author: MEREDITH, District Judge.

text:
    VOLLMAR BROS. CONSTRUCTION CO., Federal Barge Lines, Inc., and the United States of America by and through the United States Army Corps of Engineers, Plaintiffs, v. ARCHWAY FLEETING & HARBOR SERVICE, INC. and Consolidated Grain and Barge Company, Defendants, v. AZALEA FLEET, INC., Third party defendant, v. DREYFUS SUPPLY AND MACHINERY CORP., Fourth party defendant, v. EQUITABLE SHIPYARDS, INC., Fifth party defendant, v. DIBERT, BANCROFT & ROSS CO., LTD., Sixth party defendant.
    Nos. 82-0331A(C), 83-849-A(C).
    United States District Court, E.D. Missouri.
    Aug. 28, 1984.

      William Bay, St. Louis, Mo., for plaintiffs.
    James Herron, St. Louis, Mo., for Consolidated.
    Joseph Murphy, St. Louis, Mo., for Archway.
    Donald James, St. Louis, Mo., for Azalea.
    John Sandberg, St. Louis, Mo., for Dreyfus.
    Thomas Walsh, St. Louis, Mo., for Lone Star Ind.
    R.E. Keaney, St. Louis, Mo., for Equitable.
    Denis Burns, St. Louis, Mo., for Dibert, Bancroft & Ross Co., Ltd.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

MEREDITH, District Judge.

This case was tried to the court. After consideration of the pleadings, the testimony and exhibits introduced at trial, the depositions, the credibility of witnesses, the parties’ supplemental briefs, and the applicable law, the court makes the following findings of fact and conclusions of law. Any finding of fact equally applicable as a conclusion of law is adopted as such, and conversely, any conclusion of law equally applicable as a finding of fact is so adopted.

FINDINGS OF FACT

1. This case arises out of a breakaway on the afternoon of 9 April 1980. The facts of the breakaway are set out in Eagle Marine Industries v. Valley Line Co., 541 F.Supp. 297, 298-99 (E.D.Mo.1982), affd Consol. Grain & Barge v. Archway Fleeting & Harbor, 712 F.2d 1287, 1289 (8th Cir.1983).

2. Yollmar Bros. Construction Co., Federal Barge Lines, Inc., Archway Fleeting & Harbor Service, Inc., Consolidated Grain and Barge Company, Azale Fleet, Inc., Dreyfus Supply and Machinery Corp., Equitable Shipyards, Inc., and Dibert, Bancroft & Ross Co., Ltd., are and were at all relevant times, corporations organized and existing under law. Azalea and Dreyfus are sellers of timberheads, as defined in § 402A Restatement (Second) of Torts.

3. The evidence in this cause establishes that the port bow timberhead of the Jackie 21 was defective. The defect was a latent one which was not apparent at the time this barge was delivered to Archway for fleeting. Because of such defect, the Jackie 21 was unseaworthy: Consolidated breached its continuing and nondelegable duty to deliver to Archway a seaworthy barge.

4. The very purpose of the timberhead was to enable the fleeter to tie to it the face wires of the harbor boat. Archway was entitled to assume that the timberhead would withstand reasonable stresses when, as in this case, there was no slack in the face wires. However, the pressure placed upon it, when the pilot of the M/V John F. Walker applied full starboard rudder, caused the timberhead to fracture, thus dooming the tow. The resultant stress was reasonably to be anticipated, and but for the defect, the timberhead would have been able to withstand the pressure.

5. The defect constituted an unreasonably dangerous condition; the defect rendered the timberhead unfit for its ordinary use. The defect was a proximate and contributing cause of the casualty.

6. The timberhead was being put to its ordinary use; such use was reasonable.

7. Said timberhead was the same timberhead sold by Dreyfus Supply and Machinery Corporation to Azalea Fleet, Incorporated.

8. After Azalea purchased said timber-head from Dreyfus, it sold the timberhead to Consolidated and installed it on the Jaekie-21 in April 1974. When the timberhead was sold to Consolidated, Azalea was known as Alter Fleet, Inc. Azalea is and was in the business of marine repairs, and in connection with that business, sells deck fittings and timberheads.

9. Dreyfus purchased the timberhead in used condition from Lone Star Industries, Inc., in January 1973. The timberhead had been mounted on one of Lone Star’s barges. Lone Star obtained the timber-head from its scrap pile. Lone Star’s scrap pile contained many scrap items for use as replacements on barges, as needed by Lone Star. The breaking of timberheads is a very common event. No records were kept by Lone Star as to whether timberheads or other items were replaced or modified.

Equitable manufactured three barges for Lone Star in 1955, which included timber-heads. Timberheads were removed from these barges and placed in Lone Star’s scrap pile sometime between 1969 and 1972. The only evidence that the three timberheads which were sold to Dreyfus were the ones originally placed on Equitable’s barges (sold to. Lone Star) is the testimony of J.T. McDonnell, who stated that to the best of his knowledge, the three timber-heads were not altered or changed by Lone Star until removal to its scrap pile, some 15 to 18 years later.

However, the scrap pile contained used equipment which Lone Star kept for spares and drew from in its day to day repair operations. There is no evidence as to whether the scrap pile may have contained other timberheads during the 18 years between 1955 and 1973.

10. Dreyfus measured the double bit it purchased from Lone Star. Comparison of the timberhead affixed to the Jackie 21 with those manufactured by Dibert shows timberheads — in this case, eight inch double bits — of different dimensions.

A price quote, bill of materials, and other letters between Dibert and Equitable, show that Equitable was contemplating purchasing the timberheads for its barges from Dibert. The evidence fails to show that such a sale was actually carried through. Even if it had been, the timberhead was of a different dimension than that sold by Dreyfus to Azalea, and therefore was not the same timberhead involve in this litigation.

11. The timberhead was in substantially the same condition at the time of the incident as when purchased by Dreyfus from Lone Star. It was not replaced after it was installed in April 1974 and prior to the breakaway incident on 9 April 1980. It was not repaired, welded, or altered in any way from the time it was installed on the Jackie 21 to the time of the .breakaway.

12. Archway failed to use reasonable care and skill that prudent navigators would employ for similar services, involving the 9 April 1980 breakaway incident. Archway was thereby negligent, in that a prudent navigator would not have placed the M/V John F. Walker at the stern of the starboard string of barges. The placement of the M/V Katie at the stern of the center string of barges improperly and adversely affected its ability to add the necessary horsepower with which to push the tow. Hence, when the timberhead fractured (but not prior thereto) the collision and breakaway were inevitable.

13. The defective timberhead and Archway’s negligence were equal contributing causes of the casualty. Archway is liable for 50% of the damages caused. Consolidated is liable for 50% of the damages caused.

14. Prior to trial, the parties stipulated to the damages sustained by plaintiffs as a result of the breakaway. Yollmar Bros. Construction Co. sustained damages in the total amount of $28,490.41. Federal Barge Lines, Inc. sustained damages in the total amount of $60,800.00. The United States Army Corps of Engineers sustained damages in the total amount of $13,293.79.

15. The parties stipulated that Vollmar Bros, and Federal are entitled to receive pre-judgment interest on the total amounts of their respective damages, at the rate of 10% per annum from 15 May 1984.

16. In the Eagle Marine case, Consolidated paid a total of $105,782.27 in satisfaction of the judgment entered in favor of the various parties. Consolidated incurred expert witness fees in the amount of $5,025.86 in the Eagle Marine case in defense of claims arising out of the breakaway. Consolidated also sustained physical damage to its barges, for which it has not been compensated, in the amount of $11,-345.61.

17. Consolidated vouched in Azalea in Cause No. 80-1119-A(B). Prior to trial in the Eagle Marine case, Consolidated gave written notice to Azalea, as seller of the defective timberhead, of the pendency of that action. It called upon Azalea to undertake its defense and indemnify it for any losses sustained by it as a result of the breakaway. Azalea refused to assume the defense of and refused to agree to indemnify Consolidated.

18. On 8 May 1984, the court granted Azalea’s motion for summary judgment against Dreyfus. The relevant facts and law are set forth therein. See also Finding of Law No. 9, infra. Azalea thereby is entitled to indemnity from Dreyfus.

19. Azalea did not notify Dreyfus of the alleged defect or of the original suit concerning the timberhead, until after judgment in the original suit had been entered and was being appealed. Azalea was notified of the original action by Consolidated in July 1981. Azalea’s search of its files turned up the fact that the timberhead was purchased from Dreyfus: Azalea found this information in June 1982.

20. Consolidated and Azalea had the opportunity to compromise their share of the damages in Eagle Marine. Archway had agreed to bear 80% of the damages in Eagle Marine and future claims. Consolidated passed the settlement offer to Azalea: Consolidated was prepared to accept Archway’s offer if Azalea paid 10% of the total settlement and 10% of future judgments. Azalea refused. The defendants below Azalea object to Azalea’s claim for indemnity, because they note that they were denied the opportunity to contribute 10% and settle the claim, whereas now Azalea seeks full indemnity for its 50% of the claim.

21. In May 1980, the Jackie 21 was delivered to Zito-Metcalf Repairs, Inc. in Louisiana for repairs which included removal of the baseplate of the timberhead in issue. The plate was discarded and has been unavailable for inspection or examination.

22. The court has reviewed Consolidated’s request for attorney’s fees. The court has carefully reviewed the reasonableness and necessity of the fees claimed, and has deducted amounts unrecoverable, as set out in the Conclusions of Law, herein. The court finds the recoverable amount of attorney’s fees to be $25,682.56.

23. The court has reviewed Azalea’s request for attorney’s fees. The court has carefully reviewed the reasonableness and necessity of the fees claimed, and has deducted amounts unrecoverable, as set out in the Conclusions of Law, herein. The court finds the recoverable amount of attorney’s fees to be $4,274.50.

CONCLUSIONS OF LAW

1. This court has jurisdiction over the subject matter and the parties pursuant to 28 U.S.C. § 1333. Venue is proper in this district.

2. Consolidated and Archway, as parties to the Eagle Marine case, are subject to collateral estoppel and are bound by the findings of fact and conclusions of law entered by the court in Eagle Marine, insofar as they are applicable herein. See Oldham v. Pritchett, 599 F.2d 274, 276-81 (8th Cir.1979).

3. Azalea, having been vouched in, in the Eagle Marine case, is concluded by the judgment entered in that case against Consolidated; Azalea is bound by the court’s findings of fact and conclusions of law therein. See Lane v. Hartford Fire Insurance Co., 343 F.Supp. 79, 85 (E.D.Mo.1972).

Azalea Fleet, Inc. is successor in interest and liability to Alter Fleet, Inc.

4. Since neither Dreyfus, Equitable, nor Dibert was a party to the previous action, they are not bound by any determination of damages, timberhead defect, or other issues. However, as a matter of fact and law — in the case at bar — the court has found the damages, defect, and other issues, as herein set out.

5. Admiralty suits are governed by federal substantive law. Alcoa Steamship Co. v. Charles Ferran and Co., 383 F.2d 46, 50 (5th Cir.1967). This court has previously borrowed from the Uniform Commercial Code as part of federal admiralty law, as well as from the Restatement (Second) of Torts. See Court’s Memorandum, 29 August 1983.

6. Azalea is not guilty of laches or other delay in failing to promptly notify its seller of the defect in the timberhead.

Dreyfus, Equitable, and Dibert all assert that they have been prejudiced by Azalea’s failure to timely notify them of the suit against Archway and Consolidated involving the defective . timberhead. Dreyfus cites Uniform Commercial Code § 400.2-607(3)(a) R.S.Mo. (1978), for the proposition that the buyer of a defective product must notify the seller within a reasonable time. Here, Azalea took one year to find the sale receipt, invoice and purchase order, while the Eagle Marine case was in progress.

Notification under the warranty provisions is not applicable, because the court bases its findings on strict liability. While § 400.2-607 applies to warranties, it is also clear that it may apply in other cases: Where the buyer is sued for breach of a warranty or other obligation for which his seller is answerable over____§ 400.2-607(5)(a) R.S.Mo. (1978). As noted herein, this case is submitted on the theories of breach of warranty and strict liability in tort. As set out in the U.C.C. section noted above, the buyer must within a reasonable time after he discovers any breach notify the seller of the breach. This requirement is said to open the way for normal settlement through negotiation. Comment 4 to § 400.2-607. This requirement applies to this case, which has been decided on strict liability.

If Dreyfus’ identity had been known, it should have been given the opportunity to settle the claims involving the timberhead, for 10% of the damages therein. The U.C.C. section above specifically mentions that a party who provides the goods should be given an opportunity to participate in settlements: such negotiations promote judicial economy, limitation of successive suits, each against the next supplier, and resolution of time and resource consuming litigation.

One entitled to indemnity is not bound to bring the action for indemnity before the underlying action is completed. Cf. Avondale Shipyards, Inc. v. Vessel Thomas E. Cuffe, 434 F.Supp. 920 (E.D.La. 1977). However, laches may bar the right to contribution and indemnity on a maritime claim before liability for the primary debt has been determined; under some circumstances, it may be unreasonable for one who claims contribution or indemnity to wait until liability is fixed before asserting his third party claim. Avondale, 434 F.Supp. at 934. For laches to apply, however, there must be prejudice to the defendant. Espino v. Ocean Cargo Line, Ltd., 382 F.2d 67, 69 (9th Cir.1967); Avondale, supra. In Avondale, the prejudice was that the defendant did not have the opportunity to participate in discovery when the other parties did. Dreyfus was not allowed to participate in the discovery involving this occurrence when the other parties did. Dreyfus was not allowed to participate in the settlement. Also, the baseplate to the timberhead was not available for the subsequent parties’ preparation of the lawsuit. It must be noted, however, that the baseplate’s loss was due to Consolidated’s action; the plate likewise was unavailable to Azalea. Dreyfus might have agreed to settle these suits for 10% of the total damages. However, this assumption is speculative.

Azalea excuses the delay in notifying Dreyfus by stating that no records implicating Dreyfus could be found until some months later. In Avondale, the delay was longer than the delay at bar. Further, Azalea gave notice to Dreyfus as soon as Azalea found out that Dreyfus was the supplier of the timberhead. There is no inequitable or bad conduct by Azalea; its delay in giving notice was not unreasonable.

The court has found that the timberhead was defective, such defect causing 50% of the fault. Dreyfus supplied the timber-head to Azalea. It is just and correct that Dreyfus indemnify Azalea for its damages therefrom.

Therefore, Dreyfus will be ordered to indemnify Azalea for the damages it has paid to Consolidated because of the timber-head.

7. Dreyfus has failed to show that the timberhead it purchased from Lone Star in 1973 was the same timberhead placed in Lone Star’s barges by Equitable in 1955. Timberheads frequently break arid have to be replaced. Timberheads were removed from Lone Star’s barges between 1969 and 1972. They were kept by Lone Star for the specific purpose of replacement parts. It is entirely likely that the timberheads on Equitable’s barges may have been broken before 1969 and been discarded. Even if not removed until 1969 to 1972, they could have been removed from the scrap pile prior to 1973: other timberheads than those originally on Equitable’s barges may have been the ones sold to Dreyfus. J.T. McDonnell does not remember the year when the timberheads were removed; no records were kept; when shown pictures of timberheads at his deposition, he could make no positive identification.

There is no credible evidence that the timberheads which were placed on Equitable’s barges in 1955 were the same sold from Lone Star’s scrap pile in 1973 to Dreyfus.

Further, the evidence suggests that Equitable may have purchased the timber-heads from Dibert. However, measurements of the Dibert timberheads and its identifying star are not similar to the timberheads which Dreyfus sold to Azalea. The evidence fails to show, moreover, that the timberheads which Equitable originally placed on its barges came from Dibert. Certainly, the timberhead which ended up on the Jackie 21 was not manufactured by Dibert.

Dreyfus’ claim for indemnity from Equitable will be denied. Likewise, Equitable’s claim for indemnity from Dibert will be denied.

8. Consolidated is entitled as a matter of law to be indemnified by Azalea because Azalea is strictly liable in tort for selling Consolidated a deck fitting with a latent defect which was unreasonably dangerous and a proximate cause of the breakaway.

9. Azalea is primarily liable with respect to Consolidated and therefore is required to indemnify Consolidated for any damages Consolidated has incurred in defense of claims arising out of the breakaway. Bagby v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 491 F.2d 192, 198 n. 9 (8th Cir.1974).

10. Attorneys’ fees are recoverable in maritime cases where an innocent vessel owner is required to pay attorneys’ fees in defending claims asserted against it by third parties. See Pasco Marketing, Inc. v. Taylor Towing Service, Inc., 554 F.2d 808, 812 (8th Cir.1977). Inasmuch as Consolidated, as indemnitee, has given Azalea, as indemnitor, notice and the opportunity to assume its defense, attorneys’ fees and costs are recoverable. Hales v. Green Colonial, Inc., 402 F.Supp. 738, 743 (W.D.Mo.1975).

11. Since Archway and Consolidated are bound by the findings of fact, determination of liability and damage apportionment in the Eagle Marine case, judgment shall be entered in favor of Vollmar Bros. Construction Co., Federal Barge Lines, Inc. and the United States of America and against Archway and Consolidated with damages apportioned one-half to each defendant.

12. Judgment shall be entered in favor of Consolidated and against Azalea on Consolidated’s claim for indemnity in the amount of $105,782.27, which represents the total amount paid by Consolidated pursuant to the judgment entered in favor of plaintiffs in Eagle Marine, Cause No. 80-1119-A(B), with interest thereon at the rate of ten percent per annum from the date said payments were made; for $11,345.61, representing the damage to Consolidated’s barges not recovered in the Eagle Marine case, with interest thereon at ten percent from 19 October 1981 as specified in the Judgment entered therein; for all damages and costs assessed against it and in favor of Vollmar Bros., Federal, and the United States of America in this action; and for the expenses incurred by Consolidated in defense of all the claims asserted against it, including attorneys’ fees.

13. Judgment shall be entered in favor of Azalea and against Dreyfus on Azalea’s claim for indemnity in the amount which represents the total amount paid by Azalea as damages to Consolidated; for the expenses incurred by Azalea in defense of the claims asserted against it in this action, including attorneys’ fees. Attorneys’ fees incurred by Azalea in the first Eagle Marine case are not recoverable because Dreyfus did not receive notice and an opportunity to defend the Eagle Marine suit.

14. Attorneys’ fees which have been reasonably incurred in defense of a claim indemnified against may be recovered if a right to indemnity is implied by law, provided the indemnitor has notice of the lawsuit and an opportunity to defend. Hales v. Monroe, 544 F.2d 331, 332 (8th Cir.1976). However, fees incurred in asserting and developing defenses separate from the claims indemnified may not be recovered. Hales, 544 F.2d at 332. Nor may fees incurred in establishing the right to indemnity be recovered. Bagby, supra.

15. Costs shall be assessed one-half against Archway and one-half against Dreyfus in respect of the claims of Vollmar Bros., Federal, and the United States of America, and entirely against Dreyfus in respect of the third party claims of Consolidated and Azalea, in this suit.

JUDGMENT

Findings of Fact and Conclusions of Law dated this date hereby are incorporated in and made a part of this judgment.

IT HEREBY IS ORDERED, ADJUDGED, AND DECREED that judgment be and hereby is entered in favor of plaintiff Vollmar Bros. Construction Co. and against defendants Archway Fleeting & Harbor Service, Inc. and Consolidated Grain and Barge Company for the sum of twenty-eight thousand, four hundred ninety dollars and forty-one cents ($28,490.41), plus pre-judgment interest at the rate of 10% per annum from 15 May 1984.

FURTHER IT IS ORDERED, ADJUDGED, AND DECREED that judgment be and hereby is entered in favor of plaintiff Federal Barge Lines, Inc. and against defendants Archway Fleeting & Harbor Service, Inc. and Consolidated Grain and Barge Company for the sum of sixty thousand, eight hundred and no/100 dollars ($60,800.00), plus pre-judgment interest at the rate of 10% per annum from 15 May 1984.

FURTHER IT IS ORDERED, ADJUDGED, AND DECREED that judgment be and hereby is entered in favor of plaintiff United States Army Corps of Engineers and against defendants Archway Fleeting & Harbor Service, Inc. and Consolidated Grain and Barge Company for the sum of thirteen thousand, two hundred ninety-three dollars and seventy-nine cents ($13,293.79).

FURTHER IT IS ORDERED, ADJUDGED, AND DECREED that the above damages to be paid by Archway and Consolidated be and hereby are apportioned one-half to each defendant.

FURTHER IT IS ORDERED, ADJUDGED, AND DECREED that judgment be and hereby is entered in favor of Consolidated and against Azalea Fleet, Inc. on Consolidated’s claim for indemnity in the amounts — described more fully herein — of one hundred five thousand, seven hundred eighty-two dollars and twenty-seven cents ($105,782.27); eleven thousand, three hundred forty-five dollars and sixty-one cents ($11,345.61), plus interest; and all damages and costs assessed against Consolidated in this action, including expenses incurred by Consolidated in defense of the claims asserted against it.

FURTHER IT IS ORDERED, ADJUDGED, AND DECREED that judgment be and hereby is entered in favor of Consolidated and against Azalea for reasonable and appropriate attorneys’ fees in the amount of twenty-five thousand, six hundred eighty-two dollars and fifty-six cents ($25,682.56).

FURTHER IT IS ORDERED, ADJUDGED, AND DECREED that judgment be and hereby is entered in favor of Azalea and against Dreyfus Supply and Machinery Corp. on Azalea’s claim for indemnity in the amount which represents the total amount paid by Azalea as damages to Consolidated, including expenses incurred in defense of the claims asserted against it.

FURTHER IT IS ORDERED, ADJUDGED, AND DECREED that judgment be and hereby is entered in favor of Azalea and against Dreyfus for reasonable and appropriate attorneys’ fees in the amount of four thousand, two hundred seventy-four dollars and fifty cents ($4,274.50). Because Dreyfus did not have an opportunity to defend the Eagle Marine case, Azalea cannot pass on to Dreyfus fourteen thousand, one hundred seventy-five dollars and sixty-seven cents ($14,175.67) of the $25,-682.56 which Azalea owes to Consolidated as attorneys’ fees.

FURTHER IT IS ORDERED, ADJUDGED, AND DECREED that judgment be and hereby is entered in favor of Equitable Shipyards, Inc. and against Dreyfus Supply and Machinery Corp. on Dreyfus’ claim for indemnity.

FURTHER IT IS ORDERED, ADJUDGED, AND DECREED that judgment be and hereby is entered in favor of Dibert, Bancroft & Ross Co., Ltd. and against Equitable Shipyards, Inc. on Equitable’s claim for indemnity.

This judgment shall bear interest, from the date set forth below, at 11.93% per annum.


source: Caselaw Access Project

author: ORINDA D. EVANS, District Judge.

license: Public Domain

text:
    Aldine M. MAYS, M.D. v. HOSPITAL AUTHORITY OF HENRY COUNTY; James P. Brown; Otis Bellamy; G.R. Foster, Jr., M.D.; A.A. Maliza; Geraldine W. Helton; Robert Engeman; Gene Morris; Russell L. Eaton, individually and as members of The Board of Trustees of the Hospital Authority of Henry County; V. Stephen Cole, individually and as Administrator of Henry General Hospital; Southside Radiological Services, P.C.; Steven Clines, M.D.; Gordon Goldstein, M.D.; Peter Phillips, M.D.; Carlos Ordonez, M.D.; Donald Durrett, M.D.; James Zimmer, M.D.
    Civ. No. C82-2661.
    United States District Court, N.D. Georgia, Atlanta Division.
    Aug. 30, 1984.

      John J. Flynt, Jr., Smalley, Cogburn & Flynt, P.C., Griffin, Ga., for plaintiff.
    Philip T. Keen, McDonough, Ga., Robert G. Tanner, Long, Weinberg, Ansley & Wheeler, Kevin E. Grady, Alston & Bird, Harvey S. Gray, Atlanta, Ga., for defendants.
   ORDER

ORINDA D. EVANS, District Judge.

This case is before the court on the summary judgment motions of the Plaintiff and of both sets of Defendants.

On April 3, 1984, the court ordered the Plaintiff, Aldine M. Mays, Jr., M.D., to show cause why his summary judgment motion should not be denied and Defendants’ summary judgment motions granted, in light of the Supreme Court’s decision in Jefferson Parish Hospital District No. 2 v. Hyde, — U.S. -, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984). The Plaintiff timely filed a brief pursuant to the order, and the Defendants thereafter filed responsive briefs. On the basis, of these submissions and the substantial record in this case, the court denies Plaintiff’s motion and grants Defendants’ motions for summary judgment.

The facts of the case are set forth in detail in the court’s January 9, 1984 order. Henry General Hospital is a non-profit facility in Stockbridge, Georgia, owned and operated by the Hospital Authority of Henry County (the Authority). The hospital’s administrators, its trustees and the Authority are all defendants in this action.

Dr. Mays is a member of the hospital’s medical staff. In this suit, he challenges a contract between the Authority and Defendant Southside Radiological Service, P.C. (Southside) that gives Southside exclusive privileges to provide primary radiological services at Henry General. Dr. Mays previously held those privileges at Henry General under an exclusive contract of his own. Dr. Mays currently has privileges to perform second readings of radiological procedures at Henry General, when requested by hospital patients. He also enjoys family medicine privileges at the hospital.

On January 9, 1984, the court granted the Defendants summary judgment on Dr. Mays’ equal protection, due process, defamation and Health Insurance for the Aged Act claims. The court deferred a ruling on Dr. Mays’ antitrust claim, which alleges that the hospital’s exclusive contract with Southside is an illegal tying agreement. The court now considers Dr. Mays’ antitrust claim in light of the Supreme Court’s decision in Hyde.

Hyde presented the question whether an exclusive services contract between a hospital and an anesthesiology firm was' unlawful per se under the Sherman Act as an illegal tying agreement. The plaintiff alleged that the exclusive contract illegally tied anesthesia services to operating room services at the hospital. The Supreme Court held that the hospital in question did not have the kind of dominant market position that would justify application of the per se rule against tying. — U.S. at-, 104 S.Ct. at 1567. The Court then held that the contract did not violate the Sherman Act under a Rule of Reason analysis, on the grounds that no unreasonable restraint on competition had been shown.

In his brief after the Hyde decision, the Plaintiff appears to have conceded that the Southside contract is not a per se Sherman Act violation. Plaintiffs Brief of April 20, 1984, p. 2. However, Plaintiff argues that he should be given further opportunity to prove that the agreement is illegal as an unreasonable restraint on competition.

The court does not agree. The discovery period ended more than a year ago. The Plaintiff has previously stated that the facts in the case are not in dispute (Plaintiffs Brief of October 14, 1983, p. 11), and that this case is “factually indistinguishable” from Hyde. (Id. at p. 19). All of the parties have addressed the Rule of Reason issue in previous briefs.

This factual record indicates no adverse effect of the Southside contract on competition among radiologists. This appears to be the case regardless of the market area chosen.

Within Henry County, where patients at the hospital formerly had the choice of only one radiologist, they now can choose among the six radiologists of Southside. Dr. Mays has now set up his own outpatient radiology clinic across the road from Henry General. In nearby sections of Fulton and Clayton counties, there are at least two other hospitals offering hospital and radiological services. One of these hospitals has an open staff policy with regard to radiologists. The Atlanta area as a whole encompasses as many as 30 hospitals offering hospital care and radiological services.

The Plaintiff has not shown an adverse effect on quality, price or availability of radiological services in any of these markets. “Without a showing of actual adverse effect on competition, respondent cannot make out a case under the antitrust laws.” Hyde, — U.S. at —-, 104 S.Ct. at 1568.

The court therefore finds that there is no genuine issue of material fact and that the Defendants are entitled to judgment as a matter of law.

The court hereby DENIES Plaintiffs motion for summary judgment and GRANTS Defendants’ motion for summary judgment. The Clerk is DIRECTED to enter final judgment in favor of the Defendants.

      . See 1981 No. Ga. Health Systems Agency Study, p. 113, attached to October 4, 1983 Youngerman affidavit submitted by Plaintiff.

      . The Court in Hyde also noted the inherent barriers to free competition among physicians at a particular hospital. The Court pointed out that even if there were no exclusive contract, "the range of alternatives open to the patient would be severely limited by the nature of the transaction and the hospital’s unquestioned right to exercise some control over the identity and the number of doctors to whom it accords staff privileges.” — U.S. at-, 104 S.Ct. at 1568.


author: BECHTLE, District Judge.

text:
    Robert R. DOBSON v. William GREEN, Mayor, City of Philadelphia, and Morton B. Solomon, Police Commissioner, and Richard Apanewicz, Police Officer, et al.
    Civ. A. No. 83-6251.
    United States District Court, E.D. Pennsylvania.
    Sept. 6, 1984.

      Barry Adelman, Philadelphia, Pa., for plaintiff.
    Donna Mouzayck, Asst. City Sol., Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

BECHTLE, District Judge.

This action commenced on December 28, 1983, when plaintiff, an inmate at Holmes-burg Prison, filed a complaint pursuant to 42 U.S.C. § 1983. Presently before the court is defendants’ motion for summary judgment. For the reasons stated below the motion will be granted.

I. FACTS

On January 3, 1982, at approximately 2:30 A.M., plaintiff was taken into custody by Philadelphia police officers and charged with shooting at defendant officer Apanewicz. Plaintiff claims that while in custody from 2:30 A.M. to 5:00 A.M. defendant Apanewicz and other unknown officers and detectives beat plaintiff about the head, shoulders, arms, and threatened to kill plaintiff. As a result of the beatings plaintiff alleges he sustained severe injuries.

In his complaint, plaintiff seeks recovery from defendants claiming they “... violated [his] civil liberties as guaranteed ... under the Constitution.” The defendants include officer Apanewicz, unknown officers, and the mayor and police commissioner of Philadelphia at the time of the arrest.

II. DISCUSSION

A. Police Officers

A Section 1983 claim has two elements. First, the plaintiff must show that he has been deprived of a federal right, statutory or Constitutional. Second, the plaintiff must prove that the person depriving him of a federal right was acting under color of state or territorial law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980).

There is no claim in this case that the conduct of defendants deprived plaintiff of a right secured by a federal statute. Plaintiff’s only claim is that the defendants violated his “civil liberties ... guaranteed under the U.S. Constitution.” Thus, it must be determined which Constitutional rights, if any, were violated by the use of the excessive force.

In cases where excessive force is used by state authorities the courts have either stated, or assumed with deciding, that the liberty interest of the Fourteenth Amendment is involved. See, e.g., Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977); Black v. Stephens, 662 F.2d 181 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345 (9th Cir.1981), affd on other grounds sub nom., Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Cerva v. Fulmer, 596 F.Supp. 86 (E.D.Pa.1984). Since the claim in this case is based on use of excessive force by city police officers the court construes plaintiff’s complaint as claiming a deprivation of a liberty interest. Having determined that a liberty interest is involved, the court must now decide whether plaintiff was deprived of that interest without due process of law in violation of the Fourteenth Amendment.

In the context of deprivations of property interests it is uear that where there are adequate post-deprivation state tort claims procedures available to a plaintiff there is no denial of due process. Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Cohen v. City of Philadelphia, 736 F.2d 81, at 84, 85 (3d Cir. 1984). This principle applies to the deprivation of property interests caused by either intentional or negligent state activity. Hudson, — U.S. at-, 104 S.Ct. at 3203.

Although the above-cited cases involved deprivations of property interests, there is nothing in those decisions to suggest that their rationale is not applicable to liberty interests as well, and this court agrees with the courts which have so held. See Ingraham, 430 U.S. at 676-80, 97 S.Ct. at 1415-17; Haygood v. Younger, 718 F.2d 1472 (9th Cir.1983); Rutledge, supra; Cerra, 596 F.Supp. 86 (E.D.Pa.1983); Barnier v. Szentmiklosi, 565 F.Supp. 869 (E.D.Mich.1983). By limiting section 1983 actions which are based on excessive force by state authorities to those cases where the plaintiff does not have an adequate state remedy, this court and the other courts are adhering to the precept that section 1983 is not to become a font of tort law, Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1975), which would transform every action sounding in civil tort into a claim for relief under the Civil Rights Act. See United States v. Delerme, 457 F.2d 156, 161 (3d Cir.1972).

Based on the above, the court determines that where adequate state post-deprivation remedies are available to remedy the alleged use of excessive force by persons acting under color of state law there is no deprivation of a liberty interest without due process of law and thus no Constitutional violation. It is therefore necessary to determine whether adequate state remedies are available to redress plaintiffs grievances in this case.

The facts of this case, if proven, would, at a minimum, amount to assault and battery by defendant officers. Although defendant officers are employees of a political subdivision, recovery against them would not be barred by immunity provided by the Political Subdivision Tort Claims Act, 42 Pa.Cons.Stat.Ann. §§ 8541-64 (Purdon 1982), since the conduct attributed to the officers is willful misconduct. 42 Pa.Cons.Stat.Ann. § 8550; see Cerva, supra, at 94-95. LaPlant v. Frazier, 564 F.Supp. 1095 (E.D.Pa.1983). Thus, plaintiff has adequate state law remedies to redress the deprivation of a liberty interest caused by the conduct of defendant officers. Based on the foregoing, plaintiff has failed to show a Constitutional violation redressable under 42 U.S.C. § 1983 and judgment must be entered for defendant officers.

B. Defendants Green and Solomon

Supervisory officials can be held liable under section 1983 for conduct of their subordinates if plaintiff can show that the supervisory officials had some specific knowledge of unconstitutional conduct and intentionally acquiesced in the conduct by failing to establish proper procedures or train and supervise the subordinates adequately. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); DiGiovanni v. City of Philadelphia, 531 F.Supp. 141 (E.D.Pa.1982). However, because the court has determined that the conduct by defendant officers in this case did not amount to unconstitutional conduct redressable under section 1983, defendants Green and Solomon cannot be liable under that section for the alleged conduct of defendant officers. Accordingly, judgment must be entered in favor of defendants Green and Solomon.

An appropriate Order will be entered.


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

text:
    John FINCKE, Plaintiff, v. Margaret M. HECKLER, Secretary of Health, and Human Services, Defendant.
    No. CV-R-82-308-ECR.
    United States District Court, D. Nevada.
    Sept. 11, 1984.

      Washoe Legal Services by Charles R. Zeh, Sparks, Nev., for plaintiff.
    Lamond R. Mills, U.S. Atty. by Shirley Smith, Asst. U.S. Atty., Reno, Nev., for defendant.
   ORDER

EDWARD C. REED, Jr., District Judge.

After considering the parties’ cross-motions for summary judgment in this case, wherein Plaintiff seeks reversal or remand of Defendant Secretary’s decision to terminate Plaintiff’s disability benefits under the federal Social Security and Supplemental Security Income programs, U.S. Magistrate Phyllis Halsey Atkins on February 10, 1984, filed a Report and Recommendation. In the Report, Magistrate Atkins noted that the Secretary, on October 27, 1983, had agreed that remand was warranted in light of the decision and order handed down in Lopez v. Heckler, 572 F.Supp. 26 (C.D.Cal.1983). The Secretary stated that she wished to apply the “medical improvement” standard of Lopez to Plaintiff’s case on remand, and further indicated that she understood that Plaintiff “should be able to obtain interim benefits through June 1984 or until a new hearing decision is issued, whichever is earlier.” The Magistrate’s Recommendation is that the case be remanded to the Secretary for further administrative proceedings to determine whether Plaintiff’s disability continues. In addition, the Magistrate recommends that Plaintiff be awarded costs incurred in bringing the matter before the Court, pursuant to 28 U.S.C. § 2412(c)(2), because the Secretary’s non-acquiescence to Ninth Circuit precedent amounted to bad faith.

The Secretary’s only objection to the Magistrate’s Report and Recommendation is based on the possibility that the “costs” Magistrate Atkins recommended be awarded to Plaintiff might be construed to include attorney fees. The Secretary has argued that Plaintiff has obtained no relief on the merits as yet. She further urges that her agreement that remand is appropriate negates the Magistrate’s finding that she had acted in bad faith. The Lopez decision was handed down on June. 16, 1983, and the Secretary’s stipulation that the case should be remanded was filed on October 27, 1983, an interval of little more than four months.

As will be discussed below, the non-acquiescence of the Secretary to Ninth Circuit precedent occurred prior to the Lopez decision. The Magistrate’s finding of bad faith is fully supported by the record. Further, Plaintiff on April 5, 1984, formally moved under 28 U.S.C. § 2412 for an award of attorney fees. The Secretary has filed opposing memoranda. Therefore, Plaintiff’s entitlement may be decided pursuant to the motion, thus obviating the need to resolve the question of whether the Magistrate’s recommendation that costs be awarded to Plaintiff was meant to include attorney fees. Accordingly, this Court accepts in whole the recommendations of the Magistrate. The remainder of this Order will be devoted to the motion for attorney fees.

The controlling. statute is 28 U.S.C. § 2412, which is part of the Equal Access to Justice Act. Subsection (d)(1)(A) provides, in pertinent part, that a reasonable attorney fee shall be awarded to a prevailing party in a non-tort civil action against an official of the United States acting in her official capacity, unless the court finds that “the position of the United States was substantially justified____”

The standards used in determining who is a “prevailing party” are the same in all types of cases in which Congress has authorized an award of fees to a “prevailing party.” Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40 (1983); see also National Labor Relations Board v. Doral Building Services, Inc., 680 F.2d 647 (9th Cir.1982). Hensley, also at p. 1939, declares that a plaintiff may be considered a prevailing party for attorney fee purposes if he succeeded on any significant issue in litigation which achieves some benefit to him. See also Lummi Indian Tribe v. Oilman, 720 F.2d 1124, 1125 (9th Cir.1983). In the instant proceedings, Plaintiff has succeeded in persuading defendant Secretary that he is entitled to disability benefits at least from April 1981 through June 1984. This fulfills the further requirement that the plaintiff establish some sort of clear, causal relationship between the litigation he has brought and the practical outcome he has realized. See Ibid; Rutherford v. Pitchess, 713 F.2d 1416, 1419 (9th Cir.1983). Rutherford, at p. 1422, notes that it doesn’t matter whether formal success on the merits was achieved or merely that the bringing of the lawsuit served as a catalyst for the desired result.

In determining a motion for attorney fees brought under 28 • U.S.C. § 2412(d)(1)(A), the court must award such fees unless it decides that the position of the United States was substantially justified. United States v. First Nat. Bank of Circle, 732 F.2d 1444, 1447 (9th Cir.1984). The test for substantial justification is one of reasonableness; the Government has the burden of showing that its case had a reasonable basis both in law and in fact. Ibid.; 1980 U.S.Code Cong. & Ad.News 4953, 4989. The totality of the circumstances, that is, both the underlying agency conduct before suit was commenced and the Government’s position during the course of the litigation must be evaluated in determining whether the Government’s position was substantially justified. Hoang Ha v. Schweiker, 707 F.2d 1104, 1106 (9th Cir.1983); Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir.1984).

Whether there has been a prior decision against the Government in a similar suit reviewed by the same Circuit Court of Appeals is a strong factor in deciding the reasonableness of the Government’s position. Hoang Ha, supra at 1106. Two very-similar earlier cases were decided against the Government in the Ninth Circuit. In Finnegan v. Matthews, 641 F.2d 1340, 1345 (9th Cir.1981), the opinion states: “The Secretary may not terminate benefits absent a showing of ... medical improvement which is sufficient to establish that an applicant is no longer ‘continuously disabled____’ ” In a case decided February 18,1982, the Ninth Circuit pointed out that where there has been a prior ruling of disability, a presumption arises that the disability still exists. Patti v. Schweiker, 669 F.2d 582, 586 (9th Cir.1982). On page 587 the opinion twice declares that where such a presumption exists, the Secretary has the burden to come forward with evidence that the claimant’s medical condition has improved in the interim.

The Secretary disagreed with the holding of both the Finnegan and Patti eases. His reaction was, on February 23, 1982, to advise all administrative law judges that the Social Security Administration’s policy (termination of benefits is called for if evidence shows the recipient is not disabled under current criteria) was to be followed, even in the Ninth Circuit, without obeying the Circuit’s requirement that proof of improvement in the claimant’s medical condition must be made before termination of disability benefits. See Kuehner v. Schweiker, 717 F.2d 813, 824 (3rd Cir 1983); SSR 82-49c; SSR 81-6; SSR 82-lue.

Failure of the Secretary to follow the clear language of the Circuit’s opinions has been held to be unreasonable and, therefore, not substantially justified. Chee v. Schweiker, 563 F.Supp. 1362, 1365 (D.Az.1983); see also Cole v. Secretary of Health and Human Services, 577 F.Supp. 657, 662 (D.Del.1983); San Filippo v. Secretary of Hlth. & Human Services, 564 F.Supp. 173, 175 (E.D.N.Y.1983); Ithaca College v. N.L.R.B., 623 F.2d 224, 228 (2nd Cir.1980). Therefore, Plaintiff is entitled to reasonable attorney fees under 28 U.S.C. § 2412(d)(1)(A).

Subsection (c)(2) of the same statute provides that the attorney fee award shall be paid by the Government agency where it is found that the United States “acted in bad faith.” Bad faith may be found either in the activities that led to the lawsuit or in the conduct of the litigation. Lauritzen v. Lehman, 736 F.2d 550, 559 (9th Cir.1984); McQuiston v. Marsh, 707 F.2d 1082, 1086 (9th Cir.1983).

The Secretary’s non-acquiescence to the holding of Finnegan and Patti (that disability is presumed to continue unless the Secretary introduces evidence proving that the claimant’s medical condition has improved) is premised on the possibility that, in many instances, the evidence on which disability originally was allowed may no longer be available. See Lopez v. Heckler, 572 F.Supp. 26, 30 (C.D.Cal.1983). She analogizes to the practice of the Internal Revenue Service in declaring its non-acquiescence to some adverse holdings of courts. This position ignores the effect of an agency’s non-acquiescence; that is, the agency obeys a circuit court’s ruling in the circuit of its origin, but disregards it in other circuits. Chee v. Schweiker, 563 F.Supp. 1362, 1365 (D.Az.1983); Lopez v. Heckler, 725 F.2d 1489, 1503 n. 12 (9th Cir.1984). The Secretary’s refusal to comply with the Ninth Circuit rule expressed in Finnegan and Patti, on the ground that she has the right to non-acquiesce even within the Circuit, has been rejected. See Lopez v. Heckler, 713 F.2d 1432, 1438 (9th Cir.1983); Murray v. Heckler, 722 F.2d 499, 501 (9th Cir.1983). An Agency is bound to follow the law of the Circuit. Ithaca College v. N.L.R.B., supra at 228; ITT World Communications v. F.C.C., 635 F.2d 32, 43 (2nd Cir.1980).

The Ninth Circuit decided Finnegan April 16, 1981; it handed down its decision in Patti February 18, 1982. Their holding has been followed consistently. See Lyle v. Secretary of Health and Human Services, 700 F.2d 566, 568 (9th Cir.1983); Hda v. Heckler, 705 F.2d 363, 365 (9th Cir.1983). The Secretary’s refusal to be bound by the holding was knowing and deliberate, for her agency’s rulings SSR 82-10c and SSR 82-49c were in direct reaction to Finnegan and Patti respectively. This attitude amounted to “bad faith.” Chee v. Schweiker, supra at 1365; see also Lopez v. Heckler, 725 F.2d 1489, 1503 (9th Cir. 1984). Her agency is liable for Plaintiff’s attorney fees as awarded infra.

Plaintiff’s attorney has filed an affidavit reflecting his expenditure of fifty-one hours in the litigation of this action, plus ten hours in connection with the motion for attorney fees. Effort entailed in recovering such fees may be compensated in the fee award. Knighton v. Watkins, 616 F.2d 795, 800 (5th Cir.1980); Scarborough v. Office of Personnel Management, 723 F.2d 801, 818 n. 51 (11th Cir.1984).

The affidavit asserts that $90 per hour would be a reasonable fee. The number of hours (a total of sixty-one) is reasonable; the issues involved have not been simple; skill has been required and Plaintiff’s attorney has experience and expertise; the customary fee is at least $90 per hour; and the ease is rather undesirable. Therefore, the Court agrees that the $5490 figure (sixty-one hours times $90) is reasonable. However, this figure must be reduced for two reasons. First, 28 U.S.C. § 2412(d)(2)(A) limits the attorney fee in this case to no more than $75 per hour. Sixty-one hours times $75 gives a result of $4575. This, also, must be reduced because, so far, Plaintiff has achieved only limited success. See Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1943, 76 L.Ed.2d 40 (1983); Sethy v. Alameda Cty. Water Disk, 602 F.2d 894, 898 (9th Cir. 1979).

Plaintiff’s date of birth was September 25, 1934. The Secretary held his disability to have ceased in April 1981, when he was forty-six years of age. The litigation has achieved the result of the Secretary acknowledging Plaintiff’s apparent entitlement to interim benefits from April 1981 through June 1984, a period of three years and three months. However, the lawsuit seeks reinstatement of Plaintiff to the disability rolls until such time as it is proved that his medical condition has improved to the extent he is no longer legally disabled. Where, as in Plaintiff’s case, the alleged disability arises from arthritis, disc degeneration and alcoholism, significant improvement with the passage of time is not very likely. The Court must seek to determine the degree of his success so far, in setting the amount of attorney fees. Hensley v. Eckerhart, supra 461 U.S. 424, 103 S.Ct. at 1941; see also Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (9th Cir.1983).

The question of whether Plaintiff will be reinstated after remand has not been answered by his attorney’s efforts up to now. The Secretary’s job has been made more difficult, however, because Plaintiff has established that the Ninth Circuit procedure of shifting the burden to the Secretary to produce evidence establishing improvement in Plaintiff’s medical condition must be followed. Therefore, all of the time expended by Plaintiff’s attorney up to now has some bearing on the ultimate outcome of the case. Nevertheless, the Court concludes that the limited success so far obtained requires a reduction of forty percent from the fees that would have been awarded had Plaintiff’s success in the litigation been complete. Forty percent of $4575 is $1830. Subtraction of the latter figure from the former leaves $2745 as a reasonable and appropriate attorney fee, taking into account the hours expended and the results obtained. See Rutherford v. Pitchess, 713 F.2d 1416, 1422 (9th Cir.1983).

IT IS, THEREFORE, HEREBY ORDERED that this case be remanded to the Secretary of Health and Human Services for further administrative proceedings to determine whether Plaintiff’s disability continues, such proceedings to be conducted in accordance with the holding of the Ninth Circuit Court of Appeals as to such matters.

IT IS FURTHER ORDERED that the Clerk of Court shall tax as costs against the defendant any expenditures herein of Plaintiff provided for in 28 U.S.C. § 1920 upon the filing of a bill of costs by Plaintiff.

IT IS FURTHER ORDERED that the defendant shall pay to Plaintiff the sum of $2745 as and for a reasonable attorney fee.


text:
    John M. TWEET, Donna P. Tweet, Danniele Middleton and David Middleton, Plaintiffs, v. Raymond A. WEBSTER, California State Automobile Association, and Farmers Insurance Exchange, Defendants.
    No. CV-R-84-47-ECR.
    United States District Court, D. Nevada.
    Sept. 21, 1984.

      G.C. Backus, Reno, Nev., for plaintiffs.
    David R. Grundy, Hibbs, Roberts, Lemons & Grundy, Reno, Nev., for Farmers Ins. Exchange.
    Bruce R. Laxalt, Beckley, Singleton, De-Lanoy & Jemison, Reno, Nev., for California Auto. Ass’n and Raymond A. Webster.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

This is a diversity action. The complaint alleges that plaintiffs (Tweets) are residents of Nevada and that the defendant Raymond A. Webster (Webster) is a resident of Portola, California.

Webster has made a motion to quash service of process for lack of personal jurisdiction.

The complaint alleges the following: On or about February 18, 1983, in Portola, California, Webster, while making an unlawful u-turn, negligently and carelessly ran his automobile into the automobile driven by John M. Tweet. His wife Donna P. Tweet was a passenger along with her children, Danniele Middleton, age 9, and David Middleton, age 11. The Tweets carried automobile insurance with Farmers Insurance Exchange at the time of the accident. Webster carried automobile insurance with California State Automobile Association (CSAA). The defendants, Farmers Insurance Exchange and CSAA are California corporations which have their principal places of business in California.

In opposing the motion to quash, the Tweets allege that defendant Webster’s contacts with Nevada are: (1) He was once employed in Nevada’s casinos; (2) The insurance company acting on Webster’s behalf chose to negotiate and adjust the automobile claims (arising from the accident) in Reno.

According to the complaint, the acts of the insurance companies in negotiating the automobile claims were:

1. CSAA conspired with Farmers Insurance Exchange to breach the Tweets’ insurance policy.
2. CSAA promised to make the Tweets whole and never intended to do so. Plaintiffs relied upon this misrepresentation.
3. Defendants made false claims concerning prior damage to the Tweets’ vehicle.
4. Defendants forced settlement by undue influence.
5. Defendants’ misconduct was fraudulent, malicious and oppressive.

The Tweets assert that because Webster lives closer to Reno than Sacramento, it is more convenient for him to litigate in Reno.

In a diversity case, the power of a federal court to exercise personal jurisdiction over a non-resident defendant depends on a two-step test. First, the state’s long arm statute must permit jurisdiction. Second, the exercise of jurisdiction must be consistent with due process. Greenspun v. Del E. Webb Corp., 634 F.2d 1204, 1207 (9th Cir.1980).

I. NEVADA’S LONG ARM STATUTE

A. Tort and Improper Negotiation Claims.

The federal district court’s determination of personal jurisdiction is made by examination of the forum state’s long arm statute. Cubbage v. Merchent, 744 F.2d 665, 667 (9th Cir.1984); Nevada’s long arm statute, NRS 14.065, confers jurisdiction over a non-resident who transacts any business or commits a tort within Nevada. Shapiro v. Pavlikowski, 98 Nev. 548, 549, 654 P.2d 1030 (1982); Here the subject automobile accident occurred in Portola, California. Therefore, the location of the automobile accident does not confer jurisdiction over Webster. Further, there is no evidence that Webster transacts any business in Nevada. The facts reflect that he has not even been in the state of Nevada since the automobile accident.

B. Agency Relationship between the insurer and the insured.

The Tweets claim that CSAA, acting as Webster’s agent in Nevada, engaged in improper negotiations with the Tweets. Under NRS 14.065, jurisdiction is conferred over a nonresident defendant, who through an agent, transacts any business or commits a tort within Nevada. Research of Nevada law does not disclose any reported cases which deal with an agency relationship between the insured and the insurer in the context of personal jurisdiction. Consequently, it becomes necessary to examine the law of other jurisdictions.

In Kirchen v. Orth, 390 F.Supp. 313, 317 (E.D.Wis.1975), the court held that there was no personal jurisdiction over the insured because there was no agency relationship between the insured and the insurer during settlement negotiations. The court reasoned that insurance policies reserved complete control in this respect to the insurer. The court stated at 317:

“All liability insurance policies contain provisions reserving to the insurer the right to defend any action against the insured and to make such investigation, negotiation, and settlement of any claim or suit as it, the insurer, deems expedient.”

While this decision is persuasive, it is better practice to determine the agency relationship by examining the terms of the particular insurance policy. See UTZ v. Nationwide Mut. Ins. Co., 619 F.2d 7, 10 (7th Cir.1980); Uebelacker v. Horace Mann Ins. Co., 500 F.Supp. 180, 182 (E.D.Wis. 1980). The terms of the insurance policy should be examined to ascertain the following:

1. Does it invest the insurer with the complete control over compromising the claims against the insured.
2. Does the insured have a right to control the method, means or place of settlement negotiations.
3. Is the insurance company authorized to act in a dual capacity, the principle purpose of which is to protect its own contingent liability under the contract. Kirchen, 390 F.Supp. at 317.

By its order of June 4, 1984, this Court requested Tweets to submit evidence and affidavits to establish its jurisdiction. Webster's insurance policy was never submitted to this Court. The only document submitted to the Court which makes reference to the terms of the insurance policy is the affidavit of Robert Black submitted by defendant Webster. Mr. Black’s affidavit indicates that he is the divisional claims manager for CSAA and that, according to the agreement between CSAA and all of its insureds, CSAA assumes total control of and responsibility for investigation, adjustment and settlement of a covered loss and that an insured has no input into CSAA negotiations or decisions concerning adjustment or settlement. A fair reading of this affidavit indicates that CSAA has complete control of the initiation and conduct of the settlement negotiations.

The extent of control retained by the insurance company is only one factor that determines whether an agency relationship exists.

“There can be no agency relation unless the purported principal has some control or right of control over the actions of his purported agent. * * It is the existence of the right of control which establishes the existence of the agency relation. * * * a

Kirchen, 390 F.Supp. at 317 quoting 2A C.J.S. Agency § 6 at 561 (1972). Therefore, the extent of the insured’s control over the insurer must be examined. There is no support in either the Tweets’ or Webster’s affidavits for the proposition that Webster had any control over CSAA’s settlement negotiations with Tweet. The statements that Webster allegedly made to Tweet: “[I’ll] turn the matter over to [my] insurance company; [They will] handle the matter for me” do not establish agency or control per se. The statement in Mr. Tweets’ affidavit that CSAA agents told him that they were acting on behalf of Raymond Webster in the settlement negotiations does not indicate any control Webster had over CSAA in settlement negotiations. Further, Webster’s affidavit states that he had “no control of, input into, or knowledge of ... any and all negotiations between [CSAA and Tweets].”

The evidence before the Court compels the conclusion that CSAA was not acting as Webster’s agent during negotiations for settlement of the automobile claim. Therefore, the conduct of CSAA during investigation and settlement negotiations does not confer jurisdiction over Webster under NRS 14.065.

II. DUE PROCESS ANALYSIS

For personal jurisdiction to lie, due process requires a defendant to have minimum contacts with the forum in order that maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The contacts may give rise to general or limited jurisdiction.

A. General Jurisdiction.

General jurisdiction arises when a nonresident defendant’s activities in the forum are so substantial and continuous that due process does not require the cause of action to be related to the defendant’s forum activities. Hunt v. Erie Ins. Group, 728 F.2d 1244, 1246 (9th Cir.1984); Forsythe v. Overmyer, 576 F.2d 779, 782 (9th Cir.1978). The auto accident occurred in February of 1983. Webster’s affidavit indicates he was never in Nevada in the year 1983, nor for any period of time after that up to July 5, 1984. Consequently, Webster has not engaged in any substantial and continuous activity in Nevada that would support general jurisdiction.

B. Limited Jurisdiction.

According to due process, the test for limited jurisdiction requires the following tests to be applied to determine whether the defendant’s contacts with the forum permit the exercise of jurisdiction over him.

1. The defendant must have purposefully availed himself of the privilege of conducting activities in the forum thereby invoking the benefits and protections of its laws;
2. The claim must have arisen out of or resulted from the defendant’s forum-related activities; and
3. The exercise of jurisdiction must be reasonable.

Cubbage v. Merchent, 744 F.2d at 668; Basic Food Industries, Inc. v. Eighth Judicial Dist. Ct., 94 Nev. 111, 113, 575 P.2d 934, 935 (1978).

Purposeful availment requires that the defendant’s conduct and connection with the forum state be such that he should reasonably foresee being haled into court there. See World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). Cubbage v. Merchent, 744 F.2d at 668. As was extensively canvassed previously, CSAA was not Webster’s agent in negotiations. Thus, Webster had no control over selection of the place CSAA decided to negotiate. In this respect, Mr. Black’s affidavit states that CSAA transferred Webster’s file to the Reno office because Tweets had relocated there. It is offensive to due process to force Webster (who had no control over CSAA’s negotiation decisions) to be haled into court in Nevada, simply because CSAA transferred Tweets’ file after the Tweets decided to relocate to Nevada. “The Due Process Clause ... allows potential defendants to structure their ... conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.” World-Wide Volkswagen 444 U.S. at 297, 100 S.Ct. at 567. Webster, who has no minimum contacts with Nevada, and had no knowledge of any negotiations in Nevada could not foresee being haled into court here.

The Tweets also assert that Webster lives closer to Reno than Sacramento, making it more convenient for Webster to litigate in Reno. The convenience to the nonresident defendant in litigating in the forum alone is insufficient to grant jurisdiction. Although he once worked in Nevada, Webster’s employment in Nevada years ago does not meet the minimum contacts standard. This Court is without jurisdiction to render a binding judgment against Webster because he has not had the requisite minimum contacts with Nevada. See Id. at 294, 100 S.Ct. at 565.

The party seeking to invoke the jurisdiction of a federal court has the burden of establishing that jurisdiction exists. Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir.1977). Plaintiff must make a prima facie showing of jurisdictional facts, where the court, as in this instance, is considering only written materials. Ibid. The Tweets have failed to establish jurisdiction. The Tweets’ version of the facts does not demonstrate that Webster has committed a tort or transacted any business in Nevada. The Tweets have failed to establish that CSAA was Webster’s agent in the settlement negotiations between CSAA and Tweets. They have not shown that Webster purposefully availed himself of the privilege of conducting activities in Nevada.

The Tweets contend that Webster answered his complaint through CSAA’s answer. On this basis it is alleged that Webster is precluded from raising the defense of lack of jurisdiction. This argument is based on CSAA’s Fourteenth affirmative defense which alleges that “Neither this defendant nor any of the defendants named in plaintiff’s complaint committed any acts of bad faith, oppression, fraud or malice.” However, the answer commences with the phrase “COMES NOW ... CALIFORNIA STATE AUTOMOBILE ASSOCIATION.” The answer is signed by CSAA’s attorney on behalf of CSAA. Webster did not by virtue of the answer of CSAA make a general appearance and thereby waive his right to raise the defense of lack of jurisdiction.

The Tweets also contend that the parties stipulated an extension of time would be given with the express understanding that CSAA and Webster would generally appear and answer. However, according to Rule 7(b) of the Rules of Practice United States District Court for the District of Nevada no stipulations between the parties which relate to proceedings before the court are effective unless approved by the court. Furthermore, even if the parties did stipulate that Webster could only answer and not otherwise plead, he could nevertheless raise the defense of lack of jurisdiction in his answer. Federal Rules of Civil Procedure 12(h)(1).

IT IS, THEREFORE, HEREBY ORDERED that the motion of defendant Raymond A. Webster to quash service of process for lack of personal jurisdiction is GRANTED.


text:
    Dennis Leonard JOHNSON, et al., Plaintiffs, v. Robert J. GALLI, et al., Defendants.
    No. CV-R-82-79-ECR.
    United States District Court, D. Nevada.
    Sept. 24, 1984.

      Lawrence J. Semenza, Reno, Nev., for plaintiffs.
    Art Nichols, Edward Dannan, Deputy Dist. Atty., Reno, Nev., for defendants.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

This matter is before the Court by reason of objections, from both sides, to the Report and Recommendation of U.S. Magistrate Phyllis Halsey Atkins. That Report was made after a hearing on the defendants’ motion for partial summary judgment in this civil rights class action concerning conditions at the Washoe County Jail.

Pretrial Detention and Bail

The Magistrate recommends that summary judgment be granted as to the practice in setting bail or allowing release on a defendant’s own recognizance. The plaintiffs contend that the Sheriff’s Department is still exercising “gut feeling” discretion as to the release of alleged misdemeanants, despite a 1981 amendment to Nevada Revised Statutes that makes this solely a judicial function. The basis for Magistrate Atkins’ recommendation was the failure of the plaintiffs to submit any affidavits or other evidence showing violation of the amended statutes.

An affidavit accompanied the plaintiffs’ objections to the Magistrate’s Report and Recommendation, however. The affiant is a law clerk of the plaintiffs’ counsel. She details an interview with a sergeant in the Sheriff’s Department. The sergeant reportedly indicated to the affiant that the “gut feeling” of the booking officer remains the foremost criterion in determining whether an arrestee will be released on his own recognizance.

Said affidavit having been submitted subsequent to the Magistrate’s report, she had no opportunity to consider it. (It appears that the sergeant’s statements could be admissible under F.R.Ev. 801(d)(2)). The affidavit could be stricken as untimely. See Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1519 (9th Cir.1983). Nevertheless, the Court feels that the interests of justice call for a remand of this issue to the Magistrate for reconsideration in light of the aforementioned affidavit. Magistrate Atkins may, if. she feels it appropriate, allow the defendants to file counter-affidavits or otherwise respond to the affidavit.

Contact Visits

The Magistrate recommends denial of the defendants’ motion for partial summary judgment as to the restrictions on contact visits. She feels that the defendants have failed to present evidence that the restrictions are reasonably related to a legitimate penological purpose.

The defendants point out that one of its jail officer witnesses testified that contact visitation creates a significant security danger of the smuggling of contraband and weapons into the jail. They further argue that the reasonable relationship standard is inapplicable because contact visits are not a constitutional right.

In Rutherford v. Pitchess, 710 F.2d 572, 577 (9th Cir.1983) the Circuit declared that the forbidding of contact visits to detainees who had spent more than thirty days in jail may represent an unreasonable, exaggerated response to security concerns, depending upon the security conditions at the particular jail. The U.S. Supreme Court reversed, sub-nom. Block v. Rutherford, — U.S. -, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984). On page -, 104 S.Ct. on page 3228 the opinion concludes that a blanket prohibition on contact visitation is a reasonable response to security needs, consistent with the Fourteenth Amendment. A little further down the same page, the opinion states: “We hold only that the Constitution does not require that detainees be allowed contact visits when responsible, experienced administrators have determined, in their sound discretion, that such visits will jeopardize the security of the facility.”

Thus, the Supreme Court seems to feel that contact visitation involves Fourteenth Amendment rights, but that those rights are not violated where, as here, the jail administrators determine that such visits constitute a threat to security.

Pretrial detainees may not be punished to any extent, by reason of the protection of the Fourteenth Amendment, whereas convicted prisoners may be held under punitive conditions so long as the Eighth Amendment is not violated. Fischer v. Winter, 564 F.Supp. 281, 298 (N.D.Cal.1983); Martino v. Carey, 563 F.Supp. 984, 1006 n. 17 (D.Ore.1983). The upshot is that a jail practice that does not offend detainees’ rights will not violate those of convicted prisoners either.

The Court rejects the recommendation of the Magistrate, and holds that the defendants are entitled to partial summary judgment on the issue of contact visitation.

Telephone Use

It has been recommended by the Magistrate that partial summary judgment be granted the defendants on the issue of restrictions on telephone use. The defendants provided authority that there is no constitutional right to telephone communication; since the plaintiffs did not cite authority to the contrary, Magistrate Atkins feels the defendants’ motion should be granted.

Affidavits presented by the plaintiffs indicate that detainees are allowed only infrequent (e.g., once a week) use of the telephone, sometimes at hours when the person to be called wouldn’t be available. Also, if the jail staff is overwhelmed with other work, there could be a two-week delay in receiving a call. By comparison, the plaintiffs claim that inmates of the State’s penitentiaries are provided with regular, systematic access to telephones.

Ofttimes use of a telephone is essential for a pretrial detainee to contact a lawyer, bail bondsman or other person in order to prepare his case or otherwise exercise his rights. There are instances where the family of a detainee or inmate may live so far away from Washoe County as to make personal visitation impractical. The better view appears to be that there is no legitimate governmental purpose to be attained by not allowing reasonable access to the telephone, and that such use is protected by the First Amendment. See Brenneman v. Madigan, 343 F.Supp. 128, 141 (N.D.Cal. 1972); Moore v. Janing, 427 F.Supp. 567, 576 (D.Neb.1976); Inmates of Allegheny County Jail v. Wecht, 565 F.Supp. 1278, 1284 (W.D.Pa.1983).

The defendants are not entitled to judgment as a matter of law on the issue of telephone use, therefore the Magistrate’s recommendation that they be granted partial summary judgment is rejected.

Opening of Mail

The affidavits submitted by the plaintiffs have caused the Magistrate to recommend denial of the defendants’ motion as to treatment of mail. For the purpose of eliminating the issue, the defendants are willing to stipulate that violations of their own regulations have occurred and that they will not happen again.

Under such circumstances the defendants are not entitled to partial summary judgment on this issue, therefore the Court accepts Magistrate Atkins’ recommendation of denial of the defendants’ motion.

Library Facilities

The Magistrate has recommended denial of the defendants’ motion as to legal assistance for inmates who are involved in or wish to commence civil litigation. The defendants object to this recommendation, on the ground that the jail staff will secure, from the County law library, books requested by inmates wishing to represent themselves without questioning whether criminal or civil litigation is involved. Further, the defendants argue that civil cases are not comprehended by the rule as to legal assistance for inmates involved in criminal cases.

It is unrealistic to expect a lay person to know the specific law books he will need to research a legal problem, so that he might request them from a guard. Martino v. Carey, 563 F.Supp. 984, 1003 (D.Ore.1983). Either an opportunity to browse in the library or some expert assistance would be required; otherwise the lay person is denied effective access to the courts. Id. at 1003-1004. This right of access applies to civil, as well as to criminal, matters. Id.; Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974); op. of Douglas, J. in Cruz v. Hauck, 404 U.S. 59, 64, 92 S.Ct. 313, 316, 30 L.Ed.2d 217 (1971).

The Court accepts the recommendation that the defendants’ motion be denied as to access to legal materials in civil matters. Educational, Vocational and Voluntary Work Programs.

It is the recommendation of the Magistrate that the defendants’ motion for partial summary judgment as to educational, vocational and voluntary work programs be granted. She has found that there is no constitutional right to such programs. The plaintiffs contend that the adverse effect on rehabilitation and the increased violence engendered by forced idleness can amount to a violation of the Eighth Amendment.

Case law supports the Magistrate’s recommendation. There is no constitutional right to rehabilitation; idleness and a lack of programs do not violate the Constitution. Hoptowit v. Ray, 682 F.2d 1237, 1254-1255 (9th Cir.1982); Capps v. Atiyeh, 559 F.Supp. 894, 908 (D.Ore.1983). Federal courts may not interfere with decisions made by state prison officials absent a constitutional violation. Hoptowit at 1246.

The Court accepts Magistrate Atkins’ recommendation that partial summary judgment be granted the defendants as to this issue.

Training of Personnel

The plaintiffs have asked that a plan be submitted that would assure that the jail would be adequately staffed and properly trained to the standards of the American Correctional Society. Magistrate Atkins has recommended that the defendants’ motion be granted as to this issue, for Hoptowit v. Ray, supra at 1251, declares that it is impermissible for courts to become involved in the minutiae of recruitment and training programs. The plaintiffs point out that lack of proper training may well result in the jail staff violating constitutional standards. There are cases that support the plaintiffs’ position. It has been held that negligence in hiring, training and supervising law enforcement officers creates a foreseeable risk that violation of citizens’ civil rights may occur, providing a basis for holding the governmental entity liable under 42 U.S.C. § 1983. Hirst v. Gertzen, 676 F.2d 1252, 1263 (9th Cir. 1982); Hopper v. Hayes, 573 F.Supp. 1368, 1373 (D.Ida.1983). In fact, ftnt. 28, found at page 1263 of the Hirst opinion, states that a jailer’s duty to keep a prisoner safe gives rise to a duty on the part of the county to staff its jail with properly hired, trained and supervised personnel. However, the plaintiffs’ Complaint does not sound in negligence, there being no allegation that the alleged wrongs perpetrated against them have been proximately caused by the negligence of any of the defendants. That being the case, Hoptowit is undoubtedly controlling here.

The Court, therefore, accepts Magistrate Atkins’ recommendation that partial summary judgment be granted the defendants as to the training of personnel.

Personal Property

The Magistrate recommends granting the defendants’ motion as to the limitation of the kinds of personal property pretrial detainees may keep in their cells. She found no constitutional right to have personal property in one’s cell. The plaintiffs argue that no purpose for the restriction has been shown, thus a genuine issue of material fact remains.

The jail officials’ need to maintain security and order allows reasonable restrictions on the property rights of those who are confined there. See McCrae v. Hankins, 720 F.2d 863, 869 (5th Cir.1983); Sullivan v. Ford, 609 F.2d 197, 198 (5th Cir.1980). The inclusion of virtually all personal necessities in the types of property permitted to be kept in the Washoe County Jail cells belies any intent to punish.

Although pretrial detainees have not yet been convicted, this does not mean that they do not present a threat to security. In Block v. Rutherford, — U.S. -, -, 104 S.Ct. 3227, 3231, 82 L.Ed.2d 438 (1984), the U.S. Supreme Court noted the ease with which an arrestee can obtain release on bail or personal recognizance. “The very fact of nonrelease pending trial thus is a significant factor bearing on the security measures that are imperative to proper administration of a detention facility.” Ibid.

The Court accepts the Magistrate’s recommendation as to the issue of what personal property may be kept in a cell.

Fire Safety

Magistrate Atkins recommends denial of the defendants’ motion as to fire safety. She stated that even after accepting as true all the evidence on the issue presented by the defendants she is unable to say as a matter of law or fact that the inmates and detainees at the Washoe County Jail are free from a life-threatening situation.

In objection, the defendants point out that testimony and affidavits reflect the following: The jail is constructed of noncombustible concrete and steel; the jail has a trained and experienced fire safety officer; the mattresses, bedding and pillows are fire retardant; there are no flammable wall coverings; jail personnel are trained in the use of fire-fighting equipment; there is a formal evacuation plan; and there have been only three fires at the jail, all set by inmates, and all were immediately extinguished without injury to anyone.

The plaintiffs have not presented any evidence from which it could be inferred that the jail is a death trap in case of fire. Cf Leeds v. Watson, 630 F.2d 674, 675 (9th Cir.1980). It is true that the moving parties have the initial burden to establish the non-existence of a triable issue of fact. Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1250 (9th Cir.1982). However, this rule is applied in light of the requirement that parties opposing a motion for summary judgment must then present some significant probative evidence to support their complaint. Compton v. Ide, 732 F.2d 1429, 1434 (9th Cir.1984); Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir.1982). The defendants have sustained their burden of establishing that the jail does not represent a life-threatening situation in case of fire. The plaintiffs have not furnished any probative evidence in support of the pertinent portion of their Complaint.

The recommendation of the Magistrate that the motion of the defendants for partial summary judgment be denied on the issue of fire safety is rejected.

Unsanitary Conditions and the Physical Plant

Magistrate Atkins has recommended denial of the defendants’ motion as to unsanitary living conditions, on the ground that a genuine issue of material fact remains.

The defendants object on the ground that they have presented evidence that shows that any deficiencies do not rise to the level of constitutional deprivations. A review of the record reveals that the plaintiffs have not supported their complaint with probative evidence.

As to the convicted inmates, the Eighth Amendment protects from conditions which amount to an unnecessary and wanton infliction of pain. Hoptowit v. Ray, supra at 1256. The Fourteenth Amendment protects pretrial detainees from conditions which serve no legitimate purpose but inflict misery on them, thereby punishing them. Martino v. Carey, supra at 994. When sanitary conditions are in question, the test is whether substandard sanitation endangers the health of the jail occupants. Id. at 1000. Again, the defendants’ evidence has established the . ion-existence of a triable issue of fact, whereas the plaintiffs’ evidence does not support any contention of constitutional deprivation.

The recommendation of the Magistrate that the defendants’ motion as to unsanitary conditions be denied is rejected.

The Court accepts all the recommendations and findings of Magistrate Atkins not objected to by the parties.

IT IS, THEREFORE, HEREBY ORDERED that the defendants’ motion for a partial summary judgment be GRANTED as to the following issues:

a) Contact visits;
b) Reading materials;
c) Educational, vocational and voluntary work programs;
d) Training of personnel;
e) Personal property;
f) Fire safety; and
g) Unsanitary conditions and physical plant.

IT IS FURTHER ORDERED that the defendants’ motion for a partial summary judgment be DENIED as to the following issues:

a) Food preparation and service;
b) Telephone use;
c) Opening of mail;
d) Access to legal materials; and
e) Recreation and exercise.

IT IS FURTHER ORDERED that this matter be remanded to the U.S. Magistrate for reconsideration of the issue of pretrial detention and bail in the light of the affidavit of the law clerk of the plaintiffs’ counsel.