author: LASKER, District Judge.

text:
    Vincent B. MURPHY, Jr., Plaintiff, v. John H. GUTFREUND, Richard J. Schmeelk, Gedale Horowitz, Richard G. Rosenthal, J. Ira Harris, Thomas W. Strauss and William J. Voute, Liquidators of Salomon Brothers Holding Company and Salomon Brothers, Defendants.
    No. 82 Civ. 2394(MEL).
    United States District Court, S.D. New York.
    Dec. 26, 1985.

      Patterson, Belknap, Webb & Tyler, New York City, for plaintiff; Frederick T. Davis, Leslie C. Levin, of counsel.
    Wachtell, Lipton, Rosen & Katz, New York City, for defendants; Herbert M. Wachtell, Theodore N. Mirvis, of counsel.
   LASKER, District Judge.

This is the most recent of several motions to dismiss in this case. Defendants now move to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). In the alternative the defendants move for summary judgment. The motion to dismiss under Rule 12(b)(1) is granted.

The facts giving rise to this action are set out in detail at 583 F.Supp. 957 (S.D.N. Y.1984). The suit arises out of the buyout of Salomon Brothers in 1981 by Phibro Corp. (“Phibro”). Vincent B. Murphy, until 1980 a Salomon Brothers general partner, alleges a breach by defendants of an annuity agreement under which Murphy was to receive $125,000 per year for ten years. Defendants have been sued in their capacity as “Liquidators of Salomon Brothers Holding Company (“SBHC”) and Salomon Brothers.”

In an unpublished memorandum issued subsequent to the published opinion in this case, an earlier motion by defendants to dismiss for lack of subject matter jurisdiction was denied on the ground that diversity of citizenship between the parties existed. Murphy v. Gutfreund, No. 82-2394, slip op. (S.D.N.Y. Sept. 17, 1984). The premise of the finding was that defendants were being sued as trustees of a trust. “Since plaintiff entered into the disputed annuity agreement with the liquidating trust after the [Salomon Brothers and SBHC] partnerships ceased to exist, his suit is directed against a trust, albeit one created in order to liquidate partnerships.” Id. at 1. Because he was suing a trust as opposed to a partnership, the plaintiff — a citizen of New Jersey — could maintain complete diversity between the parties by omitting as defendants those liquidators and former Salomon general partners who were also citizens of New Jersey, subject only to the requirements as to the joinder of indispensable parties given by Federal Rule of Civil Procedure 19(b). It was concluded that neither the one liquidator nor the ten former Salomon general partners who were citizens of New Jersey (as is the plaintiff) and who are not named as defendants were indispensable parties to this action. Consequently, subject matter jurisdiction was found to exist.

Subsequently, further discovery relating to jurisdiction was authorized. Defendants now renew their motion to dismiss for lack of subject matter jurisdiction on the ground that the additional facts discovered establish that the suit is one against a partnership, and not against a liquidating trust. Thus, defendants argue, the factual premise of the court’s September 17 decision has been removed, and since there is not diversity of citizenship between the plaintiff and each of the Salomon partners, the action must be dismissed. In response, the plaintiff argues first, that the defendants are not in fact a partnership. Second, plaintiff contends that even if his suit is against a partnership, Federal Rule of Civil Procedure 19(b) allows him to drop those partners who are not indispensable parties and thus preserve diversity jurisdiction.

I.

It is now apparent from the additional discovery taken in this case that no trust was in fact ever created by the Salomon partnerships and that the plaintiff has sued the partnerships. It is true that the First Restated Plan of Dissolution, Liquidation and Termination of Salomon Brothers and SBHC (“Restated Plan”) specified that there would be established “a ten-year liquidating trust” with a $40 million fund for the purpose, inter alia, of making annuity payments to former partners such as plaintiff, Restated Plan at 7, and provided that the SBHC executive committee, acting as “Liquidators,” would become “trustees of the trust,” Restated Plan at 12, 14.

On October 1, 1981, however, when the Phibro buyout took place and implementation of the Restated Plan began, no trust was created. (Nor has one been created since.) At that time, the operating assets of the Salomon partnerships were transferred to Phibro in exchange for cash and debentures which, along with some special investment assets that were retained by the Salomon partnerships, went to two partnerships apparently identical in all but name to Salomon Brothers and SBHC (as those partnerships were constituted on September 30, 1981). Affidavit of Donald M. Feuerstein (“Feuerstein Aff.”) at 2; Deposition of Donald M. Feuerstein (“Feuerstein Dep.”) at 53-54.

While the moderately voluminous affidavits and deposition excerpts submitted in support of the motion contain occasional qualifying language, as is not surprising, nevertheless, on the basis of the record as a whole, we find the facts to be as set forth below. On October 1, 1981, as described in the Restated Plan, Salomon Brothers and SBHC were dissolved, the names of the partnerships were changed to SBBD Liquidating Partnership and SBHC Liquidating Partnership respectively, and the members of the executive committee of the partnerships assumed the role of liquidators to wind up the affairs of the partnerships. Restated Plan at 1, 11-12; Feuerstein Dep. at 14, 75, 175. What had been contemplated in the Restated Plan as a liquidating trust — out of which contingent obligations of the partnerships, including annuity payments such as that at issue here, were to be satisfied — was never created. Instead, up until October 1, 1982, such obligations were satisfied out of the assets held by the SBBD and SBHC Liquidating Partnerships. Feuerstein Dep. at 156-57, 159; Deposition of John H. Gutfreund at 119.

On October 1, 1982, two additional entities envisioned by the Restated Plan were created. What the Restated Plan had called the “Liquidating Trust” was incarnated as the SB Contingency Fund Partnership, essentially to serve the intended trust’s purpose. What the Restated Plan had called the “Special Investment Partnership” was created as the SB Special Investments Holding Company to serve much of its original purpose of holding the special investment assets never transferred to Phibro. Restated Plan at 7-11; Memorandum to the Partners of SBBD and SBHC Liquidating Partnerships. Both new entities were partnerships with the same general partners as the two Liquidating Partnerships and were to be governed in the same manner. See Partnership Agreement of SB Contingency Fund Partnership at 1-3.

Thus, in April of 1982 — when the present action was initiated — and at the times of the salient events which form the subject matter of this dispute — i.e., the August 1981 Salomon executive committee decision to include a non-competition condition in the annuity agreement, plaintiff’s subsequent discussions with the executive committee and its decision as to the condition’s applicability to him, the October 1981 execution by plaintiff of the annuity agreement, and the January 1982 demand for and denial of the first annuity payment— there simply was no trust and there accordingly were no trustees in existence. Indeed, even after October 1982 the only targets of a suit by plaintiff on his causes of action were the various Salomon partnerships.

In sum, the facts lead ineluctably to the conclusion that this action is a suit against a partnership.

II.

The law which bears upon the present motion is actually much clearer than the occasionally ferocious arguments of the parties would suggest. For purposes of diversity, a partnership is a citizen of each jurisdiction of which a partner is a citizen. Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 456, 20 S.Ct. 690, 693, 44 L.Ed. 842 (1900); Lewis v. Odell, 503 F.2d 445, 446 (2d Cir.1974); Cunard Line Limited v. Abney, 540 F.Supp. 657, 660 (S.D.N.Y.1982) (collecting cases). Therefore, under the requirement of complete diversity, Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806), a court does not have diversity jurisdiction over a suit by a plaintiff against a partnership in which any partner’s citizenship is identical to that of the plaintiff.

This rule would seem to require granting the motion to dismiss in this case, in which a number of Salomon partners are, like the plaintiff, citizens of New Jersey. However, plaintiff contends that even if his suit is nominally against a partnership, the courts have not strictly applied the rule that the citizenship of each partner must be taken into account in analyzing diversity, particularly where a partnership is in dissolution. Plaintiff argues that the standards of Federal Rule of Civil Procedure 19(b) should be applied to determine which partners may be dropped as defendants — i.e., which partners are not indispensable parties — so that diversity jurisdiction may be preserved.

The short answer to plaintiff’s argument is that Rule 19(b) is irrelevant in ascertaining the citizenship of a partnership for diversity purposes. The principal cases cited by plaintiff do not bear on the question of how to treat a partnership for diversity purposes. Prescription Plan Service Corp. v. Franco, 552 F.2d 493 (2d Cir.1977), applied indispensable party analysis to a plaintiffs attempt to drop as defendants the administrator and two trustees of an express trust in order to preserve diversity. Samaha v. Presbyterian Hospital, 757 F.2d 529 (2d Cir.1985), applied the same analysis to a plaintiff’s attempt to drop four individual defendants from a suit.

But a suit against a partnership is not the same thing as a suit against a trustee or an individual partner. In the instant case plaintiff seeks the value of annuity payments he claims are owed to him, and the facts now of record leave no doubt that it is the partnership assets which would fund such an annuity. Under New York law, however, resort may be had against individual partners on a partnership obligation only if the partnership property is insufficient to pay the firm’s debts. Wisnouse v. Telsey, 367 F.Supp. 855, 859 & n. 7 (S.D.N.Y.1973) (Weinfeld, J.). Unless the complaint alleges that the partnership is insolvent — which is not the case here because the partnership in liquidation is solvent, no action lies against the partners as individuals. Helmsley v. Cohen, 56 A.D.2d 519, 391 N.Y.S.2d 522 (1st Dept. 1977). Thus, in this case, Rule 19 analysis does not eliminate the necessity of determining the citizenship of the partnership {i.e., of all its partners) as a prerequisite to deciding whether there is diversity between plaintiff and the defendant partnership.

The proposition advanced here by plaintiff has been the subject of a searching opinion by Judge Knapp in Cunard Line Limited v. Abney, 540 F.Supp. 657, 660-64 (S.D.N.Y.1982). Judge Knapp concluded that

[t]he citizenship of a partnership is that of all its partners, irrespective of whether any of them — as “non-indispensable” individual defendants — may be dropped to preserve jurisdiction in an action against the individual partners to enforce a joint partnership obligation,

id. at 661 (emphasis in original), and stated flatly that

[consequently, the status of a partner under Rule 19 can have no bearing on the citizenship of the partnership of which he is a member,

id. at 661 n. 6. The instant case, of course, is an action against a partnership — not individual partners — since it is not disputed that the partnership possesses assets more than sufficient to satisfy any potential judgment.

Nor is there merit to plaintiffs argument that courts distinguish among partnerships on the basis of their functional characteristics, treating “active” partnerships according to the governing partnership diversity rule and those in dissolution as mere groups of individuals. The Supreme Court in Navarro Savings Assn. v. Lee, 446 U.S. 458, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980), rejected a functional approach to determining whether diversity of citizenship exists. There the Court refused to treat a business trust organized under Massachusetts law as an unincorporated association for diversity purposes, even though the Court recognized that the trust shared some of the attributes of an association. Id. at 458-66, 100 S.Ct. at 1780-84. As long as there was no sham or collusion, the Court found that it was the express, statutory form of the entity that should govern its treatment for diversity purposes. Id.; see also Consumers Savings Bank v. Touche Ross & Co., 613 F.Supp. 249 (D.Mass.1985) (refusing to apply functional analysis so as to disregard partnership status of accounting firm for diversity purposes).

The cases cited by plaintiff to support his theory that partnerships in dissolution are treated differently from active partnerships for diversity purposes are isolated instances in which courts have found that a partnership or an individual partner is not a real party in interest. They do not provide theoretical support for the proposition that the citizenship of a partnership in dissolution may be determined by considering the citizenship of less than all of the general partners. See Wolff v. Wolff, 768 F.2d 642 (5th Cir.1985) (partners in dissolved two-man partnership involved in dispute over division of assets; partnership itself held not party to action); Mallin v. Schaper, 185 F.2d 1 (7th Cir.1950) (in suit against dissolved two-man partnership, surviving partner is the necessary party, and his citizenship, if same as plaintiff’s, will defeat diversity); Dickson v. Tattnall County Hospital Authority, 316 F.Supp. 531 (S.D.Ga.1970) (no collusion found where partner who had withdrawn from partnership assigned his interest in partnership claim, thus removing need to consider his citizenship in subsequent diversity suit on the claim).

Because the facts now of record establish that the suit is indeed against a partnership, and because a partnership is deemed to be a citizen of every state of which a general partner is a citizen, diversity of citizenship between the parties does not exist and the action must be dismissed for lack of subject matter jurisdiction. Accordingly, the defendants’ motion to dismiss is granted.

It is so ordered.

      . All documents cited in the text, including affidavits and deposition transcripts, are contained in whole or in excerpt form in the Appendix to Defendants’ Memorandum of Law in Support of Dismissal of Amended Complaint For Lack of Subject Matter Jurisdiction.

      . Plaintiff stresses the fact that defendants have described Salomon Brothers and SBHC in various documents as having “terminated" on October 1, 1981. See Restated Plan at 1; Feuerstein Aff. at 1; Affidavit of John H. Gutfreund at 1. The word, "terminated,” however, as used there, clearly referred to the event of dissolution and the commencement of winding up. New York partnership law specifically provides that “[o]n dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed." N.Y.Partnership Law § 61 (McKinney 1948).

      . The partnership agreement of the SB Contingency Fund Partnership provided in Section 2(b) that the partners would be all of the individual general partners of the SBBD and SBHC Liquidating Partnerships and stated in Section 5(a) that the Executive Committee would have the same power with regard to the business of the new partnership as it had under the partnership agreement of the SBHC Liquidating Partnership.

      . Plaintiff refers to two other cases, both cited with approval in Prescription Plan, 552 F.2d at 497, as instances in which courts applied a Rule 19 analysis to determine diversity of citizenship involving a partnership. One of the cases, Smith v. Mandel, 66 F.R.D. 405 (D.S.C.1975), may be inapposite because the plaintiff in that case was able under South Carolina substantive law to proceed directly against one general partner in his individual capacity as personal guarantor of a loan. The other, Isdaner v. Beyer, 53 F.R.D. 4 (E.D.Pa.1971), does support plaintiffs theory. However, Isdaner contains no discussion of the governing rule for ascertaining the citizenship of a partnership. We decline to follow it.

      . In Consumers, as in the case at hand, the court was asked
      (1) to disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy; (2) to engage in a functional analysis, focused on agreements between the general partners concerning management of the partnership’s assets and control of litigation, to determine whether all general partners of Touche Ross or only those general partners on its Board of Directors are "real parties” to this case; and (3) to find that there is complete diversity between what it claims are the "real parties" to this controversy....
      613 F.Supp. at 250. Judge Wolf held that under Navarro no "functional analysis is authorized to determine whether the citizenship of all or only some members of an unincorporated association should be considered in determining whether complete diversity exists” and that it was "neither necessary nor appropriate ... to engage in a functional analysis of the internal arrangements of the Touche Ross general partners or to decide the issues Touche Ross raises concerning the relative roles of its general partners and its Board of Directors.” Id. at 251.


source: Caselaw Access Project

author: KANE, District Judge. (Neighbors, J.,

license: Public Domain

text:
    Dale GRIESS, Plaintiff, v. The STATE OF COLORADO, the Colorado Department of Corrections, Chase Riveland, Mark McGoff, James Brittain, James G. Ricketts, Gene Tollis, Edward Buckingham, John Perko, and Lena Dice, Defendants.
    Civ. A. No. 84-K-1314.
    United States District Court, D. Colorado.
    Dec. 26, 1985.
    James D. Evans, Aurora, Colo., for plaintiff.
    Gordon L. Vaughan, Colorado Springs, Colo., John Daniel Dailey, Asst. Atty. Gen., Denver, Colo., for defendants.
   ORDER OF DISMISSAL

KANE, District Judge.

Plaintiff, Dale Griess, is a former inmate of the Colorado Department of Corrections. The defendants, in addition to the State of Colorado and its department of corrections, are Chase Riveland, current director of the department of corrections; James G. Ricketts, director of the department of corrections during the periods of the plaintiffs incarceration; Mark McGoff, superintendent of the Fremont Correctional Facility in Canon City, Colorado; James Brittain, superintendent of the Territorial Correctional Facility in Canon City, Colorado; Gene Tollis, director of offender records for the department of corrections; Edward Buckingham, director of offender services for the department of corrections; John Perko, executive director of the department of corrections and Lena Dice, administrative officer of the Canon Correctional Facility for the department of corrections. The individual defendants are, or were at all pertinent times, employees of the State of Colorado.

This action is brought under 42 U.S.C. §§ 1981 and 1983. Plaintiff claims that defendants deprived him of equal protection and due process rights, secured by the Fifth and Fourteenth Amendments to the Constitution of the United States. Plaintiff also appends two state law claims: 1) false imprisonment and 2) failure to discharge statutory obligations. All three of plaintiffs claims for relief arise from the defendant’s alleged failure to take into account pre-sentence time served in computing “good time” in accordance with Colo. Rev.Stat. § 17-22.5-101 (1973). Jurisdiction is exercised under 28 U.S.C. §§ 1331 and 1343. Venue is proper pursuant to 28 U.S.C. §§ 1391 and 1392.

This matter is now before me on plaintiff’s motion for summary judgment. Plaintiff asserts that he was unlawfully detained for a period of five and one half months by virtue of the retroactive application of People v. Chavez, 659 P.2d 1381 (Colo.1983). Defendants, asserting immunity as a defense, have moved for dismissal or, in the alternative, summary judgment. Since defendants have submitted affidavits in support of their motion, I treat their motion as one for summary judgment pursuant to Fed.R.Civ.P. 56(c). For the reasons set forth below, plaintiff’s motion for partial summary judgment is denied. Defendants’ motion for summary judgment is granted.

FACTUAL BACKGROUND

Plaintiff was arrested on August 18, 1980. He was incarcerated in Adams County Jail from that time until his sentencing on February 10, 1981; a period of 177 days. On February 10, 1981 plaintiff was sentenced to three years imprisonment followed by one year of parole. At the time of the sentencing, plaintiff was credited with 177 days of presentence incarceration. He was also awarded one year, three months and one day good time, and 15 days earned time. Plaintiff eventually served one year, two months and 16 days in the custody of the Colorado department of corrections.

Plaintiff was released on April 26, 1982 to serve a one year term of parole. On January 25, 1983, plaintiff was re-incarcerated as a parole violator. He was released from that incarceration on March 31, 1983.

On February 22, 1983 the Colorado Supreme Court decided People v. Chavez, 659 P.2d 1381 (Colo.1983). Rehearing was denied on March 28, 1983. Chavez held that presentence time served must be included in the computation of good time pursuant to Colo.Rev.Stat. § 17-22.5-101 (1973). That is, a prisoner must be given good time credits, potentially reducing time served by as much as half, for his pre-sentence as well as post sentence time served. Prior to Chavez, as illustrated by the defendants’ treatment of plaintiff’s good time, pre-sentence time served was deducted from the sentence but not subjected to good time reduction.

Had plaintiff been given the maximum good time credit for the pre-sentence time served in county jail, his mandatory release date would have been January 28, 1982. Had plaintiff been released on January 28, 1982, his one year parole would have expired, and he would have had to have been released on January 28, 1983.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendants assert in their motion for summary judgment that the state, its department of corrections and the individual defendants are absolutely immune from this suit. Defendants also argue, in the alternative, that the individual named defendants are immune by virtue of the doctrine of qualified good faith immunity.

The Eleventh Amendment of the United States Constitution provides:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

In Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the Supreme Court held that the Eleventh Amendment precludes suit against an unconsenting state even brought by a citizen of that state.

A. State Immunity

A state’s Eleventh Amendment immunity to suit is, however, not absolute. A state may be sued if it has either consented to suit or Congress has abrogated its sovereign immunity.

1. Consent

The Supreme Court has unequivocally held that:

There can be no doubt ... that suit against the state and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such suit.

Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3057, 57 L.Ed.2d 1114, 1116 (1978).

However, a state’s waiver of its Eleventh Amendment immunity is not easily inferred:

Constructive consent is not a doctrine commonly associated with the surrender of constitutional rights, and we see no place for it here. In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated “by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction” (citation omitted).

Edelman v. Jordan, 415 U.S. 651, 652, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662, 678 (1974).

Plaintiff asserts that the state, through the enactment of Colo.Rev.Stat. §§ 24-10-104 and 106 (1973), waived whatever rights to immunity it may have in this case. Section 106(b) provides for the waiver of immunity to suit in those cases arising out of the operation of any correctional facility or jail. Section 104 provides- that if a public entity has provided insurance coverage for any act or omission by an employee,then such public entity shall be deemed to have waived any sovereign immunity defense which may arise. The proper construction of these statutory provisions is that the state waives immunity against suit only in its own courts. With reference to these provisions I have held that

... a state’s waiver of its immunity against suit in its own courts does not constitute waiver of its eleventh amendment immunity against suit in federal court. Edelman v. Jordan, (citation ommitted)

Verner v. Colorado, 533 F.Supp. 1109, 1114 (D.Colo.1982), aff'd 716 F.2d 1352 (10th Cir.1983), cert. denied, 466 U.S. 960, 104 S.Ct. 2175, 80 L.Ed.2d 558 (1984). The state has not waived its Eleventh Amendment immunity.

2. Abrogation

Plaintiff contends that 42 U.S.C. § 1983, under which this case is brought, constitutes congressional abrogation of a state’s Eleventh Amendment immunity. This contention is erroneous. For § 1983 to constitute congressional abrogation, I must find that Congress intended a state to be a “person” for purposes of that statute. I cannot do this. While in the past, I’ve expressed my belief that the Supreme Court’s denial that a state is a “person” under § 1983 in Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) and Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), was merely dicta, Friedman v. Weiner, 515 F.Supp. 563, 566 (D.Colo.1981), the 10th Circuit has concluded otherwise. I am bound to hold that a state is not a “person” for purposes of § 1983 and that, therefore, § 1983 does not constitute congressional abrogation of a state’s Eleventh Amendment immunity. Garcia v. Board of Education of the Socorro Consolidated School District, 777 F.2d 1403, 1413-14 (10th Cir.1985). See also, Quern v. Jordan, 440 U.S. 332, 440, 99 S.Ct. 1139, 59 L.Ed.2d 358, 367 (“But unlike our Brother Brennan, we simply are unwilling to believe ... that Congress intended by the general language of § 1983 to override the traditional sovereign immunity of the States”).

The State of Colorado and its department of corrections are immune from this suit under the protections afforded by the Eleventh Amendment.

B. Individual Defendants’ Immunity

Defendants’ claim that the individual defendants are immune from liability on two grounds: (1) derivative Eleventh Amendment immunity, and (2) good faith immunity. For the reasons set forth below, I hold that the individually named defendants have absolute derivative Eleventh Amendment immunity. Thus, I need not address their claim of qualified good faith immunity.

In Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.2d 714 (1908), the Supreme Court held that the Eleventh Amendment was no bar to a federal court action seeking to enjoin the Attorney General of Minnesota from enforcing a statute claimed to violate the Fourteenth Amendment of the federal constitution. The court reasoned that since the action was against an official, and not the state itself, it was outside the ambit of the Eleventh Amendment. In Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, however, the court limited the Ex Parte Young holding to suits for prospective relief only. “The court distinguished prospective from retroactive relief on the ground that a retroactive award, as is presently sought, is “in essence one for the recovery of money from the state” and that, therefore, “the state is the real substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants”. 415 U.S. at 663, 94 S.Ct. at 1355, 39 L.Ed.2d at 672-73, citing Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 5. Ct. 347, 350, 89 L.Ed. 389 (1945).

The court in Ford Motor Co. held that “the nature of a suit as one against the state (as opposed to one against the individually named defendant) is to be determined by the essential nature and effect of the proceeding”. 323 U.S. at 464, 65 S.Ct. at 350, 89 L.Ed. at 394 (paranthetical phrase added). In the present case there is no doubt that if plaintiff were to prevail his award would come from the coffers of the state and not the pockets of the individually named defendants. Colo.Rev.Stat. § 24-10-110 provides in pertinent part that:

(1) A public entity shall be liable for: ... (b)(1) The payment of all judgments and settlements of claims against any of its public employees where the claim against the public employee arises out of injuries sustained from an act or ommission of such employee occurring during the performance of his duties and within the scope of his employment, except where such act or omission is willful and wanton or, in the case of public entities other than the state of Colorado, where the defense of sovereign immunity is available to the public entity, and provided that the employee does not compromise or settle the claim without the consent of the public entity.

Because of this indemnification provision, | the suit is “in essence one for the recovery j of money against the state”. The individu- 1 ally named defendants, then, may partake V of the state’s Eleventh Amendment immu-^ nity.

While § 1983 specifically authorizes suits against persons, the Supreme Court has held that:

[t]hough a § 1983 suit may be instituted ... a federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, Ex Parte Young .... and may not include a retroactive award which requires the payment of funds from the state treasury, Ford Motor Co. v. Department of the Treasury (citations omitted).

Edelman v. Jordan, 415 U.S. at 677, 94 S.Ct. at 1362, 39 L.Ed.2d at 680-81. As such, the Eleventh Amendment, while not precluding this suit against the individual defendants, does operate to bar the money damages remedy sought by plaintiff.

Accordingly, defendants’ motion for summary judgment is granted. All of the defendants are immune from suit in this court. Plaintiff’s claims, therefore, are dismissed without prejudice.

C. Other Claims

Since I have granted the defendant’s summary judgment on their Eleventh Amendment immunity claim, I need not address their claims for dismissal on other grounds.

PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

A. Equal Protection

Plaintiff moves for an order that, as a matter of law, he was unlawfully detained by virtue of the retroactive application of People v. Chavez, 659 P.2d 1381 (Colo. 1983). Plaintiff argues that defendants’ failure to include pre-sentence time served in their good time calculations, as required by the retroactive application of Chavez, deprived him of due process and equal protection of the laws. The Colorado Supreme Court, though construing Colo.Rev.Stat. § 17-22.5-101 (1973) to require that good time be applied to pre-sentence detention, declined to hold that the deprivation of pre-sentence good time credit is violative of the equal protection component of the Fourteenth Amendment’s due process clause. People v. Turman, 659 P.2d 1368 (Colo.1983). In any event, I would not be bound by a state court’s interpretation or application of the federal constitution.

Plaintiff contends that he has

“asserted facts to support a finding of disparate treatment of the indigent class of prisoners resulting in confinement for a longer period of time simply because of their indigency. This disparate treatment results from a denial of good time to a person who, because of his indigency, has effectively been forced to serve part of his sentence in a county jail where he was not given good time credit. This is a denial of equal protection.”

Plaintiff’s Reply Brief No. 1, p. 2.

I must decide whether, under the facts presented, a denial of good time credit for pre-sentence incarceration violates the prisoner’s equal protection rights. The standard by which the states conduct is adjudged to be violative of equal protection is either strict scrutiny or rational basis. When a suspect classification or a fundamental constitutional right is involved, the strict judicial standard is applied. To uphold the classification under that standard there must be a necessary relationship between the classification and a compelling state interest. If the classification does not distinguish a suspect class for disparate treatment, nor involve a fundamental constitutional right, the rational basis test is applied. To uphold the classification under that standard, there must be a reasonable nexus between the classification and a legitimate state interest.

1. Strict Scrutiny

In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 20, 93 S.Ct. 1278, 1289, 36 L.Ed.2d 16, 35 (1973), the Supreme Court stated the test for determining when a wealth based classification impermissibly discriminates against a suspect class:

The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.

Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), is a leading “prior case” which informed the Rodriguez Court in formulating the above quoted test. In that case the state sought to confine the defendant for longer than the statutory maximum to make him “work off” the fine that the sentencing judge had imposed along with the maximum sentence. The court found this to be unconstitutional, concluding that

when the aggregate imprisonment exceeds the maximum period fixed by the statute and results directly from an involuntary nonpayment of a fine or court costs we are confronted with an impermissible discrimination that rests on ability to pay.

399 U.S. at 240-41, 90 S.Ct. at 2020-22, 26 L.Ed.2d at 592-93. The court reasoned that

[s]ince only a convicted person with access to funds can avoid the increased imprisonment, the Illinois statute in operative effect exposes only indigents to the risk of imprisonment beyond the statutory maximum. By making the maximum confinement contingent upon one’s ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment.

399 U.S. at 242, 90 S.Ct. at 2023, 26 L.Ed.2d at 593-94 (footnotes omitted). See also, Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), wherein the court extended Williams to bar imprisonment of an indigent defendant who was unable to pay the fine for an offense that was punishable only by fine.

The facts here differ from those in Williams and Tate because plaintiff was not confined in the first instance or for a period in a manner proscribed by statute. The consequences, however, are the same: As an indigent, plaintiff was forced to serve more time than a non-indigent solely because of his poverty.

Applying the Rodriguez test, I find that the plaintiff belongs to a class that is “completely unable to pay for some benefit”, here the benefit of being free on bail pending trial. The plaintiff consequently “sustain[ed] an absolute deprivation of a meaningful opportunity to enjoy that benefit.” The defendants’ conduct, then, is to be appraised with strict scrutiny.

I hold that the wealth based discrimination visited upon plaintiff involves a suspect classification pursuant to the test set forth in Rodriguez. As such, the state may only justify its conduct upon a showing that it was necessary to effectuate a compelling state interest. As a matter of law, this showing can not be made.

2. Rational Basis

Even if the discrimination at issue does not involve a suspect classification so as to invoke strict scrutiny, the state’s conduct fails even the rational basis standard of review. I find no reasonable nexus between the denial of good time credit for pre-sentence confinement and any state interest.

In McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973), the Supreme Court rejected an equal protection challenge to denial of good time credits under the rational basis standard. McGinnis, however, is distinguished from the present case and is, therefore, not controlling. See People v. Turman, 659 P.2d 1368 (Quinn and Neighbors, JJ., separately dissenting). In McGinnis, the court found that the denial of good time credits for pre-sentence incarceration was rationally related to a legitimate state interest. The Court justified the disparate treatment in noting that

[T]he granting of good time credit toward parole eligibility takes into account a prisoner’s rehabilitative performance ... As the statute and regulations contemplate state evaluation of an inmate’s progress towards rehabilitation, in awarding good time, it is reasonable not to award such time for pre-trial detention in a county jail where no systematic rehabilitative programs exist and where the prisoner’s conduct and performance are not even observed and evaluated by the responsible state prison officials ... Where there is no evaluation by state officials and little or no rehabilitative participation for anyone to evaluate, there is a rational justification for declining to give good time credit.

410 U.S. 271, 272, 93 S.Ct. at 1060, 1061, 35 L.Ed.2d 289, 290.

In the present case, however, Colorado good time is not related to rehabilitation nor willing participation in rehabilitative programs. As noted in People v. Turman, 659 P.2d 1368, 1378-79,

... Colorado inmates are presumed eligible for good time credits. Good time credits are awarded to the inmate at the moment of sentencing. Good time credits are awarded prior to any exemplary conduct by an inmate and are, therefore, unrelated to rehabilitation efforts. Good time credits are withdrawn from an inmate only in the event there is a violation of the rules and regulations of the institution where he or she is confined. Good time credits are not awarded for positive behavior but are withdrawn for negative conduct ...

(Neighbors, J.,

dissenting).

The sole state interest in the good time scheme, as applied to defendant, is to induce good behavior. Not allowing good-time credit for pre-sentence incarceration, but doing so for prison confinement, is not even rationally related to the states’ end of good prisoner behavior. I hold that plaintiff’s being denied good time credit for his presentence incarceration violates equal protection under both the rational basis and strict scrutiny standards of review.

B. Disposition Of This Case

It is plaintiff’s burden to prove that he was unconstitutionally detained. See Godbold v. Wilson, 518 F.Supp. 1265 (D.Colo.1981). In order successfully to carry this burden, plaintiff must show that his pre-trial confinement was a result of his indigency. If he failed to post bond for want of inclination, defendants’ conduct was not wealth based discrimination and plaintiff’s equal protection claim will not lie.

Plaintiff concedes that “[t]he issue of plaintiff’s indigency is a fact which would have to be proven at trial.” Plaintiff’s reply brief No. 1, p. 2. Since plaintiff’s indigency is a question of material fact, plaintiff’s motion for summary judgment is denied.

It is therefore ordered that

(1) Plaintiff’s motion for summary judgment is denied;

(2) Defendants’ motion for summary judgment is granted;

(3) Plaintiff's claims for relief are dismissed without prejudice.

      . 42 U.S.C. § 1983 provides in part:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . Colo.Rev.Stat. § 17-22.5-101 (now superseded by Colo.Rev.Stat. § 17-22.5-301 (1985 Supp.) provided:

        Good time. Each person sentenced for a crime committed on or after July 1, 1979, whose conduct indicates that he has substantially observed all of the rules and regulations of the institution or facility in which he has been confined and has faithfully performed the duties assigned to him shall be entitled to a good time deduction of fifteen days a month from his sentence. The good time authorized by this section shall vest quarterly and may not be withdrawn once it has vested. No more than 45 days of good time may be withheld by the department in any one quarter____

      . Earned time per Colo.Rev.Stat. § 17-22.5-102 (now superseded by Colo.Rev.Stat. § 17-22.5-302 (1985 Supp.)) is awarded to an inmate upon his showing of "substantial and consistent progress" toward his rehabilitation. It is distinct from good time in that its award is not presumed and requires conduct above and beyond the conduct required to avoid the withdrawal of good time credits.

      . The parties correctly stipulated to January 28, 1983 as being plaintiffs latest discharge date had his good time been properly calculated. Upon reincarceration for parole violation a prisoner may not be detained past the expiration date of his parole.

      . Colo.Rev.Stat. § 24-10-104 provides in part:
      (1) Notwithstanding any provision of law or of this article to the contrary, if a public entity provides insurance coverage provided by an insurance company authorized to do business in this state to insure itself against liability for any injury resulting from an act or omission by such employee acting within the scope of his employment, then such public entity shall be deemed to have waived the defense of sovereign immunity in any action for damages for any injury insured against____
      Colo.Rev.Stat. § 24-10-106 provides in part:
      ri) A public entity shall be immune from liability in all claims for injury which are actionable in tort except as provided otherwise in this section. Sovereign immunity, whether previously available as a defense or not, shall not be asserted by a public entity as a defense in an action for damages for injuries resulting from:
      (b) The operation of any public hospital, correctional facility, as defined in § 17-1-102, C.R.S. 1973, or jail by such public entity or a dangerous condition existing therein____

      . In addition to their successful Eleventh Amendment immunity defense, defendants claim that 1) defendants Brittain and McGoff are not responsible for good time computation, 2) defendant Riveland was not a Department of Corrections official at the relevant time and 3) all individual defendants are entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), so that summary judgment in their favor is appropriate.

      . Numerous other courts have rendered decisions in accord with my order today. See, e.g., People v. Sage, 26 Cal.3d 498, 611 P.2d 874, 165 Cal.Rptr. 280 (1980); Hampton v. Rowe, 88 Ill. App.3d 352, 43 Ill.Dec. 511, 410 N.E.2d 511 (1980); State ex rel. James v. Stamps, 562 S.W.2d 354 (Mo.1978).


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

text:
    Robert MICHENFELDER, Plaintiff, v. George SUMNER, et al., Defendants.
    No. CV-R-84-279-ECR.
    United States District Court, D. Nevada.
    Dec. 26, 1985.

      Robert Michenfelder, in pro per.
    Brian McKay, Atty. Gen. by: David F. Sarnowski, Deputy, Carson City, Nev., for defendants.
   ORDER

EDWARD C. REED, Jr., District Judge.

This civil rights action was commenced by Plaintiff, an inmate of the Nevada State Prison, by the filing of a complaint on July 5, 1984. He complained of repeatedly being strip searched on the tier outside of his cell where female correctional officers and other inmates could observe him naked. He also complained of being threatened with a taser gun if he didn’t cooperate as to the strip searches. The strip search procedure is’ degrading and dehumanizing, according to Plaintiff, whereas the use of a taser gun is too forceful a means to employ against an inmate, such as himself, who is merely resisting peacefully a degrading strip search. The prayer of the complaint requests a declaratory judgment establishing that the defendants’ conduct is violative of Plaintiffs constitutional rights. Injunctive relief also is prayed for prohibiting the defendants from: (1) strip searching Plaintiff when he can be observed by female correctional officers and the other inmates; (2) using a taser gun at any time; and (3) searching Plaintiff at all when he is on his way to sick call, recreation or classification, or under escort anywhere in Unit Seven, where he is housed. Compensatory and punitive damages also are demanded.

A separate motion for a preliminary injunction was filed at the same time. In it, Plaintiff contended that the strip search procedure and the threatened use of a taser gun caused psychological distress. By minute order dated August 27, 1984, U.S. Magistrate Phyllis Halsey Atkins, to whom the case had been referred, consolidated the hearing of the motion for a preliminary injunction with the trial of the action, and advanced the trial date to October 3, 1984. Plaintiff objected to the consolidation, asserting that the safety of taser guns is a matter for experts. He claimed that an extended discovery period would be needed to obtain technical information concerning taser guns. In addition, time would be needed to consult with an expert on such guns and have him appointed by the Court to testify for Plaintiff, who is proceeding pro se in forma pauperis. This Court affirmed the Magistrate’s consolidation ruling by order filed September 19, 1984, in which it was explained that the Magistrate’s ruling was neither clearly erroneous nor contrary to law.

Trial commenced October 3, 1984. It then was continued until October 24, 1984, when it was completed. Magistrate Atkins filed her Report and Recommendation on March 29,1985. She noted that Unit Seven is the most secure housing in the Prison, which is a maximum security facility. The forty inmates whose cells are in Unit Seven are considered the most dangerous and escape-prone in the Nevada prison system. An inmate must go through a classification process before being assigned to the Unit. Unless the inmate has caused trouble in prison or is an escape risk, he is not housed in Unit Seven. Conversely, a Unit Seven inmate may be reclassified to less secure housing after a classification procedure.

The Magistrate found that the strip search policy has the objective of preventing the Unit Seven inmates from obtaining or possessing contraband that could be used to injure correctional officers or other inmates. She held that the policy is not an exaggerated response to a legitimate security interest. Further, Magistrate Atkins felt that proper deference should be given the expertise and informed discretion of the prison authorities in such matters. She found no violation of Plaintiffs Fourteenth Amendment rights by reason of his being strip searched routinely, no matter where he is going or coming from.

As to the searches being conducted outside Plaintiff’s cell, the Magistrate found that a correctional officer is placed at a dangerous disadvantage when he must search an inmate in the latter’s cell. Thus, the outside searches are reasonably related to the governmental interest in security within the Prison. Further, she found that there is not available any more private site for searches that would not present unreasonable security risks.

The Magistrate found that the use of female correctional officers where they occasionally can observe Plaintiff in the nude is a good faith attempt to comply with the law requiring that equal prison employment opportunities be afforded women. She emphasized that female correctional officers may not actually conduct strip searches of male prisoners except in case of emergency. The Magistrate concluded that the Prison policy is a reasonable accommodation of the inmates’ right to privacy and the female correctional officers’ right to equal employment opportunity.

The Report of Magistrate Atkins acknowledged that an inmate disabled by a taser gun could be injured if he fell against something pointed or hard. However, she noted that the inmates who have been subjected to hits from taser guns reported only slight headaches and some nausea after the immediate pain from the taser darts had ceased. Other than “sustained long-term anger,” no psychological effects appear to have been suffered by the targets of the taser guns. Further, the Magistrate commented that the use of fists or clubs by correctional officers, as an alternative to taser guns, would result in confrontations where someone likely would be hurt. Stun guns were labeled ineffective, because the inmate can shield himself from the bean bag that is expelled by such a gun. The disadvantages of tear gas as an alternative were considered obvious. Magistrate Atkins held that the use of taser guns is a reasonable method of ensuring compliance with the strip search policy, so that the use on an inmate does not constitute cruel and unusual punishment in an Eighth Amendment sense.

In conclusion, the Magistrate summarized that the Prison policies do not violate Plaintiff’s constitutional rights. Nor did Plaintiff introduce any evidence that would support a damages award, she indicated. Magistrate Atkins recommended that Plaintiff’s motion for a preliminary injunction be denied and that judgment be entered in favor of the defendants and against Plaintiff.

Timely objections to the Magistrate’s Report and Recommendation have been filed by Plaintiff. He contends that strip searches can, and in this case do, invade personal rights protected by the Constitution. This is especially so because Unit Seven prisoners are transported or escorted while handcuffed and manacled. Plaintiff urges that the strip search policy is unreasonable in that light. He also reargues the feasibility of conducting strip searches in the cells, rather than out on the tier. Testimony was given that in-cell searches have been, and still are, conducted in the Prison without any violence. In addition, Plaintiff contends that female correctional officers could be employed in the Prison without being assigned to posts where they routinely may observe male prisoners in the nude.

Plaintiff has renewed his objection to the Magistrate's consolidation of the hearing on his motion for a preliminary injunction with the trial itself. He insists that a psychiatrist would have helped him prove that strip searches leave long-lasting psychological effects on inmates.

In objecting to the Magistrate’s Report re the use of taser guns, Plaintiff emphasizes that he and other prisoners are willing to be strip searched in their own cells. It is the humiliation they incur before the eyes of others, when searched out on the tier, about which he complains. Less drastic alternatives than the use of taser guns should be used to overcome peaceful resistance, he insists. Damages should be awarded him for being threatened unnecessarily with a taser gun, in Plaintiff’s estimation.

The defendants have filed a response to Plaintiff’s objections. In it they emphasize how regularly Unit Seven inmates have been found in possession of deadly weapons and have attacked others. They conclude that the Unit Seven strip search procedures are reasonably designed to thwart such illegal and dangerous conduct. The defendants further point out that Plaintiff made no serious attempt to obtain a psychiatrist as an expert witness until some eleven months after the filing of the complaint. This is in answer to his objections to the consolidation of the preliminary injunction hearing with the trial. Also, they argue that no psychiatrist’s testimony could change the fact that the safety of correctional officers would be jeopardized by any alternatives to the existing strip search and taser gun policies exercised in Unit Seven.

Consolidation

The propriety of Magistrate Atkins’ consolidation of the hearing on Plaintiff’s motion for a preliminary injunction with the trial of the action already has been considered by this Court. There is nothing in the Magistrate’s Report and Recommendation that could serve as a basis for Plaintiff’s renewed objection to the consolidation. Objection is permitted only to specific portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

Nevertheless, the Court has reconsidered the matter because it involves the fundamental fairness of the consolidated hearing and trial. Where such consolidation is ordered, sufficient notice is required to permit the parties to develop their cases fully. Wohlfahrt v. Memorial Medical Center, 658 F.2d 416, 418 (5th Cir.1981). “Although each case will depend on its own circumstances, the ten-day notice requirement of Rule 56 for summary judgment motions might be taken as suggestive of the minimum amount of time necessary to permit a litigant to prepare a showing upon which the final outcome of the case may depend.” 11 Wright & Miller, Fed.Prac. and Proc. (1973) § 2950, at p. 488. Certainly ten days would be insufficient where, as here, an in forma pauperis prisoner would have to locate an expert witness, obtain court appointment of that witness, and consult with him. However, more than seven weeks had elapsed between the filing of the complaint and the order of consolidation herein, and there is no indication that Plaintiff acted at all in this regard during that time. Also, there was a five-week interval between the order and the date set therein for commencement of trial, and Plaintiff didn’t make any effort during that time. Further, an additional three weeks passed between the first day of trial and the second (and last) day, and Plaintiff did nothing to avail himself of an expert witness. It wasn’t until June 18, 1985, some seven months after the close of the trial, that Plaintiff first indicated that he had contacted a psychiatry expert who had indicated a willingness to discuss the case with him. Under such circumstances, Plaintiff’s renewed objection to the consolidation must be overruled.

Routine Strip Searches

Plaintiff objects to being subjected to strip searches when he is on his way to sick call, recreation or classification, as well as when he is proceeding under escort anywhere within Unit Seven. It is clear that strip searches are not per se unconstitutional. Bagley v. Watson, 579 F.Supp. 1099, 1103 (D.Or.1983). Nor are prison officials required to employ the least restrictive means available when responding to a legitimate security concern. Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 3233-34, 82 L.Ed.2d 438 (1984). Keeping contraband away from Unit Seven prisoners is, without doubt, a critical prerequisite to preserving internal order and maintaining institutional security. Strip searches are reasonably related to these objectives, therefore judicial inquiry into their propriety should end. Id. 104 S.Ct. at 3232 and 3234. It was Plaintiffs burden to show that the defendant Prison officials intentionally used exaggerated or excessive means to provide the needed security. Soto v. Dickey, 744 F.2d 1260, 1271 (7th Cir.1984); Bell v. Wolfish, 441 U.S. 520, 561-62, 99 S.Ct. 1861, 1885-86, 60 L.Ed.2d 447 (1979). Where, as here, there is an absence of substantial evidence in the record to indicate that the Prison officials have overreacted in their response to security considerations, a court should defer to their expert judgment. Block v. Rutherford, supra 104 S.Ct. at 3232; Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977).

Female Correctional Officers’ Observation of Strip Searches

Prisoners do not enjoy the same right of privacy as do ordinary citizens. Robbins v. South, 595 F.Supp. 785, 790 (D.Mont.1984). Such a right would be incompatible with the close and continual surveillance required to ensure institutional-security and internal order. Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 3201, 82 L.Ed.2d 393 (1984). In addition, the prisoner’s reduced right of privacy must give way to the right of women to equal job opportunities in the prison setting. Bagley v. Watson, supra at 579 F.Supp. 1104-05; Robbins v. South, supra at 790. A prohibition against female correctional officers being assigned to posts where they may view naked male prisoners not only would lessen the chance for women to be hired for prison work, but also would dampen their chances for advancement if they were hired. The evidence in this case indicates a proper sensitivity to this delicate matter on the part of the defendants.

Conducting Strip Searches Outside of Cell

The physical layout of Unit Seven is such that there is no place close to the cells where strip searches can be conducted in a more secluded setting. If an inmate, such as Plaintiff, had a constitutional right not to be strip searched where other persons might observe, then the nonavailability of a more private place would not excuse or justify the present practice of conducting the searches on the tiers. However, there is no such constitutional right. The evidence is convincing that the correctional officers’ safety would be jeopardized if they were to be forced to enter a cell in order to search the prisoner within. Only prisoners who already have caused trouble or tried to escape are assigned to the Unit. Even walking them to a place where they might enjoy more privacy while being searched would entail unacceptable risk. It would be naive to believe that one or more of the prisoners wouldn’t figure out a way to abuse such a practice. See Hudson v. Palmer, supra 104 S.Ct. at 3201.

Although there is no constitutional right protecting a prisoner from being subjected to a strip search, a state may create a constitutionally protected liberty interest by promulgating a prison regulation that imposes substantive limitations on the exercise of official discretion. Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 844 (9th Cir.1985). In order for a protected interest to be created, the regulation must provide objective and defined criteria that the officials are required to respect. Id. Nevada Department of Prisons Administrative Regulation No. 422 covers search procedure. It authorizes strip searches as a routine requirement for inmate movement into and out of high security areas. The Regulation states that routine searches may be conducted as a preventative measure. There is nothing there that would create a constitutionally protected interest against strip searching on the tiers of Unit Seven.

The Magistrate correctly noted that visitors looking into the control booth from outside are unable to see the tier television monitors clearly because of an opaque plastie on the windows of the booth. Only movement can be discerned on the monitors from outside the booth. Since strip searches per se are permissible, the opportunity of female correctional officers to observe the searches does not violate the inmates’ constitutional rights, and any outside visitors cannot see clear images on the monitors, what is left to resolve is the constitutionality of the strip searches being conducted where the other inmates housed in the tier can observe them. There are ten cells on each tier, so that a maximum of nine other male inmates could view a search of Plaintiff. This situation is no more offensive than the usual nudity found in a locker room in a school or YMCA.

Use of Taser Guns

Plaintiff has objected to any use of a taser gun on an inmate. What precipitated the objection was its threatened use against him if he refused to step out of his cell in order to be strip searched on the tier.

The Eighth Amendment’s proscription against the infliction of cruel and unusual punishments prohibits the wanton and unnecessary infliction of pain on a prisoner. Spain v. Procunier, 600 F.2d 189, 196 (9th Cir.1979); Albers v. Whitley, 743 F.2d 1372, 1375 (9th Cir.1984), app. pdg. Albers teaches that an actual intent to punish is not required. Any unjustified striking or infliction of bodily harm by or with the authorization of state officials may be sufficient to violate the Eighth Amendment. Id. at 1374. The evidence indicates that the taser darts draw blood and cause pain when they hit the target person. Therefore, the question is whether the infliction is justified for the purpose of getting a prisoner out of his cell in order to be strip searched. The Ninth Circuit has declared that a proper standard deems the Amendment to have been violated when the force used is so unreasonable or excessive as to be clearly disproportionate to the need reasonably perceived by prison officials at the time. Id. at 1375. This requires that a prisoner’s Eighth Amendment claim be proved by conduct more egregious than that adequate to support a common law tort, such as battery. Williams v. Mussomelli, 722 F.2d 1130, 1133 (3rd Cir. 1983) . Federal courts may not interfere with decisions made by state prison officials, absent a constitutional violation. Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982). The Civil Rights Act, e.g., 42 U.S.C. § 1983, imposes liability for violation of rights protected by the Constitution, not for violation of duties arising out of tort law. King v. Blankenship, 636 F.2d 70, 73 (4th Cir.1980).

Where the defendants’ conduct, although harsh, cannot be said to have been cruel and unusual under contemporary standards, it was not unconstitutional. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981); Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984) . A court’s judgment as to what the contemporary standards are should look to objective indicia of what the general public would consider decent. Toussaint v. McCarthy, 597 F.Supp. 1388, 1392 (N.D. Cal.1984). Such indicia include expert opinions and professional standards. Id. at n. 3. The record before the Court indicates that a taser gun causes involuntary muscle contractions, with resulting loss of balance by the target. The guns were first used (on animals) in 1968, so that they have been in use long enough for any severe side effects or after effects to have manifested themselves. Nevertheless, neither side has cited any case involving the use of a taser gun on a human being. The Court’s own research did not uncover such a case either. However, Nevada Department of Prisons Administrative Regulation No. 405(V)(B)(4)(a) states: “When situations arise, such as an inmate who refuses to leave his cell, in which physical handling is inadequate and in which the use of batons would be inappropriate, the use of taser or stun guns may be employed.” Prison regulations are promulgated by the Board of State Prison Commissioners, pursuant to authority granted in NRS 209.111(3). It seems safe to assume that the Board received input from persons with experience and expertise before prescribing the Regulation. As discussed above, physical handling or the use of batons would require the correctional officers to enter the prisoner’s cell and use physical force on him there. Someone very likely would be hurt. The use of a taser gun on a prisoner who refuses to leave his cell under the circumstances of this case, therefore, is authorized by Nevada law. The Court notes that verbal warnings were given the prisoner in each instance that a taser gun would be used on him if he continued to refuse to obey the order to step out of his cell for a strip search. This is considered to have some significance. See Spain v. Procunier, supra at 600 F.2d 189; Albers v. Whitley, supra at 743 F.2d 1376; Soto v. Dickey, supra at 744 F.2d 1270. In Spain, the Ninth Circuit upheld the use of tear gas in small amounts as a necessary prison technique if a prisoner, after, warning, refuses to move from his cell. 600 F.2d at 195. Where tear gas is used, other prisoners in the vicinity often incur discomfort even though they did nothing to provoke its use. The Seventh Circuit has held that the use of mace on a prisoner who had refused to obey a direct order was a reasonable response to a legitimate security concern. Soto v. Dickey, supra at 1271. The Court agrees with Magistrate Atkins that the use and threatened use of taser guns, under the circumstances as established by the evidence in this case, did not violate Plaintiff’s Eighth Amendment rights.

Conclusion

After reviewing the entire record, the Court accepts in whole the recommendations of Magistrate Atkins.

IT IS, THEREFORE, HEREBY ORDERED that Plaintiff’s motions for preliminary injunctive relief be denied.

IT IS FURTHER ORDERED that judgment be entered in favor of the defendants and against Plaintiff.


author: MURRAY M. SCHWARTZ, Chief Judge.

text:
    AFROS S.P.A., Plaintiff, v. KRAUSS-MAFFEI CORPORATION and Krauss-Maffei A.G., Defendants.
    Civ. A. No. 84-358 MMS.
    United States District Court, D. Delaware.
    Dec. 27, 1985.

      John G. Mulford, of Theisen, Lank, Mulford & Goldberg, P.A., Wilmington, Del., Carl G. Love, William K. West, and Peter W. Gowdey, of Cushman, Darby & Cushman, of counsel, Washington, D.C., for plaintiff.
    William D. Bailey, Jr., of Bayard, Handelman & Murdoch, P.A., Wilmington, Del., Robert J. Koch, and Christine Krithades, of counsel, Alexandria, Va., for defendants.
   OPINION

MURRAY M. SCHWARTZ, Chief Judge.

Plaintiff Afros S.p.A. (“Afros”), in this patent-infringement action alleges defendants Krauss-Maffei A.G. (“KMAG”), a West German corporation, and Krauss-Maffei Corporation (“KMC”), its wholly owned subsidiary, have infringed plaintiff's United States Letters Patent No. 4,832,335 (“the ‘335 patent”).

Defendant KMC, a Delaware corporation, answered the complaint denying any infringement, Dkt. 20, at ¶ 3, and counterclaimed for Afros’ alleged infringement of patents 3,706,515 (“the ‘515 patent”) and 3,975,128 (“the ‘128 patent”). Id. ¶¶ 11 & 15. Before the Court for decision is defendant KMAG’s motion to dismiss for lack of in personam jurisdiction.

Analysis

In the absence of a federal statute authorizing nationwide service of process in patent-infringement actions, a federal court is referred by Rule 4(e) of the Federal Rules of Civil Procedure to the statutes or court rules of the state in which it sits for authorization to exercise in personam jurisdiction over a person not an inhabitant or as found within the state. Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 295 (3d Cir.), cert. denied, — U.S. —, 106 S.Ct. 383, 88 L.Ed.2d 338 (1985).

In deciding whether this Court may properly exercise in personam jurisdiction over KMAG, the first inquiry is whether Delaware would permit its own courts to exercise jurisdiction in this case. If the Court concludes that Delaware would permit jurisdiction, the Court must then ensure that such an exercise of jurisdiction satisfies the due process requirements of International Shoe. Transportes Aereos De Angola v. Ronair, Inc., 544 F.Supp. 858 (D.Del.1982).

Plaintiff claims KMAG is subject to personal jurisdiction in this action pursuant to the provisions of 10 Del.C.Ann. § 3104 (Michie 1974 & 1984 Supp.), which provides in pertinent part:

A court may exercise personal jurisdiction over any nonresident, ... who in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; ... [or] (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State____

Subsection (b) states: “[a]ny person who commits any of the acts hereinafter enumerated [in subsection (c) ] thereby submits himself to the jurisdiction of the Delaware courts____” Id. § 3104(b).

Section 3104(c) has been construed broadly so as to confer jurisdiction to the maximum extent permitted by due process. Speakman Co. v. Harper Buffing Mach. Co., 583 F.Supp. 273, 275 (D.Del.1984); Moore v. Little Giant Indus., 513 F.Supp. 1043, 1048 (D.Del.1981), aff'd, 681 F.2d 806 (3d Cir.1982); Fyk v. Canvas Mobiles, No. 83C-OC-62 (Del.Super. March 20, 1985).

1. Facts to Support Jurisdiction

Defendant KMAG is a large West German corporation with five divisions: defense, locomotive transportation, iron foundry products; processing equipment; and plastics. Deposition of Helmut Fehl (April 19, 1985), Dkt. 48 (hereinafter cited as Fehl Dep.), at 7-9; Deposition of Joachim Huwendiek (April 30, 1985), Dkt. 50 (hereinafter cited as Huwendiek Dep.), at 10-11. KMAG has operations in several foreign countries: “daughter companies” in Great Britain, France, Italy, and the United States, and a licensing agreement with a company in Japan. See Deposition of Bernhard Nill (April 30, 1985), Dkt. 52 (hereinafter cited as Nill Dep.), at 22-23.

The Plastics Division of KMAG is responsible for extrusion, injection-molding, and urethane equipment. Deposition of Juergen Peter Hingst (April 29, 1985), Dkt. 49 (hereinafter cited as Hingst Dep.), at 8; Deposition of Manfred Peterson (April 29 & 30, 1985), Dkt. 51 (hereinafter cited as Peterson Dep.), at 19; Fehl Dep. at 9.

KMC was incorporated in Delaware in 1966. KMAG has owned 100% of KMC’s stock since its inception. KMC’s principal place of business has shifted over time; initially it was in New Jersey, Peterson Dep. at 68, and now is in Michigan. Id. at 66.

The purpose of KMC is to resell KMAG products and components in the United States. Peterson Dep. at 56, 76. All KMAG products sold in the United States are sold exclusively through KMC, Hingst Dep. at 16, with the exception of certain customized machinery sold directly to customers in the United States by a KMAG employee. Id. at 9-11, 16-17. To this end, KMC annually purchases over $5 million from KMAG’s plastics division, Hingst Dep. at 17-19, and a like amount from KMAG’s process engineering division. Huwendiek Dep. at 22-6. These sales contracts are consummated in Germany; final assembly of parts is done by KMC on arrival in the United States. Deposition of Philip Schneider (April 18, 1985), Dkt. 47 (hereinafter cited as Schneider Dep.), at 52. Any inquiries received by KMAG from potential customers in the United States concerning purchases of extrusion or injection-molding equipment are passed on to KMC. Id. at 17. As Peterson stated, “[w]e write them [potential customers in the United States] that our daughter company, Krauss-Maffei Corporation, is the acting arm in the United States.” Peterson Dep. at 57. See also Schneider Dep. at 72.

The ‘335 patent that is the subject of plaintiff’s complaint describes and claims “mixing heads,” which are devices for continuously mixing and ejecting two or more liquid components into a mold for molding plastic articles. Complaint ¶ 5. Defendant KMC admits that it uses and sells in the United States “L-shaped” mixing heads, see Complaint ¶ 6, Answer II6, although it denies this infringes on plaintiff’s ‘335 patent. See Complaint ¶ 11, Answer ¶11. L-shaped mixing heads are made by KMAG. Peterson Dep. at 26-27.

The ‘515 and ‘128 patents that are the subject of KMC’s counterclaim describe and claim “RIM mixing heads,” which are used in reaction and injection molding machines. Answer II¶ 11, 12. These patents were owned by KMAG at all times prior to September 14, 1984. On September 14, 1984, some two months after Afros had filed suit, a top KMAG employee assigned the patents to KMC for one dollar. Peterson Dep. at 64.

The assignment of the ‘515 and ‘128 patents by KMAG to KMC was made without the knowledge of Hingst, the Chief Executive of KMC, Hingst Dep. at 26, and, indeed, was never even presented for approval to KMC’s Board of Directors. Fehl Dep. at 30-31. The decision that KMC should counterclaim respecting these patents was made by Manfred Peterson, Hingst Dep. at 27-28, the General Manager of KMAG’s urethane machine and production plant, part of KMAG’s plastic division. Hingst was merely informed of the decision later, id., since, according to Hingst, all aspects of polyurethane patents are Peterson’s responsibility. Id. at 28. Peterson confirmed this account, stating that “in general, this type of problems or business activities [sic] belongs to the [plastics machinery] department [of KMAG]. We are running the business as a profit center and therefore it’s our power or whatever you want to say.” Peterson Dep. at 48.

Peterson retains no firm recollection of the assignment. Id. at 72-73. He states he does not recall reading the assignment before signing it; he explained he reads in detail only “something important or very important.” Id. at 73.

2. The Requirements of Due Process

Assuming arguendo that KMAG comes within the reach of the Delaware long-arm statute, its relationship with this forum is so attenuated that assertion of in person-am jurisdiction over KMAG would violate constitutional due process requirements.

To subject a defendant to a court’s in personam jurisdiction, due process requires that the defendant must have certain minimum contacts with the forum such that “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). The minimum-contacts test “protects the defendant against the burdens of litigating in a distant or inconvenient forum” and ensures as well that the State asserting jurisdiction has not encroached on the sovereignty of its sister States within the federal system. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980). The WorldWide Volkswagen court emphasized, however, that the due process clause forbids a state from exercising in personam jurisdiction over a “defendant with which the state has no contacts, ties, or relations.” 444 U.S. at 294, 100 S.Ct. at 565 (quoting International Shoe, 326 U.S. at 319, 66 S.Ct. at 160).

The only activity conducted by either KMC or KMAG in Delaware is that KMC has been incorporated continuously in Delaware since 1966 and files annual franchise tax reports to the State. Afros makes no allegations that any other corporate activities of any kind are carried on in Delaware by either defendant.

Thus, KMAG has no direct contact with Delaware; its only ascertainable “contact” is through its subsidiary, KMC. This indirect relationship does not comply with the due process requirement of minimum contacts.

3. Whether KMAG Has Waived Its Objection to In Personam Jurisdiction

Plaintiff has stated that the facts establish that the counterclaim filed by KMC was actually the act of KMAG and done for its benefit. As such, plaintiff suggests that KMAG has waived its objection to in personam jurisdiction. I disagree.

Although it may be inferred that the assignment of the patents was motivated by this lawsuit, on this record plaintiff has not demonstrated the assignment or the act of KMAG is invalid. Absent such a showing, there is no basis or viable theory advanced which would support a finding that the counterclaim should be considered an act by KMAG, or that the filing of the counterclaim constitutes a waiver by KMAG of its objection to personal jurisdiction.

Defendant KMAG’s motion to dismiss will be granted.

      . KMC originally alleged Afros had infringed patent 3,799,199 as well. See Dkt. 20 at 6 ¶ 11. The parties subsequently stipulated that paragraphs 11 through 20 of the counterclaim be dismissed with prejudice with respect to patent 3,799,199. Dkt. 40.

      . Defendant KMAG on July 25, 1984, noticed its Motion to Quash Service and to Dismiss. Dkt.

      . These are also referred to as "UL” heads. Schneider Dep. at 33.

      . On March 13, 1985, the summons and complaint were served on KMAG by the Bavarian Ministry of Justice in accordance with the terms of the Hauge Convention. KMAG did not renew its motion to quash service in the motion to dismiss filed on March 13. See Fed.R.Civ.P. 12(h)(1).


author: McNAUGHT, District Judge.

text:
    Marge S. FISCHER, Plaintiff, v. Elizabeth Hanford DOLE, Secretary, Defendant.
    Civ. A. No. 85-3561 Mc.
    United States District Court, D. Massachusetts.
    Dec. 30, 1985.

      Jonathan Shapiro, Lynn Weissberg, Stern & Shapiro, Boston, Mass., for plaintiff.
    Richard Welch, Asst. U.S. Atty., Boston, Mass., for defendant.
   STATEMENT OP REASONS FOR DENIAL OF PRELIMINARY INJUNCTIVE RELIEF

McNAUGHT, District Judge.

A hearing was held on December 17, 1985 on the question whether (as plaintiffs counsel put the matter) a preliminary injunction should issue, restraining the transfer of Ms. Fischer from Region 1 NHTSA (National Highway Traffic Safety Administration of the Department of Transportation) to a position in Washington D.C., ostensibly ordered “because her relationships here are not good — friction with State officials”. She brought this Title VII claim, said he, as a victim of sex discrimination, on September 16, 1985, alleging, inter alia, that adverse action had been taken against her in retaliation for her “reporting the mismanagement of federal funds” and for “blowing the whistle” (plaintiff counsel’s phrase) on a State official.

On September 30th the Acting Associate Administrator notified plaintiff that she would be reassigned from her position of Highway Safety Management Specialist in Cambridge to the position of Highway Safety Specialist in Washington on December 2nd. The letter of notification of transfer contained a reference to the problem of “interpersonal relationships with the Region 1 office staff” and with “state program officials”.

The plaintiff has alleged that the adverse action by her superiors has been prompted by “retaliation for past complaints of discrimination” also. It appears that she brought a complaint against her then-supervisor in 1973, and another in 1982 (in which her performance rating was the subject matter). The Secretary says that the 1982 complaint was voluntarily dismissed. In June of 1984 the plaintiff was suspended for five days without pay for violating orders, then at her request was given a “detail” or temporary assignment to Washington which lasted from October 22, 1984 to March 1, 1985. Defendant claims (and has submitted affidavits to establish) that while the plaintiff was away from Region 1, the office ran very smoothly, but that upon her return “disruptiveness reappeared”. This, says defendant, is the motive for the decision that plaintiff’s transfer would be in the agency’s best interest.

The plaintiff, to demonstrate a likelihood of success on the merits, has argued that she was the first woman Highway Safety Specialist for NHTSA, and the only woman professional in the Region I office for twelve years; that she has been with the federal government since 1963; that her work had always been rated as highly satisfactory; that the complaints made against her by the Governor’s Highway Safety Bureau director in the fall of 1983 were prompted by sex discrimination and because she reported irregularities in the Massachusetts Motorcycle Safe Riding Project. “Without fully and properly investigating the complaints, the Regional Administrator disciplined me”. (Affidavit, M. Fischer, II9) “No male employee in Region I of NHTSA has ever been disciplined in any manner ...” (Aff. M.F. 1113). She says that upon her return from the detail in Washington, she had her assignment changed from Massachusetts to Connecticut, and that the Connecticut highway officials are very satisfied with her work.

Defendant contends that there is no likelihood of plaintiff succeeding on the merits. A very large number of affidavits have been submitted, such a number that defendant found it convenient to submit a “summary of Government affidavits”. To quote them by names of affiants and pargaraphs would lengthen this statement of reasons unnecessarily. Suffice it to say that they support in detail the Secretary’s factual contentions which follow. The nine members of the Region I office staff administer NHTSA’s grant in aid programs in the New England area. Plaintiff is one of four highway safety specialists in this region at grade 13 (GS-13). She has had continuing personality clashes both with members of the NHTSA staff and state highway officials (and specific examples are cited by both male and female staff members). The person who made the ultimate decision to transfer her was a woman. The plaintiff is the only NHTSA employee to have had a serious problem with state officials. It was she who requested the temporary assignment to Washington in 1984 after her suspension for a five day period, and — finally—she is the first woman to have been transferred involuntarily. The other four were men.

It appears that the defendant has the better of the argument as to whether plaintiff has demonstrated a likelihood of succeeding on the merits. Of equal importance are my conclusions that (1) plaintiff has not demonstrated irreparable harm in the event of denial of the injunctive relief requested, and (2) the public interest is best served by denial of the motion.

Ms. Fischer contends that the “irreparable harm” arises from the facts that she has served the government for a lengthy period of time, and that she is “settled” in this area. If she is transferred to a city four hundred twenty-five miles away, she will have to effect a change of housing. (Indeed, if she expects to prevail in this case, and then does so, she may decide now reasonably that she should maintain her housing “presence” here, while she rents there, so that when a judgment is rendered in her favor, she can return to her “old” home.) She will be living in a different climate, moving away from her “old” friends and co-workers and will have her present social life disrupted. Her complaints are serious and must be taken seriously. These, however, are complaints that could be registered by any government employee transferred from one location to another.

On the other hand, is the threatened “damage” irreparable? On a prior occasion she requested at least a temporary transfer to the District Of Columbia. Indeed, it appears to be conceded that she said that she would be willing to make the permanent change provided that she received a one grade promotion. Perhaps her resistance is a matter of a desire for a raise in pay. Additionally, this government employee, upon accepting her employment knew or should have known of the possibility of eventual transfer to another location “for the good” of the Department. If she is transferred and eventually prevails in this action, she would have had to live in another area (the same area she lived in from October of 1984 to March of 1985 willingly) pending the trial of this action only.

The decision of the Supreme Court in the case of Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) cautions us that a District Court judge, when considering the possibility of issuing an injunction against the government in a case of this sort must consider the disruptive effect that preliminary relief will have on the government, which should have the widest latitude possible in handling its own internal affairs. 415 U.S. at 83, 94 S.Ct. at 949, citing Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Sampson involved the issuance of a temporary restraining order against the discharge of an employee — a difference in factual pattern, it is true — but the principles are equally applicable here. “... (R)espondent (here the plaintiff) at the very least must make a showing of irreparable injury sufficient in kind and degree to override those factors cutting against the general availability of preliminary injunctions in Government personnel cases”. 415 U.S. at 84, 94 S.Ct. at 950.

The government has determined that the Region I office will operate more efficiently without the plaintiffs presence and that the anticipated transfer of Ms. Fischer to the same office and post in Washington where she has heretofore functioned efficiently will be to the benefit of the Washington office. Weighing the inconvenience (and it is a serious inconvenience as stated hereinbefore) against the interests of the government and the public, I conclude that the latter outweighs the harm to Ms. Fischer if I deny the injunctive relief. Loss of money and potential damage to reputation to plaintiff were held to be insufficient in Sampson, supra. The factors which plaintiff here asks us to consider are not enough either.

For the foregoing reasons, the request for preliminary injunctive relief is denied.


author: HILTON, District Judge.

text:
    Alice E. WEBB, Administratrix of the Estate of Sharon Lee Cooper, Plaintiff, v. REGUA LIMITED PARTNERSHIP, t/a Valle’s Steak House, and Ulysses Auger, Defendants.
    Civ. A. No. 85-0737-A.
    United States District Court, E.D. Virginia, Alexandria Division.
    Dec. 30, 1985.
    Jerry M. Phillips, Whitestone, Phillips, Brent, Young & Merril, P.C., Fairfax, Va., for plaintiff.
    Benjamin J. Trichilo, Stephen A. Horvath, Lewis & Trichilo, Fairfax, Va., for defendants.
   MEMORANDUM OPINION

HILTON, District Judge.

This case comes before the Court on motion of the defendant, by counsel, pursuant to Rule 56, Federal Rules of Civil Procedure, for a summary judgment in favor of the defendant and against the plaintiff. As grounds for the motion the defendant contends that Virginia does not recognize a cause of action against the seller of intoxicating liquors for injuries caused by the unlawful conduct of the purchaser and that the plaintiff has accepted full satisfaction for compensatory damages and is not entitled to a second recovery. The pleadings, stipulations of the parties, and exhibits contain the following facts. John Frederick McCarthy was a twenty-four year old student at the Computer Learning Center located in Springfield, Virginia. On May 4, 1984 he attended classes during the morning and studied at the center during the afternoon. At approximately 5:00 p.m. he joined a group of students next door at Valle’s Restaurant. Valle’s was being operated by Blackies’ House of-Beef, Inc. pursuant to a license agreement with Valle’s.

McCarthy had drinks at Valle’s and remained there until 11:00 p.m. and drove approximately one mile to Chi-Chi’s Restaurant where he had additional drinks. At approximately 12:30 a.m. he left Chi-Chi’s and started home down Baeklick Road where he was involved in the accident in which Sharon Lee Cooper was killed.

After the accident, McCarthy was found to have a blood alcohol content of .303. He plead guilty to the charge of involuntary manslaughter and was sentenced to five years in the penitentiary with four suspended by the Circuit Court of Fairfax County. In addition he was sued by the plaintiff in the Circuit Court of Fairfax County, Virginia, and after a two day trial a jury awarded a verdict of $45,103.00 compensatory and $100,000. punitive damages. The plaintiff has received a check for the amount of the compensatory damage award.

The question presented is whether a seller of intoxicating liquor is liable for negligence, resulting in personal injuries sustained by third parties, as a result of the negligence of the buyer-consumer after leaving the sellers establishment.

At common law, the consumer of intoxicants was generally unable to recover against the individual furnishing the liquor for injuries sustained resulting from intoxication. Such an action was not recognized for the reason that the drinking of the liquor, not the furnishing of it, was the proximate cause of the injury. See Am. Jur.2d, Intoxicating Liquors Sec. 554, (1969), annotation, 54 ALR 2d 1152. In cases involving injuries caused by, rather than to, a consumer of intoxicants, the same rule historically protected the seller from liability to third persons, based on the absence of proximate cause.

The Court, by Virginia statute is required to follow the common law. Sec. 1-10 of the Code of Virginia provides:

The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and the Constitution of this State, shall continue in full force within the same, and the rule of decision except as altered by the General Assembly.

The requirement in Virginia of adherence to the rule of the common law has existed since the birth of the United States. The history was stated concisely in Foster v. Commonwealth, 96 Va. 306, 31 S.E. 503 (1898). The convention of May 1776, which declared our separation from England, and framed the first constitution for the state acclaimed the common law of England to be the rule of decision, and be considered in full force, until the same shall be altered by the legislative power of the colony. 9 Hen Stat. 127, sec. 6. Numerous subsequent cases attest to this requirement. Wiseman v. Commonwealth, 143 Va. 631, 130 S.E. 249 (1925); Needham v. Needham, 183 Va. 681, 33 S.E.2d 288 (1945); Carter v. Hinkle, 189 Va. 1, 52 S.E.2d 135 (1949); Oehl v. Oehl, 221 Va. 618, 272 S.E.2d 441 (1980); Gray v. Commonwealth, 226 Va. 591, 311 S.E.2d 409 (1984).

The Virginia Supreme Court is generally loath to abrogate the common law. The Court has stated in Bruce Farms v. Coupe, 219 Va. 287, 247 S.E.2d 400 (1978), “that the decision whether a common law rule of such ancient vintage as the one at bar should be reversed is one properly within the province of the General Assembly of Virginia.”

There is no Virginia Supreme Court case that has imposed common law liability upon the seller of intoxicating liquors for the torts of an intoxicated patron. In Corrigan v. United States, 595 F.Supp. 1047 (E.D.Va. 1984) the court in a well written and reasoned opinion came to the conclusion that since the Virginia Supreme Court had not ruled on this issue that the court should attempt to determine what the Virginia court would rule should the issue be presented. The court in Corrigan relied on Virginia Code Sec. 4-62 which states:

If any person shall ... sell any alcoholic beverages to any person and at the time of such sale shall know or have reasons to believe that the person to whom the sale is made is .. an intoxicated person, he shall be guilty of a misdemeanor.

This section is a part of the Virginia Alcoholic Beverage Control Act, a self-contained statute with its own penalty provisions enacted solely with the legislative intent to regulate the sale and distribution of alcoholic beverages. It does not create a cause of action against the seller of alcoholic beverages by a third party for the negligent acts of a patron.

In determining Virginia law in absence of a Virginia Supreme Court decision I believe the United States Court of Appeals for the Fourth Circuit has set forth a more prudent test than attempting to rationalize what that court would rule. In Harris v. Lukhard, 733 F.2d 1075 (4th Cir.1984) the court was faced with an issue of state law on which the Virginia Supreme Court had not ruled. After discussing relevant Virginia Circuit Court opinions, the Fourth Circuit stated that while such decisions were not controlling, the Federal Court should attribute some weight to the lower courts interpretation of the state law in question. A similar holding was reached in Bryant Electric Company v. City of Fredericksburg, 762 F.2d 1192 (4th Cir.1985). There the court had to decide whether a cause of action existed under Virginia tort law for a contractor to recover against an engineer for economic loss and absence of privity. In rendering its decision, the Fourth Circuit was guided by the state circuit court opinions and concluded that no duty was owed by the architect to the sub-contractor.

While the number of Virginia Circuit Court cases decided on this issue is not known, three cases have been decided by the Circuit Court of Fairfax County, Virginia since the decision in Corrigan. In all three cases the circuit court specifically rejected the ruling in Corrigan, in that it did not follow the common law of Virginia and that the recognition of such a right of action must properly emanate from the legislature and not the court, Hudson v. Marshall Enterprises, Inc., Law No. 64409, Fairfax Circuit Court (Jnue 20, 1985); Williamson v. Loredo, Law No. 67180, Fairfax Circuit Court (June 21, 1985); Murphy v. Olympic Flame Restaurant, Inc., Law No. 68764 (May 14, 1985).

The Fourth Circuit has set forth a sound standard to follow in determining Virginia law in absence of a Supreme Court decision. It is necessary to look to the State Circuit Court decisions. The circuit courts have clearly stated what the law is in Virginia. The Virginia Supreme Court has indicated its reluctance to abrogate the common law in numerous decisions, making any change unlikely absent legislative action. In Virginia there is no liability on the seller of intoxicating liquor for negligence, resulting in personal injuries sustained by third parties, as a result of the negligence of the patron after leaving the sellers establishment. It would also appear from the long line of Virginia authorities that if the law is to be changed, it is a matter for the Virginia General Assembly and not the courts. Accordingly, an order will enter granting summary judgment to the defendant.