author: CURTIN, Chief Judge.

text:
    UNITED STATES of America, v. Carmen GALLO and Alfred Melchiorre, Defendants.
    No. CR-84-50C.
    United States District Court, W.D. New York.
    Dec. 10, 1984.

      Salvatore R. Martoche, U.S. Atty., Buffalo, N.Y. (Kathleen M. Mehltretter, Asst. U.S. Atty., Buffalo, N.Y., of counsel), for United States of America.
    Lorenzo & Pieri, Buffalo, N.Y. (John Patrick Pieri, Buffalo, N.Y., of counsel), for defendant Gallo.
    Boreanaz, Baker & Humann, Buffalo, N.Y. (Patrick J. Baker, Buffalo, N.Y., of counsel), for defendant Melchiorre.
   CURTIN, Chief Judge.

The alleged distribution of video games said to infringe upon valid copyrights is at issue in this case. Several motions are pending, many of which parallel motions made in another video.case, United States v. Steerwell Corp., et al., CR-84-51C. A decision and order denying the motions in that case was issued November 16, 1984. There are, however, significant differences between the two cases.

In the instant case, defendants are charged with conspiracy to violate 17 U.S.C. § 506(a) and 18 U.S.C. § 2319(b)(2)(B), relating to copyright infringement (Count I of the indictment); substantive copyright infringement (Counts II — V); importation of merchandise by means of false statements in violation of 18 U.S.C. § 542 (Counts VI-VIII); and smuggling goods into the United States in violation of 18 U.S.C. § 545 (Counts IX and X).

Defendants have moved to dismiss all counts of the indictment and to suppress evidence seized pursuant to a warrant. For the reasons discussed below, the motions are denied.

I. Motion to Dismiss Counts I-V

Defendants claim that Counts I-V of the indictment do not properly allege violations of 17 U.S.C. § 506(a) and ' 18 U.S.C.' § 2319(b)(2)(B). Section 506 sets forth the crime of copyright infringement; section 2319(b)(2)(B) provides for a maximum penalty of two years’ imprisonment and a $250,000 fine for violations of section 506(a) if the offense

involves the reproduction or distribution, during any one-hundred-and eighty-day period, of more than seven but less than sixty-five copies infringing the copyright in one or more ... audiovisual works.

(Emphasis added.)

Counts II-V clearly charge that defendants did “distribute to the public for sale, perform publicly and display publicly ... more than seven but less than sixty-five copies infringing the copyrights ...” (Indictment, p. 4). Count I charges a conspiracy to do this. Defendants argue that public performance or display does not constitute distribution. They claim that only three incidents of distribution are charged in the indictment (paragraph 8 of the overt acts alleges three sales of infringing boards), not the statutorily required minimum of seven.

As was stated by this court in Steerwell, it is not necessary to reach a legal conclusion at this time as to the effect of the charges of performance and display. Although the United States Court of Appeals for the Ninth Circuit has concluded that mere performance is not the equivalent of publication or distribution, that court did not hold that performance and display are immaterial to the question of distribution. American Vitagraph, Inc. v. Levy, 659 F.2d 1023 (9th Cir.1981).

The indictment has properly charged distribution. Whether the government can prove that distribution occurred and that it involved the requisite number of copies is a question for trial. The motion to dismiss Counts I-V is denied.

II. Motion to Dismiss Counts VI-VIII

Defendants attack Counts VI-VIII on two theories. The first is disposed of readily. Defendants allege that there was insufficient evidence before the grand jury to support a charge of introducing goods into the United States by means of a false statement (18 U.S.C. § 542). They fail, however, to offer any support for this allegation and so do not overcome the presumption of regularity which attaches to a grand jury indictment. United States v. Morano, 697 F.2d 923 (11th Cir.1983).

Defendants’ second ground of attack on Counts VI-VIII merits closer consideration. Defendants maintain that, under section 542, the goods must have entered the country “by means of” the false statement; that without the statement, the goods would not have been admitted. Defendants rely on United States v. Teraoka, 669 F.2d 577 (9th Cir.1982), for this proposition.

The government asserts that, under section 542, materiality to the importation process is all that is required. It cites United States v. Ven-Fuel, Inc., 602 F.2d 747 (5th Cir.1979), noting that the court in that case read a materiality requirement into the statute. However, that court seemed to read section 542 in the same light as did the court in Teraoka, 669 F.2d 577. The Ven-Fuel court concluded that there must be a “logical nexus” between the false statement and the “actual importation.” Id. at 753 (emphasis added).

In a recent Second Circuit decision, the court briefly discussed section 542. United States v. Meldish, 722 F.2d 26 (1983), cert. denied, — U.S. -, 104 S.Ct. 1597, 80 L.Ed.2d 128 (1984). The court noted that, under section 542, the attempt to import goods must be “by means of” the false statement. Citing Teraoka, the Court stated: “Section 542 concerns itself only with whether a false statement was made to effect or attempt to effect the entry of the goods in question.” Id. at 28 (emphasis added).

In this case, defendants are specifically charged with three counts of importing merchandise by means of a false consumption entry form. The question in this case is whether the merchandise would have been admitted in any event, thereby showing that the false statements were not material to the entry of the games.

At oral argument, the government admitted that the game boards probably would have been admitted even if defendants had given the correct answers. Yet, it claims to have evidence showing that, had defendants been truthful about the value and purpose of the goods, further investigation would have ensued, eventually revealing the allegedly infringing nature of the boards. This is an issue for trial.

It should be remembered, however, that the question of materiality, while resting on a factual showing, is ultimately a legal issue. Defendants’ motion to dismiss is denied for the present, but defendants may raise it again at trial.

III. Motion to Dismiss Counts IX and X

Defendant Melchiorre seeks dismissal of Counts IX and X, charging him with a violation of 18 U.S.C. § 545. His theory is that since section 545 speaks in terms of smuggling “goods” or “merchandise,” it does not apply to the facts of this case. Defendant relies on United States v. Smith, 686 F.2d 234 (5th Cir.1982), in which the court held that the words, “goods, wares or merchandise,” as used in 18 U.S.C. § 2314, were not meant to describe incorporeal privileges, such as copyrights. Section 2314 deals with interstate transportation of stolen goods.

The law of this circuit is that intangible rights can be the basis of a prosecution under 18 U.S.C. § 2314. United States v. Bottone, 365 F.2d 389 (2d Cir. 1965). In similar fashion, intangible rights can be the basis of a prosecution under section 545. The motion to dismiss Counts IX and X is denied.

IV. Motion to Dismiss for Lack of Notice

Defendant Gallo moves to dismiss the indictment for lack of sufficient notice that video games could be subject to the copyright laws. Defendant claims that this insufficient notice makes it “improbable” that he was willful, a requisite element of all crimes charged in the indictment.

As defendant Gallo points out, the Second Circuit first explicitly held that the sequence of sounds and images of a video game could qualify for copyright protection in Stern Electronics, Inc. v. Kaufman, 669 F.2d 852. The case was decided January 20, 1982. The indictment covers events occurring after that date, between approximately June 1982 and January 1983.

Moreover, as was noted by this court in the Steerwell decision, the law need not be absolutely settled to put a defendant on notice. The fact that intangibles could be copyrighted has been known since the decision in United States v. Bottone, 365 F.2d 389, in 1966. Defendants were on notice that video games were capable of being copyrighted. The question of their willfulness is a matter for trial. Defendant’s motion to dismiss the indictment is denied.

V Motion for Suppression of Evidence Seized Pursuant to a Warrant

Defendants move to suppress evidence seized pursuant to four search warrants. Three authorized the searches of 67-69 Allen Street, 79 Allen Street, and 177 Lancaster Avenue and were issued January 20, 1983. The warrant authorizing the search of the garage at 177 Lancaster Avenue was issued February 16, 1983. Defendants claim that the issuance of these warrants was not based on probable cause and that the warrants did not describe with particularity what was to be seized.

All warrants issued on the strength of two affidavits by John P. Culhane, Jr., a special agent of the Federal Bureau of Investigation. The first, covering three of the four sites, was signed on January 20, 1983; the second was signed February 16, 1983. The objects of the warrants resulting from these affidavits were audiovisual games, keys to these games, computer programs, and business records covering games substantially similar or identical to copyrighted video games. The warrant focused on games believed to infringe on the following copyrighted games: PAC-MAN, MS. PAC-MAN, SUPER PAC-MAN, DONKEY-KONG, DONKEY-KONG JUNIOR, PENGO, and FROGGER (January affidavit, p. 15).

The government argues that the recently decided opinion of the Supreme Court controls. United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). There, the Court limited the scope of the exclusionary rule, holding that it does not apply to suppress evidence seized in good faith reliance on a search warrant. However, as this court stated in Steerwell, trial courts should not avoid making a determination on probable cause before turning to the question of good faith reliance on a search warrant.

In this case, as in Steerwell, the affidavits relied partially on the opinions of investigators employed by the firms whose copyrights were allegedly infringed. A game with "Superstar” on the marquee was examined by Jon Pederson, Technical Services Manager from Nintendo of America, Inc., which holds the DONKEY-KONG and the DONKEY-KONG JUNIOR copyrights. Pederson indicated that the “electronics” of the game were exactly the same as the electronics of DONKEY-KONG JUNIOR (January affidavit, p. 9).

Robert Landy examined another game with “Superstar” on the marquee. Landy is an investigator for Bally-Midway, Inc., holder of the PAC-MAN series of copyrights. He concluded merely that the “audio-visual display of this video game was a copyright infringement on Bally-Midway’s ‘SUPER PAC-MAN.’ ” (January affidavit, p. 10).

Finally, agents contacted a Robert Crane, an attorney representing Sega Enterprises, Inc., which owns the copyright on PENGO. Mr. Crane did not even examine the game. He heard the “play” of the game described over the telephone by agents and concluded that it infringed on PENGO (January affidavit, p. 10).

As was noted in Steerwell, the possible bias on the part of these employees of firms holding copyrights may hurt their credibility before a jury, but the magistrate was entitled to accept their conclusions. However, the government is again reminded that the magistrate’s inquiry into probable cause would be significantly aided if the agents’ affidavits contained more detailed comparisons of protected games and infringing games. The details need not be technical: a finding of substantial similarity is based on the view of a lay person. Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir.1966).

Fortunately, in this case, Agent Culhane’s affidavit did provide more details for two of the games, DONKEY-KONG and PAC-MAN. While at 69 Allen Street, Agent Culhane played a game “identical in sound and video” to each of these games which he states he has played in the past (January affidavit, p. 5).

Additionally, Agent Culhane observed approximately 25 games with the label “Super Star” on the front. Small pieces of masking tape were attached to several machines with names such as “Puck-man,” “Donky-Kong” and “Pengo” written on them. Agent Culhane also saw stickers reading “Made in Taiwan” on these machines. At a later date, Agent Culhane observed boxes large enough to hold video games at 79 Allen Street. These boxes were stamped “Made in Taiwan.” An employee of defendant Gallo told Agent Culhane that games are stored there (January affidavit, p. 8). Defendant Gallo also told Agent Culhane that he had a game at his home, which is at 177 Lancaster Avenue (January affidavit, p. 11).

Finally, defendant Gallo made statements which serve to bolster the magistrate’s finding of probable cause. He advised Agent Culhane about how to avoid having machines he might purchase confiscated by the authorities (January affidavit, pp. 6-7).

Defendant Gallo told Culhane he has 65 games, 10 of which are protected by copyrights. These are the newer games, such as SUPER PAC-MAN. Culhane was warned that if he put one of these “patented” games into his arcade immediately, it would be confiscated. He was advised to first buy a game not subject to any copyrights and therefore available for everyone’s use. This way, defendant Gallo said, he would avoid being cheeked by the authorities. Later, Culhane could then substitute a “patented” game.

It is difficult to establish probable cause that a criminal copyright violation occurred, because it is not illegal to possess something which comes close to being a copyright infringement. United States v. Bily, 406 F.Supp. 726 (E.D.Pa. 1975). The games in this case must be substantially similar to games protected by copyrights. Substantial similarity is established “when an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Ideal Toy Corp. v. Fab-Lu, Ltd., 360 F.2d at 1022.

The court finds there was probable cause to believe defendants possessed and sold video games which infringed on the copyrights of the games listed in the indictment. Therefore, the court finds that there was probable cause for the issuance of the three warrants based on the January 20, 1983, affidavit of Agent Culhane. There was also probable cause for the warrant authorizing the search of the garage at 177 Lancaster, based on Culhane’s February 16,1983, affidavit. That later affidavit encompassed the facts put forth in the January affidavit. It also stated that only 17 suspect machines were found in the first search, leaving 23 unaccounted for. A named informant told agents more were stored in the garage at 177 Lancaster Avenue (February affidavit, pp. 13-15).

Before moving to defendants’ next claim, it should be noted that they also urge there was no probable cause to believe the games were infringing, because the affidavits failed to state that there was no “first sale.” Under the first sale doctrine, a copyright owner loses his protection as to a particular copy once he gives up title to that copy. No subsequent purchases of that particular copy will infringe the copyright. But this doctrine only applies to copies lawfully obtained. United States v. Moore, 604 F.2d 1228 (9th Cir. 1979). The affidavits never explicitly state that defendants are not bona fide distributors, but the whole theory of the affidavits is clearly that the copies were unauthorized.

Defendants’ motion to suppress evidence seized pursuant to the search warrants is denied.

V. Motion to Suppress Evidence Found in Defendant Gallo’s Wallet

Defendant Gallo moves to suppress items taken from his wallet at the time of his arrest. At the time the search warrants issued on January 20, 1983, an arrest warrant was issued for defendant Gallo. The search of his wallet was authorized as a result of the arrest. United States v. McEachern, 675 F.2d 618 (4th Cir.1982). The motion is denied.

Defendants’ motions to dismiss the indictment and for suppression of evidence are denied.

So ordered.

      . In its brief at page 7, the United States Attorney notes that copyrights alleged to have been violated were duly registered on the dates listed in Counts II through V. However, the court notes that one of the games, PENGO, which forms the basis of Count V, was not duly registered until November 2, 1982 (Registration number 152-539, Sega Enterprises). The infringement charged in Counts II-V was said to have begun on October 6, 1982, and continued until January 20, 1983. The distribution charged in Counts II-V was said to have occurred for a 180-day period, ending January 20, 1983. Of course, there can be no infringement or illegal distribution until a game is protected by a copyright. In the case of PENGO, the government must prove enough instances of distribution occurring after its November 2, 1982, registration date to fulfill the statutory requirements. Evidence as to activities involving PENGO before the registration date could perhaps be relevant to other matters, but not to show copyright infringement or wrongful distribution of PENGO.


source: Caselaw Access Project

author: BIGGERS, District Judge.

license: Public Domain

text:
    Jesse W. BRYANT, Jr., Plaintiff, v. W.E. NEALEY, Jr. and Piedmont Carolina Transportation, Inc., Defendants.
    No. EC82-259-NB-O.
    United States District Court, N.D. Mississippi, E.D.
    Dec. 10, 1984.
    Dolton W. McAlpin, James M. Ward, Starkville, for plaintiff.
    Richard D. Gamblin, Jackson, for defendants.
   MEMORANDUM ORDER

BIGGERS, District Judge.

This cause is before the court on the motion of defendant W.E. Nealey, Jr. for summary judgment. Having received and considered the memoranda filed by both parties, the court is now ready to rule on this motion.

For the purposes of ruling on this motion, the court accepts the following facts as true and uncontested. In 1981 the defendant W.E. Nealey, Jr., a truck driver for Piedmont Carolina Transportation, Inc., was instructed to haul a load of furniture from North Carolina to Texas. While en-route to Texas, Nealey stopped in Mobile, Alabama, and picked up the plaintiff Jesse Bryant, Jr., who was hitchhiking to Pasadena, Texas, in order to find employment. Bryant and Nealey soon struck up a friendship. Nealey bought meals for Bryant and let him sleep in the cab of the truck in exchange for his help unloading furniture. After a telephone conversation with his boss, Nealey stated that he might be able to find work for Bryant in North Carolina at Piedmont Carolina Transportation, Inc. Consequently, Bryant decided to ride back to North Carolina with Nealey, rather than get off the truck in Texas.

Somewhere around Eupora, Mississippi, a tire on the truck’s drive axle blew out. Because he was unable to buy the correct tire at Eupora, Nealey elected to “single down” the truck and drive it to Columbus, Mississippi, where he could buy the correct tire with a courtesy card. As the court understands it, the process of “singling down” involves removing the damaged tire from the twin tire assembly on the axle so that the damaged tire will not build up heat and injure the remaining, inflated tire. Although Bryant realized that it was dangerous driving the truck while it was singled down, he chose to ride with Nealey rather than abandon the possibility of getting a job with Piedmont in North Carolina. About twelve miles out of Eupora, the remaining tire on the drive axle blew out, and the truck turned over on its side. Bryant suffered a fractured femur as a result of the accident.

Bryant contends that Nealey was negligent because he failed to keep the truck under control and operated the truck in a reckless manner. Originally, Bryant sought to hold Nealey’s employer, Piedmont Carolina Transportation, Inc., liable along with Nealey. However, Nealey is presently the only defendant in this suit because Bryant never served Piedmont Carolina Transportation, Inc. with adequate process. Nealey argues that he is entitled to summary judgment in this cause because Bryant assumed the risk of his injuries.

In Elias v. New Laurel Radio Station, 245 Miss. 170, 146 So.2d 558, 561 (1962) the court set out the elements of the assumption of the risk doctrine as follows: “(1) knowledge on the part of the injured-party of a condition inconsistent with his safety; (2) appreciation by the injured party of the danger in the condition; and (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition.” See also Alexander v. Conveyors & Dumpers, Inc., 731 F.2d 1221, 1223 (5th Cir.1984); McLeod v. Whitten, 413 So.2d 1020, 1022 (Miss.1982). The assumption of the risk defense is governed by the subjective standard rather than the objective, reasonable man standard and is “a jury issue in all but the clearest cases,” McGowan v. St. Regis Paper Co., Inc., 419 F.Supp. 742, 746 (S.D.Miss.1976); Daves v. Reed, 222 So.2d 411, 414 (Miss.1969).

In the instant case it is undisputed that Bryant knew the possible consequences of riding in the truck while it was singled down. In his deposition, Bryant admitted several times that he knew the situation was dangerous because of his past experience in the trucking business. Deposition of Jesse W. Bryant at 59-60. Further, in a statement dated January 18, 1982, Bryant stated: “I knew we were riding on a loaded gun; we were just trying to make it into Columbus.” These admissions are sufficient evidence that Bryant both knew and appreciated the dangers attendant with riding in the truck while it was singled down.

However, Bryant contends that the principles of contributory negligence, not assumption of the risk, should govern this case, and that if he is found negligent, his actions should only diminish his recovery rather than bar this action altogether.

In order to evaluate the application of the assumption of the risk doctrine, the court must first view that doctrine against the background of Mississippi’s comparative negligence statute. In 1910, the Mississippi Legislature enacted a pure comparative negligence statute, presently codified at Miss.Code Ann. § 11-7-15 (1972), which abolished the defense of contributory negligence and established a procedure by which the amount of a plaintiff’s recovery would be diminished in proportion to his negligence. Twyner, A Survey and Analysis of Comparative Fault in Mississippi, 52 Miss.L.J. 563, 563 (1982). Some jurisdictions that have adopted comparative negligence statutes have viewed the assumption of the risk doctrine as simply another species of contributory negligence to be balanced against the defendant’s negligence for the purpose of reducing damages. See, e.g., Rosen v. LTV Development, Inc., 569 F.2d 1117, 1121 (10th Cir.1978) (applying Colorado law); Lyons v. Redding Construction Co., 83 Wash.2d 86, 515 P.2d 821 (1973); Brittain v. Booth, 601 P.2d 532 (Wyo.1979). The Mississippi Supreme Court, however, has viewed the contributory negligence doctrine and the assumption of the risk doctrine as two entirely separate defenses. In Saxton v. Rose, 201 Miss. 814, 29 So.2d 646, 649 (1947), the Court explained that assumption of the risk applies when a party knowingly and voluntarily places himself in a dangerous position, while contributory negligence applies when a party “by his own conduct has done something or omitted to do something which contributes to the particular event.” Later, the Court in Daves, 222 So.2d at 414, stated that “[t]he significant difference between assumption of the risk and contributory negligence is between risks which were in fact known to the plaintiff and risks which he might have discovered by the exercise of ordinary cafe.” Finally, the court has stated that, in order to amount to assumption of the risk, the plaintiffs conduct must be venturous, as opposed to merely careless. See Yarbrough v. Phipps, 285 So.2d 788, 790-91 (Miss.1973).

As the cases above demonstrate, the assumption of the risk doctrine remains a viable defense in Mississippi. However, the court in Braswell v. Economy Supply Co., 281 So.2d 669 (Miss.1973) created some confusion as to when the assumption of the risk doctrine is applicable. The plaintiff in Braswell was injured when some improperly stacked lumber in the defendant’s lumber bin fell on him. The defendant claimed that he was entitled to an assumption of the risk instruction at trial because the plaintiff, who was experienced in the construction business, either knew or should have known of the dangers lurking in the defendant’s lumber bin. The court found that these facts presented a situation in which the doctrine of contributory negligence and the assumption of the risk doctrine overlapped. In holding that the granting of an assumption of the risk instruction at trial was reversible error, the court stated: “We do not abolish the doctrine of assumption of the risk, but where assumption of the risk overlaps and coincides with contributory negligence the rules of the defense of contributory negligence shall apply.” Id. at 677. The court noted, however, that the plaintiff still could be precluded from recovery if his negligence was the sole proximate cause of the injury. Id.

One commentator has suggested that Braswell is representative of a new analysis in assumption of the risk cases in which the relevant inquiry is whether or not the plaintiff’s decision to encounter a known risk was a reasonable one. See Twyner, 52 Miss.L.J. at 576-77. Under this analysis, a plaintiff could be precluded from recovery only if a jury finds that his decision to encounter a known risk was so unreasonable as to make his negligent decision the sole proximate cause of his injury. However, later cases have not interpreted Bras-well in this manner and have uniformly allowed standard assumption of the risk instructions where there was evidence that the plaintiff voluntarily encountered a known risk. See McGowan, 419 F.Supp. at 746 (assumption of the risk instruction proper where plaintiff saw greasy spot on floor, knew that spot constituted a dangerous condition, and voluntarily walked through spot); Singleton v. Wiley, 372 So.2d 272, 274-75 (Miss.1982) (assumption of the risk instruction proper where plaintiff venturously rode down hill on trunk of defendant’s car); Alley v. Praschak Machinery Co., 366 So.2d 661, 665 (Miss.1979) (assumption of the risk instruction proper where plaintiff exposed his arm to hoist chain with knowledge that power was on).

The court feels that this is a case where the evidence might support an assumption of the risk instruction. The plaintiff has repeatedly admitted that he both knew and appreciated the dangers of riding in the truck. However, the court cannot grant the defendant’s motion for summary judgment. The Mississippi Legislature has abolished the assumption of the risk defense “in all actions for personal injury to an employee and in all actions where such injury results in death ... where such injury or death results in whole or part from the negligence of the master____” Miss. Code Ann. § 11-7-19 (1972). See also Southern Natural Gas Co. v. Wilson, 304 F.2d 253, 263 (5th Cir.1962) (common law rule of assumption of risk in force except as between master and servant); Wright v. Standard Oil Co., 319 F.Supp. 1364, 1372 (N.D.Miss.1970) (same); Mississippi Export Railroad Co. v. Temple, 257 So.2d 187, 190 (Miss.1972) (same).

Since Bryant helped Nealey unload furniture and since Nealey compensated Bryant with food and lodging, Bryant contends that he was Nealey’s employee and that the assumption of the risk defense is therefore unavailable to Nealey. Under Mississippi law, employment status is determined by the common law right of control test and the relative nature of the work test. Saxton v. L.A. Penn & Sons, Inc., 284 So.2d 521, 522 (Miss.1973); Cooks v. Neely Lumber Co., 275 So.2d 386, 387-88 (Miss.1973). With the scant facts before it, the court is unable to discard the possibility that there was an employment relationship between Bryant and Nealey.

Since the court cannot determine the availability of the assumption of the risk defense, summary judgment is inappropriate. Accordingly, the defendant Nealey’s motion for summary judgment should be and hereby is denied.


author: HAWKINS, District Judge.

text:
    Sandra B. ANDREWS, Plaintiff-Respondent, v. Travis L. GEE, Defendant-Petitioner. Kenneth M. ANDREWS, Plaintiff-Respondent, v. Travis L. GEE, Defendant-Petitioner.
    Civ. A. Nos. 84-1655-1, 84-1656-1.
    United States District Court, D. South Carolina, Charleston Division.
    Dec. 11, 1984.

      Nicolas C. Lempesis, Charleston, S.C., for plaintiffs-respondents.
    Lee M. Robinson, Dunn & Robinson, Charleston, S.C., for defendant-petitioner.
   ORDER AND JUDGMENT

HAWKINS, District Judge.

This action is before the court on the motions of the defendant Travis L. Gee to dismiss the complaints pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. The court heard arguments on the motions on September 10, 1984, and a supplemental brief was received from the defendant on September 28, 1984.

FACTS

The plaintiffs in this case seek damages from Travis Gee as a result of acts of sexual intimacy allegedly committed by the defendant with Sandra Andrews in 1978. At the time in question, the defendant was a physician’s assistant on duty with the United States Navy. The instant .complaints, however, seek recovery against him in his individual capacity.

The record reveals that the plaintiffs initially brought a negligence action against the United States in 1980 under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (hereinafter the “FTCA”), and 10 U.S.C. § 1089 for damages arising from the same alleged acts. Following a bench trial, this court entered judgment for the plaintiffs on their FTCA action. See Andrews v. United States, 548 F.Supp. 603 (D.S.C.1982). In its order the court found that Travis Gee did engage in sexual relations with Sandra Andrews while she was under his care, and that, as a result, she suffered “chronic depression and confusion about her self worth.” The court also found that the “marital relationship between Mr. and Mrs. Andrews [was] irrevocably harmed and is permanent in nature,” and that Mrs. Andrews’ treatment at the hands of Gee was “a significant contributing cause and continues to impair [Kenneth Andrews’] psychological health.” Judgment for the Andrews was entered in the amount of One Hundred Thousand ($100,000.00) Dollars, which judgment has been satisfied. The judgment was later upheld by the Fourth Circuit. See Andrews v. United States, 732 F.2d 366 (4th Cir.1984).

ARGUMENT

Defendant Gee asserts two bases for his motions to dismiss: first, that the plaintiffs are barred from bringing their actions by virtue of Section 2676 of the FTCA, and, second, in the alternative that Section 2676 does not apply, that the plaintiffs are barred by virtue of the common law doctrine of satisfaction.

Section 2676 provides that a judgment in an action under the FTCA constitutes “a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.” Consequently, the defendant argues, the judgment against the United States for the acts of Gee as the government’s employee in the earlier case would be a complete bar to the present action against Gee individually. The plaintiffs argue that Section 2676 is inapplicable to the instant action because, in its opinion affirming this court’s judgment against the United States, the Fourth Circuit found that Gee was “furthering his self-interest, not his employer’s business, at the time he seduced his patient.” Thus, the plaintiffs’ argument continues, because Gee was not acting as a government employee during the acts in question, Gee cannot seek immunity under the FTCA. The plaintiffs also contend that the prior FTCA action did not extinguish the present action because they did not pursue the false imprisonment and alienation of affection claims in the earlier case.

ANALYSIS

As an initial matter the court rejects the plaintiffs’ contention that the instant action does not arise “by reason of the same subject matter” as the earlier suit so as to avoid the bar of Section 2676. The fact that this action is based on some causes of action which the plaintiffs did not pursue in their original suit against the United States is not dispositive. As explained by Judge Blatt in Armstrong v. Vogel, 424 F.Supp. 445, 447 (D.S.C.1977), the question for the court is whether “the substance of the claim” is the same in the two suits.

In Armstrong, the plaintiff sought damages against the defendant physician, in his individual capacity, for misrepresentation. The doctor had been a defendant in an earlier negligence action under the FTCA, in which judgment for the plaintiff was entered as the result of a settlement. The court granted summary judgment for the defendant in the second action on the grounds that the second action had arisen “by reason of the same subject matter” as the earlier suit, despite the fact that misrepresentation, the cause of action in the second suit, was impermissible under the FTCA.

This court finds the reasoning in Armstrong controlling: the damages sought by the plaintiffs, “regardless of how they are characterized,” Armstrong, 424 F.Supp. at 447, arise from the same actions towards Sandra Andrews by the defendant as those which defined the FTCA case and judgment. Moreover, an action alleging loss of consortium seeks damage for “loss of a wife’s society, companionship and services,” Hughey v. Ausborn, 249 S.C. 470, 154 S.E.2d 839 (1967). An action for alienation of affection permits recovery for “loss of consortium, humiliation, shame, mental anguish, loss of sexual relations, and the disgrace the tortious acts of the defendant have brought.” Scott v. Kiker, 59 N.C.App. 458, 297 S.E.2d 142, 146 (1982). Both causes of action center upon the disruption of the marital relationship. It is inescapable that the instant actions against the defendant arise by reason of the “same subject matter” as the actions which resulted in a judgment for the Andrews under the FTCA.

This court is likewise unpersuaded by the plaintiffs’ arguments that an action against the defendant is not encompassed by the Section 2676 bar because of the Fourth Circuit’s finding that Gee was acting outside the scope of his employment when the alleged seduction took place. It is hornbook law that a plaintiff is entitled to but one compensation for a loss, Truesdale v. South Carolina Highway Department, 264 S.C. 221, 213 S.E.2d 740 (1975); Traveler’s Insurance Co. v. Allstate Insurance Co., 249 S.C. 592, 155 S.E.2d 591 (1967), and in Garner v. Wyeth Laborato ries, 585 F.Supp. 189 (D.S.C., 1984), this court extended that doctrine of satisfaction to preclude a second action against defendant tortfeasors. In Garner, a husband and wife sought damages against the manufacturer of birth control pills following recovery of a judgment in their favor on an FTCA claim against the United States for medical malpractice. In granting the defendant manufacturer’s motion for summary judgment, this court explained that, under South Carolina law, any tortfeasor is liable for the entire loss sustained, even though the acts of the one concurred or combined with those of another to produce the result. Because a plaintiff may have but one satisfaction for a wrong, once a party is fully compensated for his or her injuries, he or she is barred from filing a second lawsuit based on the same injuries.

The observations made in Garner are equally compelling in this case. It is clear that, even if the prior suit had not been brought under the FTCA and Section 2676 did not apply, the Andrews would nonetheless be barred from bringing the instant action. As explained earlier in this order, the injuries which form the basis of this lawsuit are identical to those adjudicated and compensated for in the earlier suit against the United States. Because the Andrews fully litigated and received compensation for their injuries arising from the defendant’s conduct, they are not permitted to pursue a second case premised upon the same injuries. The satisfaction of that judgment has extinguished their cause of action. Accordingly, it is

ORDERED, that the defendant’s motions for summary judgment be, and the same are hereby, granted.

AND IT IS SO ORDERED.

      . Because the parties have relied upon matters outside the pleadings, the court shall treat these motions as motions for summary judgment pursuant to Rule 56, Fed.R.Civ.P.

      . Kenneth Andrews seeks damages for alienation of affection, loss of consortium, and intentional infliction of emotional distress. Sandra Andrews claims the treatment rendered by the defendant was negligent, careless, wanton and reckless, and also claims damages for intentional infliction of emotional distress and false imprisonment.

      . Even though the Fourth Circuit found that Gee was not acting within the scope of his duties, the Court affirmed the judgment against the United States on the grounds that negligent supervision was the gravamen of the complaint.

      . The false imprisonment and alienation of affection claims were not pursued in the FTCA suit. See note 2, supra.


author: RAYMOND J. BRODERICK, District Judge.

text:
    PHILADELPHIA LODGE NO. 5, FRATERNAL ORDER OF POLICE v. CITY OF PHILADELPHIA, W. Wilson Goode, Leo Brooks and Gregore Sambor. LOCAL NO. 22, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO v. CITY OF PHILADELPHIA, W. Wilson Goode, Leo Brooks and William Richmond.
    Civ. A. Nos. 82-4684, 82-4685.
    United States District Court, E.D. Pennsylvania.
    Dec. 11, 1984.

      Michael Eichert, Bloom, Ocks, Fisher & Anderson, Philadelphia, Pa., for plaintiffs in both cases.
    Pamela Perry, Asst. City Sol., City of Philadelphia, Philadelphia, Pa., for defendants.
   MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

The Fraternal Order of Police, Lodge No. 5 (FOP) filed this action (82-4684) pursuant to 42 U.S.C. § 1983 (1983) against the City of Philadelphia, the Mayor, the Managing Director and the Police Commissioner. Local No.’ 22, International Association of Firefighters (IAF), AFL-CIO filed an identical action (82-4685) with’ one exception. The IAF named the Fire Commissioner as a defendant in place of the Police Commissioner. The FOP, which acts as representative and bargaining agent for the Philadelphia Police Department, and the IAF, which acts as representative and bargaining agent for the Philadelphia Fire Department, challenge departmental regulations which pertain to sick leave procedure. The plaintiff in each case seeks declaratory and injunctive relief only, requesting this Court to declare the challenged regulations unconstitutional and enjoin their enforcement. All parties have filed cross-motions for summary judgment contending that no material issue of fact exists.

The motions for summary judgment filed by the FOP and IAF are granted for the limited purposes hereinafter discussed. The motions for summary judgment filed by the City are denied.

The regulations being challenged by the FOP and IAF require that a police officer or a firefighter who is on sick leave must remain in his (or her) residence at all times except for certain instances which are specified in the regulations. Directive 66 is the regulation contested by the FOP. Under it, two procedures exist by which a police officer may leave his residence or place of recovery when he takes sick leave. If an officer needs to receive medical treatment, attend a religious service or vote, the officer must telephone the district office with his departure time and destination. Upon his return, he must communicate that fact to the district office. If an officer wishes to go out for any other reason, he must obtain permission from the Personnel Officer. Such approval is commonly called a sunshine pass. The sunshine pass allows unlimited travel between the hours of 8:00 a.m. and 8:00 p.m. and must be renewed every two weeks.

In order to secure a sunshine pass, a police officer must acquire a doctor’s note which states the officer’s illness, the reason for his need to leave his residence, and the probable date of his return to duty. This note, along with a memo in which the officer requests permission to leave his residence, are presented to the officer’s Commanding Officer who notes his recommendation on the memo. The officer can then obtain a sunshine pass application upon presentment of his approved memo and doctor’s note. The Personnel Officer then decides whether to approve or disapprove the application. In his deposition at p. 36, the Personnel Officer states that no criteria exist to guide him or the Commanding Officer when determining’whether to approve the application. He characterized the decision as purely discretionary.

Any police officer who violates these regulations is subject to disciplinary action. The first violation can merit a three to five day suspension. Any decision to institute disciplinary action is within the discretion of the Commanding Officer. In order to enforce the regulations, two civilian employees of the Police Department visit, from 9:00 a.m. to 5:00 p.m., the homes of officers who called in sick that day.

The IAF contests Directive 18 of the Philadelphia Fire Department which requires that a firefighter on sick leave remain at home at all times with certain exceptions. It is similar but not identical to Directive 66. Directive 18 permits a firefighter who has called in sick to notify his (or her) company officer when leaving his residence for medical treatment. The firefighter must also notify the company officer of his return. The directive explicitly states that attendance at religious services requires no notification. In order to receive approval for outdoor exercise, a firefighter must present a doctor’s note to the Battalion Officer through his company officer. The note must specify an exercise time limit. The firefighter must notify his company officer of his departure and return.

In order to leave the City or remain away from home for any period of time, a firefighter on sick or medical leave must submit his request, through channels, to the Fire Commissioner for approval. Since no criteria exist to guide the Fire Commissioner’s determination, any decision by the Fire Commissioner is purely discretionary. In addition, the regulations make no provision for exercising the right to vote. Consequently, it must be inferred that a firefighter who desires to vote while absent due to illness could only do so with the permission of the Fire Commissioner.

The regulations specify that a failure to make proper notifications and to obtain proper prior approval will result in disciplinary action. Although the regulations do not provide parameters for such action, Deputy Chiefs, through Battalion Chiefs, determine the need for home visits and the type of disciplinary action to be taken if the firefighter is not home.

Before considering the merits of either case, the issue of whether a union has standing to assert rights of its members when those rights do not flow to the union must be addressed. The existence of such representational standing has been recognized in Warth v. Seldin, 422 U.S. 490, 491, 95 S.Ct. 2197, 2201, 45 L.Ed.2d 343 (1975). The Supreme Court held that representational standing for an association could exist when the association alleges, first, that its members suffer immediate or threatened injury as a result of the challenged action; second, that the members could bring the same suit individually; and third, that the nature of the claim and the relief sought does not require the individual participation of the injured parties for a proper resolution. Id. at 511, 95 S.Ct. at 2211-12. See also Hunt v. Washington State Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Action Alliance for Senior Citizens of Greater Philadelphia v. Shapp, 400 F.Supp. 1208 (E.D. Pa.1976). Since the claim asserted by the FOP and the IAF fulfills each of these requirements, the FOP and the IAF are properly before this Court.

This is a 42 U.S.C. § 1983 action in which both unions assert that their members’ rights to vote, to travel, to privacy and to free exercise of religion, as guaranteed by the First, Fourth, Ninth, and Fourteenth Amendments to the U.S. Constitution, have been violated by enforcement of the sick leave regulations. On the basis of this claim, the unions request that this Court review the challenged regulations under a strict scrutiny test. See Elrod v. Burns, 427 U.S. 347, 362-63, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976). On the other hand, the City asserts that the regulations only infringe upon general liberty rights which require the City to demonstrate only a rational relationship between the regulations and a legitimate state interest. See Kelley v. Johnson, 425 U.S. 238, 248, 96 S.Ct. 1440, 1446, 47 L.Ed.2d 708 (1976). Initially, this Court will determine the appropriate standard applicable to the challenged regulations.

When rights specifically protected by the Bill of Rights are curtailed by municipal regulations, then that municipality must demonstrate a compelling interest to justify their existence. See Elrod, 427 U.S. at 362-63, 96 S.Ct. at 2684; NAACP v. Alabama, 357 U.S. 449, 460-61, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d 1488 (1958). The Supreme Court has indicated, however, that in certain areas a State has an interest as an employer which differs significantly from its interests in regulating the citizenry in general, and that when a State acts as an employer the courts should evaluate those actions under a more deferential standard than strict scrutiny. Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). See Kelley, 425 U.S. at 245, 96 S.Ct. at 1444-45; Shawgo v. Spradlin, 701 F.2d 470, 482-83 (5th Cir.1983).

Although the facts of this case are similar to the situation in Pienta v. Village of Schaumburg, Illinois, 710 F.2d 1258 (7th Cir.1983), the court in that case chose to apply the strict scrutiny test. It appears that the regulations at issue in Pienta were much more restrictive than the regulations at issue in the present case, in that police officers on sick leave were strictly confined to their residences until their return to work. Pienta, 700 F.2d at 1259-60 (regulations were “morale-chilling” and “put plaintiffs under house arrest”). The Pienta court, perhaps influenced by the severe and absolute infringement of constitutional rights resulting from the challenged regulations, applied the strict scrutiny standard without citation to the Supreme Court’s opinion in Pickering. However, two courts which reviewed the constitutionality of New York City Police Department regulations in suits similar to this one held that the rational relationship test applied. See Gissi v. Codd, 391 F.Supp. 1333 (E.D.N.Y.1974); Loughran v. Codd, 432 F.Supp. 259 (E.D.N.Y.1976). Since the City promulgated the two sets of challenged regulations pursuant to its role as employer, this Court will apply the rational relationship standard.

The FOP claims infringement of its members’ rights to vote, to travel, to privacy, and to free exercise of religion. The City puts forth three reasons for the existence of Directive 66: first, to provide sufficient staffing of the police force to fulfill the Department’s public duties; second, to reduce the cost of providing an adequate police force; and, third, to improve morale among employees who report for duty.

Since Directive 66 merely requires notification by telephone when a police officer on sick leave chooses to vote or attend religious services, this notice requirement is rationally related to the stated City goals. In addition, Directive 66 reserves no authority to Police Department officials to deny an officer his constitutional right to vote or attend religious services. Consequently, this Court has determined that the notice requirement does not limit an officer’s exercise of his constitutional rights to vote or attend religious services beyond the point necessary to attain legitimate state goals.

In claiming infringement of a po- . lice officer’s right to travel, the FOP has misstated its case. The right to travel found in the Bill of Rights protects against any unreasonable burden on citizens who travel from state to state. See Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S.Ct. 1322, 1328-29, 22 L.Ed.2d 600 (1969); United States v. Guest, 383 U.S. 745, 757-58, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239 (1966). An officer’s right under a sunshine pass to leave his residence and move about freely implicates a general liberty interest and not the Constitutionally-protected right to travel. Although the procedure by which an officer applies for a sunshine pass is rationally related to the previously stated goals, this does not hold true for the determinations made by the Personnel Officer. Since no guidelines exist for the Personnel Officer to apply in deciding whether to- issue sunshine passes, their issuance has no rational basis. The determination rests purely within the discretion of the Personnel Officer. Therefore this Court holds that the City, through the Police Commissioner, must develop a set of reasonable and rational guidelines which will direct the Personnel Officer’s determination as to the issuance of sunshine passes.

In addition, the sunshine pass only permits a police officer to leave his residence between 8:00 a.m. and 8:00 p.m. Since the Police Department has instituted a comprehensive application process by which only an officer who is unable to work will receive a sunshine pass, there is no rational basis for limiting the daily use of the pass to specific hours. Therefore, this Court holds that the 8:00 a.m. to 8:00 p.m. time limitation on the sunshine pass is invalid because it is not rationally related to any legitimate government purpose.

In summary, this Court has determined that Philadelphia Police Department Directive No. 66 does not violate a police •officer’s constitutional rights except as heretofore pointed out. The regulations pertaining to approval for a sunshine pass must be implemented with reasonable and rational guidelines, and the 8:00 a.m. to 8:00 p.m. limitation must be eliminated as irrational. Accordingly, the Court will grant summary judgment in favor of the FOP limited to the considerations set forth in this Memorandum.

The IAF challenges Directive 18 of the Philadelphia Fire Department on grounds similar to those set forth by the FOP. The firefighters’ union asserts that these regulations infringe upon rights guaranteed by the Bill of Rights, specifically the rights to vote, to travel, and to privacy, as well as general liberty interests. Since Directive 18 explicitly permits attendance at religious services without notification, the IAF does not claim infringement of that constitutional right. As explained above, Directive 18 will be analyzed under the rational relationship test. Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. See Kelley, 425 U.S. at 245, 96 S.Ct. at 1444-45; Shawgo at 482-83. The City cites the same three goals of ensuring adequate staffing, reducing costs, and improving morale as its rationale for the regulations.

Although Directive 18 does not mention how a firefighter on sick leave could exercise his right to vote, the regulations do include a procedure by which a firefighter may leave his residence for any reason if he obtains the prior approval of the Fire Commissioner. It would appear, therefore, that a firefighter oh sick leave who wants to exercise his right to vote must obtain permission from the Fire Commissioner. Since there are few voting days in a year, the requirement that a firefighter pursue an application process which requires the approval of the Fire Commissioner has no rational relationship to the goals put forth by the City. A firefighter on sick leave who wishes to exercise his right to vote should be able to do so. The City, through the Fire Department, must amend the regulations and decide whether a firefighter desiring to vote should merely notify his company officer by phone, as required for medical treatment, or whether no notification at all is necessary, as is the case for religious services.

Directive 18 specifically provides that a firefighter may leave his residence for exercise if he obtains a doctor’s note and permission from the Battalion Chief through his company officer. Since the regulations do not specify what criteria the Battalion Chief or company officer should follow when granting or refusing permission for exercise, this Court is unable to determine whether the regulations are rationally related to the goals set forth by the City. The Court holds, therefore, that the City through the Fire Department must develop reasonable and rational guidelines to direct Battalion Chiefs and company officers in their decisions with respect to requests for exercise passes.

However, a firefighter who wishes to leave his residence for any reason other than exercise or medical treatment must receive approval from the Fire Commissioner. Here again, no guidelines exist for him to follow in making this determination. For the reasons heretofore stated in relation to Directive 66 of the Police Department, reasonable and rational guidelines should be promulgated setting forth the policy to be followed by the Fire Commissioner in making the determination as to when a firefighter on sick leave may leave his residence.

The Court has determined that the procedure by which the Fire Department visits the home of a firefighter on sick leave is constitutionally acceptable. Since the regulations would permit home visits of every sick firefighter, as heretofore stated, selective or sporadic visitation must also be permitted.

In summary, this Court finds that Philadelphia Fire Department Directive 18 does not violate the constitutional rights of a firefighter except as heretofore pointed out. The specific violations require: (1) the drafting and implementation of regulations which would allow a firefighter on sick leave to exercise his right to vote without any burdensome application process; (2) the implementation of reasonable and rational guidelines for the Battalion Chiefs and company officers to consider in determining when to grant approval for permission to exercise; and (3), the implementation of reasonable and rational guidelines for the Fire Commissioner to consider in determining when to grant a firefighter on sick leave unrestricted permission to leave his residence. Summary judgment, therefore, will be granted in favor of IAF limited to the considerations set forth in this Memorandum.

ORDER

Civ. A. No. 82-4684

AND NOW, this 11th day of December, 1984, upon consideration of the motions of the plaintiff and defendants for summary judgment, and the responses thereto, for the reasons stated in this Court’s Memorandum of December 11th, 1984,

IT IS HEREBY ORDERED:

1. The motion of the defendants, City of Philadelphia, W. Wilson Goode, Leo Brooks and Gregore Sambor, for summary judgment is DENIED.

. 2. The motion of the plaintiff, Philadelphia Lodge No. 5, Fraternal Order of Police, for summary judgment is GRANTED and defendants are ENJOINED to modify, amend and implement Philadelphia Police Department Directive 66 within the period of ninety (90) days from the date of this Order by:

1) Promulgating reasonable and rational guidelines to guide the Personnel Officer in granting a sunshine pass to a police officer on sick leave.
2) Vacating the daily time restrictions of 8:00 a.m. to 8:00 p.m. on the sunshine pass.

ORDER

Civ. A. No. 82-4685

AND NOW, this 11th day of December, 1984, upon consideration of the motions of the plaintiff and the defendants for summary judgment, and the responses thereto, for the reasons stated in this Court’s Memorandum of December 11th, 1984,

IT IS HEREBY ORDERED:

1. The motion of the defendants, City of Philadelphia, Leo Brooks, and William Richmond, for summary judgment is DENIED.

2. The motion of the plaintiff, Local No. 22, International Association of Firefighters, AFL-CIO, for summary judgment is GRANTED and defendants are ENJOINED to modify, amend and implement Philadelphia Fire Department Directive 18 within the period of ninety (90) days from the date of this Order by:

1) Promulgating regulations permitting a firefighter on sick leave to exercise his right to vote without any burdensome application process;
2) Promulgating reasonable and rational guidelines to guide the Battalion Chiefs and company officers in granting to a firefighter on sick leave per- . mission to exercise; and
3) Promulgating reasonable and rational guidelines to guide the Fire Commissioner in granting unrestricted permission to a firefighter on sick leave to leave his residence.


author: COHN, District Judge.

text:
    Edithmae GILCHRIST, Administratrix of the Estate of John J. Gilchrist, deceased, Plaintiff, v. CITY OF LIVONIA, a municipal corporation, Gary David Wood, Ronald Edward Proudlock and Richard J. Berry, Defendants.
    Civ. No. 83-CV-1697-DT.
    United States District Court, E.D. Michigan, S.D.
    Dec. 11, 1984.

      Stephen N. Leuchtman, Southfield, Mich., for plaintiff.
    Kenneth M. Zorn, Arthur G. Behm, Detroit, Mich., for defendants.
   OPINION AND ORDER

COHN, District Judge.

This case involves a claim by plaintiff, administratrix of the estate of her deceased husband, John J. Gilchrist (Gilchrist), for damages allegedly suffered as a consequence of his suicide. The individual defendants are police officers of the City of Livonia. Plaintiff alleges that Gilchrist’s suicide resulted from the defendants’ failure to take him into custody after a call that he was acting in an irrational and dangerous manner.

The case was filed in state court, removed to federal court, then remanded because the removal was improper. Defendants’ removed again on the basis of plaintiff’s claims under 42 U.S.C. § 1983. Defendants wish to avoid being sent back to state court for a second time and have been protective of plaintiff’s federal claims. The individual defendants, against whom both state law and § 1983 claims are pending have moved to dismiss only the state law claims. The City of Livonia, previously granted summary judgment on the state law claims, has not moved to dismiss the § 1983 claim.

Despite defendants’ failure to test the federal claims which form the basis of the court’s jurisdiction, the parties were directed to brief the issue of whether the failure of the police to take Gilchrist into custody under the circumstances described in the complaint implicates a Constitutional right. I conclude that it does not. Neither side called my attention to the cases most relevant to the issue.

I.

Plaintiff’s complaint alleges that on January 14, 1979, Gilchrist returned to his home and began smashing furniture and threatening suicide. Since Gilchrist had a long history of psychiatric problems and suicidal tendencies, his wife called the police. Four officers arrived; they were advised that Gilchrist had a large supply of firearms and that his mental condition was such that he should be hospitalized for his own safety and the safety of others. The officers confiscated a number of firearms but did not take Gilchrist into custody. After the officers left, Gilchrist became even more irrational and began beating his wife. She called the police again. While the police were on their way, Gilchrist got dressed, put on his hat and coat, and sat on the sofa, allegedly waiting for the police to come and take him away. Two of the four officers who came in response to the first call arrived in response to the second call. They again refused to take Gilchrist into custody, indicating to his wife that he should be left alone to “cool down”. Shortly after the officers left the home, Gilchrist shot himself.

II.

As a general rule, police officers are not liable for failure to arrest a third person. “The duty of a law enforcement officer to preserve the peace is one which is owed to the public generally and not to particular individuals; for breach of that duty an officer is not liable to any particular individual but only to the public”. Zavala v. Zinser, 123 Mich.App. 352, 356 (1983); South v. Maryland, 59 U.S. (18 How.) 386, 403, 15 L.Ed. 433 (1855). This rule of non-liability is subject to an exception where it can be said that a “special relationship” exists between the plaintiff or victim and the police. See Note, Police Liability for Negligent Failure to Prevent Crime, 94 Harv.L.Rev. 821, 122-28 (1981).

To state a claim under 42 U.S.C. § 1983, plaintiff must not only allege that defendants breached a duty owed to Gilchrist; she must show deprivation of a right under the constitution. “Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of due care arising out of tort law'.” Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). Plaintiff claims that the officers’ refusal to take Gilchrist to a hospital after being alerted to his unstable condition constituted “gross negligence” and “deliberate indifference” in violation of his rights under the due process clause of the Fourteenth Amendment.

To establish a due process violation, at a minimum plaintiff is required to show the existence of a “special relationship” between Gilchrist and the police.

“[T]he due process clause of the Constitution provides no basis for imposing liability through the application of the civil rights statutes on state officers who either negligently or even recklessly facilitate the criminal actions of a third party, absent some special relationship between the victim and the criminal or between the victim and the state officer.”

Wright v. City of Ozark, 715 F.2d 1513 (11th Cir.1983).

However, a police officer’s duty resulting from a “special relationship” is not necessarily sufficient to establish liability under 42 U.S.C. § 1983. Plaintiff must also show that the police acted with “deliberate indifference”; there is no liability for merely negligent nonfeasance. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), rehearing denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785, the Supreme Court held that “deliberate indifference” to medical needs of prisoners would give rise to an eighth amendment violation resulting in § 1983 liability. 429 U.S. at 104, 97 S.Ct. at 291. The Supreme Court noted the relationship of dependency existing between the inmates and prison authorities: “An inmate must rely on prison authorities to treat his medical needs, if the authorities fail to do so, those needs will not be met”. Although Estelle did not involve the issue of police nonfeasance in the context of the due process clause, “when the Court does decide the issue, it is ... likely to establish a gross negligence threshold similar to the ‘deliberate indifference’ standard” established in that case. See Note, supra, at 831.

Similarly, in Jamison v. McCurrie, 565 F.2d 483 (7th Cir.1977), a widow brought a § 1983 action against the City of Chicago and fourteen police officers on behalf of her deceased husband. The husband had been killed by James O’Malley, a Chicago fireman with a history of mental illness. There was testimony at trial that O’Malley’s son had been to the 8th District police station on each of three days preceding the shooting to report that his father had threatened him and his brother with a gun. Plaintiff argued that the failure of the police to take O’Malley into custody after being informed that he was acting dangerously denied plaintiff’s decedent his Fourteenth Amendment right not to be deprived of life without due process of law. The Court of Appeals affirmed the judgment entered on a jury verdict for the police officers. The Court of Appeals did not discuss whether there existed a “special relationship” between O’Malley and the police officers although it noted that the police knew O’Malley to be irrational and violent. The Court of Appeals said

“[tjhere is no cause of action for mere negligence on the part of the police officers in a case such as this. The plaintiff must show that their misbehavior was either intentional or in reckless disregard of his constitutional rights ... [although] police nonfeasance, if purposeful, might be the basis for a constitutional tort claim.”

565 F.2d at 486.

III.

Plaintiff’s due process claim must fail because she cannot show under any state of facts alleged that the police owed Gilchrist a duty any greater than that owed the public at large — i.e., there was no special relationship. Plaintiff argues that since the defendants saw that Gilchrist was mentally ill, Michigan statutes imposed an affirmative duty on them as police officers to get him psychiatric treatment.

A state statute imposing an affirmative duty on police officers to protect a defined class of citizens might create a basis for imposing liability analogous to a special relationship. See Peck v. United States, 470 F.Supp. 1003 (S.D.N.Y.1979) (F.B.I. agents not liable to plaintiffs for failure to warn of planned attack of which they were aware — no duty owed in absence of statute or special relationship). However, Mich.Stats.Ann. §§ 14.800(400a), (401) and (427), [M.C.L.A. §§ 330.1400a, 330.1401, 330.1427] relied on by plaintiff as creating an affirmative duty, does not require a police officer to take persons requiring psychiatric treatment into custody; what is to be done under the circumstances is left to the discretion of the officer. Contrary to plaintiffs assertion, the statute imposes no duty. Therefore, in the absence of an affirmative duty it cannot be said that the failure to take plaintiff to the hospital gave rise to § 1983 liability.

“While denial of medical treatment to one who is incarcerated may at times amount to cruel and unusual punishment in violation of the 8th Amendment, a person who is not in state custody simply has no constitutional right to be driven to a hospital by a police officer on request.”

La Plante v. Frazier, 564 F.Supp. 1095 (E.D.Pa.1983). There simply was no duty on the part of defendants here, other than the duty of a law enforcement officer owed to the public generally.

IV.

Plaintiff also claims that defendants’ actions violated Gilchrist’s rights under the equal protection clause of the Fourteenth Amendment. Plaintiff argues that if Gilchrist had been physically ill, rather than mentally ill, defendants would have taken him to a hospital. As stated in Wright, supra, at 1516:

“[although the defendants may have owed no duty under the due process clause to protect Wright from, a rapist, we assume that they did owe a duty under the equal protection clause not to discriminate in providing law enforcement services. In order to prevail on such a claim, however, [plaintiff] would have to show ‘intentional or purposeful discrimination.’ In her complaint plaintiff alleges not one fact from which a purpose to discriminate either against her or against women or against any other class could be inferred. Thus, her equal protection allegation fails.”

(citations omitted). See also Note, supra, at 830 n. 43. There are no facts alleged in the complaint from which one could conclude that the defendants purposefully discriminated in their treatment of a mentally ill person.

V.

Lastly, plaintiff claims that the City of Livonia is liable under § 1983 because it “had a municipal policy of neglect of the mentally ill which was the cause of the unconstitutional actions taken by its employees.”

Although a political subdivision such as the City of Livonia is subject to suit as a “person” in a § 1983 suit, Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), “[c]ongress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.” 436 U.S. at 691, 98 S.Ct. at 2036.

On the facts alleged in her complaint, plaintiff does not establish a constitutional violation created by the City of Livonia’s municipal policy — or more accurately, absence of a policy — regarding the mentally ill. Plaintiff claims only that Livonia does not require an officer to transport a mentally ill person in need of treatment to a hospital, contrary to the requirements of the Michigan Mental Health Code. However, this practice does not violate the Michigan statute; as stated, supra, that statute is permissive. Plaintiff also fails to say that this “policy” discriminates in any way against the mentally ill. Plaintiff does not allege that the City of Livonia’s policy regarding the mentally ill differs from its .policy regarding treatment of any other segment of the population, nor does plaintiff allege that the City’s purpose is to discriminate against the mentally ill.

VI.

Since the federal claims must be dismissed all that is left in the complaint are the state law claims against the individual defendants. These claims are more appropriately to be decided in the state court from which the case was removed. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Accordingly, the claims under 42 U.S.C. § 1983 are DISMISSED and this case is REMANDED to the Wayne County Circuit Court.

SO ORDERED.


text:
    David M. HAUPT and Pamela J. Haupt, his wife, Plaintiffs, v. MICHIGAN BELL TELEPHONE COMPANY, a Michigan corporation, and The Communication Workers of America, an incorporated labor union, jointly and severally, Defendants.
    Civ. No. 83-CV-2700-DT.
    United States District Court, E.D. Michigan, S.D.
    Dec. 11, 1984.

      James A. Tucker, Detroit, Mich., for plaintiffs.
    Bruce A. Miller, Mark Doman, Detroit, Mich., Michael T. Mulcahy, Cleveland, Ohio, for defendants.
   OPINION AND ORDER

COHN, District Judge.

This case is brought under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. §. 185. Plaintiff David M. Haupt (Haupt) claims his employer, Michigan Bell Telephone Company (Bell), breached the collective bargaining agreement governing his employment in discharging him and that his union, The Communication Workers of America (the Union), breached its duty of fair representation in the handling of several of his grievanees. The Union and Bell filed motions for summary judgment; a hearing was held on January 23, 1984. Supplemental briefs were filed, and a second hearing was held on August 13, 1984. The Union and Bell argue that Haupt’s claims are barred by a six month statute of limitations and also that Haupt has failed to plead any facts showing the Union acted in bad faith in processing his grievances. At the first hearing the Court dismissed most of plaintiff’s claims regarding the Union’s duty of fair representation due to a six month statute of limitations, see DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), leaving only the claim that the Union breached its duty of fair representation in handling the grievance over his discharge. At the August hearing the Court granted Haupt sixty days to conduct discovery and produce evidence showing the Union breached its duty in handling the grievance over his discharge. The sixty days have expired; the Union and Bell have renewed their motions. Haupt has responded; defendants have filed additional replies. For the reasons that follow defendants’ motions are GRANTED.

I. FACTUAL BACKGROUND

Haupt was employed by Bell from March 8, 1969 to June 25,1982. At least in recent years he worked as a service technician, doing various repair jobs in customer’s homes and on company lines. Haupt was a member of the Union.

On June 25, 1982, Haupt was discharged for poor work performance. This was the last of several progressive disciplinary actions Bell had taken against him; previously Haupt had been suspended on four separate occasions for one day, two days, five days and thirty days, respectively. On June 23, 1982, Haupt had charged for 13 hours of work while performing “bulk load” jobs, a series of small jobs considered to involve easy repairs which are bulked together to comprise a single day of work. Haupt’s supervisor and a second supervisor went out on June 24 to inspect his work and determine why he had taken so long. They determined that Haupt had charged excessive time on eight separate jobs, had made three unauthorized “pick-ups”, which involve doing jobs which were not initially assigned, had failed to modularize the phone on four jobs, and had one half-hour unaccounted for. Haupt was discharged the next day.

The Union filed a grievance which was handled through the first three levels by Paul Maynard, a Union representative. The Union demanded that Haupt be returned to work. It argued plaintiff had been under a lot of stress and that one day of bad work should not be held against him when his record had been good for the preceding months. It argued Haupt’s past had been used against him and that he had been treated unfairly. Bell contended its decision was justified given Haupt’s previous suspensions for poor work performance.

In the meantime Union grievances over plaintiff’s five and 30 day suspensions were at the fourth level. The Union decided to arbitrate Haupt’s 30 day suspension while his discharge grievance was proceeding through the first three levels since the 30 day suspension was for reasons very similar to those giving rise to Haupt’s discharge. An arbitration hearing was held on November 4, 1982. Bell claimed plaintiff had performed wholly unsatisfactory work on October 8, 1981, and was properly suspended for 30 days. Bell argued plaintiff failed to follow his supervisor’s explicit instructions, took too long to complete his assigned work, and worked unnecessary overtime. The Union argued in response that Bell failed to show Haupt had acted wrongfully in completing his work October 8; it argued Haupt had used his best judgment in completing his work on the day in question.

The arbitrator found Bell had acted properly in suspending plaintiff for 30 days. While not crediting all of Bell’s contentions the arbitrator found Haupt had misused his time on that day, had removed one phone incorrectly, and had told his supervisors he had completed some jobs which in fact were not done. The arbitrator determined the 30 day suspension was warranted in the light of plaintiff’s past disciplinary history.

Haupt’s discharge grievance went to the fourth level in December, 1982. Thomas Diekman (Diekman) handled grievances for the Union at this level. He spoke with plaintiff four or five times and met several times with Bell representatives. He demanded that plaintiff be returned to his job, arguing that Haupt had been a good employee, had had a good record since his thirty day suspension, and that Haupt had simply been trying to work efficiently on June 23, 1982. Bell refused to reinstate Haupt. After discussing the case with the Union’s attorney, and based on his recommendation, Diekman decided Haupt’s discharge grievance did not merit arbitration since he had lost in arbitrating his thirty day grievance, since the company had progressively disciplined plaintiff, and since Haupt had basically failed to account for Bell’s complaints regarding his work performance on June 23.

II. DUTY OF FAIR REPRESENTATION

An aggrieved employee must exhaust any exclusive grievance and arbitration procedures contained in a collective bargaining agreement prior to bringing a suit under § 301 of the LMRA against his employer. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Since Haupt never had his dismissal arbitrated, this case would normally be barred. However, Haupt can be excused from a failure to exhaust contractual remedies if he shows the Union failed to fairly represent him in processing his grievance. Vaca, supra, at 190, 87 S.Ct. at 916. In general, a union breaches its duty of fair representation when its conduct towards any union member is arbitrary, discriminatory or in bad faith. Id. at 177, 87 S.Ct. at 910; Poole v. Budd Company, 706 F.2d 181, 183 (6th Cir.1983). A union is required to conform its conduct to each of these separate standards. Therefore, bad faith is not a necessary element of a claim alleging a union has breached its duty of fair representation, so long as arbitrary or discriminatory behavior is shown. Ruzicka v. General Motors Corporation, 523 F.2d 306 (6th Cir.1975) (Ruzicka I). If the union handles an employee grievance in an arbitrarily perfunctory manner, it can be held liable for breaching its duty of fair representation. Poole, supra at 183; See Vaca, supra 386 U.S. at 194, 87 S.Ct. at 919; Ruzicka v. General Motors Corp., 649 F.2d 1207, 1211 n. 3, 1212 (6th Cir.1981) (Ruzicka III); Farmer v. ARA Services, Inc., 660 F.2d 1096 (6th Cir.1981). However, an employee must show more than mere negligence or mistaken judgment. Poole, supra at 183; Farmer, supra at 1103. A union’s decision to not process a grievance through arbitration is not grounds for claiming the union breached its duty if it is based on a good faith determination that the grievance is without merit. Besedich v. Missile and Space Division of LTV, 433 F.Supp. 954 (E.D.Mich.1977).

A review of cases is helpful in setting the contours of what constitutes arbitrary conduct on the part of a union. A union may breach its duty of fair representation when it ineptly handles a grievance because it is ignorant of contract provisions having a direct bearing on the case. Milstead v. International Brotherhood of ■ Teamsters, 580 F.2d 232 (6th Cir.1978). It is arbitrary to refuse to continue a grievance where a company agrees to hold off on a worker’s discharge until the worker can return and the worker returns asking the union to continue the grievance. Williams v. Teamsters Local Union No. 984, 625 F.2d 138, 139 (6th Cir.1980). Unexplained union inaction which substantially prejudices a member’s grievance may be sufficiently arbitrary to be considered unfair representation. Ruzicka III, supra at 1211; Ruzicka I, supra. Further, if a union representative pliantly accepts the company version of an employee’s ability to work, and totally fails to investigate the employee’s claim that he is able to work,, there is a possible inference the union acted arbitrarily. Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888 (4th Cir.1980). Also, a union’s failure to properly investigate a grievance and to interview pertinent witnesses may be unfair representation. Monroe v. International Union, UAW, 540 F.Supp. 249, 254 (S.D.Ohio, 1982).

On the other hand, if a union adequately investigates the facts in the course of pursuing a grievance and presses the employee’s case it cannot be held liable for unfair representation simply because it decided the grievance is not sufficiently meritorious to take to arbitration. See Poole, supra; Besedich, supra. In Poole the union showed it had adequately investigated the member’s claim that it was unsafe to work without a partner in removing doors from an acid bath. Poole had been discharged because he refused to work on his own when a supervisor directed him to do so. The union processed a grievance up to the point of arbitration, but decided not to arbitrate. It specifically listed the reasons why it decided arbitration was not warranted, mentioning Poole’s past disciplinary record and the lack of solid evidence to show the job could not be performed safely by one individual. Under these circumstances, the Sixth Circuit affirmed a summary judgment in favor of the union.

III. THE UNION’S ACTION

The Union is entitled to summary judgment because the facts in this case are insufficient to sustain a claim that the Union breached its duty in handling Haupt’s discharge grievance. The Union adequately investigated Haupt’s case and determined his discharge did not warrant arbitration. It is not this court’s function to second guess the Union’s determination when it is reasonably made.

Haupt argues the Union breached its duty of fair representation in the following ways:

1. Diekman relied solely on Bell representatives’ version of events and never attempted to ascertain both sides of the story;
2. Diekman failed to interview prospective witnesses;
3. Diekman failed to argue it was unfair to have a different first line supervisor inspect Haupt’s work rather than his own supervisor;
4. Diekman failed to contest Bell’s pickup and estimated time policies, although these were sore points for the Union;
5. Diekman did not argue the company was out to get Haupt.

Haupt’s arguments are insufficient to raise any material disputed fact issues which would warrant a trial in this case. Diekman did not rely solely on Bell’s representations regarding Haupt’s work on June 23; he spoke directly with Haupt on several occasions, eliciting his version of what occurred. This is quite different than the. situation in Wyatt, supra, where the union representative failed to investigate the worker’s contention that he was physically able to work and simply accepted the employer’s representations. Here Haupt was unable to adequately explain his work performance on June 23, except to explain why he did not modularize certain phones. He did not explain why he did three pick-ups without authorization, even though he had been told about Bell’s pick-up procedures. Most importantly, Haupt did not explain why his work took so long, except to say he was working as efficiently as he knew how. Especially significant are work records which show that on two jobs Haupt did no work, but still charged one half hour for each job, even though these jobs were less than five minutes driving time from his previous jobs. Quite simply, Diekman gave Haupt a full chance to rebut Bell’s complaints about his work and he failed to adequately do so. It is difficult to fault Diekman for not investigating further when Haupt, the person who knew the most about his own work on June 23, did not adequately rebut Bell’s contentions about his poor work performance.

Haupt suggests Diekman should have interviewed prospective witnesses, but does not list a single .material witness Diekman could have interviewed. Diekman certainly knew what Bell witnesses would say; their position was clearly set forth in memos, and Bell representatives at grievance hearings let Diekman know Bell’s position. Haupt has attached a petition with numerous signatures of individuals who believe Haupt was subjected to harassment and was discharged due to his past work for the Union. However, these petitions are not admissible evidence and therefore cannot be considered on this motion for summary judgment. See Fed.R.Civ.P. 56(e); see generally, 6 Moore’s Federal Practice ¶ 56.11 at pp. 56-197 to 56-209; 10 Wright, Miller & Kane, Federal Practice and Procedure §§ 2721, 2722. Furthermore, the vague contention that Bell was out to get Haupt, without any explanation of Haupt’s poor work performance, would not have had much relevance to the Union’s decision not to arbitrate.

Haupt’s other contentions are.that the Union did not make every meritorious argument it could have. This is simply not material. The Union made a reasonable decision to not pursue Haupt’s grievance to arbitration and has fully explained its reasons. Haupt had previously been progressively disciplined for poor work performance before being discharged. Haupt’s 30 day suspension was taken to arbitration and the arbitrator found the suspension to be reasonable based on plaintiff’s failure to explain his poor work performance and his disciplinary history. Faced with a discharge which was also due to poor work performance, and faced with a similar failure on Haupt’s part to adequately explain his poor work performance, the Union reasonably concluded arbitration of plaintiff’s discharge would result in the same fate as the arbitration on his 30 day suspension.

“The grievance process is not expected to be error free and the courts should hesitate to interfere with legitimate internal union decisions which fairly evaluate whether a claim warrants resort to the arbitration machinery.”

Poole, supra at 184.

The handling of Haupt’s grievance may not have been perfect, but the record conclusively shows the Union adequately evaluated Haupt’s claim and made a reasonable decision to not pursue his discharge grievance to arbitration. Accordingly, this case is DISMISSED.

SO ORDERED.

Communications Workers of America AFL-CiO

20525 Center Ridge Rd., Rm. 515

Cleveland, Ohio 44116

to: Tom Diekman, Administrative Assistant date: April 25, 1983

from: Michael T. -Mulcahy, Counsel file #

subject: David Haupt Discharge

Local 40.01 - Michigan Bell

This is to deny authority to arbitrate the above captioned . case.. After a thorough review of the grievants employment record, the expedited arbitration award and our discussions., X do not feel that this case merits arbitration. The grievant had several suspensions including a 30 day suspension and final warning upheld in the expedited arbitration hearing for his poor performance.

The Company followed progressive discipline in this case and there was little or no improvement on the grievants part.

Based on the facts presented, there is little reason to believe that an arbitrator would overturn the- discharge.

        DelCostello applies retroactively. Smith v. General Motors Corporation, 747 F.2d 372 (6th Cir. 1984).

       A copy of the recommendation is attached as Exhibit A.