author: WARREN, District Judge.

text:
    Patrick WENNESHIEMER, Ray Rapp, Milton Esser, Bill Winstead, and David Gregory, Plaintiffs, v. FORE WAY EXPRESS, INC. and Teamsters “General” Local Union No. 200, Defendants.
    No. 84-C-1065.
    United States District Court, E.D. Wisconsin.
    Jan. 3, 1986.

      Milton S. Padway, Padway & Padway, Milwaukee, Wis., for plaintiffs.
    Alan E. Seneczko, Krukowski, Chaet, Beck & Loomis, Milwaukee, Wis., for Fore Way Exp.
    Scott D. Soldon, Goldberg, Previant, Uelmen, Milwaukee, Wis., for Teamsters Local 200.
   DECISION AND ORDER

WARREN, District Judge.

On July 19, 1984, plaintiffs commenced an action in the Milwaukee County Circuit Court seeking to recover damages resulting from an alleged loss of seniority rights under a collective bargaining agreement. On August 20, 1984, defendants Fore Way Express, Inc. (“Fore Way”) and Teamsters “General” Local Union No. 200 (“Local 200”) removed this action to the United States District Court for the Eastern District of Wisconsin, pursuant to 28 U.S.C. § 1446 (1982). Presently pending in this matter are plaintiffs’ objection to removal and defendants' motions to dismiss.

BACKGROUND

Plaintiffs are employees of Fore Way and are members of Local 200. Local 200 and Fore Way are parties to a collective bargaining agreement (“The Agreement”) which existed when the events pertinent to this action occurred. The Agreement set forth provisions governing, inter alia, the Fore Way employees’ seniority rights, wages, sick leave and vacation benefits.

In 1980 Fore Way created the “Four Seasons” division to perform its local cartage service. Plaintiffs subsequently transferred to Four Seasons allegedly under the impression that their seniority, wage, sick leave and vacation rights under The Agreement would be unaffected. Plaintiffs allege that these items were altered to their detriment because of their transfer to Four Seasons. In December, 1983, Fore Way informed plaintiffs that it would return them to the Fore Way seniority list and eliminate the Four Seasons seniority list apparently without granting plaintiffs full allowance of their seniority rights accrued since their hiring date.

In paragraph 27 of their Complaint, plaintiffs detail the subsequent events and the corresponding dates as follows:

27. On December 19, 1983 plaintiffs filed a grievance with Teamsters “General” Local Union No. 200 with regard to the proposed denial of their seniority rights, requesting full reinstatement of their seniority by defendant company. Said grievance was heard and the relief denied on or about January 4, 1984. Plaintiffs were informed that there would be no appeal within the grievance procedure; and that any further grievance with respect to the issue would be futile.

On February 1, 1984, the Four Seasons seniority list was combined with the Fore Way seniority list allegedly without plaintiffs receiving full allowance for their accrued seniority. As stated above, this action was commenced July 19, 1984.

DISCUSSION

I. Propriety of the Removal

Defendants removed this action to the United States District Court for the Eastern District of Wisconsin on the ground that this matter arises under Section 301(a) of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), which grants federal district courts jurisdiction to hear “[sjuits for violations of contracts between an employer and a labor organization....” Defendants contend that plaintiffs are seeking redress of rights arising out of a collective bargaining agreement and therefore § 301 of the LMRA preempts any state law.

Plaintiffs respond by asserting that this lawsuit is simply an action brought by employees against their employer for breach of contract. They contend that Local 200 was named as a defendant only because Wis.Stat. § 803.03(1) required it. See Markham v. American Motors Corp., 22 Wis.2d 680, 686, 126 N.W.2d 753, 755-56 (1964). Accordingly, in reliance on Markham, id,., plaintiffs argue that Wisconsin possesses exclusive jurisdiction over their cause of action.

In Markham, the Wisconsin Supreme Court found, inter alia, that § 301 of the LMRA “which confers on federal district courts jurisdiction over actions for breach of collective bargaining contracts, does not divest state courts of jurisdiction over such suits.” 22 Wis.2d at 686, 126 N.W.2d at 755. There was no finding that jurisdiction over the dispute in Markham lay exclusively with the Wisconsin state courts. The defendant in Markham could have removed that action to the federal district court since all rights and claims arising from a collective bargaining agreement in an industry affecting commerce arise under federal law. Oglesby v. RCA Corp., 752 F.2d 272, 277 (7th Cir.1985); see Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Ninham v. Nicolet Paper Co., 583 F.Supp. 1057 (E.D.Wis. 1984). Likewise, the defendants in the present case were entitled to remove this matter to the federal court. Accordingly, the Court finds that removal of this action to the United States District Court for the Eastern District of Wisconsin was proper.

II. Defendants’ Motion to Dismiss

Defendants move to dismiss this action on the ground that plaintiffs have not commenced this lawsuit within the appropriate limitations period. Defendants’ position is that the Complaint essentially alleges a breach by Fore Way of the Agreement and a breach by Local 200 of its duty of fair representation. Such an action, termed a “hybrid § 301/fair representation case,” must be commenced within six months after the date on which the adverse employment decision was made. DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). Plaintiffs’ adverse employment decision, defendants contend, occurred on January 4, 1984, when their grievance was denied and they were , informed that there would be no appeal within the grievance procedure. See Plaintiffs' Complaint at paragraph 27 (reprinted above). Since plaintiffs did not commenee the instant action until July 19, 1984, defendants assert that the aforementioned six-month limitation period requires dismissal of this matter with prejudice.

Plaintiffs counter with two arguments. First, plaintiffs dispute defendants’ characterization of this matter as a hybrid § 301/fair representation case. Rather, plaintiffs contend that their Complaint alleges a breach of contract claim against Fore Way and that Local 200 is named as a defendant because of Wis.Stat. § 803.03(1) requirements, not because of any alleged wrongdoing by Local 200. Second, plaintiffs argue that even if the Court considers this matter to be a hybrid § 301/fair representation case, their claim is not barred by the six-month statute of limitations. Plaintiffs’ position is that their cause of action accrued either on January 25, 1984, when plaintiffs’ counsel met with representatives of Fore Way to discuss this lawsuit or on February 1, 1984, when the Four Seasons seniority list was merged with the Fore Way seniority list.

Plaintiffs’ first argument that the present action is not a hybrid § 301/fair representation case would, if accepted, require dismissal of this action. Clear Seventh Circuit precedent establishes that a necessary prerequisite for an employee to maintain a suit against an employer pursuant to § 301 of the LMRA is that the employee’s union breached its duty of fair representation. Huffman v. Westinghouse Electric Corp., 752 F.2d 1221, 1226 (7th Cir.1985) (employees may not have their grievances reviewed by court absent allegation of union’s breach of duty of fair representation); see also Melendy v. United States Postal Service, 589 F.2d 256, 260 (7th Cir.1978). This Court just found that removal was proper since jurisdiction over this action arises pursuant to § 301 of the LMRA. Since employees bringing a § 301 action against their employer must allege that their union breached its duty of fair representation, plaintiffs’ attempts to distinguish this action on the basis that Local 200 fairly represented them would result in dismissal of this action for failing to state a claim upon which relief can be granted. Consequently, if the Court were to accept plaintiffs’ characterization, this case would be dismissed.

Plaintiffs’ second argument that the statute of limitations commenced running on either January 25, 1984 or February 1, 1984, rather than on January 4, 1984 is also without merit. It is clear that a hybrid § 301/fair representation cause of action commences to run when the employee is unequivocally informed that his grievance will not be processed further. Dozier v. Trans World Airlines, Inc., 760 F.2d 849 (7th Cir.1985) (statute of limitations begins running upon Union’s statement to employee that “your grievance will not be processed any further”); Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 304 (7th Cir.1983) (limitations period begins to run “... when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged [violation].” (quoting Hungerford v. United States, 307 F.2d 99, 102 (9th Cir.1962)); Freeman v. Teamsters Local 135, 746 F.2d 1316, 1319 (7th Cir.1984) (cause of action accrues when grievance committee’s decision rendered). The Court hereby finds that plaintiffs’ cause of action accrued on January 4, 1984, when, according to plaintiffs’ Complaint, their grievance was denied, and they were “informed that there would be no appeal within the grievance procedure; and that any further grievance with respect to the issue would be futile.” Since this action was commenced on July 19, 1984, more than six months after the cause of action’s accrual, plaintiffs’ claim is barred by the running of the statute of limitations. Regardless if the Court views this matter as a breach of contract action or as a hybrid § 301/fair representation case, dismissal is required. Accordingly, the Court hereby GRANTS defendants’ motion to dismiss.

III. Defendants’ Request for Rule 11 Sanctions

Defendants contend that plaintiffs’ cause of action in this case was frivolous and that they are therefore entitled to recover their reasonable attorney’s fees from the plaintiffs and/or their attorney. Rule 11 of the Federal Rules of Civil Procedure provides in part that:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Plaintiffs claim that in filing this action originally in the Milwaukee County Circuit Court they were relying on the Wisconsin Supreme Court’s holding in Markham, supra. The Markham decision could be reasonably interpreted to mean that employees can maintain a breach of contract action against their employer in a state court and that the state court’s statute of limitations for breach of contract actions would be applicable. The Court cannot find that plaintiffs’ filing of this action was derelict to the extent authorizing imposition of Rule 11 sanctions. Accordingly, defendants’ request for Rule 11 sanctions is hereby DENIED.


source: Caselaw Access Project

author: COHILL, Chief Judge.

license: Public Domain

text:
    William MARIANI, Plaintiff, v. CITY OF PITTSBURGH, a municipal corporation, Officer Preik and Officer Pupinski, as individuals, and in their official capacity as members of the Police Force of the City of Pittsburgh, Defendants.
    Civ. A. No. 83-2991.
    United States District Court, W.D. Pennsylvania.
    Jan. 3, 1986.

      Raymond Radakovich, Pittsburgh, Pa., for plaintiff.
    Zan I. Hodzic, Asst. City Sol., D.R. Pellegrini, City Sol., Bryan Campbell, Pittsburgh, Pa., for defendants.
   OPINION

COHILL, Chief Judge.

Presently before us is a Motion for Summary Judgment filed on behalf of Defendant the City of Pittsburgh (“City”). The Complaint charges both the City and two individual police officers with violating 42 U.S.C. § 1983 (1982) by depriving Plaintiff of his fourteenth amendment rights.

Background

The above captioned action arises out of a series of events beginning on the evening of April 9, 1983 and ending early the following morning. Shortly after a rock concert had ended at a downtown theater, Cynthia Dietrich, a police officer who was directing heavy pedestrian traffic at a major intersection, observed the Plaintiff. She reported that an individual fitting Plaintiff’s description, and driving a black Camaro, had disregarded her signals, accelerated into the intersection toward her, and then swerved away just barely missing her. A number of pedestrians were forced to run out of the intersection to avoid being hit. Dep., p. 10.

Dietrich gave a description of the car, including its license plate and a description of the driver to an officer at police headquarters. Her descriptions, along with her version of the incident, to the effect that the driver had almost run over several people, were broadcast over the police radio. Id., at 13.

At approximately one o’clock in the morning, Officers Preik and Papinski, the individual Defendants in this action, spotted the vehicle described. It was parked and unoccupied. Pupinski Dep., p. 5. The officers reported that they had found the vehicle and requested assistance. A short time later, the officers observed the Plaintiff approaching the vehicle. Plaintiff matched the description of the individual involved in the earlier incident. Id., at 9.

According to the officers, they initially attempted to stop the Plaintiff to obtain identification. However, when Plaintiff spotted the officers, he entered his vehicle and attempted to drive away. Preik Dep., p. 9. Aided by two other officers who had responded to their call, Officers Preik and Pupinski blocked Plaintiffs vehicle with a patrol car and a van. Id., at 13.

Approaching Plaintiffs vehicle from the rear, Officers Preik and Pupinski requested that Plaintiff step out of his vehicle. Id., at 11. When Plaintiff did not voluntarily exit his vehicle, the officers forcibly removed him. According to the officers, Plaintiff resisted arrest, punching and kicking at them from the moment they removed him from his vehicle until he was handcuffed and placed in the van. Pupinski Dep., p. 8.

After the struggle, the officers noticed some blood on Plaintiffs hair. Believing that Plaintiff may have injured his head during his resistance, the officers stopped at a hospital before taking Plaintiff to the police station. Preik Dep., p. 30. Both officers deny using a night stick, punching or kicking Plaintiff to subdue him. Id., at 17-20. Pupinski Dep., p. 12. According to the officers, Plaintiffs head wound did not require sutures and Plaintiff had suffered no other injury.

During his arrest, Officer Pupinski smelled alcohol on Plaintiffs breath. Later, at the police station, he observed Plaintiff walking with a staggered gait. Pupinski Dep., p. 8. Consequently, a breath analysis was administered, the results of which indicated that Plaintiff was legally intoxicated. Plaintiff subsequently pled guilty to a charge of underage drinking and a drunk driving charge against him was dismissed.

William Mariani, Plaintiff, states a different version of the circumstances surrounding his arrest. He claims that sometime around two o’clock in the morning, after his father’s bar had closed, he went outside to retrieve his wallet from his car. Mariani Dep., p. 48. He conversed briefly with some men who had noticed a number of police cars on the street, then he proceeded to enter his car. Id., at 49-50. Immediately upon his entering the car, several police cars with their lights flashing blocked in his car and demanded that he get out of it. Id. Three or four policemen, night sticks drawn, approached his car, opened the door, dragged him out and began to beat him and shout obscenities at him. They allegedly accused him of being a cop killer. Plaintiff claims that he was thrown up against his car several times and then handcuffed. Id., at 52.

Plaintiff also disagrees with the officers’ story in several other respects. He disputes the fact that his head injury did not require stitches, stating instead that the officers talked the nurse out of giving him one or two stitches. Id., at 11. At the police station, Plaintiff claims that the officers threatened him with revenge for attempting to kill a police officer. Id., at 55. Plaintiff denies that he attempted to run down the traffic officer. Rather, he claims that he simply disobeyed her order to stop because he was sick of being in traffic. Id., at 43.

Officers Preik and Pupinski deny Plaintiff’s allegations that they maliciously assaulted him and used unnecessary force in making his arrest. On the contrary, the officers maintain that Plaintiff’s behavior during the arrest constitutes intentional assault and battery against them. They have filed a counterclaim to that effect.

Summary Judgment

The City files this Motion for Summary Judgment on the grounds that, given either version of the facts, Plaintiff has failed to establish a basis for municipal liability under § 1983. When considering a motion for summary judgment, the Court, viewing the facts in the light most favorable to the nonmoving party, must determine if there are any genuine issues of material facts. Fed.R.Civ.P. 56. Myer v. Riegel Products Corp., 720 F.2d 303 (3d Cir.1983), cert. denied, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984); Betz Laboratories Inc. v. Hines, 647 F.2d 402 (3d Cir.1981). The moving party has the burden of proving that no genuine issue exists. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1969); Butz v. Hertz Corp., 554 F.Supp. 1178, 1181 (W.D. Pa.1983). Any doubts must be resolved in favor of the nonmoving party. Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.1985) (quoting Ness v. Marshall, 660 F.2d 517, 519 (3d Cir.1981)).

Municipal Liability

A municipality can not be liable under § 1983 solely on the basis of respondeat superior. Thus, no liability arises for failure to control the conduct of an officer. However, a municipality can be held liable under § 1983 when “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body’s officers.” Monell v. Department of Social Services of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978).

In order to establish municipal liability under § 1983, a plaintiff must: 1) identify the challenged policy or custom, 2) attribute it to the city, and 3) show a causal connection between the execution of that policy and the injury suffered. Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 51 (3d Cir.1985) (quoting Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984)). See City of Oklahoma City v. Tuttle, — U.S. -, 105 S.Ct. 2427, 2439, 85 L.Ed.2d 791, 807 (Brennan, J., concurring); Gilmere v. City of Atlanta, 774 F.2d 1495, 1512 (11th Cir.1985) (en banc) (Johnson, J.); Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985).

A policy or custom is a “course of action consciously chosen from among various alternatives.” Tuttle, 105 S.Ct. at 2436, (Rehnquist, J., Plurality). Technically, the term “policy” denotes something which has been officially adopted, while the term “custom” denotes a practice which is so widespread, well settled and permanent, that it rises to the level of law. Gilmere, 774 F.2d at 1504, 1512 (citing Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36); Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.) (per curiam), reh’g en banc denied, 739 F.2d 993 (1984).

A policy or custom can be inferred from acts or omissions if they constitute tacit approval or deliberate indifference to unconstitutional conduct. See, e.g., Estate of Bailey v. County of York, 768 F.2d 503, 506 (3d Cir.1985) (quoting Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980)); Wellington v. Daniels, 717 F.2d 932, 935-36 (4th Cir.1983); Hays v. Jefferson Co., 668 F.2d 869, 873-74, reh’g denied, 673 F.2d 152 (1982), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1983); Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir.1981). Whether municipal action or inaction amounts to authorization, approval or encouragement is generally a question of fact. Estate of Bailey, 768 F.2d at 506.

Once the existence of a policy has been established and attributed to the municipality, the Plaintiff must show a plausible nexus between the execution of that policy and the constitutional rights violated. Estate of Bailey, 768 F.2d at 507. In other words, to sustain his burden, Plaintiff must develop facts which demonstrate an “affirmative link” between the misconduct of the individual officer and some policy, express or implied, which has been adopted or authorized by the City. Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976). See Tuttle, 105 S.Ct. at 2436. The official policy must be the “moving force” behind the constitutional violation. Monell, 436 U.S. at 694, 98 S.Ct. at 2037; Black v. Stevens, 662 F.2d 181, 189 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982), reh’g denied, 456 U.S. 950, 102 S.Ct 2022, 72 L.Ed.2d 475.

In the case sub judice, Plaintiff alleges that, through gross negligence and deliberate indifference to Plaintiff’s constitutional rights, the city has adopted by implication customs or policies of failure to properly train or control its police officers and condoning the use of excessive force by repeatedly refusing to discipline the two individual Defendants and by knowingly retaining dangerous persons on the police force.

Failure to Train

Plaintiff alleges that the City has a custom or policy of failing to train its officers but offers no evidence whatsoever on what training, if any, each of the officers in question received. The only evidence contained in the record regarding training pertains to supplemental training after an officer has had a complaint filed against him with internal affairs. Both officers Preik and Pupinski stated that after a complaint had been filed against them they had not been called in by their superiors for instruction on the appropriate procedure to follow should a similar incident occur in the future. Preik Dep. at 23, 29; Pupinski Dep. at pp 13-14.

In its recent decision in City of Oklahoma City v. Tuttle, the Supreme Court distinguished Monell, where the challenged policy was in and of itself unconstitutional, from instances where the policy relied on is more nebulous and further removed from a constitutional violation. 105 S.Ct. at 2436-37. The policy alleged in Tuttle was that of inadequate training and supervision of police officers. The court noted that, if such a policy, which is not itself unconstitutional, could ever be proven, the Plaintiff would have to provide “considerably more proof than a single incident.” Id., at 2436. Even assuming that inadequate training could ever be a policy under Monell, the Court reserved the issue of whether gross negligence could satisfy the “moving force” requirement or whether a more conscious decision on the part of the city would be required. Id., at n. 7.

Although Tuttle does not directly answer the situation presented in this action, it does express a requirement for greater proof where the policy alleged is not itself unconstitutional. Since Tuttle, several courts have considered cases where the Plaintiff has alleged a policy of inadequate training. See, e.g., Rymer v. Davis, 775 F.2d 389 (6th Cir.1985); Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir.1985) (en banc); Vippolis v. Village of Haverstraw, 768 F.2d 40 (2d Cir.1985); Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir.1985). With the exception of Rymer, each court has placed a heavy, if not insurmountable, burden on a Plaintiff attempting to prove such a policy. In Rymer, the Court of Appeals for the Sixth Circuit reaffirmed its earlier decision which the Supreme Court had vacated and remanded for reconsideration in light of its decision in Tuttle. In reaffirming its earlier decision at 754 F.2d 198, the court noted that it had not relied on a single incident. Rather, it had based that decision on the City’s complete lack of pre-employment training and failure to ever instruct its officers on proper arrest procedures or treatment of persons injured during arrest. 775 F.2d at 757.

Rymer presents an extreme situation. The more typical fact pattern was considered by the Court of Appeals for the Second Circuit in Vippolis. The Plaintiff in Vippolis, as in the present action, made no effort to establish what training the officer in question did receive or what further training he should have received. 768 F.2d at 44-45. Applying Tuttle, the court found that proof that a municipality had hired an officer, knowing that he had not completed the training program required by state law, was insufficient alone to show causation. In order to prove a causal connection, the Plaintiff must show that specific deficiencies in the training the officer received led to the incident of alleged misconduct. Id. In Vippolis, but even more so in the present action, the Plaintiff has not only failed to state any genuine issue as to causation, but also has failed to allege any facts to support his claim that the officers had in fact been inadequately trained.

Excessive Force

Plaintiff states two related theories as the basis for his claim that the City had a policy or custom of condoning the use of excessive force: 1) repeatedly refusing to discipline the two officers in question, 2) retaining those officers on the police force knowing that they are dangerous. In support of both theories, Plaintiff relies on one prior complaint of brutality filed with Internal Affairs against each officer. In each case, the officer involved was interviewed by Internal Affairs but was never disciplined as a result of the complaint. Preik Dep. at pp 22-23; Pupinski Dep. p. 13. Neither officer has ever had a complaint filed against him with his supervisor.

The Internal Affairs complaint filed against Officer Pupinski, although it involves allegations of use of excessive force, is factually very different from the incident upon which Plaintiffs action is based. The earlier incident occurred while Officer Pupinski was guarding a prisoner already in custody. When four of the prisoner’s relatives attempted to help him leave the hospital in which he was being treated for a prior injury, Officer Pupinski had to physically restrain the man. Pupinski Dep., p. 15.

Plaintiff has not offered any further details regarding either complaint, nor has he offered any information generally about the City’s record of following up on complaints alleging use of excessive force on other officers who may have been disciplined for such behavior. Since we have no indication of what, if any, information or testimony was received in addition to the officer’s own report or what action was taken on the previous complaints filed against Officers Preik and Pupinski, it is impossible to determine whether the officers were in fact guilty of using excessive force in those instances. Likewise, it is impossible to determine whether the City can be said to have tacitly condoned whatever did occur without information on how these complaints were processed and resolved.

Prior incidents of abusive behavior can establish a policy or custom if Plaintiff presents evidence showing that the City has acceded to that behavior. See, e.g. Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir.1981) (40 separate instances of police misconduct brought to attention of supervisor during public hearing but no subsequent action taken by supervisors). However, proving that the prior incidents and the present alleged misconduct occurred, let alone that the city acceded to that misconduct, can be difficult. Grandstaff, 767 F.2d at 171 (citing Bennett v. City of Slidell, 728 F.2d 762 (5th Cir.1984) (en banc)).

Isolated events will not establish a pattern of abusive behavior. Ramie v. City of Hedwig Village, 765 F.2d 490, 493-94 (5th Cir.1985). See also, Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 879, 88 L.Ed.2d 916 (1985); Languirand v. Hayden, 717 F.2d 220, 229 (5th Cir. 1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2656, 81 L.Ed.2d 363 (1984); Berry v. McLemore, 670 F.2d 30, 32 (5th Cir.1982). Neither will mere recitation of the number of complaints filed suffice to prove a policy or custom. A plaintiff must show why those prior incidents deserved discipline and how the misconduct in those cases is similar to that involved in the present action. Strauss v. City of Chicago, 760 F.2d 765, 769 (7th Cir.1985) (requiring that facts indicating a policy or custom appear in the complaint). But see, Payne v. City of LaSalle, 610 F.Supp. 607, 609 (N.D.Ill.1985) (following Strauss but criticizing its holding as placing plaintiffs in a proverbial catch 22 situation).

The Plaintiff in this action alleges that the officers in question used excessive force during his arrest and on two previous occasions, one of which did not involve an arrest. He does not allege any facts indicating that the prior incidents actually involved use of excessive force or that the City failed to thoroughly investigate those complaints. Both officers Pupinski and Preik state that they were required to respond to Internal Affairs about the incidents raised in the Complaints. Allowing an inference that, because neither officer received discipline as a result of his only prior complaint, the City has tacitly authorized the use of excessive force would be absurd. Certainly, we can not assume that each complaint filed by an individual who has been arrested against his will presents a valid allegation of police misconduct. Likewise, we can not conclude that two previous complaints alleging use of excessive force represent the type of widespread abuse contemplated in Monell. 436 U.S. at 690-91, 98 S.Ct. at 2035-36.

For the record, we note that the Court of Appeals for the Third Circuit has recognized liability under § 1983 for a policy of encouraging use of excessive force by police officers. In 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), reh’g denied, 456 U.S. 950, 102 S.Ct. 2022, 72 L.Ed.2d 475 (1982), the majority upheld a jury verdict against the police chief and the City but conceded that the evidence was not overwhelming. 662 F.2d at 189-90. The court relied primarily on the promulgation of a regulation which it believed encouraged officers to use excessive force and a policy which insured that no citizens’ complaints would ever be placed in an officer’s personal file. Id. As pointed out by the dissenting opinion, the majority recognized that use of excessive force could not be shown by insolated incidents. Id. at 199 (Garth, J). Thus, the majority mentions only in a footnote that the officer in question had two previous abusive behavior complaints which apparently had gone uninvestigated. Id., at 191 n. 9. We believe Black supports rather than contradicts our holding in the present case.

Conclusion

Viewing the facts before us in the light most favorable to the Plaintiff, we see no genuine issues regarding the establishment of a permanent and well settled policy or custom under which the city can be held liable for violating § 1983. Thus, summary judgment will be entered in favor of City in the above-captioned action.


author: HADEN, Chief Judge.

text:
    Eupha HURT, Plaintiff, v. G.C. MURPHY COMPANY, Defendant.
    Civ. A. No. 84-2475.
    United States District Court, S.D. West Virginia, Charleston Division.
    Jan. 3, 1986.

      Andrew Raptis, Jr., Charleston, W.Va., for plaintiff.
    W.E. Mohler, Charleston, W.Va., for defendant.
   ORDER

HADEN, Chief Judge.

Pending is the Defendant’s motion to dismiss filed December 11, 1985. Although the motion was filed beyond the pferiod allowed in the Pretrial Procedures and Final Scheduling Order entered April 5, 1985, the Court determined at the pretrial conference conducted December 9, 1985, that there existed an issue as to whether federal question jurisdiction, the only jurisdiction asserted here, existed in this case. Because pressing this matter for trial without first determining the existence of this Court’s jurisdiction to consider this action may result in the needless waste of the parties’ and the Court’s resources, the Court will consider the Defendant’s motion.

The issue raised by the motion is whether detention by a private corporation under West Virginia’s shoplifting statute involves constitutionally protected search and seizure which can be remedied under 42 U.S.C. § 1983.

W. Va. Code, § 61-3A-4 provides:

“An act of shoplifting as defined herein, is hereby declared to constitute a breach of peace in any owner of merchandise, his agent or employee, or any law enforcement officer has reasonable ground to believe that a person has committed shoplifting, may detain such person in a reasonable manner and for a reasonable length of time not to exceed thirty minutes, for the purpose of investigating whether or not such person has committed or attempted to commit shoplifting. Such reasonable detention shall not constitute an arrest nor shall it render the owner of the merchandise, his agent or employee, liable to the person detained.”

The Plaintiff was detained by the agents of the Defendant corporation for more than thirty minutes. The Plaintiff claims that her detention by Murphy Mart employees exceeded the time that was allowed by the statute and that the agents of the Defendant corporation would not release her unless she confessed to shoplifting and released them from any liability arising from the detention. Eupha Hurt now proceeds before this Court seeking to invoke 42 U.S.C. § 1983 and federal question jurisdiction. The Court notes further that this is the only claim and basis for jurisdiction raised by Hurt’s complaint.

42 U.S.C. § 1983 provides a mechanism for vindication of federally protected rights as determined under federal substantive law as opposed to making actionable ordinary state torts in federal court. Tucker v. Duncan, 499 F.2d 963, 965 n. 1 (4th Cir. 1974). See also Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). In sum, a claim under Section 1983 must allege (1) that the Defendant deprived the Plaintiff of a right secured by the Constitution or laws of the United States; and (2) that the Defendant is a person acting under color of state law.

State action is present if conduct allegedly causing the deprivation of the federal right may be fairly attributable to the state. Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). A private Defendant acts under color of state law if “he is a willful participant in a joint action with a state or its agents.” Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). The mere fact the state regulates particular conduct does not imbue that conduct with state action. Arlosoroff v. NCAA, 746 F.2d 1019 (4th Cir.1984).

Several cases have considered whether detention by a merchant pursuant to shoplifting statutes constitutes state action by the merchants. In Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054 (E.D.N.Y.1976), the district court held that where the merchant had acted pursuant to a state shoplifting statute which was neutrally worded and which did not involve the use of state agents as to each particular detention did not constitute state action. Also, in Thompson v. McCoy, 425 F.Supp. 407 (D.S. C.1976), where the state licensed individuals who were authorized to make detentions, and which right was not conferred directly upon the merchant by virtue of his ownership of the goods, the district court held that sufficient state action was alleged. This case is readily distinguishable from the instant action as G.C. Murphy Company, by virtue of its ownership of goods which may have been taken, acquired the right to detain suspected shoplifters in the limited manner prescribed by the statute. The Plaintiff cites Iskander v. Village of Forest Park, 690 F.2d 126 (7th Cir.1982), however, the Court determines that this case is of no assistance in determining this issue as the Seventh Circuit explicitly refrains from determining the state action question. 690 F.2d at 128 n. 1.

From its review of the cases, the Court determines that for a shoplifting detention statute to elevate the actions of a merchant as being taken under the color of state law would require some action between the state and the merchant involved. Joint action could occur if the State had authorized individual agents of merchants to conduct seizures and searches under a given statute, or if the State had adjudicated a case with the merchant to determine whether a search and seizure was appropriate.

In the instant action, no such joint action is asserted because the only connection the State has with the Defendant merchant is the statute. It appears further that the actions taken by the merchant exceed that permitted by the statute, and, therefore, the merchant is alleged to have taken actions were not authorized by the State. The Court thus determines, considering this complaint in a light most favorable to the Plaintiff, the required element of state action cannot be proved under the set of facts alleged or any set of facts which may be alleged. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). That being the case, the Court has no federal question jurisdiction to consider the state law claims which may be raised by the Plaintiffs complaint.

The Defendant’s motion to dismiss is granted.

      . The Plaintiff alleges also that the Defendant required her to confess or continue to be held against her will. As the state action question would remain constant as between infringing the Plaintiffs right to remain silent and her right to be free from unreasonable search and seizure protected by the United States Constitution, the Court's analysis should be considered to apply as to both rights.

      . The Plaintiff bears the burden of establishing jurisdiction in her complaint. Rule 8(a)(1).


author: GILMORE, District Judge.

text:
    Ruth COOPER, Plaintiff, v. OAK PARK SCHOOL DISTRICT, Oak Park Board of Education, Philip J. Goodman, Attorney, Mr. Arden Detert, Principal, and Mr. Kent D. Schultz, Attorney, et al., Defendants.
    No. 85-CV-2345-DT.
    United States District Court, E.D. Michigan, S.D.
    Jan. 6, 1986.
    Dice, Sweeney, Sullivan, Feikens, Hurbis & Foster, P.C. by William McCandless, Detroit, Mich., for plaintiff.
    Shifman, Goodman & Carlson, P.C. by Burton R. Shifman and Marc S. Berlin, Southfield, Mich., for defendants.
   OPINION

GILMORE, District Judge.

This is a Title VII case in which a discharged teacher claims she was discharged on the basis of religion and age. The case is before the Court upon a motion for summary judgment. The Court has reviewed the record, and, for the reasons set forth below, determines that defendants’ motion for summary judgment should be granted.

I

Plaintiff was a kindergarten teacher in the Oak Park School District from 1961 until the 1978-79 school year. In 1977-78, she was transferred to the Einstein School where she taught kindergarten, and in the spring of 1978 it was determined she would teach third grade during the 1978-79 school year. Her principal, a Mr. Detert, gave her curriculum material to review. He also suggested other ways she should prepare for this change in her teaching assignment.

In the spring of 1979, Mr. Detert filed charges with the School District alleging that plaintiff’s services were unsatisfactory. The School District held a series of hearings from May 1979 through February 1980. Testimony of witnesses was presented and documentary evidence was received, creating a 2,200 page transcript. Both the charging party and the teacher were represented by counsel. The Board found that plaintiff had great difficulty in maintaining discipline. The Board further found that plaintiff demonstrated a lack of ability to handle aggressive behavior of students, a lack of ability to effectively manage her class room, a lack of ability to control her anger, which resulted in the physical handling of students, a lack of ability to effectively communicate with her students, and a negative attitude affecting the learning environments in her classrooms. The Board found that all of these factors resulted in her lack of ability to carry out her duties and responsibilities as a teacher in the Oak Park Public Schools. It further found that her actions were injurious to her students. The Board thereby unanimously found reasonable and just cause for her termination as a teacher within the Oak Park School District. Plaintiff was terminated on March 10, 1980.

Plaintiff appealed her termination to the State Tenure Commission, which also held hearings. She claimed on her appeal to the Tenure Commission that her discharge was not for “reasonable and just cause”, as required by the Teachers’ Tenure Act, (M.C.L.A. 38.71 et seq.), but was the result of harassment, age, and religious discrimination, or the result of school administration misfeasance.

On December 8, 1981, the State Tenure Commission entered a decision and order upholding the School District's discharge of plaintiff. In that decision, the Commission spent six pages detailing the evidence and the findings regarding the deficiencies of plaintiff’s teaching performance. These deficiencies, according to the Tenure Commission, focused around disciplinary problems in her classrooms, numerous findings of occasions where students wandered in and out of class unsupervised, and several occasions where plaintiff struck students in a manner inconsistent with school policy. The Tenure Commission also found that plaintiff was unable to structure her lessons to communicate effectively with her students.

The Tenure Commission also dealt with other defenses raised by the plaintiff. The Commission found that plaintiff had received adequate assistance from her principal, and that her principal had not harassed her. Finally, the Tenure Commission found that plaintiff failed to establish as a defense that her discharge was motivated by religious or age discrimination. On that point, the Commission stated, at page 17 of its formal decision and order:

Finally, appellant asserted that Mr. Detert’s and Dr. May’s attempt to discharge her was motivated by religious or age discrimination. The evidence in support of this claim is quite sparse. Mr. Detert once suggested that Mrs. Cooper, who strictly observed the rules of the Jewish faith, go to Florida rather than to Israel for Passover. Appellant’s age discrimination claims rest solely on the fact that the teacher who replaced her was more than 20 years her junior. The district makes a point in hiring younger teachers when replacing retiring teachers because they are at lower steps on the salary schedule. The essence of discrimination is that otherwise similarly situated individuals are treated differently because of their race, sex, religion, or age. C. Thorrez Industries, Inc. v. Michigan Department of Civil Rights, 88 Mich.App. 704 [278 N.W.2d 725] (1979), (involving a claim of sex discrimination). Appellant has not established that either Mr. Detert or Dr. May harbored any ill feelings toward Jewish employees or towards employees of her age (54). Nor has she shown how these factors resulted in any differential treatment. We, therefore, conclude that appellant has failed to establish this defense as well.

Plaintiff appealed the Tenure Commission decision to the Ingham County Circuit Court, which affirmed, saying, in an unpublished opinion (Ruth Cooper v. Oak Park School District, et al, No. 82-28807-AA, slip op. at 2, (Circuit Court for the County of Ingham, March 1, 1983)):

This Court finds that just and reasonable cause existed for petitioner’s discharge and that the decision was based on competent, material and substantial evidence on the whole record and thus affirms the Tenure Commission’s decision.

Plaintiff then appealed to the Michigan Court of Appeals, which affirmed in an unpublished opinion (Cooper v. Oak Park School District, No. 70247, slip op. at 3, (Michigan Court of Appeals, June 22, 1984):

It is our opinion that there exists competent, material, and substantial evidence to support the Tenure Commission’s finding that there was reasonable and just cause to uphold plaintiff’s discharge by defendant.

An application for a rehearing was denied by the Court of Appeals on August 13, 1984. Leave to appeal to the Supreme Court of Michigan was denied on March 28, 1985. Cooper v. Oak Park School District, 422 Mich. 854 (1985).

In the meantime, plaintiff had filed complaints with the Michigan Civil Rights Commission and the Equal Employment Opportunity Commission. On April 11, 1985, she received her right to sue letter from the EEOC. She filed the instant in pro per complaint alleging Title VII violations on May 29, 1985.

II

Defendants move for summary judgment, arguing that the State court proceedings detailed above are res judicata on plaintiff’s Title VII claim.

The leading Supreme Court case is Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). There, the Supreme Court held that the full faith and credit provision of the United States Code (28 U.S.C. § 1738) applied to Title VII cases to require Federal courts to give the same preclusive effect to state court judgments that the judgment would have had in state court. In that case, Kremer, a Polish Jewish engineer, was laid off and not rehired although other laid-off employees were rehired. He claimed discrimination and filed a charge with the EEOC under Title VII. As is required by Title VII procedure, the EEOC referred plaintiff’s charges to the New York state agency, the New York State Division of Human Rights (NYHRD). The NYHRD found no probable cause to believe that plaintiff had suffered from discriminatory practices. Plaintiff appealed to the New York Supreme Court Appellate Division, which affirmed. Then when plaintiff got his EEOC right to sue letter, he brought suit in Federal court.

The Supreme Court held that the Appellate Division’s judgment affirming the NYHRD’s decision meant, under New York law, that the plaintiff was precluded from bringing any other action in New York courts based on the same events. Therefore, the Supreme Court said, the full faith and credit provision applied to preclude plaintiff from litigating his discrimination claim in Federal court.

Additionally, Kremer rejected plaintiff’s claim that the New York judgment did not resolve the issue of whether he had been discriminated against. The Court said that the alleged discriminatory acts were prohibited by both New York and Federal law, and plaintiff could not succeed on a Title VII claim consistent with NYHRD’s judgment that there was no reason to believe that he was fired and not rehired because of discrimination. Finally, the Court noted that for preclusion to apply, the litigant must have had a “full and fair” opportunity to litigate. Minimal due process must be satisfied.

The Sixth Circuit in Loudermill v. Cleveland Board of Education, 721 F.2d 550 (1983), affirmed — U.S. -, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), held that Kremer requires Federal courts to apply state preclusion principles:

We construe Allen [Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)] and Kremer to compel application of traditional principles of claim preclusion in the § 1983 context, as indeed our Court’s precedents suggest, (citing cases). Applied to the instant case, Al len and Kremer suggest that we scrutinize Ohio law to assess the preclusive effect it would attach to the state law dismissal of Donnelly’s claims. If Ohio courts would hold that the prior determinations preclude any further litigation under principles of res judicata, then we are bound to affirm the dismissal of Donnelly’s claims.

Id. at 557.

Defendants claim that under Kremer and Loudermill plaintiff’s discrimination claim is precluded in Michigan by the state court judgments affirming the Tenure Commission’s decision. Under Kremer, such preclusion would be binding on this Court. Defendants concede that this case is not directly analogous to Kremer in that the state agency, whose decision was affirmed in the state court, was not the Civil Rights Commission (which is the analogue to the NYHRD) but the Tenure Commission. However, defendants argue that this difference does not matter since the plaintiff chose to litigate her discrimination claim in front of the Tenure Commission, and since the Tenure Commission made specific findings about the discrimination allegation. In addition, defendants argue that plaintiff had a full and fair opportunity to litigate her employment discrimination claim in front of the Tenure Commission, since she was able to present evidence and rebut evidence from the School Board. Defendants therefore claim that the state court determination in this case was either res judicata or collateral estoppel, and that plaintiff would be precluded from raising her claims in state courts.

The basic question is whether plaintiff’s claim would be barred in Michigan courts under doctrines of either res judicata or collateral estoppel.

A significant discussion of the Michigan law of res judicata and collateral estoppel is found in Jones v. Chambers, 353 Mich. 674, 91 N.W.2d 889 (1958). The Court said:

Where issues of fact of law have been finally decided by a court of competent jurisdiction in one legal action which are essential to the maintenance of another legal action, it is universally held that the second action must fail.

Michigan’s leading case on the doctrine of res judicata is Justice Cooley’s opinion in Jacobson v. Miller, 41 Mich 90 [1 N.W. 1013], The second headnote gives us this pertinent summary:

“An adjudication is conclusive in respect to (1) the subject matter of the litigation, and (2) the point of fact or law or both necessarily settled in determining the issue on the subject matter.”
See, also, Viaene v. Mikel, 349 Mich. 533 [84 N.W.2d 765].

The courts have, however, divided to some degree as to whether the principle involved is an application of the doctrine of res judicata, or a somewhat separate doctrine of collateral estoppel.

The United States supreme court has answered this problem in legal linguistics thus:

“We have often held that under the doctrine of res judicata a judgment entered in an action conclusively settles that action as to all matters that were or might have been litigated or adjudged therein. But a prior judgment between the parties has been held to operate as an estoppel in a suit on a cause of action different from that forming the basis for the original suit ‘only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.’ This latter aspect of res judicata is the doctrine of collateral estoppel by judgment, established as a procedure for carrying out the public policy of avoiding repetitious litigation.” Partmar Corporation v. Paramount Pictures Theatres Corp., 347 U.S. 89, 90, 91 (74 S.Ct. 414 [415, 416], 98 L.Ed. 532).

Id. at 680-81, 91 N.W.2d 889.

See also Hlady v. Wolverine Bolt Co., 393 Mich. 368, 224 N.W.2d 856 (1975), where the court said:

[T]he doctrine of res judicata applies not only to facts previously litigated, but also to points of law which were necessarily adjudicated in determining and deciding the subject matter of the litigation.

Id. at 376, 224 N.W.2d 856.

And the Court of Appeals pointed out in Stolaruk Corporation v. Department of Transportation, 114 Mich.App. 357, 319 N.W.2d 581 (1982):

In order for collateral estoppel to apply, the same ultimate issues underlying the first action must be involved in the second action. The parties must also have had a full opportunity to litigate the ultimate issues in the former action. ... Finally, collateral estoppel only applies where there is mutuality of estoppel. Mutuality of estoppel is present if both litigants in the second suit are bound by the judgment rendered in the first suit.

Id. at 362, 319 N.W.2d 581.

Thus, the Michigan law of res judicata and collateral estoppel is completely consistent with the explanation of these doctrines given by the Supreme Court in Kremer:

Accordingly, the Federal Courts consistently have applied res judicata and collateral estoppel to causes of actions and issues decided by state courts, (citing cases) ... [T]his court has consistently emphasized the importance of the related doctrines of res judicata and collateral estoppel in fulfilling the purpose for which civil courts had been established, the conclusive resolution of disputes within their jurisdiction. Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action, (citing cases). Under collateral estoppel, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue on a different cause of action between the same parties, (citing cases). Thus, invocation of res judicata and collateral estoppel “relieve[s] parties of the cost and vexation of multiple lawsuits, conserve[s] judicial resources, and, by preventing inconsistent decisions, encourage[s] reliance on adjudication, (citing eases).

Kremer 456 U.S. at 467, note 6, 102 S.Ct. at 1889, note 6.

Applying these standards, a Michigan court would find that plaintiffs employment discrimination claim was precluded by the Michigan court’s affirmations of the Tenure Commission’s decision that there was just and reasonable cause for plaintiff’s discharge.

Plaintiff argues that she cannot be precluded from bringing her Title VII claim now because the issue before the Tenure Commission was whether there was just cause for her discharge, whereas the issue in her Title VII claim is whether she experienced discrimination.

The Court rejects this argument. Plaintiff raised the issue of discrimination as a defense to the allegation that she was fired for just cause. Plaintiff was given a full and complete opportunity to adjudicate her claim of discriminatory motive before the State Tenure Commission, and it was adjudicated there. Careful consideration of the claim was given by the State Tenure Commission and was rejected, with explicit reasons, after a full and complete hearing.

Further, plaintiff clearly was afforded due process before the Commission. Not only did the Commission review the 2,200 pages of transcript generated by months of School Board hearings, the Commission held eight hearings of its own that generated an additional 1,500 transcript pages.

Whether we analyze the question as one of res judicata or collateral estoppel, the result is the same here. Under res judicata there has been a final judgment on the merits of this action, which included a defense of age and religious discrimination. Under collateral estoppel, the Commission’s determination of plaintiff’s discrimination defense was necessary to its judgment of just discharge. This Commission decision was affirmed by Michigan courts, and thereby precludes relitigation of the same issue in a different cause of action. The plaintiff has had a full opportunity to litigate her age and sex discrimination claims. Under Michigan law, she would be precluded from bringing the claim of age or religious discrimination in Michigan courts. Because she would be precluded there, she is precluded from making such a claim in this Court. As Justice Blackman pointed out in Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984):

It is now settled that a federal court must give to a state court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.

Id. at 81, 104 S.Ct. at 896.

It therefore appears clear that there is adequate basis for defendant’s motion to dismiss, and the motion will be granted.

With reference to defendants Goodman and Scholtz, attorneys for Mr. Detert and the School Board, there is no question but that the case should be dismissed for failure to state a cause of action.

Therefore, for the reasons given, the entire lawsuit will be dismissed.

Defendants may tax costs.

      . State agency determinations which are not reviewed by state courts are not entitled to preclusive effect. Elliott v. The University of Tennessee, 766 F.2d 982 (6th Cir.1985), cert granted, — U.S. -, 106 S.Ct. 522, 88 L.Ed.2d 455 (1985).


author: CARROLL, District Judge.

text:
    Harlan L. JACOBSEN, dba Solo RFD and Single Scene, Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants.
    No. CIV 85-2540 PHX-EHC.
    United States District Court, D. Arizona.
    Jan. 6, 1986.
    Robert A. Hirschfeld, Phoenix, Ariz., for plaintiff.

      Paul A. Katz, Asst. U.S. Atty., Phoenix, Ariz., for defendants.
   ORDER

CARROLL, District Judge.

Plaintiff Harlan L. Jacobsen operates newspaper vending machines in Des Moines, Iowa; Aberdeen, South Dakota; Lincoln, Nebraska; and Fargo, North Dakota under the trade name SOLO RFD. Plaintiff alleges that his machines have been removed from their location in front of the Federal Post Offices in these cities.

The Court heard plaintiffs Motion For Temporary Restraining Order & Preliminary Injunction on December 16, 1985. The hearing was continued to December 23, 1985. On December 20, 1985 plaintiff filed an Amended Complaint. On December 23, 1985 the Court heard testimony respecting the location of the newspaper racks in relation to the Post Offices in Lincoln, Nebraska; Fargo, North Dakota; and Aberdeen, South Dakota. The Court has also received and reviewed the affidavits submitted by the parties.

One moving for a preliminary injunction must demonstrate either (1) probable success on the merits and irreparable injury, or (2) that serious questions are raised and the balance of hardships are tipped sharply in his favor. Duke v. Langdon, 695 F.2d 1136, 1137 (9th Cir.1983).

Nature of the Randolph-Sheppard Act

The sole question presented in this action is whether the Randolph-Sheppard Act is violative of the first amendment as it applies to newspaper distributors. Congress adopted the Act “[f]or the purposes of providing blind persons with remunerative employment, enlarging the economic opportunities of the blind, and stimulating the blind to greater efforts in striving to make themselves self-supporting.” Title 20, United States Code, Section 107. In order to achieve these aims, Congress provided that “[i]n authorizing the operation of vending facilities on Federal Property, priority shall be given to blind persons licensed by a State agency.” Further, Title 20, United States Code, Section 107d-3 provides that 100 per cent of vending machine income from machines in direct competition with a blind licensee shall accrue to blind licensees; 50 per cent of the income from machines not in direct competition with a blind licensee shall accrue to blind licensees, or, if there is no blind licensee on the property, to the State licensing agency in whose State the Federal property is located. Thus the Randolph-Sheppard Act operates as a uniform tax applied to all products distributed on Federal property. Newspapers are not singled out for purposes of this tax.

The Act is designed to ensure that enterprises operated by the blind enjoy a commercial advantage on Federal property and financial benefit from business activities conducted on Federal property, without regard to the content of any speech involved. While the General Services Administration or Postal Service retain discretion to determine the types of articles and services offered on postal property, only the vendor and the state licensing agency determine the individual articles or services to be sold. See General Services Administration Order PBS P 5815.2. Neither the General Services Administration nor the Postal Service bears any discretion over the content of the newspapers sold on postal property. See Affidavit of Robert Marcus.

The Constitutionality of Economic Regulations Applied to Newspapers

“It is beyond dispute that the States and the Federal Government can subject newspapers to generally applicable economic regulations without creating constitutional problems.” Minneapolis Star & Tribune v. Minnesota Commissioner of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 1369-70, 75 L.Ed.2d 295 (1983). In the seminal case Grosjean v. American Press Co., Inc., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936), the Court held that a State license tax imposed on the owners of newspapers for the privilege of selling or charging for the advertising therein, and measured by a percentage of gross receipts from such advertisements, but applicable only to newspapers enjoying a circulation of 20,000 copies per week was violative of the first amendment. In so holding, the Court recognized that the first amendment does not prohibit the imposition of a tax applicable to enterprise generally.

It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government. But this is not the ordinary form of tax, but one single in kind, with a long history of hostile misuse against the freedom of the press____ The tax here involved is not bad because it takes money from the pockets of the appellees. If that were all, a wholly different question would be presented.

Id. at 250, 56 S.Ct. at 449.

Following Grosjean, it has become well-established that the press has business aspects and “[l]ike others [they] must pay equitable and nondiscriminatory taxes on [their] business.” Associated Press v. National Labor Relations Board, 301 U.S. 103, 133, 57 S.Ct. 650, 656, 81 L.Ed. 953 (1937). See Federal Communications Commission v. National Citizens Committee For Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697 (1978); Mabee v. White Plains Publishing Co., Inc., 327 U.S. 178, 184, 66 S.Ct. 511, 514, 90 L.Ed. 607 (1946) (“The Grosjean case is not in point here. There the press was singled out for special taxation and the tax was graduated in accordance with the volume of circulation. No such vice inheres in this legislation.”)

The tax imposed by the Randolph-Sheppard Act is not limited to the distribution of newspapers. The tax extends to all products distributed on Federal property. Thus the Act constitutes an equitable and nondiscriminatory tax which constitutionally may be assessed against those engaging in first amendment activity, as in any other business activity.

The Court has also recognized a distinction between a tax imposed on the income derived by one engaging in first amendment activity or property used while engaging in first amendment activity and a tax exacted for the privilege of engaging in first amendment activity. Walz v. Tax Commission, 397 U.S. 664, 707, 90 S.Ct. 1409, 1431, 25 L.Ed.2d 697 (1970) (Douglas, J. dissenting) (citing Murdock v. Pennsylvania, 319 U.S. 105, 112, 63 S.Ct. 870, 874, 87 L.Ed. 1292 (1943)). This distinction differentiates a proceeds tax from a licensing fee.

The imposition of a proceeds tax upon first amendment activity presents a different constitutional question than presented when considering a licensing fee. See Gannett Satellite Information Network v. Metropolitan Transportation Authority, 579 F.Supp. 90 (S.D.N.Y.1984), rev’d, 745 F.2d 767 (2d Cir.1984). While the government may not ordinarily profit by imposing licensing or permit fees on the exercise of a first amendment right, Gannett, supra, 745 F.2d at 774, the government can raise revenue through the imposition of a nondiscriminatory tax on the proceeds of first amendment activity. Associated Press v. National Labor Relations Board, 301 U.S. at 133, 57 S.Ct. at 656. The Randolph-Sheppard Act does not impose a licensing fee on newspaper distributors for the privilege of engaging in first amendment activity on Federal property. A vendor is not required to pay any fee for the privilege to sell goods on Federal property. Instead, the Act exacts a tax on the proceeds of sales, including newspaper sales, on Federal property.

Accordingly,

IT IS ORDERED that plaintiff’s Motion For Temporary Restraining Order and Preliminary Injunction is denied.


author: NANGLE, Chief Judge.

text:
    Juanita PRESTON, Plaintiff, v. UNITED STATES of America, Defendant.
    No. 85-957C(1).
    United States District Court, E.D. Missouri, E.D.
    Jan. 6, 1986.
    As Amended Jan. 8,1986.
    James P. Holloran, St. Louis, Mo., for plaintiff.
    Henry J. Fredericks, St. Louis, Mo., for defendant.
   MEMORANDUM

NANGLE, Chief Judge.

In this action, plaintiff seeks to recover damages for personal injuries received by the plaintiff as a result of a fall on steps at the Veteran’s Administration Hospital located at Jefferson Barracks, St. Louis County, Missouri.

This case was tried to this Court sitting without a jury. This Court having considered the pleadings, the testimony of the witnesses, the documents in evidence, and the stipulations of the parties, and being fully advised in the premises, hereby makes the following findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 52.

FINDINGS OF FACT

1. Plaintiff is a United States citizen, a citizen of the State of Missouri.

2. The defendant United States of America owned and operated the Veteran’s Administration Hospital located at Jefferson Barracks, St. Louis County, Missouri, including the steps where plaintiff fell.

3. On November 9, 1983, plaintiff and Rhonda Ford, plaintiff’s daughter and a nurse at the Veteran’s Hospital, drove to the hospital and parked their car. They arrived slightly before 5:00 p.m., while some daylight remained. After leaving the car, both women walked toward the rear door of Building 61 on the hospital grounds. Plaintiff and her daughter climbed four steps to a landing in front of the door and passed through the door. Plaintiff intended to visit a patient at the hospital and to watch her daughter bowl. Plaintiff had used this entrance twice in the preceding months.

4. Shortly before 7:00 p.m. on the same evening, the two women and Carl Williams, an employee at the hospital, left the building through the same door. Williams opened the door, and plaintiff stepped out onto the landing. At that time, it was dark and raining. Some light shown from inside the building onto the landing, but this light did not illuminate the stairway. Plaintiff was unable to see the stairway due to darkness. Plaintiff stepped onto the landing, then stepped off the stairs and fell to the ground.

5. A light above the rear door to Building 61 was not operating at the time of the accident. This light bulb had burned out sometime before plaintiff’s fall. No other electrical lights shown on the stairs. Officer Walter Roberts, a Veteran’s Administration policeman, had received complaints about the burned out light bulb from hospital employees and had noted the light several times in his journal or special reports. This information went to the Director of the Veteran’s Administration and the Engineering Department, which was responsible for replacing light bulbs.

6. As a result of her fall, plaintiff sustained injuries to her head and her right knee, foot, and elbow. Immediately after her fall, plaintiff was treated at the Veteran’s Administration Hospital at Jefferson Barracks, then transferred to the John Cochran Veteran’s Administration Hospital for further treatment. On November 10, 1983, plaintiff was treated by Fred C. Reynolds, M.D. Upon performing an x-ray examination, Reynolds found a fracture of the head of the radius of plaintiff’s right arm. Reynolds placed plaintiff’s elbow in a cast and recommended a regimen of rehabilitative exercise. Reynolds reexamined the cast one week later. During the following month, plaintiff was treated by Roy W. Holland, M.D.

7. In February, 1985, Reynolds again examined Preston. At that time, she complained of pain and swelling in her right knee. Reynolds found extra fluid on the knee and crepitation upon movement of the joint. Reynolds also determined that plaintiff suffered from arthritis which affected her right knee.

8. Plaintiff has permanently lost 10% of the functioning of her right elbow and 30% of the functioning of her right knee. Plaintiff also experienced pain and suffering as a result of her fall. Plaintiff has been damaged in the amount of $23,000.00.

9. Regarding plaintiff’s fall, plaintiff and defendant were each 50% at fault.

CONCLUSIONS OF LAW

This Court has jurisdiction of this matter under 28 U.S.C. § 1346(b) and 28 U.S.C. §§ 2671-80 (1982).

Under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1982), this Court must apply the substantive law of the state ■where the accident occurred. Massachusetts Bonding and Insurance Company v. United States, 352 U.S. 128, 77 S.Ct. 186, 1 L.Ed.2d 189 (1956). In this case, the accident occurred at Jefferson Barracks in St. Louis County, Missouri; therefore, this Court must apply the substantive law of Missouri.

The parties agree that Preston was on the hospital grounds as an invitee. Regarding the duty of a landowner to an invitee, Missouri courts apply the Restatement (Second) of Torts §§ 343 and 343A(l) (1965).

It is clear 1) that the appropriate administrators knew of the burned out light bulb and of employee complaints concerning the darkened stairs, see Findings of Fact No. 5, 2) that such stairs constitute a hazardous condition, see Findings of Fact Nos. 4 and 5, and 3) that the darkness made discovery of the stairs difficult. Furthermore, the Court concludes that defendant failed to exercise reasonable care to protect invitees. Defendant knew that the door was used with some frequency and could have easily made the stairs safe by replacing the light bulb. See Findings of Fact No. 5. Under these circumstances, the failure of defendant to remedy the situation was negligent and a proximate cause of plaintiffs injuries.

Defendant contends that plaintiffs negligence was an additional proximate cause of her injuries. This Court agrees.

A person is required to make reasonable use of her ability to see, hear, and think to discover dangers to which she is exposed, and a failure to do so is negligence. See Phillips Petroleum Company v. Miller, 84 F.2d 148, 153 (8th Cir.1936); Phillips v. Morton Frozen Foods, 313 F.Supp. 228, 232 (E.D.Ark.1970). In this case, plaintiff stepped onto the platform and continued walking despité the total darkness before her. Moreover, since plaintiff had entered through the same door just hours earlier, plaintiff should have known of the stairs and proceeded with greater caution. See Findings of Fact No. 3. Thus, plaintiff was negligent, and her negligence was a proximate cause of her injuries.

Missouri courts do not follow the doctrine of contributory negligence, rather they apportion damages between the parties who are at fault. In Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), the Missouri Supreme Court adopted the Uniform Comparative Fault Act §§ 1-6, 12 U.L.A. Supp. 35-45 (1983). Under this system of comparative negligence, a plaintiffs contributory negligence does not operate to bar recovery altogether, but does serve to reduce damages in proportion to fault. See W. Prosser, The Law of Torts, § 67 (W. Keeton 5th ed. 1984). Accordingly, this Court finds the defendant was 50% at fault and the plaintiff was 50% at fault. See Findings of Fact No. 9.

As a result of her fall, plaintiff sustained injuries to her right arm and right leg. See Findings of Fact No. 6. These injuries resulted in a 10% impairment of plaintiffs right elbow and a 30% impairment of her right knee. Dr. Reynolds testified that these injuries will not improve over time. He could recommend no medical treatment to help plaintiffs elbow and recommended surgery for her knee only if its condition grows worse. See Findings of Fact No. 8. The plaintiff was in good health at the time of her fall. Following the accident, she experienced pain, discomfort, and restrictions to her everyday activities.

Accordingly, this Court finds damages of $20,000.00 for the permanent impairment of plaintiffs knee. As to her elbow, plaintiffs damages are minimal. As to general pain and suffering resulting from her fall, this Court finds damages of $3,000.00. After reducing these amounts to account for plaintiffs fault, this Court finds for the plaintiff in the amount of $11,500.00. See Findings of Fact No. 9.

      . The Government asserts that the plaintiff failed to comply with 28 U.S.C. § 2675(a) (1982). That section requires claimants suing under the Federal Tort Claims Act to present their claim to the appropriate federal agency and to have the claim finally denied by the agency before suing in court. Claimants satisfy § 2675(a) if they (1) give the agency written notice of their claim sufficient to enable the agency to investigate the claim and (2) place a value on their claim. Adams v. United States,
        615 F.2d 284, 289 (5th Cir.1980); Reynoso v. United States, 537 F.Supp. 978 (N.D.Calif.1982). Plaintiff, through her attorney, wrote Don Ramsey, Regional Director of the Veteran’s Administration. In the letter, plaintiff set out the facts surrounding her accident and the extent of her injuries. In addition, plaintiff demanded $200,-000.00 in compensatory damages. This Court finds this letter sufficient to satisfy the requirements of 28 U.S.C. § 2675(a).

      . Section 343 provides as follows:
      A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
      (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
      (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
      (c) fails to exercise reasonable care to protect them against the danger.
      Section 343A provides as follows:
      A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.


author: CAFFREY, Chief Judge.

text:
    Mildred FRATES, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 83-3795-C.
    United States District Court, D. Massachusetts.
    Jan. 6, 1986.
    Roger Stanford, Stanford & Schall, New Bedford, Mass., for plaintiff.
    Frederick E. Dashiell, Asst. U.S. Atty., for defendant.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a civil action in which the plaintiff, pursuant to 42 U.S.C. § 405(g), seeks an order reversing a final decision of the Secretary of Health and Human Services (“the Secretary”) which denied her claim for Supplemental Security Income (“SSI”) benefits. In the alternative, the plaintiff seeks to have her case remanded to the Secretary for further hearing. The matter is before this Court on the plaintiff’s motion for summary judgment and the defendant’s cross motion for an order affirming the decision of the Secretary.

The record indicates that the plaintiff is a fifty-five year old woman with a high school education. She has had two mastectomies, is a recovered alcoholic, and suffers from peripheral vascular insufficiency of the lower extremities. In addition, the plaintiff has been treated in the past for depression, which is apparently associated with her physical ailments. When last evaluated, the depression was not considered severe and the plaintiff was not seeing a psychiatrist.

The plaintiff has not worked since 1973. She filed the application for SSI benefits now under review on June 17, 1981, claiming disability as of October, 1980. The application was denied both initially and on reconsideration by the Social Security Administration (“SSA”). The plaintiff then appeared with her attorney at a hearing before an administrative law judge (“AU”), who considered her case de novo. The AU denied the plaintiff SSI benefits and the Appeals Council approved the AU's decision.

Under the standard of review established by the Social Security Act, the Secretary’s findings of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). Thus a court must uphold the findings if, reviewing the record as a whole, a reasonable mind could accept the evidence as adequate to support the Secretary’s conclusion. Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1st Cir.1981).

The plaintiff argues that the Secretary incorrectly considered her prior employment as a cloth inspector as past relevant work within the meaning of the regulations, failed to consider the plaintiff’s mental impairments in conjunction with her physical impairments, and erred in finding her capable of working as a cloth inspector. The plaintiff worked as a cloth inspector from 1971 to 1973. Under the SSA regulations, work experience applies if it was done within the last 15 years, lasted long enough for the individual to learn the activity, and was substantial gainful activity. 20 C.F.R. § 404.1565(a). I rule that the Secretary properly considered the plaintiff’s employment as a cloth inspector as relevant past work experience.

In reading the AU’s decision, I find evidence that the AU considered the plaintiff’s psychological problems when making his determination. The decision recounts the history of the plaintiff’s alcoholism and depression. In addition, the AU specifically states in the decision that the plaintiff’s mental problems do not limit her ability to perform work-related functions. I therefore rule that the record indicates sufficient consideration of the plaintiff’s non-exertional impairments.

The last issue to be addressed is whether the AU’s finding that the plaintiff was capable of working as a cloth inspector was supported by substantial evidence. When evaluating a disability claim, the SSA applies the sequential five-part test embodied in the social security regulations at 20 C.F.R. § 404.1520. First, the evaluator queries if the claimant is gainfully employed. If yes, then she is automatically considered not disabled. Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 6 (1st Cir.1982). The second question is whether the claimant has a severe impairment which significantly limits her physical or mental capacity to perform work-related functions. Id. If she does have a severe impairment, the third question is whether the impairment meets or equals one listed in Appendix 1 of the regulations. If so, the claimant can be found disabled on medical evidence alone. Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1053 (6th Cir.1983). If the SSA cannot determine the claimant’s status on the basis of current work activity or medical facts alone and the claimant has a severe impairment, then the SSA proceeds to the fourth question: whether the claimant has sufficient residual functional capacity to do work of the sort she has performed in the past. Goodermote, 690 F.2d at 7. If she can, then the SSA will find the claimant not disabled. Id. If she cannot do work she has done in the past, then in the fifth and final stage of inquiry the SSA considers whether the claimant’s impairment prevents her from doing other work of the sort found in the economy. Id. If it does, then the claimant will be found to be disabled. Id. During the fourth stage of this inquiry, the claimant has the burden of proving that her disability prevented her from working at her former jobs. Id. At the fifth stage, however, the Secretary has the burden of showing that the claimant can perform other jobs. Id. The SSA has developed a set of medical-vocational guidelines known as “the Grid” to simplify this determination. Id.

In this case, the ALJ found that the plaintiff was capable of performing past relevant work, as a cloth inspector. The inquiry into the plaintiff’s status therefore ended at stage four. I rule that this finding is not supported by substantial evidence. Although I find substantial evidence that the plaintiff can perform sedentary work, the job description of a cloth inspector contained in the record indicates that it requires using a foot pedal. In his medical evaluation of the plaintiffs physical capabilities, Dr. Lang found that the plaintiff could not use either of her legs for repetitive movements, as in pushing and pulling of leg controls. I find no indication in the ALJ’s decision that these factors were considered. The matter should therefore be remanded to the Secretary for further consideration.

Order accordingly.

ORDER

In accordance with memorandum filed this date, it is ORDERED:

1. Plaintiff’s motion for summary judgment is denied.

.2. Defendant’s motion for an order affirming the Secretary of Health and Human Services’ decision is denied.

3. Case is remanded to the Secretary for further consideration.


author: SHADUR, District Judge.

text:
    U.S. HOME CORPORATION, Plaintiff, v. GEORGE W. KENNEDY CONSTRUCTION COMPANY, INC., et al., Defendants.
    No. 82 C 7775.
    United States District Court, N.D. Illinois, E.D.
    Jan. 6, 1986.
    Arthur DeBofsky, and Ronald S. Fish-man, DeBofsky & DeBofsky, Fishman & Fishman, Chicago, for G.W. Kennedy Const. Co., Inc.
    Edward M. Crane, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for Mackie and Lorek.
    David J. Gibbons, Edward L. Michael, Chadwell & Kayser, Chicago, for Armco, Inc.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

On December 21, 1984 this Court issued its opinion (“Opinion I,” 601 F.Supp. 84, 85-87 (N.D.Ill.1984)) and on September 17, 1985 it issued a further opinion (“Opinion II, ” 617 F.Supp. 893, 896-98 & n. 7 (N.D.Ill. 1985)), each dealing in part with the current status of the implied indemnity doctrine in Illinois, particularly in light of the Illinois Contribution Among Joint Tortfeasors Act, Ill.Rev.Stat. ch. 70, ¶¶ 301-305. This brief supplemental opinion is issued sua sponte in light of last month’s decision of the Illinois Appellate Court for the First Appellate District in Heinrich v. Peabody International Corp., 139 Ill.App.3d 289, 93 Ill. Dec. 544, 486 N.E.2d 1379, (1st Dist. 1985).

When this Court wrote Opinions I and II, it rejected implied indemnity in the context of this case, though it recognized that then-existing Illinois Appellate Court decisions might find the doctrine still viable under special circumstances not present here. Heinrich, on remand from the Illinois Supreme Court (99 Ill.2d 344, 76 Ill.Dec. 800, 459 N.E.2d 935 (1984)), has now gone all the way: It spurns implied indemnity in its entirety (139 Ill.App.3d 289, 93 Ill.Dec. 544, 486 N.E.2d 1379):

We consider that the historical relationship between indemnity and contribution, the policies supporting the adoption of contribution by our supreme court, the legislature’s intent in passing the Contribution Act evidenced by what was said and what was not said, the broad statutory scheme and the specific language of the Act setting forth the general application of contribution (Ill.Rev.Stat.1979, ch. 70, par. 302(a)), all weigh in favor of a finding that implied indemnity has been abolished.

Under this Court’s view of the workings of Erie v. Tompkins (see, e.g., Abbott Laboratories v. Granite State Insurance Co., 573 F.Supp. 193, 196-200 (N.D.Ill.1983)), where there is a division of authority among Illinois Appellate Districts (and there is), Heinrich controls this case. Accordingly the Opinion’s ruling rejecting implied indemnity here is reconfirmed unconditionally.


author: BERTELSMAN, District Judge.

text:
    Dorothy MULLANIX, Plaintiff, v. Margaret HECKLER, Secretary, Health and Human Services, Defendant.
    Civ. A. No. 83-32.
    United States District Court, E.D. Kentucky, Frankfort Division.
    Jan. 7, 1986.

      Arthur L. Brooks, Brooks, Coffman & Fitzpatrick, Lexington, Ky., for plaintiff.
    Louis DeFalaise, U.S. Atty., Lexington, Ky., for defendant.
   OPINION AND ORDER

BERTELSMAN, District Judge.

This matter is before the court on the motion of plaintiffs counsel for an award of attorney’s fees, and defendant’s objections thereto.

Counsel for plaintiff have petitioned this court to award them 25% of the accrued disability and Supplemental Security Income (SSI) benefits to be paid plaintiff. These accrued benefits total $7,653.00, of which $1,711.70 are accrued SSI benefits.

The United States Attorney objects to an award of 25% of the SSI benefits on the grounds that this court lacks jurisdiction to enter such award.

Plaintiff argues that this court clearly has jurisdiction to award attorney’s fees out of any accrued disability benefits. 42 U.S.C. § 406(b) (1965) (Title II) reads:

“(b)(1) Whenever a court renders a judgment favorable to a claimant under this title who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past due benefits to which the claimant is entitled by reason of such judgment, and the Secretary may, notwithstanding the provisions of section 205(1) certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph.
“(2) Any attorney who charges, demands, receives, or collects for services rendered in connection with proceedings before a court to which paragraph (1) is applicable any amount in excess of that allowed by the court thereunder shall be guilty of a misdemeanor and upon conviction thereof shall be subject to a fine of not more than $500, or imprisonment for not more than one year, or both.”

Plaintiff further argues that while § 406 does not expressly apply to cases reviewing a Title XVI (SSI) claim, it is nevertheless implied within the scope of judicial review. Plaintiff supports this by pointing out that in 1976, 42 U.S.C. § 1383(c) (1976) (Title XVI) was amended to provide that the final determination of the Secretary shall be subject to judicial review to the same extent as the Secretary’s final determination under § 205. 42 U.S.C. § 1383(c) states:

“(c) Hearings and Review.
(3) The final determination of the Secretary after a hearing under paragraph (1) shall be subject to judicial review as provided in section 205(g) to the same extent as the Secretary’s final determinations under section 205.”

Therefore, plaintiff argues that this court may award as attorney’s fees 25% of all accrued benefits in a concurrent disability/SSI case.

Defendant argues the sum of $1,711.70 for SSI benefits awarded to plaintiff is not subject to a 25% withholding for an attorney fee award. Defendant argues that 20 C.F.R. § 416.1520(d)(3) (1982) supports this view. This section reads:

“(3) Payment of fees. We [Social Security Administration] assume no responsibility for the payment of a fee based on a representative’s services before the Social Security Administration under title XVI.”

Consequently, defendant recommends the fee not exceed $1,485.32 (25% of total disability benefits of $5,941.30) and objects to the additional award of $427.93 (25% of the SSI benefits of $1,711.70) on the ground this court lacks jurisdiction.

The court concludes that it does have jurisdiction over Title XVI claims and may award 25% of the accrued SSI and disability benefits as attorney’s fees.

In 1976, Title XVI was amended to include judicial review of the Secretary’s final determination in SSI cases. See 42 U.S.C.S. § 1383(c)(3). According to the legislative history, Title XVI was specifically amended to “apply the same rules of judicial review to title XVI cases as apply to title II cases.” P.L. 94-202, 2 U.S.Code Cong. & Admin.News (1975) 2347, 2350. The overriding concern of Congress in enacting such amendments to title XVI was “... to provide the same rights to ... judicial review with respect to claims under title XVI (Supplemental Security Income) of the Act as apply to title II” under 42 U.S.C. § 405(g). Supra at 2349.

By explicit language, the Congress authorized this court to review Title XVI claims “____to the same extent ...” as it reviews Title II claims under 42 U.S.C. § 405(g), 42 U.S.C. § 1383(c)(3). “An integral part of the Court’s review under 42 U.S.C. § 405(g) relates to the attorney’s fee provisions of 42 U.S.C. § 406(b).” Vaughn v. Califano, 442 F.Supp. 185, 187 (E.D. Tenn.1977).

In Reid v. Heckler, 735 F.2d 757 (3rd Cir.1984), the Secretary of Health and Human Services appealed from an order of the United States District Court directing her to pay attorney’s fees from past due supplemental security income benefits. The district judge found no logical policy basis for distinguishing between Title II and Title XVI as to the award of attorney’s fees. The Third Circuit agreed. As to the Secretary’s defense of 20 C.F.R. § 416.1520(d)(3) the court held it was “simply not applicable to the case at hand.” 735 F.2d at 762. This provision regulates fees that may be charged for services before the Secretary and administrative process. The regulation does not authorize the Secretary to exercise any function with respect to fees for services in the courts.

Adams v. Secretary of Health & Human Services, 596 F.Supp. 449 (N.D.N.Y. 1984), adopts the language of Reid and Vaughn in stating that to construe Title XVI in such a manner as to exclude the attorney fees provision of 42 U.S.C. § 406(b) from application where the plaintiff’s claim is for SSI benefits, would be to ignore the clear legislative intent that this court’s review of Title XVI claims be “virtually identical” to its review of Title II claims, Vaughn, supra at 187. See also Reid, at 761. The court held, therefore, that attorney fees pursuant to 42 U.S.C. § 406(b)(1) may be awarded to prevailing claimants in SSI cases.

Cases with opposite views are: Baim v. Harris, 515 F.Supp. 227 (N.D.Ohio 1981), Franklin v. Secretary of Health & Human Services, 525 F.Supp. 398 (E.D. Mich.1981). These cases held § 406 attorney fees are not available in SSI cases because Title XVI contains no specific language incorporating § 406. But Reid, supra, Vaughn, supra, and Adams, supra, along with Dolin v. Harris, 501 F.Supp. 97 (D.Md.1980) and Hornal v. Schweiker, 551 F.Supp. 612, 614 n. 1 (M.D.Tenn.1982) all held judicial review under § 405(g) gives the court implied authority to grant attorney’s fees in SSI cases.

The latter cases hold the better view. The public policy for authorizing attorney fees in Title II cases is as strong if not stronger in Title XVI cases. Provision for attorney fees will promote adequate representation of SSI claimants by assuring attorneys that their fees will be paid, and by assuring payment the claimants will be assured protection of their rights. Section 406’s ceiling on attorney’s fees also protects the claimant from oppressive and improvident arrangements. Therefore, the court should award attorney's fees in the amount of 25% of all accrued benefits.

Therefore, the court being advised,

IT IS ORDERED that plaintiff’s motion for an award of attorney’s fees be, and it is, hereby GRANTED, and plaintiff’s counsel shall be awarded the sum of $1,913.25, which represents 25% of the total accrued benefits of $7,653.00.