author: LYNCH, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Robert William Dion FRISBEE, Defendant.
    No. CR-85-0762 EFL.
    United States District Court, N.D. California.
    Dec. 20, 1985.

      Robert L. Dondero, Asst. U.S. Atty., San Francisco, Cal., for plaintiff.
    V. Roy Lefcourt, San Francisco, Cal., for defendant.
   MEMORANDUM OPINION

LYNCH, District Judge.

I. Introduction

On August 19, 1985, defendant Robert Frisbee was indicted for first degree murder in violation of 18 U.S.C.A. section 1111 (West Supp.1985). The murder allegedly occurred on a commercial cruise ship that was sailing to the port of San Francisco in Pacific waters off the coast of California. The deceased was an 80 year old woman who apparently died from multiple traumas to the head. The defendant had been traveling with the deceased on the cruise ship, sharing a suite with her.

After the cruise ship docked in San Francisco, authorities arrested the defendant. In the course of an interview, the defendant reportedly indicated that, to the best of his knowledge, he was the only person in the room other than the victim at the time the murder allegedly occurred. United States v. Frisbee, No. CR-85-0762 EFL (N.D.Cal.1985) (Detention Order). The defendant also allegedly stated to the investigating authorities that he “did believe he committed the crime, in view of the fact that no one else was in the room at the time.” Id. (quoting an affidavit of Jan K. Smith, Special Agent for the Federal Bureau of Investigation). According to psychiatric reports submitted to the Court by the defendant’s counsel, the defendant has, however, never had any recollection of the actual events surrounding the death of the deceased. The reports also indicate that the defendant has suffered from periodic blackouts or seizures and from amnesia, all caused by serious alcohol abuse over many years.

Pursuant to rule 12.2(b) of the Federal Rules of Criminal Procedure, the defendant has given notice to the government that he “intends to introduce expert testimony relating to a mental disease or defect or ... other mental condition of the defendant bearing upon the issue of his guilt----” Fed.R.Crim.P. 12.2(b). More specifically, the defendant has indicated that he will offer expert testimony supporting his contention that due to some combination of pathological intoxication, organic brain damage, and an alcoholic blackout or seizure, he did not possess the requisite specific intent during the relevant time period to have committed first degree murder.

Currently before the Court is a motion brought by the government in opposition to the admission of psychiatric testimony by the defendant to negate the existence of specific intent. The government contends that the recently enacted section 20 of Title 18 of the United States Code, Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, § 402, 98 Stat. 1837, 2057, prohibits the admission of psychiatric testimony to negate the existence of an element of the crime unless such testimony is admitted in conjunction with an insanity defense.

While the government bears the burden of proving beyond a reasonable doubt all elements of the crime charged, In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), section 20 makes the insanity defense an affirmative defense that the defendant must prove by clear and convincing evidence. 18 U.S.C.A. § 20(b) (West Supp.1985). Consequently, the government's argument, if successful, would prohibit the defendant from using psychiatric testimony to negate specific intent, an element the government must prove beyond a reasonable doubt, but would allow the admission of such evidence to prove insanity, an affirmative defense that the defendant must prove by clear and convincing evidence. For the reasons stated below, the Court rejects the government’s argument. The Court will allow expert testimony on the issue of specific intent but will limit the scope and use of such evidence in the manner described in the final section of this Opinion.

II. Admissibility Prior to Section 20 of Expert Testimony on the Issue of Specific Intent

It is quite clear that, prior to the enactment of section 20, the Ninth Circuit allowed the admission of expert testimony to negate the existence of specific intent. In United States v. Erskine, 588 F.2d 721 (9th Cir.1978), the court held that a “trial court has wide latitude in admitting or excluding psychiatric testimony on the question of a defendant’s incapacity to form specific intent ...” and that the “defendant was entitled to introduce competent evidence pertaining to the defense of lack of specific intent.” Id. at 722-23.

While there seems to be little dispute between the defendant and the government concerning the state of the law in the Ninth Circuit prior to the enactment of section 20, the parties disagree over the effect of section 20. It is this dispute which the Court must now resolve.

III. Effect of Section 20

Section 20 provides as follows:

(a) AFFIRMATIVE DEFENSE.—It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

(b) BURDEN OF PROOF.—The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

18 U.S.C.A. § 20 (West Supp.1985).

The government argues that the language of section 20(a) providing that “[mjental disease or defect does not otherwise constitute a defense” is intended to exclude all psychiatric testimony not admitted in conjunction with an insanity defense. The Court disagrees. As discussed below, the Court believes that section 20 is not intended to limit the admissibility of evidence negating the existence of specific intent; rather, the Court finds that the section is intended to narrowly restrict situations in which mental disease or defect will excuse an otherwise guilty defendant. In short, the Court finds that section 20 represents an attempt by Congress to define the circumstances in which an otherwise culpable defendant will be excused for his or her conduct because of mental disease or defect, and that the section has no effect on the admissibility of evidence offered by a defendant to negate the existence of specific intent and thereby to show his or her innocence. This conclusion is supported by the legislative history of section 20 and the overall statutory scheme of which section 20 is a part.

A. Legislative Intent.

Section 20 makes the defense of insanity an affirmative defense. The term “affirmative defense” has generally referred to defenses that must be affirmatively raised by the defendant and that are based on justifications or excuses for conduct that is otherwise criminal. See W. LaFave & A. Scott, Criminal Law 152 (1972). Consequently, evidence used to negate the existence of an element of the crime would not traditionally be considered part of an affirmative defense because the evidence is used to show innocence, as opposed to an excuse or justification for an otherwise criminal act.

The legislative history of section 20 indicates that when Congress used the term “affirmative defense” in section 20, it intended that the term be given its traditional meaning and, consequently, did not intend on addressing the question of the admissibility of expert testimony on the issue of guilt or innocence. In discussing the language of section 20 that the government relies on in making this motion, Senate Report 225 states as follows:

The Committee, also included language in section 20 explicitly providing that mental disease or defect other than that which renders the defendant unable to appreciate the nature and quality or wrongfulness of his acts does not constitute a defense. This is intended to insure that the insanity defense is not improperly resurrected in the guise of showing some other affirmative defense, such as that the defendant had a “diminished responsibility” or some similarly asserted state of mind which would serve to excuse the offense and open the door, once again, to needlessly confusing psychiatric testimony.

S.Rep. No. 225, 98th Cong., 2d Sess. 229, reprinted in 1984 U.S.Code Cong. & Ad. News 3182, 3411 (emphasis added). The Report’s discussion of an affirmative defense as involving an “excuse” for an “offense” indicates that section 20 was written only to delimit when mental disease or defect will be allowed to excuse a criminal offense.

Furthermore, other language contained in the same Senate Report indicates that Congress clearly understood that section 20 would not have the effect of making expert testimony on the issue of specific intent inadmissible unless offered in conjunction with an insanity defense. In describing why section 20 uses the term “severe,” the paragraph of the Report directly following the language quoted above states:

The provision that the mental disease or defect must be “severe” was added to section 20 as a Committee amendment. As introduced in S. 829, the provision referred only to a “mental disease or defect.” The concept of severity was added to emphasize that nonpsychotic behavior disorders or neuroses such as an “inadequate personality,” “immature personality,” or a pattern of “antisocial tendencies” do not constitute the defense. The Committee also intends that, as has been held under present case law interpretation, the voluntary use of alcohol or drugs, even if they render the defendant unable to appreciate the nature and quality of his acts, does not constitute insanity or any other species of legally valid affirmative defense. [Footnote.]

Id.

In the footnote to the final sentence of the above-quoted paragraph, the Report acknowledges that “[o]f course, intoxication may negate a state of mind required for the commission of the offense charged.” Id. at 229 n. 30, 1984 U.S.Code Cong. & Ad. News at p. 3411 n. 30 (citations omitted). Thus, the paragraph, as footnoted, indicates that while Congress recognized that section 20 would prohibit evidence of voluntary intoxication from being used to excuse admittedly criminal behavior, Congress also recognized that the section would not necessarily bar the admission of such evidence to negate the existence of an element of the crime charged. Consequently, the paragraph demonstrates that Congress intended that section 20 restrict the use of testimony regarding mental disease or defect only in conjunction with an affirmative defense, not the use of such testimony to negate the existence of an element of the crime charged.

The government argues that the legislative history supports its position. In support of this contention, the government cites language in Senate Report 225 stating that section 20 was intended to “insure that the insanity defense is not improperly resurrected in the guise of showing some other affirmative defense, such as that the defendant had a ‘diminished responsibility’ ____” S.Rep. No. 225, 98th Cong., 2d Sess. 229, reprinted in 1984 U.S.Code Cong. & Ad.News 3404, 3411. The government argues that the use of psychiatric testimony to negate the existence of specific intent has been commonly referred to as a diminished capacity defense and, therefore, that the Senate Report clearly shows that Congress intended section 20 to exclude such testimony in the absence of an insanity defense.

The government’s argument ignores the confusion surrounding the meaning of the terms diminished capacity and diminished responsibility. Courts and commentators have often confused two distinct concepts by referring to both as the defense of diminished capacity or diminished responsibility. Morse, Undiminished Confusion in Diminished Capacity, 75 J.Crim.L. & Crim. 1, 7-9 (1984). The terms have been used to refer both to using evidence of mental disease or defect to negate the existence of specific intent and to making a defense based on the argument that, as a result of a mental disease or defect, the accused, though guilty, is less responsible and should therefore be convicted of a lesser crime. Id.

Considered in context, it is clear that the Senate Report attached the latter meaning to the term “diminished responsibility.” As shown earlier, the Report’s entire discussion surrounding the use of the term relates to limiting the definition of what may be used to excuse criminal behavior. The Report simply does not speak in terms of what may be admitted to negate specific intent.

In summary, the Court finds that the legislative history shows that Congress did not intend section 20 to eliminate the use of expert testimony to negate specific intent. Section 20 deals with when criminal behavior will be excused, not with what types of evidence is admissible to show one’s innocence. The clearest indication of that fact is the Senate Report’s recognition that section 20 does not affect the admissibility of evidence of voluntary intoxication on the issue of specific intent. That recognition leads this Court to conclude that Congress did not intend that section 20 change the law regarding what type of evidence may be admitted on the issue of specific intent.

B. Statutory Scheme.

The statutory scheme of which section 20 is a part also supports the Court’s interpretation of that section. Both the federal rule of evidence governing the admissibility of expert testimony on a defendant’s mental state or condition, Fed.R.Evid. 704(b), and the federal rule of criminal procedure requiring notice of a defendant’s intent to use expert testimony on the defendant’s mental condition as it pertains to the issue of guilt, Fed.R.Crim.P. 12.2(b), are inconsistent with the government’s argument that section 20 should be read as barring expert testimony on the issue of specific intent.

Rule 704(b) of the Federal Rules of Evidence, which was part of the same legislation as that which enacted section 20, Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, §§ 402, 406, 98 Stat. 1837, 2057, 2067, provides as follows:

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Fed.R.Evid. 704(b).

Rule 704(b) is important in interpreting section 20 for two reasons. First, the rule clearly shows that Congress appreciated the distinction between evidence negating specific intent and evidence supporting a finding of insanity. The rule itself maintains that distinction by prohibiting an expert witness testifying with respect to either the existence of a mental element of a crime or a defense based on a mental condition from stating an opinion on the ultimate issue. Second, implicit in the rule’s exclusion of ultimate issue testimony is Congress’ acknowledgement that expert testimony may otherwise be admissible either on the issue of specific intent or on the issue of insanity. The language of rule 704(b) and its legislative history clearly show that Congress recognized that expert testimony negating the existence of specific intent may be offered in cases not involving an insanity defense. Senate Report 225 contains the following discussion highlighting this fact:

[T]he rationale for precluding ultimate opinion psychiatric testimony extends beyond the insanity defense to any ultimate mental state of the defendant that is relevant to the legal conclusion sought to be proven. The Committee has fashioned its Rule 704 provision to reach all such “ultimate” issues, e.g., premeditation in a homicide case, or lack of predisposition in entrapment.

S.Rep. No. 225, 98th Cong., 2d Sess. 229, reprinted in 1984 U.S.Code Cong. & Ad. News 3182, 3413.

Given that rule 704(b) was a part of the legislation in which section 20 was enacted, it seems clear that section 20 should not be interpreted as excluding expert testimony on the issue of specific intent.

Rule 12.2 of the Federal Rules of Criminal Procedure is also instructive. Paragraph (a) of rule 12.2 requires a defendant to give notice prior to trial of his or her intent to make an insanity defense, and paragraph (b) requires pretrial notice of a defendant’s intent to offer “expert testimony relating to a mental disease or defect or any other mental condition bearing on the issue of his guilt____” If the government’s interpretation of section 20 is correct, it would seem that rule 12.2(b) is quite unnecessary. Nevertheless, Congress has not repealed the rule despite the fact that it has made other modifications to the rule since the enactment of section 20. Although this omission is not overwhelming evidence of congressional intent, it does seem inconsistent with the government’s argument in this case.

In summary, the Court holds that section 20 was not intended to regulate the admissibility of expert testimony concerning the existence of a mental element of a crime. The Court believes that the sole purpose of section 20 was to narrowly define the circumstances in which mental disease or defect will excuse otherwise criminal conduct and was not intended to impede an accused’s ability to show his or her innocence. To the extent that Congress desired to limit a defendant’s ability to negate the existence of specific intent, it did so through rule 704(b) of the Federal Rules of Evidence, which excludes ultimate issue evidence on a defendant’s state of mind. Therefore, the Court holds that the Ninth Circuit’s rule allowing expert testimony negating the existence of specific intent is unaltered by the enactment of section 20.

IV. Admissibility of Expert Testimony

The defendant has indicated that he intends to submit psychiatric testimony in support of his contention that at the time the murder allegedly occurred he did not have the specific intent required for a first degree murder conviction. The defendant’s experts will apparently testify that, due to some combination of pathological intoxication, organic brain damage, and an alcoholic blackout or seizure, the defendant could not have possessed the requisite specific intent during the relevant time period. For the reasons stated above, the Court will allow the testimony. Nevertheless, the nature and use of the testimony shall be restricted.

Pursuant to rule 704(b) of the Federal Rules of Evidence, the defendant’s experts will not be allowed to state an opinion or inference as to whether the defendant did or did not form a specific intent to kill at the time the murder allegedly occurred. The legislative history of rule 704(b) states that the rule is intended to limit experts to “presenting and explaining their diagnoses, such as whether the defendant had a severe mental disease or defect and what the characteristics of such a disease or defect, if any, may have been.” S.Rep. No. 225, 98th Cong., 2d Sess. 230, reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3412. Thus, the Court will only allow the experts to testify concerning their diagnoses, the facts upon which those diagnoses are based, and the characteristics of any mental diseases or defects the experts believe the defendant possessed during the relevant time period. No testimony directly or indirectly opining on the issue of specific intent will be allowed.

Furthermore, the Court shall instruct the jury that the expert testimony admitted on the issue of specific intent shall only be considered on that issue. The Court will not allow the jury to consider the testimony in connection with the issue of whether the defendant may have possessed the necessary intent to commit lesser offenses requiring only general intent. The Ninth Circuit has clearly stated that testimony concerning a defendant’s ability to form specific intent should not be admitted in cases involving general intent crimes. United States v. Erskine, 588 F.2d 721, 723 (9th Cir.1978). Moreover, because the defendant is not making an insanity defense, the Court will not allow psychiatric evidence of mental disease or defect to be the basis for the jury’s convicting the defendant of a lesser crime if the jury finds that all the elements necessary for a conviction of first degree murder have been proven by the government. To do otherwise would be a violation of section 20.

Finally, the Court obviously reserves the right to exclude any expert testimony that is, for other reasons, inadmissible. For example, expert testimony that is unduly confusing, misleading, or repetitive or that will not be of assistance to the jury in determining the issue of a specific intent will be excluded. See Fed.R.Evid. 403, 702. While the Ninth Circuit allows the admission of expert testimony on the issue of specific intent, the admission of such testimony is not “automatic.” United States v. Byers, 730 F.2d 568, 570 (9th Cir.), cert. denied,—U.S.-, 105 S.Ct. 333, 83 L.Ed.2d 270 (1984).

V. Conclusion

Defendant may offer expert testimony concerning whether he could have possessed the requisite mental state to have committed first degree murder at the time the murder allegedly occurred. However, this testimony may not include an opinion or inference on the ultimate issue of specif- ■ ic intent. Moreover, the Court will instruct the jury that the testimony may only be considered on the issue of whether the defendant possessed the specific intent necessary for a first degree murder conviction.

IT IS SO ORDERED.

      . United States v. Frisbee, No. CR-85-0762 EFL (N.D.Cal.1985) (Defendant’s Offer of Proof). The defendant’s counsel has also indicated that he intends to submit evidence showing that the defendant is "an extremely passive-dependent, non-aggressive individual for whom an act of deliberate violence would be totally out of character.” Id. Such evidence is generally admissible under rule 404(a)(1) of the Federal Rules of Evidence, Fed.R.Evid. 404(a)(1), if the evidence is relevant and its probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. See Fed.R.Evid. 401, 402, 403.

      . In fact, "diminished responsibility,” the term used in the Senate Report, has generally referred to a defense based on a showing that the accused suffered from an abnormality of mind that "substantially impaired his mental responsibility.” See Cooper, Diminished Responsibility— "Borderline Insanity” Direction, 49 J.Crim.L. 118 (1985). "Diminished capacity," as opposed to "diminished responsibility,” is the term most often used by American courts in referring to defenses aimed at negating specific intent, although this term has also been used in referring to a defense offering evidence of mental disease or defect to show mitigating circumstances. H. Fingarette & A. Hasse, Mental Disabilities and Criminal Responsibility, 117-18 (1979). Moreover, neither “diminished capacity” nor "diminished responsibility” are terms that accurately describe a defense aimed at negating intent. See United States v. Demma, 523 F.2d 981, 986 n. 14 (9th Cir.1975) (en banc). One commentator has described the difference between a diminished capacity defense and a defense negating intent as follows:
      [T]he mens rea variant of diminished capacity is not a separate defense that deserves to be called "diminished capacity" or any other name connoting that it is some sort of special, affirmative defense.[footnote] The defendant is simply introducing evidence, in this case evidence of mental abnormality, to make the following claim: "I did not commit the crime charged because I did not possess the requisite mens rea.” This is not an affirmative defense whereby the defendant admits or has proved against him the elements of the crime charged, but then raises a claim of justification or excuse. Further, a defendant claiming no mens rea because of mental disorder is not asserting some lesser form of legal insanity, that is, he is not claiming that he is partially or less responsible for the crime charged. Rather, the defendant is straightforwardly denying the prosecution’s prima facie case by attempting to cast doubt on the prosecution’s claim that a requisite mental element was present at the time of the offense. He is claiming that he is not guilty of that crime at all, although he may be guilty of a lesser crime if all the elements of the latter are proven.
      Morse, Undiminished Confusion in Diminished Capacity, 75 J.Crim. L. & Crim. 1, 6 (1984).

      . The California legislature’s use of the term "diminished responsibility” also supports the conclusion that the term does not necessarily relate to specific intent. A recently enacted California statute explicitly prohibits diminished capacity and diminished responsibility as defenses, Cal.Penal Code § 28(b) (West Supp. 1985), but nevertheless allows "[ejvidence of mental disease, mental defect or mental disorder to negate the existence of mens rea.” Id. § 28(a).

      . Slight modifications to rule 12.2(b) were made by the Congress in legislation passed on October 30, 1984. Pub.L. No. 98-596, § 11, 98 Stat. 3134, 3138 (1984). As noted earlier, section 20 was enacted on October 12, 1984. Pub.L. No. 98-473, § 402, 98 Stat. 1837, 2057 (1984).

      . The government cites a number of well-reasoned opinions in which other jurisdictions have upheld a blanket prohibition on the admissibility of psychiatric testimony on the issue of specific intent. See, e.g., Muench v. Israel, 715 F.2d 1124, 1143 (7th Cir.1983), cert. denied,—U.S.-, 104 S.Ct. 2682, 81 L.Ed.2d 878 (1984). As explained earlier, the Ninth Circuit has, however, not adopted such a blank probition, chosing instead to grant trial courts broad discretion in determining the admissibility of such evidence given the circumstances of each case. This Court is required to apply the current law of the Ninth Circuit.

      . Under the law of the Ninth Circuit, neither second degree murder nor voluntary manslaughter is a specific intent crime. Kane v. United States, 399 F.2d 730, 736 (9th Cir.1968), cert. denied, 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 699 (1969); United States v. Lopez, 575 F.2d 681, 684 (9th Cir.1978).


source: Caselaw Access Project

author: ARONOVITZ, District Judge.

license: Public Domain

text:
    James Andrew FREEMAN, Plaintiff, v. Judge Richard FULLER, and Dade County Rehabilitation Services, Defendants.
    No. 85-3689-Civ-Aronovitz.
    United States District Court, S.D. Florida, Miami Division.
    Dec. 20, 1985.
   ORDER OF DISMISSAL

ARONOVITZ, District Judge.

THIS CAUSE came before the Court upon a sua sponte review of the record. The Court has carefully considered the entire record of the Cause including Plaintiff’s pro se complaint, the applicable law, and being otherwise fully advised in the premises, it is

ORDERED AND ADJUDGED that the instant Cause be, and the same is, hereby DISMISSED for failure to state a claim under Title 42, United States Code, Section 1983.

The complaint at bar is a completed form entitled “Form to be Used by Prisoners in Filing a Complaint Under the Civil Rights Act, 42 U.S.C. § 1983.” As the instant Order of Dismissal demonstrates, the grievances set forth in the form complaint do not state a claim cognizable under 42 U.S.C. § 1983 against the two named defendants. The defendants in the instant case are Judge Richard Fuller, a state circuit court judge for the Eleventh Judicial Circuit in and for Dade County, and Dade County Rehabilitation Services. The claims against the two defendants appear at Paragraph IV of the pro se complaint. As to Judge Fuller, that paragraph states, “I’m filing claims against Richard Fuller for unlawful sentencing in 3—80 and mental cruelty.” As to Defendant Dade County Rehabilitation Services, Paragraph IV states, “I James Freeman is (sic) filing against Dade Co. Jail for Double Jeopardy on charges which was (sic) dismissed once in the courts and placing me a none (sic) violent person in a cell with harden (sic) criminals on 10-31-85, Cell 5B3. My charge was escape, for leaving a work release program. This cell contained people with more than 1 counts (sic) of various hard crimes(—)murder(,) rape(,) etc.” With respect to damages, Plaintiff claims that he “need(s) a mental evaluation and financial aid with bills that buil(t) up on (his) family while (he) was incarcerated.” Paragraph V of Complaint.

At the outset, this Court notes that state prisoners’ pro se civil rights complaints are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Such a complaint should not be dismissed for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Even applying this extremely liberal standard to the case at bar, the Court finds that the pro se complaint fails to state an actionable claim against the named defendants under § 1983.

To state a claim for violation of his civil rights under § 1983, Plaintiff must plead two essential elements. First, he must allege that the conduct complained of was committed by a person acting under color of state law. Secondly, he must allege that this conduct deprived him of rights, privileges or immunities secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1911-1912, 68 L.Ed.2d 420 (1981); Morrison v. Washington County, Alabama, 700 F.2d 678, 682 (11th Cir.1983).

No such allegations have been asserted against either defendant in the case at bar. First, as to the claims against Judge Fuller, the bald allegations of “unlawful sentencing” and “mental cruelty” do not fulfill the above pleading requisites for a § 1983 claim. A challenge to the fact or duration of a prisoner’s confinement must be brought in a habeas corpus action under section 2254 following exhaustion of state remedies. Preiser v. Rodriguez, 411 U.S. 475, 493-494, 93 S.Ct. 1827, 1838, 36 L.Ed.2d 439 (1973). This Court need not concern itself with possible section 2254 ramifications arising from the claim against Judge Fuller because the Plaintiff has been released from prison prior to its filing and only money damages are sought. Therefore, the instant claim is properly treated as one which comes solely under § 1983 and can be dismissed on that basis without converting it into a § 2254 claim and ascertaining whether state remedies have been exhausted. Wahl v. Mclver, 773 F.2d 1169, 1171, n. 1 (11th Cir.1985). The instant allegations of unlawful sentencing do not rise to the level of a § 1983 civil rights claim and should be dismissed.

Even if the complaint did state a claim for violation of civil rights under § 1983, the complaint as it relates to Judge Fuller must still be dismissed for yet another reason, namely, the doctrine of judicial immunity. The pertinent caselaw clearly holds that a judge is absolutely immune from liability in a lawsuit like the one at bar, provided that certain factual circumstances are present. In order to ascertain whether Defendant is immune from the instant suit, the two part test of Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), must be applied. First, the Court must determine whether Judge Fuller’s alleged action of “unlawful sentencing” was made while acting in his judicial capacity. There can be no doubt that the act of sentencing falls squarely within the ambit of the judge’s official duties attendant to presiding over criminal cases. The claimed unlawful sentencing constituted judicial acts which would normally be performed by a judge. Henzel v. Gerstein, 608 F.2d 654 (5th Cir.1979).

Secondly, the Court must look to whether or not Judge Fuller’s alleged actions fell clearly outside of his jurisdiction as a circuit court judge in Florida. The Eleventh Circuit, in its consideration of a case not unlike the one at bar, quoted from the Sparkman case to distinguish the matter of jurisdiction from claims of wrongful exercise of judicial duties. In the decision of Scott v. Hayes, 719 F.2d 1562, 1566 (11th Cir.1983), that Court stated:

A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction.

In the instant case, the allegations of “mental cruelty” do not take the conduct complained of out of the realm of Judge Fuller’s jurisdiction to impose sentences in criminal cases. Therefore, his activities are protected by the judicial immunity doctrine. Applying the two-part test in Spark-man, supra, Judge Fuller cannot be deemed liable even if the claim of unlawful sentencing is somehow redressable pursuant to § 1983. The doctrine of judicial immunity absolutely precludes a finding of liability under § 1983 against Judge Fuller.

With respect to Defendant Dade County Rehabilitation Services, the § 1983 complaint must likewise be dismissed. To begin with, there is no entity by the name of Dade County Rehabilitation Services. There is a Dade County Department of Corrections and Rehabilitation, but that department is part and parcel of the Dade County Jail system which is under the auspices of Metropolitan Dade County government. Assuming arguendo that the proper entity was named as a defendant to the instant case, the § 1983 claim would still fail. The claim against Defendant Dade County Rehabilitation Services alleges double jeopardy. Double jeopardy, like unlawful sentencing, is not really an appropriate basis for a § 1983 claim and is more properly asserted in the state trial and appellate courts where Plaintiff’s conviction was rendered. Federal courts will generally interfere only after state court remedies have been exhausted and then only pursuant to a § 2254 petition, which in all likelihood, probably cannot be successfully asserted by the former inmate at bar. See Malloy v. Purvis, 681 F.2d 736 (11th Cir.1982) cert. denied, 460 U.S. 1071, 103 S.Ct. 1527, 75 L.Ed.2d 949 (1980); Sinclair v. Blackburn, 599 F.2d 673 (5th Cir.1979).

In any event, the instant claim against the entity in charge of Dade County’s prisons is, in actuality, not a double jeopardy claim, but an attack on placement of the plaintiff while he was incarcerated. Plaintiff complains that as a non-violent person, charged merely with escape from a work release program, he should not have been placed in the same cell with persons either accused or convicted of violent crimes. He maintains that this erroneous placement resulted in mental distress which precludes him from finding and holding a job. The allegation of wrongful placement cannot support a § 1983 action because placement of an inmate is a matter peculiarly within the province of prison authorities’ administrative duties. Correctional authorities have wide discretion in matters of internal prison administration, and reasonable action within the scope of that discretion does not violate a prisoner’s constitutional rights. Smith v. Schneckloth, 414 F.2d 680 (9th Cir.1969). Further, federal courts, being ill-equipped to involve themselves in the administration of state prisons, accord great deference to administrative decisions rendered by prison authorities and will not interfere except in extreme cases. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Newman v. State of Alabama, 683 F.2d 1312 (11th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1773, 76 L.Ed.2d 346 (1983); Gardner v. Joyce, 482 F.2d 283 (5th Cir.1973), cert. denied, 414 U.S. 1096, 94 S.Ct. 731, 38 L.Ed.2d 555 (1974); Granville v. Hunt, 411 F.2d 9 (5th Cir.1969).

The instant claim is a good example of an internal administrative decision which is best left to prison authorities. Plaintiff does not state that he was placed in solitary confinement or that he was limited in his activities more than other prisoners due to his placement in Cell 5B3. He merely attacks his placement with inmates whom he believed to be dangerous. The claim is akin to an attack on an inmate’s classification. Decisions regarding classification of prisoners are not usually susceptible to attack through a civil rights action in federal court unless the circumstances are exceptional. Young v. Wainwright, 449 F.2d 338 (5th Cir.1971); Brooks v. Wainwright, 439 F.Supp. 1335 (M.D.Fla.1977). The allegations at bar do not make out such an exceptional case.

Classification and other internal administrative decisions constitutive of prison management, although generally not assertable in federal court under § 1983, are not immune from review. Rather, state and federal prisons have established procedures whereby inmates can present their grievances which arise from these management decisions. In fact, grievances of prisoners concerning prison administration must be presented through these available administrative channels prior to review by any other tribunal. See, Jones v. Carlson, 495 F.2d 209 (5th Cir.1974); Paden v. United States, 430 F.2d 882 (5th Cir.1970); Tarlton v. United States, 429 F.2d 1297 (5th Cir.1970).

Plaintiff states at Paragraph II D in the instant complaint that he had begun to institute a grievance pursuant to the prison’s grievance procedure, but that he was released before the “complaint was completed”. Reinstitution of this grievance may be an appropriate means of furthering the instant claims because as it is currently pled, the complaint at bar cannot be sustained in federal court against the entity in charge of operating the Dade County Jail.

Accordingly, the Court on its own initiative deems the instant pro se complaint inadequate to state a § 1983 claim against the named defendants. Therefore, pursuant to its power to dismiss sua sponte any insufficient complaint, the instant action which is solely before this Court on a § 1983 claim, is hereby DISMISSED for failure to state a cognizable claim under that statute against Defendants Judge Richard Fuller and Dade County Rehabilitation Services. See, 5 Wright & Miller, Federal Practice and Procedure: Civil § 1357 at 593.


author: CROW, District Judge.

text:
    Martha C. BAUGHER, Plaintiff, v. SECRETARY OF HOUSING AND URBAN DEVELOPMENT and Federal Insurance Administration and United States Government, Defendant.
    No. 82 1469.
    United States District Court, D. Kansas.
    Dec. 20, 1985.

      Charles M. Cline, Wichita, Kan., for plaintiff.
    Stephen K. Lester, Ass’t U.S. Atty., Wichita, Kan., Harvey J. Kesner, Federal Emergency Management Agency, Washington, D.C., for defendant.
   MEMORANDUM AND ORDER

CROW, District Judge.

This case is now before the court on motions for summary judgment filed by both plaintiff and defendant. The court is persuaded oral argument would not be of material benefit in resolving the issues presented in this ease and the parties joint request for oral argument is therefore denied.

This case arises from the defendant’s denial of the plaintiff’s claim for loss under a federal crime insurance policy issued pursuant to 12 U.S.C. § 1749bbb-10a. The case has been submitted to the court upon stipulations. The parties have stipulated to certain facts and the testimony of the plaintiff. The parties have also stipulated to the issues remaining for determination by the court.

The insurance policy in question defines burglary as “the felonious abstraction of insured property from within the premises by a person making felonious entry therein by actual force and violence, evidenced by visible marks upon, or physical damage to, the exterior of the premises at the place of such entry.” The defendant concluded there were no visible marks upon or physical damage to the exterior of the premises and denied coverage for that reason. The court is persuaded, however, that the plaintiff’s loss is within the policy definition of the burglary and that she is entitled to recover for her loss up to the limits of the insurance policy.

The parties have stipulated that a residential crime insurance policy was issued to the plaintiff by the Federal Insurance Administration on July 10, 1980, insuring the contents of a commercial storage unit. The policy covered loss by burglary as defined above or by robbery.

The parties have agreed that there is no genuine issue of material fact in dispute. As stated above, the parties have stipulated to the content of the plaintiff’s testimony. The government has offered nothing to contradict the stipulated testimony of the plaintiff and the court accepts the testimony as uncontroverted.

At some point during December, 1980, plaintiff’s personal property was removed from the insured storage unit. The plaintiff reported the loss to the police, but none of the property was recovered. The parties have stipulated that if the loss is covered by the insurance policy, it would be in an amount greater than the $10,000 policy limits.

Prior to the loss, the storage unit was secured by three locks: two combination locks and one key lock. On December 28, 1980, when the loss was discovered, the two combination locks were missing. The key lock was locked in-place.

The plaintiff filed a claim against the federal crime insurance policy. On June 23, 1981, the plaintiff’s claim was denied on the grounds that no felonious entry to the insured premises was clearly identifiable.

The validity and construction of contracts entered into by the federal government is a matter of federal law. United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970). In determining the interpretation of contractual provisions under federal law, the court is guided by general principles of contract interpretation including the rule that a contract should be construed strictly against the drafter. United States v. Seckinger, 397 U.S. at 209-10, 90 S.Ct. at 884.

The insured has the burden to prove a loss comes within the coverage of an insurance policy. In this case, the policy insurés against losses for burglary and specifically defines what burglary is. The insured, therefore, has the burden to prove the loss sustained was a burglary as defined by the policy. See M. Rhodes, 19 Couch on Insurance 2d (Rev.Ed.) § 79:345; See also Sydor v. Harris, 480 F.Supp. 804 (E.D.N.Y.1979).

The provision defining burglary in the insurance contract is not unusual. This provision, and others similar to it, are commonly used in insurance policies to preclude insurance coverage of “inside jobs.” The court notes two decisions construing similar contractual provisions in similar circumstances. In the case of Kretschmer’s House v. U.S.F. & G. Co., 410 S.W.2d 617 (Ky.1967), the Kentucky Supreme Court found a loss was covered where a warehouse had been secured by a padlock which was replaced by a strange one. The court concluded that the removal of the original padlock in substitution of another was evidence that there had been entry by force and violence. “Had the original padlock simply been left open by carelessness, or had the theft of the television sets been an ‘inside job’ or committed by a person who somehow had a key to the padlock, there would have been no reason for the substitution of a new padlock.” Kretschmer’s House v. U.S.F. & G. Co., 410 S.W.2d at 618.

The California Court of Appeals reached the opposite conclusion in the case of Johnson v. Pacific Indemnity Co., 242 Cal. App.2d 878, 52 Cal.Rptr. 76 (1966). The California court reasoned that the absence of a padlock was not evidence of entry by force and violence because of the possibility the padlock had been opened by a key. The court reasoned that opening the door to the insured premises would require the removal of the padlock whether or not the entry was felonious. The mere absence of the padlock was, therefore, not considered evidence of burglary as required by the policy.

The court believes that the better reasoned approach is that taken by the Kentucky court in Kretschmer’s House. If entry to the storage facility had been obtained by using a key, by plaintiff inadvertently leaving the locks open, or by any other means not resulting in physical damage to the locks, the locks would, in all probability, have been replaced to delay detection of the loss. The mere absence of the two padlocks is, therefore, a visible mark upon the exterior of the premises which is evidence of entry by actual force and violence.

It is inappropriate to award prejudgment interest against the United States in the absence of an express waiver of sovereign immunity for that purpose. Philadelphia Gear Corp. v. Federal Deposit Insurance Corp., 751 F.2d 1131 (10th Cir.1984). The Federal Crime Insurance Program contains no such waiver. The plaintiff is, therefore, not entitled to prejudgment interest.

The court will not award attorney fees in this case. The United States may be liable for attorney fees to the same extent that any other party would be liable under the common law or a statute which specifically provides for such an award. 28 U.S.C. § 2412(b). Many states have imposed on insurers who deny claims in bad faith the obligation to pay the attorney fees of the insured. See, e.g., K.S.A. 40-256. These provisions, however, normally require a finding that the insurer acted in bad faith. In this case the court will not make such a finding. The current state of the law leaves substantial question as to the construction of the particular contractual provision in question. The United States was not, therefore, in bad faith in initially refusing coverage and the plaintiff is not entitled to fees under § 2412(b).

A private party in litigation brought by or against the United States is entitled to recover attorney fees unless the position of the United States was substantially justified. 28 U.S.C. § 2412(d)(1)(A). This provision was repealed but remains applicable to any action filed, as this one was, prior to October 1, 1984, the effective date of repeal. Pub.L. No. 96-481, 94 Stat. 2327.

It has been held that subsection (d) creates a modest presumption in favor of the prevailing party. The government’s position certainly cannot be frivolous but need not be meritorious. See Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820 (7th Cir.1984). Based upon the above standard and the noted split of authority on this issue, the court finds the position of the government in denying coverage was substantially justified and declines to award fees based upon 28 U.S.C. § 2412(d)(1)(A). The plaintiff is, nevertheless, entitled to' costs pursuant to 28 U.S.C. § 2412(a).

It is not necessary for the court to address the issue of estoppel because of the determination that the loss is covered by the written contract.

IT IS THEREFORE ORDERED that plaintiff’s motion for summary judgment is granted and defendant’s motion for summary judgment is denied.

IT IS FURTHER ORDERED that judgment for the plaintiff is granted in the amount of $10,000 plus costs.

IT IS FURTHER ORDERED that plaintiff’s claims for prejudgment interest and attorney fees are denied.


author: GENE CARTER, District Judge.

text:
    NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, Plaintiff, v. AT & T COMMUNICATION, INC., Defendant.
    No. 85-0090 P.
    United States District Court, D. Maine.
    Dec. 23, 1985.

      Everett P. Ingalls, Portland, Me., for plaintiff.
    Michael A. Nelson, Portland, Me., for defendant.
   MEMORANDUM OPINION AND ORDER

GENE CARTER, District Judge.

Presently before the Court are Plaintiff New England Telephone and Telegraph Company’s (“NET”) and Defendant American Telephone and Telegraph’s (“AT & T”) Motions for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. On December 6, 1985, the Federal Communications Commission (“FCC”) asked to participate as amicus curiae and submitted for the Court’s consideration an amicus brief filed in a recent case involving similar issues in the District of Wyoming. The Court concludes that the issue can be decided on the Joint Stipulation of Facts and related documents submitted by the parties and that AT & T is entitled to summary judgment as a matter of law.

This case arises from Defendant AT & T’s failure to pay a bill submitted to it by NET on February 14, 1985, and payable on or before March 14, 1985. The bill, for the amount of $87,100.20, represents $.33 per customer toll statement charged by NET for the service to AT & T of disconnecting a customer’s telephone service for failure to pay his or her interstate phone bill, commonly referred to as disconnection for non-payment (“DNP”). NET’s charge of $.33 per customer toll statement is pursuant to a NET, Maine Public Utilities Commission (“MPUC”) tariff issued on December 10, 1984 (“MPUC Tariff”). AT & T contends that the tariff is invalid under the Supremacy Clause of the United States Constitution because it conflicts with the Federal Communications Commission (“FCC”) jurisdiction over interstate billing and collection service, that the tariff is beyond the jurisdiction of the MPUC in that it imposes a charge on interstate service, and that the tariff violates the Commerce Clause of the United States Constitution by imposing an unconstitutional burden on interstate commerce. It is AT & T’s position that since the charges are pursuant to an unlawful tariff, it can not be required to pay the bills submitted by NET.

I. REGULATORY BACKGROUND

A brief review of the regulatory background relevant to this case is helpful. On January 1, 1984, the former Bell Operating Companies, including NET, were divested from AT & T pursuant to a Modified Final Judgment approved by United States District Judge Harold Greene ending the Government’s antitrust suit against the Bell System. The result is that, whereas the Bell System previously had provided both intrastate and interstate service, NET now provides intrastate service but is prohibited from providing interstate service, while AT & T provides interstate service but is prohibited from providing intrastate service. At divestiture, however, NET retained the necessary billing systems and personnel that had been used to render combined intrastate and interstate bills. Consequently, in accordance with an arrangement approved by Judge Green, NET filed with the FCC a tariff under which it would furnish billing and collection services to interstate carriers, including AT & T (“FCC Tariff”). NET FCC Tariff No. 40, March 19, 1984.

The FCC Tariff did not specifically address the aspect of the billing and collection services which is at issue in the suit, namely DNP. Because of technical limitations, AT & T is unable to disconnect a customer’s interstate service except through disconnection of a customer’s total telephone service and thus is dependent upon NET for DNP. The FCC directed, however, “that all provisions for ‘local service cut-offs’ be deleted from the tariffs.” Investigation of Access and Divestiture Related Tariffs, CC Docket No. 83-1145, Phase I, Decision No. FCC 84-188 (released April 27, 1984). Memorandum Opinion and Order, par. 11 at p. 4. Nineteen days later, the FCC modified the treatment of DNP “on a temporary basis” as follows:

All exchange carriers will be required to remove from their interstate access tariffs any language permitting termination of local service for non-payment of interstate. For the period of the waiver, we will not bar exchange carriers from terminating local service for non-payment of a bill for interstate toll services where such terminations are permitted by state authority. Since state rules governing service termination for non-payment of interstate toll bills will apply while we have this matter under review, there is no need for any reference to termination of local service in tariffs on file with this Commission.

Memorandum Opinion and Order of May 16, 1984, par. 4 at p. 2.

One day before the May 16, 1984 Order modifying its treatment of DNP, the FCC specified the rate of return that it would allow for interstate billing and collection service. Noting that “AT & T probably has no realistic short-term alternative to the use of local exchange billing operations”, the FCC ordered that:

[W]e will ... require all local exchange carriers to charge rates which earn a return of no more than 12.75 percent upon billing and collection services____ All filing carriers are directed to continue providing billing and collection until revised tariff rates based on no more than a 12.75 percent return are filed and become effective. This conclusion is effective immediately upon the effective date of the access tariffs, however, so that after that date no rate may lawfully be charged, whether under tariff or contract, which earns above a 12.75 percent return.

Memorandum Opinion and Order of May 15, 1984, par. 83, at p. 35.

Following the FCC Orders regarding DNP and a rate of return ceiling for billing and collection services, the MPUC considered intrastate rate increases proposed by NET. On November 13, 1984, the MPUC issued an Order on rate design issues in which it held:

[0]ur analysis shows that there is at minimum an additional $1 million charge that NET could impose on AT & T for the right of employing local disconnection procedures for the purposes of collecting AT & T’s bills____
We will attribute $1 million in additional revenue to NET. The basis for the attribution is that NET can legitimately look at AT & T for at least this amount for the use of the DNP provisions which NET makes available to AT & T by undertaking its billing and collection. Thus, it should be recovered from AT & T and not NET’s ratepayers.

Maine Public Utilities Commission Order of November 13, 1984, at pp. 50, 51. On December 10, 1984, in compliance with the November 13, 1984 Order, NET filed with the MPUC a tariff which provided:

A charge of $.33 per customer toll statement processed for an interexchange carrier subscribing to the Company’s interstate (and any future intrastate) Billing and Collection services is billed to the carrier for use of the Company’s provisions for discontinuance of service for nonpayment.

MPUC Tariff No. 15, Part A, Section 1, Page 5.1, Paragraph 1.2.3. (effective January 1, 1985). It is that tariff and the charges made pursuant to it that AT & T contends are unlawful.

II. INTRASTATE VS. INTERSTATE SERVICE

A central issue in this case is the characterization of DNP when used in connection with a customer’s non-payment of his or her interstate bill. AT & T argues that it is an interstate service, that it is subject to the FCC’s exclusive jurisdiction over rates and charges for interstate services, and that any state action which conflicts with the FCC’s jurisdiction, or the regulations and policies that it has adopted for interstate services, is invalid under the Supremacy Clause of the United States Constitution. AT & T contends that the MPUC tariff is such state action in that it requires NET to charge for what is an interstate service. Furthermore, AT & T argues that imposition of a charge on interstate service is beyond the jurisdiction and state statutory authority of the MPUC, based upon the jurisdictional separations principles enunciated in Smith v. Illinois Bell Telephone Co., 282 U.S. 133, 51 S.Ct. 65, 75 L.Ed. 255 (1930), and the limitations on the MPUC’s authority set forth in New England Telephone and Telegraph Company v. Public Utilities Commission, 148 Me. 374, 94 A.2d 801, 814 (1953).

In support of its assertion that the DNP at issue in this case is an interstate service, AT & T points to the fact that it provides only interstate services in Maine. Thus, AT & T argues, any disconnection service provided to AT & T by NET is caused by non-payment of AT & T’s interstate charges and is, under such circumstances, nothing but interstate service. AT & T maintains that the fact that intrastate facilities are used to effectuate the DNP or that intrastate service is also disconnected does not alter this characterization.

NET, on the other hand, argues that DNP is an intrastate function subject to the authority of the Maine PUC, not an interstate service subject to FCC jurisdiction. In support of its position, NET points to the fact that the FCC specifically designated DNP as subject to state regulatory authority. In its Order dated May- 16, 1984, the FCC ordered that all interstate carriers remove any language permitting DNP for non-payment of interstate bills from their tariffs and stated that “state rules governing service termination for nonpayment of interstate toll bills will apply.” Memorandum Opinion and Order of May 16, 1984, par. 4 at p. 2.

Thus, it is NET’S position that although this is an area subject to the FCC’s jurisdiction, the FCC has deferred to state authority on this issue. It is well settled that the FCC has exclusive jurisdiction over rates and charges for interstate service. Further, in areas where a federal regulatory agency has exclusive jurisdiction, any deferral of authority to the state must be strictly construed and any ambiguities resolved against the states. See United States v. Public Utilities Commission of California, 345 U.S. 295, 304, 310, 73 S.Ct. 706, 712, 715, 97 L.Ed. 1020 (1953). In this case, there was deferral to state authority on the issue of whether and under what circumstances DNP was permissible. However, there was not a clear or an express deferral by the FCC of authority to establish additional charges for DNP. In fact, the FCC has categorically denied that it intended to defer such power to state authority. See AT & T Communications of the Mountain States, Inc. v. Public Service Commission of Wyoming, No. C85-0254-B, slip op. at 13 (D .Wyoming Nov. 25, 1985). The FCC’s construction of its own order is entitled to great deference by this Court. Id. at 13-14 (citing Diamond Intern. Corp. v. F.C.C., 627 F.2d 489 (D.C.Cir.1980)). Thus, the Court concludes that the MPUC does not have the authority, based upon the FCC’s general deferral of authority over DNP, to regulate charges on interstate carriers for DNP for nonpayment of the interstate portion of a bill.

III. INCLUSION OF DNP IN BILLING AND COLLECTION SERVICES

AT & T contends that the additional charge for DNP conflicts with the FCC Order dated May 15, 1984 establishing a 12.75 percent rate of return ceiling for billing and collection service. NET, on the other hand, argues that DNP is not included within the billing and collection services referred to in that Order. In support of its position, NET points to a NET tariff filed with the FCC which states that NET would provide, at the option of the interstate carrier, four general billing and collection services: recording service, billing service, billing analysis service, and billing information. NET FCC tariff No. 40, March 19, 1984, rec. 8, at p. 117. DNP was not included in the Tariff, and in fact the FCC later specifically directed that any reference to DNP for nonpayment of an interstate bill must be deleted from all tariffs filed with the FCC. Memorandum, Opinion and Order of April 27, 1984, par. 11, at p. 4. Therefore, NET argues, the FCC did not contemplate DNP to be within the billing and collection services provided to interstate carriers by NET and is not subject to the 12.75 percent rate of return limitation.

Although NET’s argument has merit, the FCC has indicated that it reads its May 15, 1984 Order differently. Specifically, the FCC has stated that it does consider DNP to be included in billing and collection services for purposes of the 12.75 percent rate of return ceiling. See AT & T Communications of the Mountain States, Inc. v. Public Service Commission of Wyoming, 625 F.Supp. 1204, 1209-10 (D.Wyo.1985). As noted earlier, the FCC’s interpretation of its own order is entitled to deference. Therefore, the Court concludes that DNP is covered by the FCC May 15, 1984 Order limiting charges for billing and collection services to 12.75 percent. The MPUC tariff allowing an additional charge for DNP results in a total charge for billing and collection services in excess of the 12.75 percent limitation. Consequently, it conflicts with the FCC regulation and is invalid under the Supremacy Clause of the United States Constitution. See e.g., National Ass’n of Regulatory Util. Comm’ns v. F.C.C., 746 F.2d 1492,1498 (D.C.Cir.1984).

In summary, the FCC has not delegated authority to the MPUC to impose a charge on interstate carriers for DNP for nonpayment of the interstate portion of a billing. Furthermore, any charge on interstate carriers for DNP is subject to the FCC’s Order limiting charges for billing and collection services to a 12.75 percent rate of return. Therefore, the MPUC tariff imposing an additional $.33 charge per billing statement for DNP is beyond the jurisdiction of the MPUC and is invalid under the Supremacy Clause of the United States Constitution. Accordingly, the Court GRANTS AT & T’s Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

So ORDERED. Judgment to ENTER.


author: KRAM, District Judge.

text:
    UNITED STATES of America, v. George Philip NELSON, Hak Soo Ghun a/k/a “Hak Soo Dickenson,” Thomas S. Galgano, and Robert Thomas Harvey, Defendants.
    No. 84 Cr. 293 (SWK).
    United States District Court, S.D. New York.
    Dec. 23, 1985.

      Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., by Frank Maas, Asst. U.S. Atty., New York City, ' for the U.S. of America.
    Kase & Druker, Garden City, N.Y., for George Philip Nelson and Hak Ghun; James 0. Druker, of counsel.
    Kramer, Levin, Nessen, Kamin & Frankel, New York City, for Robert T. Harvey; Gary P. Naftalis, Scott D. Heller, of counsel.
   MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

Currently before the Court are the motions of three of the defendants, Nelson, Ghun and Harvey, for a new trial pursuant to Fed.R.Crim.P. 33. The basis of these motions is that due to newly discovered evidence, and to facilitate the interests of justice, the Court should grant a new trial. For the reasons discussed below, the motions are DENIED.

DISCUSSION

The source of the instant dispute is newly discovered evidence. The newly discovered evidence is a small portion of a two page handwritten statement of Mr. Robert Simon. Simon was originally named as a codefendant of the movants in the indictment in the instant case. Simon pleaded guilty to 3 counts of this indictment on October 3, 1984. At that time, the Court ordered a pre-sentence report to be prepared, but no date was set for the sentencing. He made the written statement in question to the United States Probation Department on or about October 31, 1984. This statement was given by Simon for the preparation of his pre-sentence report.

On July 22, 1985, the movants were convicted of all of the counts submitted to the jury, after an eleven week trial. Simon was one of many witnesses who testified against the movants at trial.

In early September, 1985, the prosecutor reviewed Simon’s pre-sentence report, and hence his statement, for the first time. Observing an arguable inconsistency in Simon’s written statement and his trial testimony, the prosecutor promptly obtained the permission of the Court to unseal this portion of Simon’s pre-sentence report and to disclose it to the four defendants convicted at trial. It is undisputed that the prosecutor did not learn of Simon’s statement until long after the conclusion of the trial. See Affirmation of James 0. Druker, dated October 15, 1985, ÍÍ 8. The instant motions followed the disclosure of Simon’s written statement to the defendants.

To obtain a new trial on newly discovered evidence the following criteria must be met:

A new trial based on newly discovered evidence will be granted only if the following criteria are met: (1) the evidence must, indeed, be newly discovered, i.e., discovered after trial; (2) the evidence must be such that it could not, with due diligence, have been discovered prior to or during trial; (3) the evidence must be material to the issue of guilt, and not merely for the purpose of impeaching other testimony; (4) the evidence must not be cumulative; and (5) the evidence must be such that it would probably lead to acquittal.

United States v. Cruz, 602 F.Supp. 825, 828-829 (S.D.N.Y.1985) (citations omitted). An examination of these factors indicates that the movants have failed to meet their burden.

There is no dispute as to the first two factors. Simon’s statement was certainly discovered after trial and could not have been discovered by the movants prior to trial. However, the three remaining factors weigh heavily, and indeed fatally, against the movants’ application.

Simon’s statement must be placed in the proper context. The movants’ were convicted of all counts submitted to the jury after an eleven week trial. The prosecution’s proof was extensive and the evidence of the guilt of each of the movants was overwhelming. Four salesmen from Nelson, Ghun and Associates, Inc. (“NGA”) testified at trial. Numerous victims of the movants’ scheme also testified. The testimony of the NGA salesmen was fully corroborated by the victims’ testimony and by the overwhelming documentary evidence of the movants’ criminal conduct. Moreover, Simon was extensively cross-examined when he testified at trial.

Viewed against the foregoing, it is clear that each of the remaining three factors weighs against the movants. Simon’s newly discovered statement, on its face, is material only for impeachment purposes. As the movants were afforded a full opportunity to attempt to impeach Simon’s testimony at trial, and successfully did so on several occasions, Simon’s statement in the pre-sentence report is merely cumulative.

Even if the Court was to conclude, however, that these two factors did not weigh against the movants, the remaining factor alone would defeat their application. Simon’s newly discovered statement, if available at trial, would not have probably led to the acquittal of the movants. As noted earlier, the evidence of their extensive criminal conduct was overwhelming. And it was derived from numerous and diverse sources. Even if Simon’s statement had been effectively utilized to impeach a portion of his trial testimony, this most certainly would not have led to a different result for the movants in view of the many highly credible witnesses who testified at great length about the movants’ criminal activity. The testimony of these witnesses fully substantiated Simon’s trial testimony. In short, the movants attempt to place far greater significance on Simon’s newly discovered statement than is merited. Their characterization of Simon’s statement is in stark contrast to the reality of the evidence presented to the jury at trial. Accordingly, their motions for a new trial, pursuant to Fed.R.Crim.P. 33, is DENIED.

Harvey’s Rule 29 Motion

Harvey has also moved, pursuant to Fed. R.Crim.P. 29(c) and 33, to set aside the guilty verdict, to enter a judgment of acquittal, and to grant a new trial. The basis of this application is nothing more than a mere repetition of the objections and in limine motions lodged by Harvey’s counsel at trial. All of these were rejected at trial. They attain no synergystic meritorious quality when lumped together in a post-trial memorandum. Accordingly, they are once again rejected, and Harvey's motion is DENIED.

SO ORDERED.

      . Galgano has not joined in these motions.

      . Nelson has joined this application. Ghun and Galgano have neither joined this application nor filed a similar one. This application is also denied as to Nelson, and to the extent it may apply to Ghun and Galgano it is similarly denied.

      . One of the objections Harvey raised at trial, and repeats in his motion, regards evidence obtained pursuant to a forthwith grand jury subpoena. At trial, counsel presented two cases to the Court, and requested and obtained additional time to present additional cases to the Court. However, no additional cases were ever presented for the Court’s consideration.


author: LA PLATA, District Judge.

text:
    Betty CAMERON, Personal Representative of the Estate of Christopher Cameron, Deceased, Plaintiff, v. CITY OF PONTIAC, a Municipal corporation, Officers Michael McBride and Vernon Roberts, individually and in their capacities, jointly and severally, Defendants.
    No. 85-CV-71537-DT.
    United States District Court, E.D. Michigan, S.D.
    Dec. 27, 1985.
    Michael D. Burwell, Bloomfield Hills, Mich., for plaintiff.
    Gene A. Farber, Detroit, Mich., for defendants.
   OPINION AND ORDER OF DISMISSAL

LA PLATA, District Judge.

I. Introduction

In the recent case of Tennessee v. Garner, the United States Supreme Court held that a police officer is constitutionally prohibited from using deadly force when pursuing a felon who is neither armed nor dangerous. In the instant matter, this Court is called upon to determine whether a police officer violated a fleeing felon’s constitutional rights when he unsuccessfully used deadly force in his pursuit of the felon, but where the suspect suffered fatal injuries attributable to an intervening agent while he was attempting to escape.

II. Facts

On the morning of April 7, 1983, two uniformed City of Pontiac police officers, Michael McBride and Vernon Roberts, while on patrol duty, received a radio call directing them to investigate a burglary at a home located on 57 S. Eastway in the City of Pontiac. Upon arriving at the scene, the officers were greeted by a woman, who stated that two young black males had forcibly entered the house. Noticing two males running away from the back portion of the house, the officers, after identifying themselves and ordering the suspects to stop, each fired their weapons twice. One of the men, Christopher Cameron, continued to flee from the scene, with Officer Roberts in pursuit. During the chase, Roberts thrice fired his revolver unsuccessfully at Cameron. Soon thereafter, Cameron climbed a fence and ran toward a well-traveled highway, where he suffered fatal injuries when struck by a motor vehicle.

III. Plaintiffs Complaint

On April 8, 1985, Betty Cameron, the personal representative of her deceased son’s estate, filed a civil rights action, under 42 U.S.C. § 1983, against the two police officers and the City of Pontiac. Plaintiff essentially alleged that the police officers used excessive force and committed an unlawful seizure by using deadly force while pursuing the decedent.

Conceding that the decedent was unarmed and not a danger to the community, for purposes of their Motion for Summary Judgment, Defendants argue that Plaintiff failed to state a cause of action upon which relief can be granted. Defendants assert that a fleeing felon cannot collect damages, even when the pursuing officers attempted to use deadly force to apprehend him, where he was injured or killed by an intervening danger encountered along his escape attempt.

IV. Discussion of Tennessee v. Garner

In Tennessee v. Garner, supra, a Memphis, Tennessee, police officer fatally shot an unarmed, fleeing burglary suspect. The decedent’s estate instituted a civil rights action in the federal court. In applying deadly force, the police officer complied with a state statute which prescribed that an officer may use any necessary measures to effectuate the arrest of a criminal suspect, as long as the officer gave notice of his intent to arrest the suspect. Writing for the majority, Justice White, in affirming the Sixth Circuit Court of Appeals, held that the Fourth Amendment to the United States Constitution proscribes the use of deadly force by a police officer against an apparently unarmed, nondangerous fleeing suspect. The Court enunciated the proposition that deadly force may be used only when the officer has probable cause to believe that the fleeing suspect presents a threat of death or serious physical harm to the officer or third parties.

In a blistering dissent, Justice O’Connor, who was joined by Justice Rehnquist and Chief Justice Burger, stated that the opinion of the majority was circumscribed to instances where an officer was successful in his use of lethal force to apprehend a suspect:

Although it is unclear from the language of the opinion, I assume that the majority intends the word “use” to include only those circumstances in which the suspect is actually apprehended. Absent apprehension of the suspect, there is no “seizure” for Fourth Amendment purposes. I doubt that the Court intends to allow criminal suspects who successfully escape to return later with § 1983 claims against officers who used, albeit unsuccessfully, deadly force in their futile attempts to capture the fleeing suspect. The Court’s opinion, despite its broad language, actually decides only that the shooting of a fleeing burglary suspect who was in fact neither armed nor dangerous can support a § 1983 action.

V. Analysis

In analyzing the instant Motion, this Court, viewing the factual setting in a light favorable to Plaintiff, assumes that the decedent was unarmed and undangerous at the time the officers attempted to apprehend him. Plaintiff does not contest that the two officers had probable cause to believe that the decedent was involved in the breaking and entering of the occupied dwelling.

Subscribing to the view taken by Justice O’Connor in her dissenting opinion, this Court finds that the use of deadly force by a police officer in pursuing an apparently unarmed, nondangerous felony suspect does not, ipso facto, amount to a constitutional violation of the suspect’s Fourth Amendment rights. While Officer Roberts fired his weapon as many as five times at the decedent, he did not seize him, since each time he used the weapon he either fired a warning shot or was errant in his aim. The Court concludes that the manner in which Christopher Cameron met his death was completely independent of the application of deadly force by Officer Roberts; the moving vehicle by which Cameron was struck was a distinct, unrelated, unexpected, superseding, but efficient medium. It was not reasonably forseeable to Officer Roberts that while attempting to escape from a lawful arrest, Cameron would leap over a fence, run on to a frequently traveled highway, and be fatally struck by a motor vehicle. It would be unfair, and possibly absurd, to permit a fleeing felon, uninjured by a pursuing police officer, to benefit from his unwise choice of an escape route.

VI. Conclusion

As a matter of law, the Court concludes that Plaintiff failed to state a claim upon which relief can be granted. While the majority’s opinion in Garner, supra, does not address the factual setting herein, this Court declines to permit a fleeing felon to recover under the attendant circumstances. The decedent was neither apprehended nor seized as a result of Officer Roberts’ use of lethal force. Therefore, the Court, pursuant to Fed.R.Civ.P. 12(b)(6), DISMISSES the action.

      .—U.S.-, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).

      . Gamer v. Memphis Police Department, 710 F.2d 240 (6th Cir.1983).

      . Gamer at 105 S.Ct. 1709.

      . Id.

      . Id. at 1712.

      . In Restatement (Second) of Torts, § 440, a superseding cause is defined as: an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.

      . For a discussion of the general rule that an intervening, independent, and efficient cause severs whatever connection exists between a plaintiff's injuries and a defendant’s negligence, see Fowles v. Briggs, 116 Mich. 425, 74 N.W. 1046 (1898), W. Prosser and W.P. Keeton, The Law of Torts, § 44 at 311-315 (5th ed. 1984); Dunnivant v. Nafe, 206 Tenn. 458, 334 S.W.2d 717 (1960).


author: WEXLER, District Judge

text:
    Margaret PENNY, Plaintiff, v. Margaret HECKLER, Secretary of the Department of Health and Human Services of the United States, Defendant.
    No. CV 82-1100.
    United States District Court, E.D. New York.
    Jan. 2, 1986.

      Binder & Binder by Charles E. Binder, Hauppauge, N.Y., for plaintiff.
    Raymond J. Dearie, U.S. Atty. by Kiyo A. Matsumoto, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.
   WEXLER, District Judge

Plaintiff Margaret Penny appealed to this Court from a decision of the Secretary of Health and Human Services (Secretary) terminating plaintiff’s Social Security disability benefits. 42 U.S.C. § 405(g). The Court reversed the Secretary’s determination and awarded benefits because the Secretary failed to apply the medical improvement standard, DeLeon v. Secretary of Health and Human Services, 734 F.2d 930 (2d Cir.1984), and there was no evidence that Mrs. Penny’s condition had improved. Moreover, the Court concluded that under a de novo review standard there was not substantial evidence to support a determination that claimant could perform sedentary work. Penny v. Heckler, 587 F.Supp. 983, 985 (E.D.N.Y.1984).

Plaintiff now seeks an award of attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and under 42 U.S.C. § 406(b)(1). Section 406(b)(1) allows an award of counsel fees from past due benefits of up to twenty-five percent of that amount. The government opposes the award of fees under EAJA and the amount of fees requested under the § 406(b)(1) provision.

Counsel for plaintiff submitted a short motion under the EAJA for twenty-eight and one-quarter hours of work at the $75.00 per hour rate, and did not argue for a higher rate in view of counsel’s expertise. Counsel also submitted a motion for an award of the full twenty-five percent of Mrs. Penny’s past due benefits based on a contingency fee agreement she signed. Counsel did not know the amount of past due benefits at the time he made the motion. In essence, however, counsel seeks to have the Court approve and enforce the flat twenty-five percent fee agreement through the fee award provision of § 406(b)(1). Mrs. Penny’s past due benefits amount to $23,764.00, and the requested contingency fee would amount to $7,691.00, or $272.25 an hour for twenty-eight and one-quarter hours. Under the EAJA the fee would amount to $2,118.75 for twenty-eight and one-quarter hours at $75.00 an hour. Counsel proposes to use any award under the EAJA to off-set the contingency fee award, but apparently will not take a full award under EAJA in full satisfaction of fees owing for work performed. While most private attorneys who seek their fees under the EAJA ask for an award under § 406(b)(1) in the alternative, counsel here asks for an award under the EAJA to lighten the burden on claimant of the twenty-five percent contingency fee.

I.

The Equal Access to Justice Act, 28 U.S.C. § 2412(d), shifts the litigation cost of opposing a federal agency to the government. In order to secure an award of fees under the EAJA, the claimant must be a prevailing party in the action and the government’s position must not be substantially justified. Clearly, Mrs. Penny is the prevailing party in this action, as the Court reversed the Secretary and awarded benefits. The issue, then, is whether the government’s position on her termination was substantially justified. As a rule, where the government espouses an erroneous legal standard, its position is not substantially justified. Zimmerman v. Schweiker, 575 F.Supp. 1436, 1441 (E.D.N.Y.1983); Ceglia v. Schweiker, 566 F.Supp. 118, 123 (E.D.N.Y.1983). While the Secretary took an erroneous legal position by failing to apply the medical improvement standard, it is unclear whether the position was unreasonable, and hence not substantially justified, from the outset of the termination proceedings. Soto-Valentin v. Heckler, 619 F.Supp. 627, 630 (E.D.N.Y.1985). Because the Second Circuit did not uphold the medical improvement standard until one month before the Court decided Mrs. Penny’s appeal, it is arguable that the government’s position was reasonable. Id. On the other hand, the Second Circuit did award fees under the EAJA when it first upheld the medical improvement standard in DeLeon v. Secretary, 734 F.2d at 938.

However that may be, the Court need not decide the issue at this time. In January 1983, the Secretary issued Social Security Ruling 83-10 (Jan.1983), declaring that sedentary work generally requires the capacity to sit for six hours out of an eight hour day. The evidence on the record was that Mrs. Penny could only sustain four hours of sitting in an eight hour day. The government submitted its motion for judgment on the pleadings in August 1983, some seven months after Ruling 83-10, but refused to alter its position that Mrs. Penny could perform sedentary work. The Court concludes that that position did not have a reasonable basis in fact or law. Ceglia v. Schweiker, 566 F.Supp. at 123. Accordingly, an award of fees under the EAJA is appropriate.

Nevertheless, under New York State Assoc, for Retarded Children v. Carey plaintiff must submit contemporaneous time records in order to recover fees pursuant to § 2412(d) for work performed after June 15, 1983, the date of that decision. 711 F.2d 1136, 1148 (2d Cir.1983). Plaintiff has submitted reconstructed records, and on inquiry from the Court counsel stated no contemporaneous time records exist. Accordingly, the award of fees under the EAJA is limited to the two and one-half hours of work performed before June 15, 1983.

II.

There remains the award of fees pursuant to 42 U.S.C. § 406(b)(1). The Court does not consider the section to be a means of enforcing a contingency fee agreement. Social Security disability claimants are frequently impoverished. Congress and the courts recognize this fact and provide several means to allow claimants to pursue their right to appeal. The EAJA and § 406(b)(1) provide a reasonable guarantee that a lawyer will collect fees if appeal is successful. In addition, this Court allows claimants to proceed pro se and receive full consideration of their cases without filing more than the initial pleading. The plaintiff who has commenced an action pro se can also submit an affidavit showing his impoverished condition and secure appointment of pro bono counsel. The Social Security claimant, then, has more means of retaining an attorney without having to pay fees until the close of litigation, if at all, than any other civil litigant. Concomitantly, private lawyers who represent these clients are assured they will receive fees on a successful case.

A contingency fee agreement, therefore, is not strictly necessary. Moreover, considering that the client is often poor and a little desperate, such an agreement may be reprehensible, as it can only serve to increase the fee award to the full twenty-five percent of benefits owing at the expense of the claimant. Modica v. Secretary of Health and Human Services, 581 F.Supp. 39, 40 (E.D.N.Y.1984).

Whatever weight the court gives the contingency fee agreement, it remains for the Court to fix the fee under § 406(b)(1). McKittrick v. Gardner, 378 F.2d 872 (4th Cir.1967). A fee that amounts to $272.25 an hour is not reasonable under the circumstances of this case. The attorney who represented plaintiff is experienced and expert in the disability field. Nevertheless, the case was not novel and as a result of his skills, counsel made quick work of it. Award of the full twenty-five percent of past due benefits, amounting to $7,691.00, is not appropriate or reasonable. Nonetheless, in view of counsel’s great skill and experience in this field, the Court will award fees in the amount of $125.00 an hour under both the EAJA and § 406(b)(1).

III.

The Court concludes that plaintiff is entitled to fees under the EAJA, 28 U.S.C. § 2412(d), for the two and one-half hours of work performed by counsel before June 15, 1983 at a rate of $125.00 an hour, to total $312.50. For the remaining twenty-five and three-quarters hours work performed, fees are awarded under 42 U.S.C. § 406(b)(1) at a rate of $125.00, to total $3,218.75. Attorney for the plaintiff is to receive only these fees for his representation in this case and shall not seek to recover more from the plaintiff based on the contingency fee agreement.

The Clerk of the Court is hereby directed to enter an award of attorney's fees pursuant to the EAJA, 28 U.S.C. § 2412(d), in the amount of .$312.50. The Clerk is further directed to enter an award of attorney’s fees from past due benefits pursuant to 42 U.S.C. § 406(b)(1) in the amount of $3,218.75.

SO ORDERED.


author: HADEN, Chief Judge.

text:
    Mary Jane MEANS, as Administratrix & Personal Representative of the Estates of Melody Joan Means and Justin Edward Gandy v. G & C TOWING, INC.; Gregory T. Watson; Gatx Leasing Corporation; and John E. Gandy.
    Civ. A. No. 2:85-1402.
    United States District Court, S.D. West Virginia, Charleston Division.
    Jan. 2, 1986.
    Thomas H. McCorkle and James Brown, Arthur T. Ciccarello and John A. Rollins, Charleston, W.Va., for plaintiff.
    Thomas W. Pettit and Virginia C. Col-burn, Vinson, Meek, Lewis and Pettit, Huntington, W.Va., for defendants.
   MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

This action comes before the Court on a motion to remand. The Plaintiff, as an administrator of two estates, filed suit in the Circuit Court of Kanawha County, West Virginia. A corporation and three individuals were named as Defendants. On November 4, 1985, two of the Defendants, G & C Towing, Inc. and Gregory T. Watson, filed their petition to remove the action to this Court. Because the Plaintiff filed an amended complaint in state court at approximately the time the removal petition was being prepared, the aforenamed Defendants filed an amended removal petition on November 14, 1985. The Plaintiff filed her motion to remand on November 13, 1985.

The parties, in their respective memoranda on the motion to remand, have argued whether this maritime action may properly be removed to a federal forum. Their arguments are generally well reasoned and the authority relied upon is apposite; however, the parties appear to have missed a procedural defect in the removal procedure. As mentioned, Defendants G & C Towing, Inc. and Gregory T. Watson have joined together in removing this case to this Court. The other two named Defendants, Geraldine Bosworth and John E. Gandy, however, have not joined in the petition for removal. It has long been established that, in the ordinary case, all defendants must join in the petition for removal. Chicago, Rock Island and Pacific Railway Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900).

There are instances when less than all of the Defendants are allowed to remove an action from state court. A fictitious defendant need not join the removal. Perpetual Building & Loan Association v. Series Directors of Equitable Building & Loan Association, Series No. 52, 217 F.2d 1 (4th Cir.1954) cert. denied, 349 U.S. 911, 75 S.Ct. 599, 99 L.Ed. 1246 (1955). A party to a “separable controversy” may remove its portion to the federal system. Id. A Defendant who is a federal officer can remove the action even though the other Defendants do not consent. Ely Valley Mines, Inc. v. Hartford Accident & Indemnity Co., 644 F.2d 1310 (9th Cir.1981). Formal or nominal parties do not have to join the removal. Tri-Cities Newspapers, Inc. v. Tri-Cities Pressmen, Local 349, 427 F.2d 325 (5th Cir.1970). Similarly, unserved Defendants are excepted from the general rule. Howard v. George, 395 F.Supp. 1079 (S.D.Ohio 1975).

The removing Defendants here do not state in their petition or memoranda that the other Defendants are nominal or fictitous. From the facts of the record, the converse would appear to be true; they are the owners of the two vessels which collided. One of the Defendants, Gandy, was at the controls of his boat when the accident occurred. It is abundantly clear that there exists no separable controversy and that a federal officer is not involved. The record does not reflect whether Defendants Bosworth and Gandy were served with process. One court has held, however, that “such an allegation [of nonserviee] is a necessary part of the petition for removal when all Defendants do not join in it.” Howard, 395 F.Supp. at 1081. Neither the petition for removal nor the amended petition allege that Bosworth and Gandy were not served in the state proceeding. Hence, it appears that the facts of this case do not fall within any of the exceptions to the “all defendants” rule.

The Court is not troubled by its sua sponte discovery of this defeat. Other courts have held that a federal court may remand a case on its own motion. Manas y Pineiro v. Chase Manhattan Bank, N.A., 443 F.Supp. 418 (S.D.N.Y.1978); Howard, 395 F.Supp. 1079. Those particular cases, moreover, involve situations where the plaintiff had not even moved to remand. Here, the Plaintiff has made such a motion. The procedural defect was simply not argued. In this vein, it would seem absurd to hold that the Plaintiff has waived her objection to the defect. She has strenuously pressed her argument that the case should be returned to state court. That a favorable point was overlooked should be of no moment.

Aside from the procedural defect, the Court alternatively holds that this action was not removable from state court because of the “saving to suitors” clause found in 28 U.S.C. § 1333.

The “saving to suitors” clause provides as follows:

“The district courts shall have original jurisdiction, exclusive of the courts of the states, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”

28 U.S.C. § 1333. This clause allows a plaintiff to bring a maritime matter into state court as a regular civil action notwithstanding the “exclusive” jurisdiction of the federal courts. Such an action—it has been held—can only be removed to federal court if there is an independent jurisdictional ground such as diversity or some other federal subject matter jurisdiction basis. Buckley v. Brent Towing Co., Inc., 412 F.Supp. 382 (N.D.Miss.1976); see also Hite v. Norwegian Caribbean Lines, 551 F.Supp. 390 (E.D.Mich.1982) and Harbor Towing Corp. v. Wilson, 470 F.Supp. 740 (D.Md.1979). There is not complete diversity of citizenship here. Furthermore, the Court finds unavailing the Defendants’ argument that this is an action arising under the laws of the United States. That there are federal statutes which may establish standards and levels of care does not take this case out of the rule pertaining to state “saving to suitors” actions. It must be kept in mind that the law applied in such a case will for the most part be of federal origin. Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir.1981); see also Sanders v. Richmond, 579 S.W.2d 401 (Mo.App.1979).

Any suggestion that Romero v. International Terminal Operating Co., 858 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959) was overruled sub silentio by State of Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972) is rejected. Romero continues to stand for the proposition that federal common law in an admiralty or maritime case is not a separate basis of federal question jurisdiction. See generally Wright, Miller & Cooper, Federal Practice and Procedure, Jurisdiction, § 3673.

For the foregoing reasons it is ORDERED, pursuant to 28 U.S.C. § 1447(c), that this action be remanded to the Circuit Court of Kanawha County, West Virginia. The Defendants, G & C Towing, Inc. and Gregory T. Watson, shall pay all costs and disbursements incurred by reason of these removal proceedings. See 28 • U.S.C. §§ 1446(d) and 1447(c). Because this action is being remanded, the Court declines to rule on the Plaintiffs recently filed motion to compel.

The Clerk is directed to send a certified copy of this Memorandum Opinion and Order to counsel of record and to the Circuit Clerk of Kanawha County, West Virginia.