author: ARONOVITZ, District Judge.

text:
    In re GRAND JURY 83-8 (MIA) SUBPOENA DUCES TECUM Directed to Alfredo Martin and Gabriel Hernandez.
    No. 83-8.
    United States District Court, S.D. Florida.
    Jan. 15, 1985.

      Philip T. Weinstein, Miami, Fla., for respondents.
    Charles S. Saphos, Asst. U.S. Atty., Atlanta, Ga., for the government.
   ORDER AND MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART GOVERNMENT’S MOTION TO COMPEL

ARONOVITZ, District Judge.

The United States seeks an order compelling Alfredo Martin and Gabriel Hernandez to produce before the Grand Jury for the Southern District of Florida certain documents which are the property of AGH Investments Corporation (hereinafter “AGH”). Martin, President and Director, and Hernandez have been served with subpoenae but have invoked the Fifth Amendment in support of their refusal to produce the requested documents. The Court has carefully examined the government’s Motion to Compel, the Witness-Respondents’ Memorandum of Law in opposition thereto, the applicable law, and has heard the argument of counsel at a hearing which took place before the Court on October 12,1984. The parties are in agreement as to the factual background of the case. At the aforementioned hearing, the Court invited counsel to present evidence. The parties, however, did not come forward with witness testimony or other evidence, and instead delivered oral argument solely on the questions of law which are presented.

FACTUAL BACKGROUND

On or about December 14, 1982, a subpoena was served upon Gabriel Hernandez calling for records of AGH Investments Corporation. At that time, Hernandez refused to answer on constitutional grounds all questions, but handed over a quantity of documents and made the following statement:

“On Tuesday, December 14, 1982, a government agent came to my attorney’s office and served me two papers which turned out to be subpoenas. These folders which I am producing, contain all items called for in those subpoenas, which are in my possession or control, or which were in my possession or control at the time of service. The items are numbered to correspond with the list attached to the subpoena. Anything not produced, is not in my possession or control, nor was it when the subpoena was served.”

After that date, there was considerable correspondence between the United States Attorney’s Office and the two witnesses through their counsel, with respect to the subject matter of the investigation. On or about July 14, 1984, two special agents of the Internal Revenue Service (having previously called for an appointment), went to the office of counsel to the two witnesses and delivered a second subpoena directed to Gabriel Hernandez. The agents also stated that another subpoena for Mr. Martin would be delivered at a later date. On July 17, 1984, the two special agents revisited counsel for the two witnesses’ office and delivered a subpoena directed to Martin.

On both visits to counsel’s office, the agents indicated that both Hernandez and Martin were, and continued to be, the primary targets of a Grand Jury investigation. Hernandez and Martin have each received a “target letter” as well as an “advice of rights” advising them that they are subjects of an investigation for income tax evasion and violations of “Title 21”, presumably the narcotics laws.

On August 9,1984, the return day on the subpoenae, Martin and Hernandez appeared before the Grand Jury. Martin carried nothing into the room, gave his name, address and name of his attorney. As to all other questions, he answered:

“I respectfully decline to answer that question or to deliver anything, on the grounds that my answer may tend to incriminate me and I base my refusal on my Fifth Amendment privilege against self-incrimination.”

Martin was questioned as to whether he was the custodian of records of AGH Investments Corporation, how he was associated with AGH, and whether he had brought with him and would produce the records called for in the subpoena. The appearance of Hernandez was substantially the same, and Hernandez invoked the Fifth Amendment when asked a similar set of questions. Hernandez, however, carried with him a package wrapped in brown kraft paper, approximately 12" x 9" X 4" and marked on the outside “Box A”. In addition to the questions which were asked Martin, Hernandez was asked what was in Box “A”, and whether he would turn over Box “A” to the Grand Jury.

Attached to the two subpoenae is a “Form 19 Corporate Records Subpoena Attachment” which seeks, in sixteen numbered paragraphs, the production of ledgers, journals, and general business records of AGH Investments Corp. At the hearing on October 12, 1984, the Court called the parties’ attention to the fact that the subpoenae were addressed to Gabriel Hernandez and Alfredo Martin individually, and without reference to their representative or corporate capacities. The parties then stipulated that service on each of the witnesses was intended to be in their respective official capacities as custodians of the records of AGH Investments Corp. Counsel for the parties by stipulation made the appropriate changes on the two documents.

THE GOVERNMENT’S NEED FOR AUTHENTICATION

As Hernandez turned over corporate documents pursuant to a subpoena which was issued in December, 1982, the question arises whether he waived his right to invoke the Fifth Amendment with respect to the second subpoena which was served on July 14, 1984. Since it is clear that the government through its second subpoena seeks different or new documents, in addition to those which were produced under the first subpoena, the Court need not reach the question of waiver. It appears material, however, that production having already occurred as to one set of corporate documents, the government seeks to compel Hernandez, and not a third party, to turn over the documents requested in the second subpoena. Indeed, the government admitted in open court at the October 12, 1984 hearing that it requires the testimony of Hernandez and Martin about the documents, and it requires Hernandez and Martin personally to produce the documents, in order to establish the authenticity of the documents for use in subsequent proceedings. The government indicated that such testimony and/or act of production would be its sole means of authenticating the documents.

As Martin and Hernandez have each received a Grand Jury “target letter” and “advice of rights” notice, such subsequent proceedings may include a criminal action or actions against Martin and/or Hernandez individually. The second subpoena served on Hernandez, and the subpoena served on Martin, then, implicate certain rights and values which are embodied in the Fifth Amendment.

In producing and/or testifying about the AGH documents which are sought by the government, Hernandez and Martin may assist and contribute to the government’s criminal case against them individually. Although the documents themselves obviously were not created under any government compulsion, the subpoenae which seek their production therefore give rise in Martin and Hernandez to a reasonable apprehension of self-incrimination. The question presented, however, is whether their reasonable apprehension of self-incrimination is within the scope of protection afforded by the Fifth Amendment, even though the subpoenae are addressed to Hernandez and Martin only in their capacities as representatives of the corporation.

THE GOVERNMENT’S MOTION TO COMPEL

The United States in support of its motion relies on a long line of cases which hold that the Fifth Amendment does not extend to the contents of business records. Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911); Wheeler v. United States, 226 U.S. 478, 33 S.Ct. 158, 57 L.Ed. 309 (1913); Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974). As corporate records are created voluntarily,, there is little concern that they may be unreliable, and there is no compulsion element with respect to their contents. Moreover, since a corporation is a “person” only by virtue of a legal fiction, it is clear that compelling a corporation to produce business records implicates few of the societal values and concerns which the framers embodied in the Fifth Amendment. United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944).

The Fifth Amendment establishes a privilege which inheres to persons, and, as Justice Murphy stated in the White case, supra:

“[individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather, they assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers and they are bound by its obligations. In their official capacity, therefore, they have no privilege against self-incrimination.”

Id. at 1251.

As a corporation may not utilize the personal privilege against compulsory self-incrimination, “it follows that an individual acting in his official capacity on behalf of the organization may likewise not take advantage of his personal privilege.” Beilis, supra, 94 S.Ct. at 2184. The government argues that Martin and Hernandez therefore may not invoke the Fifth Amendment in opposition to the two subpoenae, because they are being asked to produce documents which were voluntarily created by the corporation, and whose contents are beyond the purview of the Fifth Amendment. Because they are being so asked in their representative capacities, as custodians of the corporate records, the government contends that under White and Beilis, supra, Martin and Hernandez may only assert, in response to the two subpoenae, the rights and privileges of the corporation, and such rights and privileges do not include the Fifth Amendment guarantee against compulsory self-incrimination against themselves individually.

THE WITNESSES’ RESPONSE

Martin and Hernandez, while recognizing that the line of cases which the government cites does not extend the Fifth Amendment to the contents of business records, rely mainly upon the Supreme Court’s opinion in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984) in support of their claim of Fifth Amendment protection. The witnesses argue that Doe “overruled decades of precedent” in two regards: First, Doe held that the business records of a sole proprietor should not be treated any differently from the records of a corporation and that therefore the Fifth Amendment does not protect the contents of a sole proprietor’s records. Second, Doe, according to the witnesses, announced a “new rule” with respect to the production of business records that the act of production and authentication itself have testimonial aspects which might be protected by the Fifth Amendment. Martin and Hernandez argue that since AGH is a close corporation, the “new rule” of Doe should extend to the instant case — as a sole proprietor should not be forced to authenticate documents where such authentication may contribute to the government’s criminal case against him, the records custodian of a small, closely held corporation should not be treated any differently, simply because the subpoena is addressed in a representative capacity.

At oral argument, the government in response relied mainly on Bellis, supra, for the proposition that the rule in Doe about the act of production should not extend to a situation where a witness appears in a representative capacity for a corporation. Bellis involved a law partnership which, though small, had an institutional identity. Since the Fifth Amendment has always been “limited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records,” White, supra, the witness in Bellis was not permitted to invoke the Fifth Amendment because he was subpoenaed only in his capacity as a partner of the law firm. Moreover, the Court in Bellis .specifically held that “no privilege can be claimed by the custodian of corporate records, regardless of how small the corporation may be.” Bellis, supra, 94 S.Ct. at 2189.

ANALYSIS

To a large extent, the Court agrees with the government’s conclusions and disagrees with the witnesses’ position that Doe announces a “new rule” with respect to the act of production and authentication. Where a witness claims that he is being asked by the State to incriminate himself, the Court must start of course with the Fifth Amendment itself. Almost two hundred years of interpretation and analysis of that great safeguard of civil liberties still has not worked to cut it “loose from the moorings of its language.” Fisher, supra, 96 S.Ct. at 1576. In pertinent part, the Amendment provides:

“No person ... shall be compelled in any criminal case to be a witness against himself.”

Since it is only “himself” that a person may not be compelled to incriminate, the Fifth Amendment “was never intended to permit [a person] to plead the fact that some third person might be incriminated by his testimony, even though he [may be] the agent of such person ...” Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 377, 50 L.Ed. 652 (1906). It is also clear that the Fifth Amendment was not intended to proscribe the compelled production of every sort of incriminating evidence, “but applies only when the accused is compelled to make a testimonial communication that is incriminating.” Fisher, supra, 96 S.Ct. at 1579. The privilege thus does not extend to the giving of blood samples, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); to the giving of handwriting exemplars, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); voice exemplars, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); or the donning of a blouse worn by the perpetrator, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910).

The act of producing evidence in response to a subpoena, however, does have testimonial aspects of its own, wholly apart from the contents of the papers produced. Fisher, supra, 96 S.Ct. at 1581. As the Supreme Court stated in Fisher:

“Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the [individual]. It also would indicate the [individual’s] belief that the papers are those described in the subpoena. Curcio v. United States [354 U.S. 118] 77 S.Ct. 1145 [1 L.Ed.2d 1225] (1957). The elements of compulsion are clearly present, but the more difficult issues are whether [these] tacit averments ... are both ‘testimonial’ and ‘incriminating’ for purposes of applying the Fifth Amendment.”

Id. at 1581.

The rule regarding the act of production in Doe is thus not a “new rule” at all. While compliance with a subpoena to produce documents thus has long been considered potentially to have testimonial aspects in itself, the question whether such an act of production is within the purview of the Fifth Amendment does not lend itself to a categorical answer. Its resolution may instead “depend on the facts and circumstances of particular cases or classes thereof.” Id. at 1581. In the case sub judice, the government has admitted that it requires not merely the records of AGH, but also Martin and Hernandez producing the records because it would have no other means of authenticating the documents. The “testimonial” aspect of compliance with the subpoenae is thus the very reason why the government has submitted its motion to compel.

As used against the corporation, the government’s argument has merit. Under the cases, including Doe, the Fifth Amendment does not permit the witnesses to avoid production or authentication of the documents by such production when used in “subsequent proceedings.” In analyzing the testimonial aspects of production for use in subsequent proceedings wherein the same evidence is sought to be used against the individuals who have been “compelled” to authenticate the documents, however, the possibility of “incrimination” is equally as clear. Both Hernandez and Martin have received grand jury “target letters” and “advice of rights” notices. There is little doubt that the government hopes to use the AGH corporate documents in subsequent criminal proceedings against Hernandez and Martin.

The act of producing as well as testifying about the documents which the government seeks in the two subpoenae, if permitted to be used in subsequent proceedings against the individuals, would involve testimonial self-incrimination. This, therefore, leaves the government in the posture of having a right to the production of the documents for use against the individuals in subsequent proceedings, but only if authenticated through other evidence.

In light of Fisher, if the two subpoenae were issued to Martin and Hernandez in their individual and personal capacities, it is thus clear that since AGH (its corporate identity aside) is a third party, Martin and Hernandez could not invoke the Fifth Amendment with respect to the contents of the records, but would be afforded Fifth Amendment protection as to the act of production and compliance with the subpoenae. The only real question which is presented, then, is whether that Fifth Amendment protection is somehow negated simply because Martin and Hernandez have been served in their capacities as representatives of a corporation, rather than in their individual and personal capacities.

A review of the relevant cases reveals that it is not so negated. In Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957), which was decided after the White case, supra, the secretary-treasurer of an International Brotherhood of Teamsters Local union was subpoenaed to appear before the grand jury to testify about, and to produce, the union’s books and records. The subpoenae were addressed to Mr. Curcio not in his individual capacity, but in his official capacity as secretary-treasurer of the Local. The witness refused to produce the records, and refused to testify as to their whereabouts, claiming that the act of production and his answers to the questions might incriminate him. As in the instant case, the government in Curcio argued that the White case holds that an individual, when subpoenaed as representative of a collective group, can never assert his personal privileges, but is entitled only to the rights of the entity for which he is an agent. Since corporate or institutional entities have no Fifth Amendment rights, the government argued that Mr. Curcio could not invoke the Fifth Amendment because he was subpoenaed as custodian of the union’s books and records. The Supreme Court disagreed. After referring to White and many of the same cases on which the government relies in the case sub judice, the Court stated:

“There is no hint in these decisions that a custodian of corporate or association books waives his constitutional privilege as to oral testimony by assuming the duties of his office.”

Id. at 1150.

With respect to the Grand Jury’s questioning about the documents, the Court upheld the witness’s claim of the Fifth Amendment privilege. With respect to the testimonial aspects of the act of production, the Court held that there was little danger of self-incrimination, because the documents had already been produced. The Court, however, recognized that the act of production might be likened to oral testimony:

“The custodian’s act of producing books or records in response to a subpoena duces tecum is itself a representation that the documents produced are those demanded by the subpoena. Requiring the custodian to identify or authenticate the documents for admission in evidence merely makes explicit what is implicit in the production itself”

Id. at 1150 (emphasis supplied).

In the case sub judice, the act of production by Martin and Hernandez would be the equivalent of testimonial self-incrimination. Curdo is thus squarely on point, and provides clear authority in support of the witnesses’ claim.

The more recent decision in Doe is also relevant. The Supreme Court in Doe, however, divides its opinion into two parts. In Part A, the Court addresses the contents of a sole proprietor’s business records, and cites White, Bellis, and Fisher as authority for the “new rule” that since such records are voluntarily created by a third party, the business, a sole proprietor may not invoke the Fifth Amendment as to their contents. In Part B, however, the Court specifically states that “although the contents of a document may not be privileged, the act of producing the document may be.” Doe, supra, 104 S.Ct. at 1242. In this second part of the opinion in Doe where the Court addresses the testimonial aspects of the act of production, it makes no mention of Beillis or White, and does not indicate that the Fifth Amendment protection against self-incrimination is somehow negated because the subpoena might be addressed to the witness in his representative capacity. As stated above, in Curdo, the case which the Court cites in Fisher and Doe as authority for the proposition that the act of production might itself be protected by the Fifth Amendment, the witness was subpoenaed in his representative capacity as custodian of records and secretary-treasurer of a union local.

More recently than Doe, the Eleventh Circuit Court of Appeals examined whether the signing of a consent directive that would enable the government to obtain certain bank records could be compelled under the Fifth Amendment. United States v. Ghidoni, 732 F.2d 814 (11th Cir.1984). The defendant in Ghidoni conceded that the bank records were not protected by any constitutional privilege, but argued that signing the consent directive was an “act of production” which was itself incriminatory. In affirming the district court’s conclusion that such an act was neither “testimonial” nor “incriminating” under the facts of the case, the Eleventh Circuit distinguished Ghidoni from the situation involved in Doe and Fisher.

The case sub judice must be distinguished from Ghidoni. In Ghidoni, the Defendant was only required to produce a directive which contained no testimony regarding the existence or control over the bank records which the government sought. The Court pointed out that the records, “if they exist, are held by the bank and any testimony on the existence, control or authentication elements of the records would have to come from the records themselves and the bank officials.” Id. at 819. In the instant case, the government has no means of establishing the authenticity of the AGH corporate documents other than by compelling Martin and Hernandez to produce them.

SUMMARY

Where the government seeks the production of documents which were created by a sole proprietorship, corporation, or other collective entity by way of a subpoena addressed to a representative, official, or records custodian, certain principles regarding the Fifth Amendment must be carefully considered. With respect to the contents of the records, there are sound reasons why no Fifth Amendment protection may be claimed by the business or entity, or by the official or representative, even where the records may incriminate the business or the official from whom the government seeks production.

First, as the Supreme Court noted in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), the contents of business records are usually created voluntarily; there is no compulsion element with respect to the preparation of corporate financial documents and the like.

Second, since the business or sole proprietorship is not a natural person, it is clear that the framers never intended such an artificial entity to be entitled to the Fifth Amendment’s protection against self-incrimination, when it attempts to assert the privilege on its own behalf. Rather, the privilege “is an intimate and personal one. It respects a private inner sanctum of individual feeling and thought ...” Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 615, 34 L.Ed.2d 548 (1973).

And third, since the Fifth Amendment only protects a person from incriminating himself, the business official or representative may not refuse to produce business records in his possession or control, because such records were created by a third party (the fact aside that the third party could not claim the privilege in its own behalf). United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944); Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974).

Where the official’s testimony about the documents, or where the official’s act of producing the documents might have “testimonial” and “incriminatory” elements with respect to the business official in his individual and personal capacity, however, the Court must carefully consider whether compliance with the subpoena would implicate the Fifth Amendment. Curcio v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957); Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); United States v. Doe, 465 U.S. 605,104 S.Ct. 1237, 79 L.Ed.2d 552 (1984); United States v. Ghidoni, 732 F.2d 814 (11th Cir.1984). This is true even if the subpoena is addressed to the official in his representative capacity because in accepting his duties as officer or custodian of records, a person does not thereby waive the rights and privileges which are guaranteed by the Fifth Amendment. Curcio, supra, 77 S.Ct. at 1150.

In light of White, Bellis, and the first part of Doe, it is clear that as to the contents of the documents which the government seeks in the two subpoenae, the Motion to Compel would be granted over the witnesses’ claim of Fifth Amendment privilege, even if the documents would incriminate them in their individual and personal capacities, as well as incriminate the corporation. At oral argument, however, the government made clear that through its motion it seeks an order compelling Martin and Hernandez to produce and thereby authenticate the documents. In light of Curcio, Fisher, and the second part of Doe, however, the government may not use such authentication and testimony about the documents against Martin and Hernandez in any subsequent proceedings brought against them in their individual capacities.

It should be emphasized, however, that under White and Bellis the witnesses’ legitimate claim of protection under the Fifth Amendment does not extend to the corporation. Artificial entities have no such privileges, and the government may use any testimony about the documents, as well as the authentication implicit in the act of their production, in subsequent proceedings brought against the corporation.

Insofar as the government seeks to use the act of production and testimony about the documents by Martin and Hernandez in subsequent proceedings against the corporation, the Motion to Compel therefore is GRANTED.

Compelled self-incrimination, however, implicates deeper concerns than its sheer unreliability as evidence, and strikes a deeper chord. The roots of the privilege “tap the basic stream of religious and political principle because the privilege reflects the individual’s attornment to the state and — in a philosophical sense — insists upon the equality of the individual and the state.” Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 1454, 18 L.Ed.2d 527 (1967). To the extent that the government’s motion seeks to compel Martin and Hernandez to assist the government in preparing its criminal case against them individually, the Motion to Compel is DENIED. Under the Fifth Amendment, the government may not compel Martin and Hernandez to authenticate and testify about the documents where such authentication and testimony would be used in subsequent criminal proceedings against them in their individual and personal capacities.

Because the contents of the documents are not subject to the same privilege, however, the government may use fully the documents against Martin and Hernandez in any subsequent criminal proceeding, if it authenticates the documents by a means other than testimony or the act of production by Martin and/or Hernandez.

Thereupon, it is ORDERED AND ADJUDGED that the government’s Motion to Compel be, and the same is hereby, GRANTED IN PART and DENIED IN PART, subject to the restriction on the use of testimony about the documents, and the authentication of the documents implicit in the act of their production, as discussed herein.


source: Caselaw Access Project

author: GEORGE C. CARR, District Judge.

license: Public Domain

text:
    Edward JAMES, William F. Jackson, John H. Rivers, and S.E. Sanders, on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF SARASOTA, FLORIDA: Fred E. Soto, Mayor of Sarasota, Florida; Ron Norman, Vice-Mayor; T.J. “Tony” Sarito, Rita Roehr, William McCullough, City Clerk of Sarasota, Florida, their successors and agents, all in their official capacities, Defendants.
    No. 79-1031-Civ-T-GC.
    United States District Court, M.D. Florida, Tampa Division.
    Jan. 25, 1985.
    Supplemental Decision May 24, 1985.

      David M. Lipman, Robert E. Weisberg, Miami, Fla., Henry G. White, Sarasota, Fla., for plaintiffs.
    Robert M. Fournier, Robert Taylor, Sarasota, Fla., for defendants.
   MEMORANDUM DECISION

GEORGE C. CARR, District Judge.

Four black residents of Sarasota, Florida, filed this action in 1979 to challenge the method by which Sarasota city commissioners are elected. The plaintiffs contended that the election of five at-large commissioners violated the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. and the thirteenth, fourteenth and fifteenth amendments to the United States Constitution. The defendants are the five members of the city commission. The suit sought a declaratory judgment that the at-large system diluted black voting strength, an injunction barring the defendants from holding any other elections under the at-large system and an order requiring the commissioners be elected from single-member districts.

When the lawsuit was filed, the commission candidates ran for numbered seats and had to receive a majority of the votes cast to win. Single shot voting in which voters can concentrate their votes behind one candidate was not permitted. Although seven black candidates had run in eleven elections, none had been elected. On the eve of the trial of this case, the Sarasota city-commissioners admitted that the at-large election system violated the Voting Rights Act and agreed to devise a new method.

After the parties were unable to reach an agreement, the plaintiffs and the city each submitted a proposed plan to the Court. The city’s proposal divides the city into three districts. Three commissioners would be elected by a plurality of the voters in each district. In addition, two commissioners would be elected at-large by a plurality vote. The at-large seats would not be numbered and thus the two candidates who received the most votes would be elected. The city submitted its so-called 3/2 plan and the plaintiffs’ 5/0 plan to the voters in a referendum in November, 1983. The voters selected the city’s 3/2 plan. This court must now determine whether that plan violates section 2 of the Voting Rights act, as amended, Pub.L. No. 97-205, § 3, 96 Stat. 134 (1982), amending 42 U.S.C. § 1973.

Congress enacted the Voting Rights Act of 1965 under the enforcement section of the fifteenth amendment. The Act, as amended, provides in pertinent part:

A violation ... is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election ... are not equally open to participation by members of a class of citizens protected by subsection (a) ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

96 Stat. at 134, § 3.

Therefore proof of discriminatory intent as required by the United States Supreme Court in City of Mobile v. Bolden, 446 U.S. 55,100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), is no longer needed. The city’s plan violates the Act if black voters in Sarasota have less chance than the other voters to participate in politics and to elect the candidates of their choice. The amended Act, however, specifically provides that minorities do not have the right to proportional representation. Thus, an election plan need not guarantee that the candidate supported by minority voters is elected.

The city’s 3/2 proposal is a legislative plan since it was approved by a voter referendum as an amendment to the city charter. See Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978). The Supreme Court has held that absent special circumstances, court-ordered election plans should have single-member districts. See Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971); Connor v. Williams, 404 U.S. 549, 92 S.Ct. 656, 30 L.Ed.2d 704 (1972); Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975) and East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). However, the Court has not so restricted legislative plans. See Wise, supra.

Under the city’s proposal, the boundaries of one of the three districts, District One, would be drawn so that 50.1 percent of the district residents were black. According to the city’s statistics, 42.6 percent of the voting age population in District One would be black and 43.3 percent of the registered voters would be black. The remaining two districts would have almost no black residents. The plaintiffs’ plan calls for a district with a black population of 72.7 percent with 66.2 percent of the voting age residents and 56.4 percent of the registered voters black. The central question thus becomes whether blacks must be far more than a majority of the population of a district to meet the requirements of the Act. The plaintiffs urge this Court to require that District One boundaries be drawn so that at least 65 percent of the population is black. After a two-day evidentiary hearing and from studying the reports submitted by both parties’ experts and the applicable law, this Court concludes that the city’s proposed plan meets the requirements of the Act.

The Voting Rights Act requires that minorities have an equal opportunity to elect representatives of their choice. The testimony at the evidentiary hearing showed that it is likely that a black candidate will be elected by the voters of the city’s proposed District One. Experts for both the plaintiffs and the city agreed that although blacks would not be a majority of the District’s voting age population, a black candidate could be elected if black voter turn-out exceeds the turn-out of white voters in the District.

According to the study conducted by Dr. Charles S. Bullock, the political scientist hired by the city, the mean black voter turn-out in the 11 city elections in which black candidates ran was 31.5 percent, or 6.8 percentage points higher than the mean turn-out for the white voters. Within the boundaries of the proposed District, white turn-out has been consistently, and in most elections significantly, lower than the turnout of white voters citywide. The study shows that in some elections the white voter turn-out in District One precincts which were heavily white has been 7 to 11 percentage points lower than the citywide turn-out for white voters. The black voter turn-out, according to Dr. Bullock’s study, exceeded the turn-out of white voters within the District in 10 of the 11 municipal elections in which blacks ran. In 1970, the black turn-out rate exceeded the rate for white voters in District One by 30.8 percentage points and in the two most recent elections, the rate for black voters was 20 percentage points higher. Dr. Bullock concluded that the mean turn-out for black voters was 31.5 percent for the 11 elections in which black candidates were on the ballot compared with a mean rate of 19.4 percent for white voters in the District.

No one can predict future election results with certainty. However, this Court must determine whether the city’s proposal would afford black voters an equal opportunity to elect a representative of their choice as required by the Voting Rights Act. Political scientists must rely on patterns from past elections to predict the results of future races. Those patterns show that the black voters of District One could, and in fact probably would, elect a candidate of their choice. Dr. Bullock used the 35.4 percent mean turn-out of black voters in the four general elections in which black candidates ran and the 2,837 black registered voters in the District to conclude that a black candidate who ran for the Sarasota city commission from District One would receive 1,004 votes from blacks. Even using the higher citywide voter turnout rather than the turn-out for District One whites, Dr. Bullock projected that the candidate supported by the black voters would win. With the citywide turn-out figures, the candidate supported by the white voters would receive 968 votes and thus lose the election.

Sarasota elections have been marked by racially polarized voting. Dr. Richard L. Engstrom, who studied racially polarized voting in Sarasota, concluded that from 67 percent to 95 percent of the whites voted for white candidates in the 11 municipal elections in which a black candidate ran. Almost all black voters cast their ballots for black candidates. There was, however, some cross-over or whites voting for black candidates. Dr. Bullock found that the mean cross-over for the four general elections in which blacks were on the ballot was 21.5 percent. If 21.5 percent of the whites in District One were to vote for a black candidate, then 208 of the votes cast by whites would go to the black candidate. When added to the 1,004 votes the black candidate would receive from black voters, it shows that the black candidate would win 1,212 votes as compared with the 706 votes for the white candidate.

Voter turn-out is a by-product of voter registration. As the turn-out of white voters in District One has been substantially lower than the turn-out for white voters citywide, the registration rate for whites in the District has also been lower. Only slightly more than 58 percent of the voting age whites in District One are registered to vote while eitywide 77.1 percent of the eligible whites had registered. The registration rate for blacks in District One was only slightly higher than the rate for white residents of the District.

Not only will black voters have an equal opportunity to elect a city commissioner from District One under the city’s proposed plan, blacks will also have a chance to elect a commissioner from one of the two at-large seats. Plurality voting and single-shot voting will help candidates supported by the black community. The two candidates with the most votes will win and thus the chance of electing a black candidate increases because the system will not pit a black candidate against a white one. Since none of the candidates will know what percentage of the vote will be needed to win, they will have to appeal to all the voters. Thus, the city’s proposal will permit the black voters to influence the election of three of the five members of the city commission.

There are several other advantages to the city’s 3/2 plan over the plaintiffs’ 5/0 proposal. Dr. Susan MacManus, who studied the migration patterns of the black community in Sarasota, noted that the black population is dispersing. The 3/2 plan permits blacks who live outside District One to vote for black candidates who run at-large. The 3/2 plan also encourages at least two members of the city commission to be concerned with the city as a whole rather than just the area which they represent.

The plaintiffs dispute the city’s theory that the 3/2 plan would give blacks an equal chance to elect the candidate of their choice. The plaintiffs’ expert, Dr. Engstrom, concluded that there was little chance a black would be elected to represent District One. Dr. Engstrom’s analysis was based on the estimate that 32.8 percent of the registered voters in District One were black. However, city workers counted the number of black registered votes in the District shortly before the evidentiary hearing and determined that 43.3 percent of the voters were black. This disparity weakens Dr. Engstrom’s conclusion. The Court therefore finds that Dr. Bullock’s analysis, which was based on the actual black registration in the District rather than an estimate, better predicts the outcome of future elections in the District.

The plaintiffs challenge Dr. Bullock’s findings for several reasons. They argue that his conclusions, which were based on past election results, are unsound because a candidate who runs in a District rather than at-large will focus his attention and resources in that District. They also note that the white candidate will live within the District One and therefore will receive more support from the white voters in the District than white candidates living outside the District did in the past. The plaintiffs also fear that a “white counter-mobilization” might increase white voter registration and white voter turn-out so that the black candidate would lose. In addition, the plaintiffs question Dr. Bullock’s theory because it is based on the hypothesis that black voters uniformily vote for black candidates.

The Court finds the plaintiffs’ arguments for rejecting Dr. Bullock’s analysis unpersuasive. Dr. Bullock based his theory on the statistics from past elections. He relied solely on objective criteria. The plaintiffs put forth various scenarios, such as the “white counter-mobilization,” which are based on pure speculation. Their predictions of increased white voter registration and white voter turn-out are also not supported by the evidence. Although the plaintiffs challenge Dr. Bullock’s assumption that blacks vote for black candidates, they argue that racially polarized voting is widespread in the city. The plaintiffs are essentially asking this Court to order city officials to draw the district lines so that the candidate supported by the black community is assured of winning the election. This may be a worthy goal but it is not one mandated by the Voting Rights Act.

The plaintiffs urge this Court to adopt the 5/0 plan so that 72.7 percent of the population of the district is black. They note that the Fifth Circuit rejected an election plan which had districts with blacks as a majority of the population but not of the voting age population. See Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir.1977). In Kirksey, the defendants devised an election plan which split the black population of Jackson, Miss., between two districts. In rejecting the plan, the en banc Court noted,

Where the cohesive black voting strength is fragmented among districts, the presence of districts with bare black population majorities not only does not necessarily preclude dilution but ... bare population majorities may actually enhance the possibility of continued minority political impotence.

554 F.2d at 150, citing Moore v. Leflore County Board of Education, 502 F.2d 621 (5th Cir.1974). There is no indication that the Kirksey defendants took steps, such as adopting single shot voting, to prevent minority vote dilution as have the defendants in the instant case. Nor was there evidence in Kirksey that low white voter turnout would give blacks a good chance to elect their candidate although they were not a majority of the district’s voting age population.

The plaintiffs also rely on United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1980) in which the Supreme Court upheld a state election plan which created a district which was 65 percent black. The Court ruled that the Voting Rights Act permits race to be considered when district lines are drawn and that such consideration is not unconstitutional. However, the Court did not rule that the Act requires that minorities be 65 percent of the population of a district. Accordingly, United Jewish Organization does not preclude Sarasota from adopting the 3/2 election plan. If it were not for the structure of the city’s plan and the demographics of District One, including the low white voter turn-out, this Court might agree with the plaintiffs that blacks would not have an equal opportunity to elect their candidates unless they were a majority of the District’s voting age population. However, the Court is convinced that the city’s proposed plan complies with the Voting Rights Act.

The plaintiffs also request that this Court examine the evidentiary factors which Congress has said contributes to a finding that a voting plan violates Section 2 of the Act. Those factors — the extent of past discrimination, racially-polarized voting, election devices which enhanced the opportunity for discrimination, minorities suffering from the effects of discrimination, minorities elected to public office, political campaigns marked by racial appeals and minorities denied access to candidate slating — would apply if this Court were examining an election plan which had been in effect. However, the city has admitted that the election plan it used in the past violated the Act and thus examining these factors would merely lead to the conclusion that the former election plan denied black voters equal opportunity to elect the candidates they supported. An analysis of the factors does not aid this Court in determining whether the proposed plan meets the requirements of the Act.

The only remaining issue is implementation of the election plan. The city has filed a report suggesting a 3-2-0 seat rotation plan in which the three district elections would be held in the first year, the two at-large the following year and no election held the third year. In the report, the city also suggests various plans for adopting that rotation. This Court believes the effects of the new election plan will be best determined if all city commission seats are filled in one election initially. Therefore, the city is hereby Ordered to hold elections for all five seats in accordance with the terms of this Order in the spring of 1985. The three district seats will have three-year terms and the two at-large seats four-year terms so that the commission will have a 3-2-0 rotation. In future elections, the at-large terms will be for three years.

Because of the city’s admission that the former election plan violated the Voting Rights Act, this Court has had the task of deciding whether an election plan which has not been tested affords black voters an equal opportunity to participate in the electoral process and elect the representatives of their choice. Thus, the question has not been whether the law has been violated but rather whether it will be violated. By necessity, that determination has been based on hypothesis. Therefore, this Court hereby retains jurisdiction of this matter for a period of time after the 1985 city commission election so that it can review the results of the election to determine whether the election plan complies with the requirements of the Act.

The defendant is to report the results of the 1985 spring election to the court within thirty (30) days of the election.

SUPPLEMENTAL DECISION

In the Memorandum of Decision of January 25, 1985, this Court retained jurisdiction over this Voting Rights Act case to determine whether the City of Sarasota’s election plan afforded black voters an equal opportunity to elect the representatives of their choice. In accordance with this Court’s Order of January 25, the city held municipal elections on April 9, 1985. For the first time in the city’s history, a black was elected to the city commission.

Two black candidates and one white candidate ran for the District One seat on the city commission. The two black candidates received 84.5 percent of the vote. The white candidate, who was a former mayor and city commissioner in Sarasota, received only 15.5 percent. According to Dr. Bullock’s projections, the District One black candidate should have gathered 1,212 votes in the election. In actuality, 1,676 voters in District One voted for one of the two black candidates. Dr. Bullock had predicted that the white’ candidate running in the district would receive 706 votes. However, only 307 voters cast their ballots for the white candidate.

Dr. Bullock correctly predicted that the black candidate would be helped by a higher turn-out of black than white voters in the District. According to the election returns, 47.2 of the eligible blacks in the District voted compared to 18.6 percent of the whites. The white voter turn-out which historically had been lower than the white turn-out throughout the city, was seven percentage points below the 25.9 percent citywide figure. The black candidates also received votes from the white residents. Dr. Bullock had projected a 21.5 percent cross-over in the District. During the April election, 56.2 percent of the whites in District One cast their ballots for a black candidate.

In the at-large election, the black candidate ran last among the four candidates. The other three candidates, however, were incumbent commissioners. The black received 2,020 votes. The two winning candidates received 4,610 and 4,190 votes. The statistics submitted to the Court by the city show that 13.3 percent of the whites voted for the black at-large candidate. In addition, he received 45 percent of his support from the predominately white Districts of the city.

Accordingly, the Court determines that the city’s election plan does provide the black voters of Sarasota an equal opportunity to participate in the political process and to elect representatives of their choice. The Clerk of the Court is hereby Ordered to enter a judgment in favor of the defendants and against the plaintiffs. Furthermore, the Court relinquishes jurisdiction of this case.

APPENDIX

Honorable George C. Carr

United States District Judge

United States District Court for the Middle

District of Florida

601 North Florida Avenue

Tampa, Florida 33602

Re: Edward James v. City of Sarasota, Florida,

Case No. 79-1031-Civ-T-GC (M.D.Fla.)

Dear Judge Carr:

Your January 25, 1985, memorandum decision and order entered in the above-styled case recently came to my attention. Because it contains a factual misstatement concerning standards applied by the Department of Justice in enforcing Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, I thought it appropriate to bring the matter to your attention and explain the standards which the Department in fact applies in such circumstances.

At pages 4-5 and footnote 3 of your slip opinion, it is noted that plaintiffs had sought a districting plan containing a district in which 65 percent of the population would be black. The footnote states that “[t]he 65 percent figure stems from a United States Justice Department requirement in Section 5 cases. The government determines that a state reapportionment plan is an impermissible retrogression if the number of districts with at least 65 percent minority population decreases under the plan.”

There is no 65 percent threshold population figure applied as a rule of thumb by the Department in redistricting matters reviewed under Section 5. Rather, our responsibility is to determine whether the number of districts in which minority voters will have a fair opportunity for electing representatives of their choice (whatever the percentage of minority voters in each district) has been decreased by the proposed redistricting plan submitted under Section 5. If so, the submission results in an impermissible retrogression of minority voting strength and cannot receive Section 5 preclearance. See Beer v. United States, 425 U.S. 130 (1976).

In this context, the Section 5 inquiry is much less concerned with discrete percentages of minority voters in reconfigured districts than with how those new district populations compare with the district population currently in place. We find figures on minority voting-age populations far more useful to the analysis than total minority population percentages. But in neither case do we attach particular significance to a 65 percent population figure, and no attempt is made to add arbitrarily increments of five percentage points each to compensate for age, registration and turn-out differences.

/s/ Wm. Bradford Reynolds

Wm. Bradford Reynolds Assistant Attorney General

Accordingly, the Attorney General has frequently concluded, based on the facts presented in a particular submission, that districts containing a minority population significantly less than 65 percent of the total are racially fair districts and that the plan submitted is entitled to Section 5 preclearance. On the other hand, there have also been occasions when preclearance has been denied under Section 5 on a finding— based on a comparison with the existing configuration — that a proposed district with a minority population greater than 65 percent will not provide minority voters the same opportunity to elect representatives of their choice that they currently enjoy. Each Section 5 submission must, of course, be evaluated in light of the particular factual circumstances prevailing in the affected political jurisdiction and whether or not a districting plan meets Section 5 preclearance requirements is determined within the context of those facts — not on the basis of some preordained population percentage.

The Department was not before the court in the James case, and we therefore did not have an opportunity to correct misinformation apparently furnished to the court regarding our Section 5 review procedures. This letter is simply to apprise the court of the Department’s actual position so as to ensure that the error in footnote 3 is not perpetuated.

I appreciate your consideration of this matter. Copies of this letter are being mailed to counsel of record.

Sincerely,

Civil Rights Division

ORDER

The Court received the attached letter from Wm. Bradford Reynolds, chief of the civil rights division of the Justice Department, on April 9, 1985. To ensure that the record is complete, the Clerk of the Court is hereby directed to file the letter in the Court record and send copies of the letter and this Order to counsel of record and Mr. Reynolds.

DONE AND ORDERED in Chambers at Tampa, Florida, this 9th day of April, 1985.

      . The plaintiffs dismissed their allegations that the city’s election plan violated the Constitution and proceeded solely on the statutory allegations.

      . Sarasota is a charter municipality pursuant to article VIII, § 2(b) of the Florida Constitution and is governed by the Florida Municipal Home Rule Powers Act, Fla.Stat. § 166.021 which requires a referendum to change election plans.

      . The 65 percent figure stems from a U.S. Justice Department requirement in Section 5 cases. The government determines that a state reapportionment plan is an impermissable retrogression if the number of districts with at least 65 percent minority population decreases under the plan. The government arrived at the 65 percent figure by adding 50% (a majority) and 5 percent (because minority populations tend to be younger than the white population) and 5 percent (because fewer minorities register to vote) and 5 percent (because minorities vote less often than whites).

      . The Court will use the term black candidate to refer to the candidate supported by black voters although the Court recognizes that black voters may support white candidates in some elections.

      . Political scientists believe thai voter registration is linked to socio-economic status. Dr. Susan MacManus, who studied the demographics of Sarasota, found that although District One was not racially homogenous, it was homogenous in terms of the socio-economic level of the residents.

      . Dr. MacManus concluded that mixed election plans in which some representatives run at-large and the others from districts, provided • significantly greater opportunity for blacks to participate in elections than the pure at-large plans and not much less chance than the single-member districts. The ratio of black representation on city councils to the percentage of minority representation was .7 in mixed plans in a study of Southern cities from 1970-81. For single-member districts, the ratio was .87 and for at-large systems it was .39. Thus, blacks had the best chance to have the city council reflect the racial composition of the city under single-member districts but their chance did not substantially decline under the mixed plans.

      . S.Rep. No. 97-417, 97th Cong., 2d Sess. 27-29 (1982), U.S.Code Cong. & Admin.News 1982, p. 177.


author: ROVNER, District Judge.

text:
    Charles LEIGH and Marie Leigh, Plaintiffs, v. UNITED STATES of America, Defendant.
    No. 83 C 1752.
    United States District Court, N.D. Illinois, E.D.
    Feb. 28, 1985.

      Diane M. Curtis, Stanton B. Miller, Anderson, McDonnell, Miller & Tabis, Chicago, Ill., for plaintiffs.
    Angelynn C. Hall, Dept. of Justice, Tax Div., Washington, D.C., Dan K. Webb, U.S. Atty., James Kubik, Asst. U.S. Atty., Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

Plaintiffs, Charles and Marie Leigh brought this suit against defendant, the United States, claiming a refund of $3,766 in taxes which the Leighs paid after the Commissioner of the Internal Revenue Service disallowed a $11,009 deduction on taxpayers’ federal income tax return for 1978. Plaintiffs allege that under the circumstances, legal expenses incurred in defending a lawsuit concerning a sale of stock were deductible from ordinary income under section 212 of the Internal Revenue Code of 1954, while defendant maintains that they are nondeductible capital expenditures under section 263 of the Code.

Presently before the Court is defendant’s motion, pursuant to Fed.R.Civ.P. 56, for summary judgment in their favor on the claims raised in plaintiffs’ complaint. For the reasons set forth below, defendant’s motion is granted.

Factual Background

The material facts are undisputed and largely stipulated. On April 5, 1977, Plaintiff-taxpayer Charles Leigh (“Leigh”) and Libco Corporation (“Libco”) entered into an installment sale agreement for 116,000 shares of Leigh’s stock in Reliable Manufacturing Corporation (“Reliable”). The agreement provided for a down payment on the date of closing, April 12, 1977, the balance to be paid in three installments over the next three years.

Libco paid the initial payment on the closing date. Libco has failed to pay any subsequent installments due under the sale agreement.

On November 22, 1977 — approximately two months before the due date of the second installment — Libco filed a lawsuit against Leigh, alleging securities acts violations, common law fraud, and breach of contract. (Case No. 77 C 4386 in the Northern District of Illinois, the “Libco suit”.) One year later, on November 15, 1978, Leigh filed a counterclaim for the balance of the payments due under the sale agreement (the “Agreement”). The Libco suit is currently pending in federal court.

On September 22,1978, Leigh also filed a lawsuit in the Northern District of Illinois (Case No. 78 C 3799), against the fiduciaries of the Reliable Corporation Profit Sharing Plan, alleging mismanagement of the funds held in the profit sharing plan, and requesting an accounting of the plan’s funds. The suit against the trustees of the profit sharing plan is also currently pending in federal court.

Leigh retained a litigation specialist, Ware Adams, to handle both of the above-described lawsuits. Leigh’s attorneys’ fees during 1978 totalled $11,009. 80-85% ($8,807.20-$9,357.65) of this amount is allocable to litigation expenses in the profit sharing plan suit.

The Leighs deducted the entire amount of $11,009 in attorneys’ fees on their 1978 joint income tax return. The Internal Revenue Service disallowed the claimed deduction on the ground that the full amount of the attorneys’ fees was not a properly deductible item under Section 212 of the Internal Revenue Code of 1954 (“Section 212”), which prescribes the allowable deduction for ordinary and necessary expenses incurred for the production or collection of income. Instead, the Internal Revenue Service maintained that the legal expenses constituted capital expenditures pursuant to Section 263 of the Internal Revenue Code of 1954 (“Section 263”), because they were incurred in the disposition of a capital asset (plaintiff’s stock in Reliable).

Plaintiffs paid the additional taxes assessed because of the disallowance of the deduction and filed a claim for refund of the taxes. The refund was disallowed and plaintiffs then filed this civil tax refund action to recover the $3,766 paid by them.

Since the filing of the instant case, the government has conceded the deductibility of the attorneys’ fees in the profit sharing plan suit. The instant motion for summary judgment concerns only the issue of the deductibility of the attorneys’ fees incurred in defending against the Libco lawsuit.

Discussion

Defendant now moves for summary judgment on the ground that the legal expenses incurred by plaintiff in defending against the Libco suit had their origin in the disposition of plaintiff’s stock in Reliable. Therefore, the litigation expenses are nondeductible and must instead be categorized as capital expenditures under section 263 which specifically precludes such a deduction.

Plaintiff asserts that the government’s motion for summary judgment should be denied because the record discloses a genuine issue of material fact: the intent of Libco in filing the lawsuit against Leigh. Plaintiff claims that if Libco sued Leigh to stall or defeat Leigh’s collection of the amount owed under the agreement, then the entire Libco suit is essentially a collections suit. If true, plaintiff argues, then the litigation expenses are deductible under Section 212 as expenses incurred in the collection of income. Therefore, under plaintiff’s analysis, summary judgment would be premature at best because the facts necessary to support the issue of Libco’s intent in filing the suit against Leigh will not be disclosed until the Libco suit is concluded.

Section 212 provides for the deduction of all ordinary and necessary expenses paid or incurred during a taxable year for the production or collection of income, and for the management, conservation, or maintenance of property held for the production of income. The purpose of this section is to extend deductions previously allowed only in a trade or business context (section 165) to certain nonbusiness situations. See Baier v. Commissioner, 533 F.2d 117 (3d Cir.1976). However, the restrictions and qualifications applicable to the deductibility of trade or business expenses are also applicable to the expenses covered by section 212. United States v. Gilmore, 372 U.S. 39, 45, 83 S.Ct. 623, 627, 9 L.Ed.2d 570 (1963).

The most important limitation to deductions under section 212 for purposes of the instant case is that capital expenditures are nondeductible under section 263. Woodward v. Commissioner, 397 U.S. 572, 574, 90 S.Ct. 1302, 1304, 25 L.Ed.2d 577 (1970); United States v. Hilton Hotels, 397 U.S. 580, 90 S.Ct. 1307, 25 L.Ed.2d 585 (1970); Clark Oil and Refining Corp. v. United States, 473 F.2d 1217 (7th Cir.1973). Instead, capital expenditures are added to the basis of the capital asset with respect to which they were incurred, and are taken into account for tax purposes either through depreciation or by reducing the capital gain (or increasing the loss) when the asset is sold. Woodward, 397 U.S. at 574-75, 90 S.Ct. at 1304.

Costs which are incurred in the acquisition or disposition of a capital asset are to be treated as capital expenditures. Id. at 575, 90 S.Ct. at 1304. An example is the payment of a brokerage fee to acquire corporate securities. “The law could hardly be otherwise, for such ancillary expenses incurred in acquiring or disposing of an asset are as much part of the cost of that asset as is the price paid for it.” Woodward, 397 U.S. at 576, 90 S.Ct. at 1305.

In determining whether litigation expenses are incurred in the acquisition or disposition of capital assets or merely for the production or collection of income, the United States Supreme Court has adopted the “origin of the claim” test. Woodward v. Commissioner, 397 U.S. 572, 90 S.Ct. 1302, 25 L.Ed.2d 577 (1970); United States v. Hilton Hotels, 397 U.S. 580, 90 S.Ct. 1307, 25 L.Ed.2d 585 (1970). Under the origin of the claim test, the inquiry is whether the litigated claim which generated the legal fees had its origin in the acquisition or disposition of a capital asset. According to the Court, both the consequences of the litigation and the taxpayer’s motive or purpose in undertaking the litigation are immaterial.

The Court in Woodward thus explicitly rejected the application of a “primary purpose” test in the area of acquiring a capital asset, stating that: “A test based upon the taxpayers ‘purposes’ in undertaking or defending a particular piece of litigation would encourage resort to formalisms and artificial distinctions.” Woodward, 397 U.S. at 577, 90 S.Ct. at 1306. The Court labeled the highly subjective primary purpose test as “uncertain” and “difficult,” id., and noted that it “hardly [drew] a bright line” and had produced a “melange of decisions” which were irreconcileable. Id. at 576, 90 S.Ct. at 1305.

Libco’s Intent

Leigh argues that the proper characterization of his litigation expenses requires the conclusion of the Libco suit to determine whether Libco’s intent in filing suit against Leigh was to block Leigh’s collection efforts. The Seventh Circuit specifically rejected this contention in Dower v. United States, 668 F.2d 264 (7th Cir.1981). In Dower, the court characterized a similar argument as the very “primary purpose” test the Supreme Court rejected in Woodward. The court held that the motive of either litigants is no longer considered a material fact. Libco’s intent in filing suit against Leigh in irrelevant. Where the litigation involves the acquisition or disposition of capital assets, Woodward clearly mandates that the origin of the claim, rather than the litigants’ primary purpose in bringing the claim, controls whether the expenditure should be capitalized.

In the instant case, it is uncontroverted that the shares of stock in Reliable constitute a capital asset. Therefore, our inquiry is whether the Libco suit in which the expenses were incurred had its origin in the disposition of the Reliable stock, or in plaintiff’s attempt to collect income owed to him.

The Legal Expenses Incurred in Defending Libco’s Suit

In Wagner v. Commissioner, 78 T.C. 910 (1982), the tax court faced a situation identical to that in the instant case. In Wagner, the taxpayer sold stock under an installment sales agreement. Before all of the payments had been completed, the buyer sued the seller-taxpayer for securities fraud. The seller-taxpayer counterclaimed for the remaining portion of the purchase price and then attempted to deduct his litigation expenses incurred in defending the suit under section 212.

The tax court held that the litigation expenses incurred by the taxpayer in defense of this claim had their origin in the taxpayer’s allegedly fraudulent representations and concealments when selling the stock. Therefore, the legal expenditures incurred in defending the lawsuit had their origin in the disposition of the stock and were nondeductible capital expenditures.

The Ninth Circuit also has addressed a situation similar to the instant case. In Locke v. Commissioner, 568 F.2d 663 (9th Cir.1978), Locke incurred legal expenses defending against a lawsuit based on securities fraud in connection with the purchase of certain stock. The court held that the origin of the claim was the purchase of stock. Because the amended complaint stated “[t]his is an action for damages for fraud in the sale of stock by plaintiffs to defendant John L. Locke,” the Ninth Circuit found that the “heart of the complaint was that Locke fraudulently induced Callahan to sell the stock to him, that Locke profited thereby, and that Callahan was entitled to damages.” Id. at 665. Thus, the legal expenses incurred in defending the lawsuit were nondeductible capital expenditures.

As in Wagner and Locke, Libco’s allegations in the Libeo suit concern Leigh’s conduct during the disposition of the stock. That is, the heart of Libco’s claim in whether or not Leigh made various untrue statements of material facts or failed to disclose other material facts during the negotiations preceding the stock purchase agreement. Libco’s claim clearly originated out of the disposition of the sale of a capital asset. Therefore, Leigh’s litigation expenses incurred in defending the Libeo suit are not deductible.

Legal Expenses for the Counterclaim

The expenses incurred by Leigh in counterclaiming for the unpaid balance of the sales price under the Agreement are also capital expenditures because these expenses had their- origin in the disposition of a capital asset.

First, as the Supreme Court stated in United States v. Hilton Hotels, 397 U.S. 580, 90 S.Ct. 1307, 25 L.Ed.2d 585 (1970), the “[djetermination and payment of a price is no less an element of an acquisition by purchase than is the passage of title to the property.” Id. at 584, 90 S.Ct. at 1309 (emphasis added). The same is no less true for the disposition of property since disposition is acquisition from the viewpoint of the other party. In other words, it would be fallacious to distinguish as separate and independent transactions for tax purposes the negotiation of a sale of property and the realization of the proceeds of that sale; they are both part of a single process. See Helgerson v. United States, 426 F.2d 1293, 1297 (8th Cir.1970). Therefore, in the case at bar, the payment of the unpaid balance is an essential element of the disposition of a capital asset.

Furthermore, the order in which determination and payment of price and passage of title occur makes no difference in the characterization of the expenses incurred for tax purposes. Hilton Hotels, 397 U.S. at 584, 90 S.Ct. at 1309. Thus, the fact that title to the stock passed to Libeo before the final installment payment was due does not prohibit the capitalization of Leigh’s expenses incurred in the counterclaim.

Second, the origin of Leigh’s compulsory counterclaim cannot be viewed in isolation, but rather must be analyzed in the context of all the facts and circumstances. For Leigh to prevail on his counterclaim, he will not only have to prove that the terms of the Agreement are valid, but he also will have to rebut Libco’s charges against him.

The Libco claims and Leigh’s counterclaims are thus inextricably intertwined. In fact, plaintiff has admitted that “[h]ad Libco failed to bring suit, Leigh ... would have had no need (at least with respect to the second installment) for a collections suit — they could have secured payment by drawing on the irrevocable Letter of Credit held by Continental [Bank].” Plaintiff’s Mem. at 16. The disposition of the stock is as much the heart of Leigh’s counterclaim as it is the heart of Libco’s suit. Thus the expenses of the counterclaim are capital expenditures.

Furthermore, plaintiff has cited only two outdated cases that allowed the deduction of expenses incurred in the collection of payment from the sale of a capital asset: Naylor v. Commissioner, 203 F.2d 346 (5th Cir.1953) and Doering v. C.I.R., 39 T.C. 647 (1963). In Naylor, the taxpayer granted an option to purchase certain stock which was a capital asset in his hands. The purchaser thereafter exercised the option, but a dispute arose as to the amount due under the sales contract. In resolving the dispute, the taxpayer incurred certain legal expenses which he sought to deduct as nonbusiness expenses incurred in the collection of income. The court found that the taxpayer’s attorney was not employed until after an enforceable contract of sale existed, and held that the legal expenses were deductible as expenses incurred for the collection of income.

In Doering v. Commissioner, the taxpayer was a shareholder in a corporation that produced motion pictures for distribution. It contracted with another corporation for the latter to distribute and exhibit motion pictures produced by it. A dispute arose between the corporations over the amount that the taxpayer’s corporation was to receive under the contract. Before the dispute was settled, the taxpayer’s corporation was liquidated and its claim against the other corporation, which had no ascertainable value at that time, was distributed to the shareholders. The claim was ultimately settled, and the taxpayer deducted the legal fees incurred for the collection of income. Relying heavily on Naylor, the tax court sustained the taxpayer, finding that since the liquidation was completed when the expenses were incurred, they were incurred for the collection of income. The tax court further stated that whether legal expenses are deductible depends on the purpose for which they are incurred.

Plaintiff’s reliance on these two cases is misplaced. Doering used the primary purpose test that was later rejected by the United States Supreme Court in the Woodward and Hilton Hotels eases. Significantly, the tax court effectively rejected its earlier holding in Doering in Wagner v. Commissioner, 78 T.C. 910, 920 (1982).

Further, several courts have noted that Naylor, in light of the Supreme Court decisions in Woodward and Hilton Hotels, has been “considerably eroded.” Estate of Meade v. Commissioner, 489 F.2d 161 (5th Cir.1974); Helgerson v. United States, 426 F.2d 1293 (8th Cir.1970). The Helgerson court declined to observe Naylor. The soundness of Naylor was also questioned by the Ninth Circuit in Spangler v. Commissioner, 323 F.2d 913, 920 n. 15 (9th Cir.1963), and has been characterized as “questionable” in 5A Mertens, Law of Federal Income Taxation section 25A.12 n. 40 (rev. ed. 1966).

The Fifth Circuit has since limited its holding in Naylor to fact situations where the disposition of a capital asset has been consummated and subsequent controversy concerns no more than enforcement of the terms of the agreement. Estate of Meade, 489 F.2d at 168. Even this distinction between expenses incident to a disposition of property and those incident to collection of the proceeds of that sale is tenuous, Helgerson, 426 F.2d at 1298; Munn v. United States, 455 F.2d 1028, 197 Ct.Cl. 233 (1972), and consequently this Court declines to observe it here.

In any case, Naylor is inapplicable here. First, the Libco suit involves more than enforcement of the terms of the agreement; there is also the question of securities violations, fraud, and breach of contract. Even in Leigh’s counterclaim, the primary question is not merely of enforcement but of the validity of the contract since Leigh must be able to rebut Libco’s claims. Second, Naylor did not involve a fact situation where the collection aspect of the suit was inextricably intertwined, and arguably precipitated by, claims of securities violations, fraud and breach of contract.

Therefore, because there is no genuine issue as to any material fact and this Court has found that the defendant is entitled to judgment as a matter of law, defendant’s motion for summary judgment is granted.

      . Marie Leigh, wife of Charles Leigh, is a party here only because she and her husband filed joint tax returns. She was not a party to any of the contracts and agreements incident to the relevant sale of stock. References to “plaintiff” or “Leigh” thus refer only to Charles Leigh.

      . In order to prevail on a motion for summary judgment, a defendant has the burden of establishing that there is no genuine issue of material fact. Korf v. Ball State University, 726 F.2d 1222 (7th Cir.1984). Any inferences to be drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. Hermes v. Hein, 742 F.2d 350 (7th Cir.1984). The existence of a factual dispute, however, only precludes summary judgment if the disputed fact is outcome-determinative. Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir.1984). ‘“A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties’ differing versions of the truth’ ” Korf, 726 F.2d at 1226, quoting Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1306 (9th Cir.1982).

      . In Dower, taxpayer Dower had entered into two agreements with certain employees of his corporation (the "Key Men”) wherein the Key Men had the right to purchase Dower’s stock upon the occurrence of several events. In 1968, after a dispute over the handling of the corporation, the Key Men sued Dower for specific performance of the agreements. The parties reached a settlement in which Dower agreed to pay the Key Men in return for dismissing the suit and their claims under the two agreements. Dower then deducted the payments as ordinary business expenses necessary to preserve his position with the corporation and the value of his stock as an income-producing asset. 668 F.2d at 265. The Internal Revenue Service disallowed the deduction,' Dower sued for a refund, the district court granted summary judgment against him, and he appealed. Id. at 265-66.
      On appeal, he argued that the proper characterization of the settlement payments required a trial to resolve such questions of motive or purpose as whether the Key Men in these lawsuits were really seeking money or stock and whether Dower thought he was fending off a challenge to his management of the corporation or defending his title to the stock. Id. at 266. The court characterized Dower’s argument as the primary purpose test and stated that this test had been rejected by both the Supreme Court in Woodward and this circuit in Anchor Coupling Co., Inc. v. United States, 427 F.2d 429 (7th Cir.1970). "Courts now look not to the motives of the litigants but to the origin and character of the claim that was litigated, and in the present case it was possible to determine the origin and character of the claim that Dower settled ... from the state-court pleadings and the terms of the settlement. All of the relevant documents were before the district court on the cross motions for summary judgment and they leave no doubt as to the proper characterization of the settlement payments.” Dower, 668 F.2d at 266.

      . There is no reason why the result should be different simply because the Libeo suit was brought by a purchaser rather than a seller as in Locke. The origin of a claim is not determined by who brought the suit, but rather by the kind of transaction from which the litigation arose. See Wagner v. Commissioner, 78 T.C. 910, 918-19 (1982). Here, the transaction was of a capital nature; therefore, the expenses incurred in the defense of the Libeo suit by Leigh were capital expenditures and not deductible.

      . Plaintiff did not claim that an allocation of the legal expenses should be made between expenses incurred in defending the suit and those incurred in counterclaiming for the unpaid balance of the sales price; rather he has claimed that the entire amount deductible. For the sake of completeness, however, this issue shall be addressed.

      . The Eighth Circuit came to a similar conclusion in Helgerson v. United States, 426 F.2d 1293 (8th Cir.1970). In that case, taxpayers sold certain stock to be paid for in three installments. There was an escrow agreement so that title did not pass until the purchase price was paid in full and a dispute over the escrow agreement arose in the interim. The court in Helgerson held that expenses incurred in the litigation concerning the escrow agreement originated in dle disposition of the stock because the sale of stock was not fully consummated — the purchaser had not received full ownership of the stock and the seller had not received full payment of the purchase price.


author: HORACE T. WARD, District Judge.

text:
    Alonzo WEAVER, Plaintiff, v. Pat JARVIS and Dr. Charles Allard, Defendants.
    Civ. A. No. C82-438A.
    United States District Court, N.D. Georgia, Atlanta Division.
    March 12, 1985.
    Tom West, Atlanta, Ga., for plaintiff.
    George Dillard, Gail Flake, Decatur, Ga., Michael Bennett, Atlanta, Ga., for defendants.
   ORDER OF COURT

HORACE T. WARD, District Judge.

Alonzo Weaver, a state prisoner, commenced this action, pursuant to 42 U.S.C. § 1983, seeking to redress an alleged violation of his constitutional rights. The plaintiff claims that he was refused the right to adequate medical treatment while incarcerated at the DeKalb County Jail in 1980 and, as a result, is now legally blind. Weaver brings this action against the sheriff of DeKalb County (Pat Jarvis), who is responsible for maintaining and operating the county jail, and the doctor (Charles Allard) who treated him while he was in jail. The matter is now before the court on defendants’ motions for summary judgment.

BACKGROUND

Plaintiff Alonzo Weaver was confined in the DeKalb County Jail on or about February 21, 1980 on felony charges and remained in the jail until July 3, 1980, when he was transferred to a state prison facility. Plaintiff returned to the county jail about a week later and remained there until September 22, 1980, at which time he was again transferred into the custody of state officials for transport to a state prison facility. During the time plaintiff was incarcerated, defendant Jarvis was the Sheriff of DeKalb County and in charge of the jail. During 1980, defendant Allard was the physician under contract with DeKalb County to provide medical care for inmates.

Under the terms of his contract with the county, Dr. Allard had the responsibility for conducting sick call at the jail. Allard was generally present at the jail several times a week. In addition, the jail maintained a medical infirmary, which was staffed with six full time registered nurses, working under the direct supervision of defendant Allard. An inmate who desired medical treatment could sign the “sick call” sheet which was distributed daily throughout the cells or could send an individual request through a deputy at any time to the infirmary. Both the sick call sheets and individual requests would be received by the deputy on duty and transmitted directly to the medical infirmary, where the nursing staff would review the request and either treat same, based upon standing orders of the physician, or place the inmate’s name on the list to be examined by the doctor.

In late March or early April, 1980, Weaver began to have aching and pain in his eyes and his vision began to blur. He states that he had never had any problem with his eyes before this time. Plaintiff sought medical attention by notifying the guard and by putting his name on the sick call list. Plaintiff states that he was not able to see the doctor for several weeks. Over the course of his confinement in the DeKalb County Jail, Weaver was seen by defendant Allard and/or members of his staff on four separate occasions. Allard diagnosed plaintiff’s condition to be conjuntivitis and prescribed medication. No cultures were made and no diagnostic lab work was done to assist in the formulation of that diagnosis.

Medical treatment obtained by plaintiff subsequent to his confinement in the DeKalb County Jail has failed to identify the precise nature of plaintiff’s eye disorder. After his entry into the state prison system, Weaver was sent to eye specialists at Talmadge Memorial Hospital. There, plaintiff was diagnosed as having permanent optic atrophy and the possibility of multiple sclerosis. Plaintiff is now legally blind. Plaintiff alleges that he was denied appropriate medical treatment while he was confined in the DeKalb County Jail, claiming that a proper diagnosis was not made and that Dr. Allard failed to refer plaintiff to an eye specialist.

CONTENTIONS OF THE PARTIES

Defendant Allard

Defendant Allard contends that the gist of plaintiff’s complaint is that Weaver is claiming he should have received treatment in addition to or different from that administered to him by defendant Allard. As such, Allard contends, plaintiff has not established a cognizable claim under federal law. Allard states that no evidence shows that he knowingly disregarded any serious medical need; rather, he prescribed a course of treatment. Thus, Allard argues, the fact that medical treatment was given to plaintiff precludes any finding of deliberate indifference to serious medical needs. Allard contends, then, that the adequacy and propriety of the choice of treatment is not an issue in a prisoner’s medical attention case, and that once treatment has been provided any challenge to such course of treatment amounts to a mere difference of opinion between the prisoner and the treating physician, which disagreement supports no claim for relief under § 1983.

Defendant Jarvis

Defendant Jarvis contends no deliberate indifference to serious medical needs has been shown with respect to the operation of the DeKalb County Jail. Jarvis argues that he has provided a comprehensive system of medical care for inmates at the jail. Jarvis further argues that the record before the court concerning plaintiff’s medical care, which shows that plaintiff received treatment for his eye on four occasions, cannot be held to constitute such indifference to serious medical needs as offends “evolving standards of decency” bn the part of Sheriff Jarvis. In addition, defendant Jarvis claims that he had no personal knowledge of or involvement in plaintiff’s medical treatment and, that since he had no information or knowledge which would have led him to believe that plaintiff was receiving inadequate medical care, plaintiff’s claim against him could only be based on a theory of vicarious liability based on the doctrine of respondeat superi- or, a theory of recovery which has been rejected in the context of § 1983 actions.

Plaintiff Weaver

Plaintiff contends that defendants Jarvis and Allard were deliberately indifferent to the serious medical problems of plaintiff by the operation, maintenance and approval of a medical delivery system which was deficient because Dr. Allard was an overworked part-time' contract physician. Plaintiff argues that the fact that defendants consciously and deliberately decided not to meet certain minimal requirements of the American Medical Association in the DeKalb County Jail, is further evidence of defendants’ bad faith. Finally, plaintiff contends his treatment by Dr. Allard was deficient and constituted a deliberate indifference to his serious medical problem because plaintiff’s requests for treatment went unheeded for up to two weeks, because his examination by defendant Allard was hurried and superficial, because no diagnostic tests were done, because no cultures were taken, because no medical history was taken, and because no explanation from plaintiff was allowed before the prison guard removed him from the doctor’s office. Plaintiff asserts that his medical problem could, with reasonable medical certainty, have been caused by conditions in the jail facility and could have been identified at an early stage had appropriate medical procedures been used.

DISCUSSION

It is obvious to the parties and the court that the applicable law in this case is that found in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) and its progeny. See Order of Court, dated April 8, 1983. In Estelle v. Gamble, the Supreme Court held that a prisoner states a cause of action under 42 U.S.C. § 1983 for a deprivation of rights secured by the Eighth Amendment to the United States Constitution, and made applicable to the states by the Fourteenth Amendment, by showing conduct on the part of prison officials which manifests a deliberate indifference to the prisoner’s serious medical needs. In the words of the Court:

an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation off the Eighth Amendment.

Id. at 105-06, 97 S.Ct. at 291-292 (footnote omitted) (emphasis added). What may not be obvious, however, is what conduct will evidence actionable “deliberate indifference.”

The defendants urge this court to conclude that a rendering of medical treatment by a licensed physician, regardless of the propriety of that treatment, compels the conclusion that no “deliberate indifference” can be shown. Such a position is neither consonant with those “evolving standards of decency” which the Eighth Amendment is designed to safeguard nor in line with the case law interpreting Gamble v. Estelle. While some cases suggest that where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments, it is obvious to this court that “in some cases the medical attention rendered may be so woefully inadequate as to amount to no treatment at all.” Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.1976) (citation omitted). As two commentators have noted:

deliberate indifference can occur despite the provision of some medical treatment____[T]he mere provision of some medical care will not necessarily insulate against a finding of a constitutional violation; grossly negligent treatment also may be constitutionally impermissible.

J. Gobert & N. Cohen, Rights of Prisoners, § 11.10 at 336 (1981) (footnote omitted) (emphasis added). See also Murrell v. Bennett, 615 F.2d 306, 310 n. 4 (5th Cir.1980) (“Gamble does not necessarily excuse one episode of gross misconduct merely because the overall pattern reflects general attentiveness. The issue is whether the questioned conduct is cruel and unusual____”).

This court determines that the Seventh Circuit’s elaboration of the “deliberate indifference” standard, in Little v. Walker, 552 F.2d 193, 197 n. 8 (7th Cir.1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530 (1978), is both an appropriate interpretation of Gamble v. Estelle and in accordance with precedent binding upon this court. In Little, the court concluded that deliberate deprivation of constitutional rights “denotefs] two species of culpability: actual intent and recklessness.” Id. (citation omitted). The court explained:

Actual intent here encompasses both the special intent to deprive the plaintiff of his constitutional rights as well as the general intent to perform the conduct whose “natural consequence” is the deprivation of the plaintiff’s constitutional rights____ [Rjecklessness under Section 1983 comprehends only an objective standard: whether the conduct is with “such disregard of the [plaintiff’s] clearly established constitutional rights that [the] action cannot be reasonably characterized as being in good faith.” The subjective standard sometimes a part of definitions of recklessness, corresponding to “white heart/empty head” good faith, is not an appropriate component of the definition or reckless behavior sufficient to state a claim under Section 1983 for the deprivation of constitutional rights. While mere inadvertence or negligence cannot support a Section 1983 action raising Eighth Amendment issues, deliberate indifference “[rjegardless of how evidenced” — either by actual intent or recklessness — will provide a sufficient foundation.

Id. (citations omitted). See also Redmon v. Baxley, 475 F.Supp. 1111, 1118 (E.D.Mich.1979) (interpreting “deliberate indifference” to include “recklessness or callous neglect,” and not limited to “intentional or malicious” conduct, in the context of a medical mistreatment case). Cf. Miller v. Solem, 728 F.2d 1020, 1024-25 (8th Cir.1984) (holding deliberate indifference to constitutional rights will be shown where defendant actually intended to deprive plaintiff of some right or where defendant acted with reckless disregard or callous indifference toward plaintiffs rights).

Turning now specifically to defendants’ motions for summary judgment, the court is guided by the wellsettled principle that a “party moving for summary judgment has the burden of demonstrating that the Rule 56(c) test — ‘no genuine issue as to any material fact’ — is satisfied and that he is entitled to judgment as a matter of law.” 10A Wright, Miller & Kane, Federal Practice and Procedure Civil 2d § 2727, at 121 (1983) (footnote omitted). Because the burden is on the movant, the evidence presented to the court must be construed in the light most favorable to the party opposing the motion (in this case, the plaintiff); that party should be given the benefit of all favorable inferences that can be drawn from the evidence in the record. See, e.g., Irwin v. United States, 558 F.2d 249, 252 (5th Cir.1977). With this in mind, the court will now address each defendant’s motion separately.

Based on the applicable legal standard governing defendant Allard’s liability for the constitutional tort alleged in this case, the court concludes that the facts as presented to the court and the inferences which might be drawn from them are sufficiently in dispute to preclude summary judgment. Plaintiff has brought forth sufficient evidence from which it might be inferred that his symptoms were consistent with a number of disease processes which could result in optic atrophy and that this defendant acted recklessly in failing to perform any diagnostic test to determine the cause of plaintiff’s eye pain. Plaintiff’s contention, supported by deposition testimony and reference to a medical treatise, that defendant Allard failed to take a culture of his eye secretions, although such work-ups are often done in the defendant’s private practice, raises a disputed issue of fact which, if resolved favorably to the plaintiff, might support a finding of deliberate indifference by the defendant doctor. Likewise, the extensiveness and adequacy of the medical examination, which is a factual issue disputed by the parties, is another issue in the case which, if resolved favorably to the plaintiff, would certainly be some evidence of recklessness. Therefore, it is the view of this court that in response to Dr. Allard’s motion for summary judgment, plaintiff has produced sufficient evidence from which it might be concluded that Allard acted recklessly in the performance of his professional duties so as to evidence a deliberate indifference to a serious medical need. Because there are genuine issues of material fact in dispute and because defendant Allard’s freedom from liability under 42 U.S.C. § 1983 cannot be determined as a matter of law, summary judgment in favor of this defendant is inappropriate.

Although the determination of the issue as to the other defendant is less clear-cut, the court is also of the view that Sheriff Jarvis’ motion for summary judgment should not be granted. While it is clear that defendant Jarvis cannot be found liable under a theory of vicarious liability, the facts and any reasonable inferences which might be drawn from them, if viewed most favorably to the plaintiff, could provide a basis for finding Jarvis to have acted recklessly and with deliberate indifference to serious medical needs. There appears to be evidence in the record from which it might be concluded that overcrowding in the DeKalb County Jail had an adverse impact upon the delivery of medical care to prisoner, that defendant Jarvis never investigated to see if the overcrowding hampered the delivery of medical care, and that Jarvis, without consulting any medical doctors, decided not to meet certain minimal requirements of the American Medical Association which, had they been met, might have led to an early diagnosis of plaintiff’s eye problem. Plaintiff also contends that his medical problem could, with reasonable medical certainty, have been caused by being forced to sleep on the floor of the jail where his eyes, hands and face would be subject to germs, dust and soot, all of which could have precipitated the disease process. These facts, if proved, might support a finding that jail conditions and operating procedures violated “evolving standards of decency” such that Sheriff Jarvis, as the person in charge of that facility, might be chargeable with conduct rising to the level of deliberate indifference to serious medical needs. See, e.g., Hoptowit v. Ray, 682 F.2d 1237, 1252-1254 (9th Cir.1982). At this point, of course, it is enough for the court to conclude that because there are genuine issues of material fact in dispute and because it cannot be said that defendant Jarvis is not liable under 42 U.S.C. § 1983 as a matter of law, summary judgment in favor of this defendant is inappropriate.

CONCLUSION

For the foregoing reasons, defendants’ motions for summary judgment are hereby DENIED.