choke Thomson (who, because he was handcuffed behind his back the entire time, could not defend himself) (Tr. 51-53). Jones then dragged Thomson down the 7 Gallery by the handcuffs and banged Thomson’s head against a metal food cart once or twice (Tr. 54).

29. Throughout Jones’ physical abuse of Thomson, Baskin took no steps (a) to restrain Jones, (b) to persuade him to stop or (c) to assist Thomson. Thomson testified Baskin stood near the front of the cell laughing (Tr. 52), and this Court credits that testimony.

30. Jones then manhandled Thomson all the way down to 1 Gallery, dragged him down that Gallery and threw him into an isolation cell against the back wall. That cell was completely screened off with metal, had no light inside and was extremely dirty (Tr. 55-56). Jones told the officers on the gallery that if any residents went near Thomson or gave him anything, they were to be locked in their cells and fired from cellhouse help (Tr. 402).

31. Neither Sheldon nor DeBobertis was present in Unit B-West during the January 25 episode, and neither took any part personally in any use of force against Thomson.

32. More than 24 hours elapsed before Thomson was taken to the Stateville hospital by two officers. Thomson was examined by Dr. Hutchison, who noted the presence of multiple superficial abrasions, probable soft tissue injury to the left ear and possible injury to the left auditory nerve (PX 73). Thomson did not, as he testified, suffer black eyes or extensive bruises all over his body. Thomson did however continue to experience ringing in his left ear and inability to hear for several months (Tr. 59, DX 170, 155 at 1). As a result of the beating Thomson has suffered a moderate to severe loss of hearing in his left ear, which persisted at least through the time of Thomson’s most recent independent examination in June 1983 and which this Court accordingly credits as permanent (Tr. 56-57, 201, PX 68).

IV. Sheldon’s Liability

33. There is no credible evidence that Thomson was verbally or physically harassed by Sheldon after January 25, 1981. In any event Sheldon remained a guard at Stateville less than 90 days after Thomson filed this action.

34. Thomson received several valid tickets prepared by Sheldon after January 25, 1981. None of those reflected harassment for Thomson’s institution or prosecution of this action.

35. On six recorded occasions after January 25, 1981 (DX 20, 22, 24, 26, 38, 40), four at Sheldon’s instance, Thomson had and refused the opportunity to be transferred to another cellhouse at Stateville. That sequence of events is inconsistent with Thomson’s present claim of harassment.

36. This Court does not credit Thomson’s testimony as to Sheldon’s express or implied threats or physical misconduct (pushing Thomson and squeezing Thomson’s handcuffs tightly) after Thomson filed this action pro se. Thomson demonstrated his lack of credibility in part by ascribing to DeRobertis, when Thomson as-sertedly complained to him of the tight handcuffing, the response “Good, you need it” (Tr. 96-97). That testimony is wholly incredible.

37. Thomson did not assert any alleged misconduct by Sheldon in the post-incident administrative investigation at Stateville, a fact that also undercuts Thomson’s present claims of such misconduct.

V. DeRobertis’Liability

38. Much of Thomson’s attack against DeRobertis focuses on DeRobertis’ post-January 25 conduct: claimed failure to investigate the incident, claimed failure to discipline the involved officers, and so on. Those claims are not supported by the evidence and are discredited by this Court. It is unnecessary however to deal with them by detailed findings (as both parties have tendered), for such post-event conduct is irrelevant to the only possible basis for liability against DeRobertis: alleged failure to train, supervise and control Jones or Baskin before the incident. No post-incident conduct by DeRobertis caused any harm to Thomson.

39. Neither Jones nor Baskin was disciplined for any conduct involving excessive use of physical force against inmates before January 25, 1981. Nor did any prior disciplinary history of Jones or Baskin demonstrate conduct that would reasonably have placed DeRobertis on notice of any risks to inmates posed by those officers so as to obligate him personally to require discipline or further training:

(a) On March 26, 1980 Jones was involved in an altercation with inmate Angelo Caldwell at Stateville (DX 157).
(b) On May 10, 1980 Baskin was involved in an altercation with inmate Dickie Gaines at Stateville (DX 166).
(c) Neither the Jones-Caldwell incident nor the Baskin-Gaines incident involved such a clear-cut situation of grievous fault nor such an excessive use of force that the head of Stateville’s large administrative staff (DeRobertis) could be charged with personal responsibility for any failure to discipline the officer or to require further training.
(d) Other disciplinary actions taken against Jones and Baskin before January 25, 1981 concerned other rule violations, such as absenteeism or tardiness, not relevant to the use of excessive physical force.

40. There is no credible evidence that the failure to discipline Jones in the Caldwell incident or the failure to discipline Baskin in the Gaines incident encouraged their misconduct against Thomson or was otherwise a proximate cause of the injury to Thomson on January 25, 1981. In any event, the reasonable delegation of investigation and disciplinary responsibility at Stateville is such that no collateral consequences of any failure to impose discipline for such comparatively minor incidents can be ascribed to DeRobertis individually.

41. There was no widespread, systemic failure to discipline employees at Stateville during DeRobertis’ tenure as Warden. No failure by DeRobertis to discipline Jones, Baskin or any other employee was a proximate cause of injury to Thomson.

42. Stateville is a maximum security prison (Tr. 482) with an inmate population of approximately 2,250 men (Tr. 477). It has approximately 1,000 staff personnel, of whom 550 are uniformed correctional officers working in the area of security (id.).

43. DeRobertis as Warden was the chief administrative officer at Stateville. Reporting to him were two Assistant Wardens, one for Program Services, the other for Operations (Tr. 478). Immediately below them in the organizational hierarchy were the Unit Superintendents of the various cellhouses and the Major, who is the chief of security and the highest ranking of the uniformed security staff. In descending order from the Major were the ranks of Captain, Lieutenant, Sergeant and Correctional Officer (Tr. 481-82).

44. In January 1981 Eugene Venegone (“Venegone”) was the Superintendent of B-West, which had a staff of Sergeants, Lieutenants and a Captain to supervise Correctional Officers. Those officers also supervised inmates, provided them services and provided security in the unit. On frequent occasions B-West would be visited by one or more of the Wardens (Tr. 536-42).

45. During January 1981 (as at all other times) Venegone would meet regularly with his staff, including the supervising correctional officers and casework supervisor. He would also meet regularly with his own supervisor, the Assistant Warden of Operations, as to the day-to-day activities in B-West (Tr. 543).

46. There was no systemic or widespread failure to supervise correctional officers in B-West during DeRobertis’ tenure as Warden. No failure of supervision by DeRobertis was a proximate cause of injury to Thomson.

47. Jones and Baskin completed pre-ser-vice training as correctional officers in 1979 (Jones in July and Baskin in November) (DX 1 and 2). At that time Department had a training Academy whose function it was to train new correctional officers, one of the first such institutions among state correctional systems (Phillips Dep. 23). Pre-service training comprised three weeks at the Academy and three weeks of on-the-job training at the institution (DX 144 at 1). One of the subjects covered in training new officers is the proper use of physical force (Phillips Dep. 29-30, DX 144).

48. DeRobertis had no personal involvement in the training of Jones or Baskin (Tr. 496), nor did he know of any need on their part for further training in the proper use of physical force.

49. There was no systemic or widespread failure to train or retrain Baskin or Jones. No failure of training by DeRober-tis was a proximate cause of injury to Thomson.

50. In sum, DeRobertis did not preside over or permit any systemic breakdown in institutional procedures during his tenure at Stateville. Although this Court does not subscribe to all the implications of DeRo-bertis’ testimony in terms of delegation of responsibility as a total insulation against potential personal liability on the Warden’s part, it is clear that the Warden of a large maximum security prison such as Stateville cannot reasonably be expected to take part personally in every internal investigation and that he must delegate those investigative duties to others. That delegation in this case was reasonable and was not a proximate cause of injury to Thomson.

VI. Thomson’s Damages

51. Taking into account Thomson’s hearing loss (the most serious as well as the only permanent effect of Jones’ beating of Thomson, who was 26 years old at the time of the hearing) as well as the pain and suffering and lesser physical injuries consequent upon the misconduct of both Bas-kin and Jones, Thomson is entitled to compensatory damages of $25,000. Because of Baskin’s own direct physical abuse of Thomson and his active acquiescence in (without any effort to restrain) Jones’ beating of Thomson, Baskin and Jones are jointly and severally liable for those damages.

52. Thomson is also entitled to an award of punitive damages against each of Jones and Baskin to punish them for their respective acts of brutality, which were imposed on Thomson wilfully and with malice, and to deter like conduct by other correctional officials. Because Jones’ actions were substantially more egregious and more wantonly inflicted, $10,000 is awarded against Jones and $5,000 against Baskin.

Conclusions of Law

1. This Court has jurisdiction over the parties and the subject matter of this action under 42 U.S.C. § 1983 and 28 U.S.C. 1343(a)(3). Venue is properly in this district under 28 U.S.C. § 1391(b).

2. One prohibition imposed by the Eighth Amendment, made applicable to the States via the Fourteenth Amendment, is against “the wanton and unnecessary infliction of pain” on prison inmates. Rhodes v. Chapman, 452 U.S. 337, 347,101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981); and see Ingraham v. Wright, 430 U.S. 651, 666-67, 97 S.Ct. 1401, 1409-10, 51 L.Ed.2d 711 (1977). As Findings 21-30 reflect, both Jones and Baskin used excessive physical force against Thomson and thus violated his Eighth Amendment rights.

3. Even apart from the Eighth Amendment’s guaranties, one of the “historic liberties” protected by the Fourteenth Amendment itself is the “right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.” Ingraham, 430 U.S. at 673, 97 S.Ct. at 1413. And at a minimum that “encompass[es] freedom from bodily restraint and punishment.” Id. at 673-74, 97 S.Ct. at 1413-14. Prison inmates are one class of individuals as to whom the State has a “constitutionally recognized ‘affirmative duty’ to provide certain ‘elementary protective services.’ ” Benson v. Cady, 761 F.2d 335, 339 (7th Cir.1985), quoting Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir.1984). Again at a minimum, that protection must embrace the freedom from beatings by prison personnel. Jones and Baskin thus also violated Thomson’s right not to be deprived of liberty without due process of law — his direct Fourteenth Amendment right.

4. Prisoners possess a constitutional right of access to the courts (though no court has specifically identified what constitutional provision is implicated). Bounds v. Smith, 430 U.S. 817, 821-25, 97 S.Ct. 1491, 1494-96, 52 L.Ed.2d 72 (1977). Threats of physical harm impermissibly restrict that right. Hudspeth v. Figgins, 584 F.2d 1345, 1348 (4th Cir.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2013, 60 L.Ed.2d 386 (1979). Non-physical harassment that operates to restrict access might also impinge upon that right. Id. But as Findings 33-37 reflect, Thomson has failed to produce credible evidence supporting his claim of harassment by Sheldon in retaliation for having filed this action.

5. City of Oklahoma v. Tuttle, — U.S. —, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985) teaches the liability of a supervisory official under Section 1983 for inadequate training and control of inferior officers must stem from an “affirmative link” between the supervisor’s alleged oversights and the “particular constitutional violation alleged” — here the unlawful use of force by Jones and Baskin. But as Findings 38-50 reflect, Thomson has produced no credible evidence that establishes any conduct by DeRobertis was a proximate cause of Jones’ or Baskin’s misconduct against Thomson.

6. Wheatley v. Ford, 679 F.2d 1037, 1040 (2d Cir.1982) indicates an award of $25,000 is neither inadequate nor excessive compensation for Thomson’s hearing loss caused by Jones’ excessive use of force, when conjoined with the pain and suffering and other physical injuries Thomson sustained as a result of Jones’ and Baskin’s use of excessive force. Baskin’s conduct during Jones’ beating of Thomson (his acquiescence and failure to intercede) was also a proximate cause of Thomson’s injuries. Given their status as joint tort-feasors, Jones and Baskin are jointly and severally liable for the compensatory damages due Thomson.

7. Taking all circumstances into account, this case poses at least as egregious a situation as that presented by Taliferro v. Angle, 757 F.2d 157 (7th Cir.1985). Accordingly Taliferro, id. at 162 amply supports the requested award of $10,000 as punitive damages against Jones, and an award of the lesser amount of $5,000 against Baskin, for their respective wanton and malicious uses of excessive force (including in Baskin’s case his tacit approval of Jones’ brutality).

It is therefore ordered and adjudged that plaintiff John Thomson (“Thomson”) recover of defendants Earl Jones (“Jones”) and Marvin Baskin (“Baskin”), jointly and severally, the sum of $25,000, and of Jones alone the further sum of $10,000, and of Baskin alone the further sum of $5,000, in each instance with interest thereon as provided by law, and that Thomson recover of Jones and Baskin, jointly and severally, his costs of action.

      . This Finding should not be misunderstood as a determination that Thomson was at fault in doing so — for his retaliatory reaction to the unjustified physical beating to which he was being subjected is certainly understandable (if not justifiable). Thomson’s denial is rather a reflection on his lack of credibility, which has led to the rejection of substantial parts of his testimony.

        . This Court rejects defendants' efforts to characterize Thomson’s hearing loss as feigned (the audiologist, who had no stake in the matter at all, testified it would require real sophistication on Thomson's part to fake the progressive loss-of-hearing readings shown by the audiometer test) or perhaps due to "a preexisting congenital abnormality or excessive wax in the ear.” That sort of argument tends to discredit defendants’ other more tenable contentions, so at the least it reflects poor litigation strategy (if not indeed an absence of bona fides on the part of defense counsel).

      . As a matter of simplicity rather than precision, these Conclusions will refer to the underlying Bill of Rights provision rather than to the directly applicable Fourteenth Amendment.

      . It goes without saying Thomson is not interested in getting "due process” — notice and a hearing — before he is beaten by correctional officers. He does not want to be beaten at all. In analytical terms, then, his right is to "substantive due process,” not to process alone. But until the law changes to embrace such approaches to the Due Process Clause as that urged by Judge Easterbrook’s concurring opinion in Gumz v. Morrissette, 772 F.2d 1395, 1404-09 (7th Cir.1985) (asserting only the Fourth Amendment, not the Fourteenth, applies to excessive force in an arrest situation), the conclusion reached in the text here remains valid.

      . Thomson also argues for DeRobertis’ liability on a ratification theory (based on DeRobertis’ failure to discipline Jones and Baskin after the January 25 incident), citing for that notion to Smith v. Rowe, 761 F.2d 360, 369 (7th Cir.1985). That contention misreads Smith. There the "affirmative link” was between (1) the supervisory official’s knowledge of the prisoner’s mistreatment, coupled with inaction (hence "he ratified and adopted the actions of his subordinates,” id.), and (2) the continuing mistreatment of the prisoner thereafter. That Smith situation is no different from the conventional failure to supervise that can give rise to liability if the necessary causal nexus exists.