author: CAHILL, District Judge.

text:
    Damon HURD, Plaintiff, v. C.O. NOLAN, et al., Defendants.
    No. 82-2039C(4).
    United States District Court, E.D. Missouri.
    May 9, 1985.
    Thomas M. Dee, St. Louis, Mo., for plaintiff.
    Sheryl Johnson-Elcock, City Counselor, St. Louis, Mo., for defendants.
   MEMORANDUM

CAHILL, District Judge.

This is a civil rights action against individual corrections officers and the prison nurse arising out of an alleged beating and subsequent denial of medical treatment. Plaintiff alleges that defendants’ conduct constituted cruel and unusual punishment and deprived him of his rights under the constitution and laws of the United States. For the reasons which follow, judgment shall be entered in favor of defendants and against plaintiff. Pursuant to F.R.C.P. 52(a), the following constitute the Court’s findings of fact and conclusions of law.

Plaintiff Damon Hurd resides in the State of Missouri and is a resident of the Missouri State Penitentiary in Jefferson City, Missouri. At the time of the alleged incidents, plaintiff was a resident of the St. Louis Municipal Jail in St. Louis, Missouri. Defendants are all residents of Missouri and are employed by the City of St. Louis. The incident of which plaintiff complains occurred against the backdrop of certain prison protests and outbursts concerning prison conditions on the second floor of the City Jail where plaintiff was housed. The incident which forms the basis of plaintiffs complaint occurred sometime during the week of October 4, 1982. According to plaintiff, defendants Perkins and Nolan removed him (plaintiff) from his cell and thereafter struck him following plaintiffs request to see his uncle who was also incarcerated in the jail. Subsequent to this attack, plaintiff alleged that he was denied requested medical treatment, and that two days afterward he was finally allowed to see the nurse (defendant Keaton) who (plaintiff alleges) told him nothing was wrong and refused him treatment.

Applicable Law.

Lawful imprisonment by its very nature limits individual rights and privileges. Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Nevertheless, convicts do not forfeit all constitutional protections. Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). “There is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). The eighth amendment, applicable to the states through the fourteenth amendment, prohibits the infliction of cruel and unusual punishment. Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Intent to punish a person is not a necessary component of an eighth amendment claim under § 1983. Spain v. Procunier, 600 F.2d 189, 197 (9th Cir.1979). What is required in a § 1983 action based on the eighth amendment is that the defendants caused harm upon the plaintiff that was cruel and unusual.

While the use of excessive force may give rise to liability under § 1983, the statute cannot be interpreted to impose liability for breach of duties of care arising out of tort law. Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979). “[N]ot every instance of the use of excessive force gives rise to a cause of action under § 1983 merely because it gives rise to a cause of action under state tort law or is prosecutable under criminal assault and battery law.” King v. Blankenship, 636 F.2d 70, 72 (4th Cir.1980). To be actionable under § 1983, the alleged excessive use of force must rise to “constitutional dimensions.” Pritchard v. Perry, 508 F.2d 423, 426 (4th Cir.1975); Johnson v. Glick, 481 F.2d 1028, 1033-34 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973); Courtney v. Bishop, 409 F.2d 1185 (8th Cir.), cert. denied, 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192 (1969). What this means to the plaintiff is that he must show more than that he has suffered some kind of intentional tort at the hands of the defendants who were acting under color of state law, he must prove acts which, in effect, amount to shocking or brutal conduct. See Rochin v. California,. 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Plaintiffs proof in this regard fails. With the exception of plaintiffs own testimony, no other persons were produced who could give an eyewitness account of the incidents which occurred on the date in question. While this fact is not fatal to plaintiffs cause in and of itself, the Court is nevertheless hesitant to rule in plaintiffs favor on so crucial an issue with so little corroborating evidence to support plaintiff. Defendants denied the incident, and there was an absence of incident reports to substantiate plaintiffs contention that such an incident occurred; even plaintiffs own allegations concerning the challenged acts do not so “shock the conscience” as to require the Court’s imposition of liability against defendants. Plaintiff admits that he taunted and insulted his attackers.

Plaintiff’s claims concerning a denial of medical care also fail. The proper standard in a § 1983 medical care case was announced by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). It is simply whether a jury [or the court] may reasonably conclude that a defendant physician [or other hospital personnel] has shown a “deliberate indifference to serious medical needs.” Id. at 104, 97 S.Ct. at 291. If so, such a finding constitutes “the ‘unnecessary and wanton infliction of pain’ proscribed by the eighth amendment.” Id., see also Hall v. Ashley, 607 F.2d 789 (8th Cir.1979); Massey v. Hutto, 545 F.2d 45 (8th Cir.1976); Seward v. Hutto, 525 F.2d 1024 (8th Cir.1975). Plaintiff’s proof concerning medical care is scant and fails to rise to the level contemplated by Estelle v. Gamble and this circuit’s own case law.

The Court has put the defendants to their proof and has carefully considered the totality of the evidence. The Court now finds that the plaintiff has failed to prove by a preponderance of the evidence a prima facie case under 42 U.S.C. § 1983. Judgment is entered for the defendants.

      . Defendants stated to this Court that records pertaining to plaintiffs housing for the relevant periods in question could not be located for a number of reasons: 1) certain records concerning prison housing are only maintained for a year due to storage problems; 2) during plaintiffs housing at the jail, the institution was in a state of flux as to maintenance and control of prisoner population due to overcrowding; and 3) no incident report was made as to plaintiffs beating because there was no beating.


source: Caselaw Access Project

author: SANDERS, District Judge.

license: Public Domain

text:
    Daniel de la TORRES, Plaintiff, v. William F. BOLGER, Postmaster General, United States Postal Service, et al., Defendants.
    Civ. A. No. 3-82-2144-H.
    United States District Court, N.D. Texas, Dallas Division.
    May 9, 1985.

      Gabriel Robles, Eloise V. Vellucci, Vellucci & Keane, Dallas, Tex., for plaintiff.
    Charles Ory, Asst. U.S. Atty., Dallas, Tex., Lori Joan Dym, Atty. Office of Labor Law, U.S. Postal Service, Washington, D.C., for defendants.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

SANDERS, District Judge.

Plaintiff Daniel de la Torres brings this civil action under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, alleging that he was subjected to discrimination in the termination of his probationary employment with the United States Postal Service on the basis of his handicap, specifically his left-handedness. Plaintiff seeks reinstatement to his position as probationary letter carrier.

This case was tried before the Court without a jury on March 21-22, 1985, and on May 3, 1985. Based on the pleadings, the evidence adduced at trial, the stipulations, the arguments of counsel, the notes of the Court and the law clerk, the Court makes the following Findings of Fact and Conclusions of Law pursuant to Fed.R. Civ.P. 52(a). Any findings which constitute conclusions or conclusions which constitute findings should be deemed the other, as appropriate.

Findings of Fact

1. Plaintiff worked at the Fairview Station of the Houston, Texas Post Office from June 3, 1978 until July 14, 1978, as a part-time flexible letter carrier. See Alder-son v. Postmaster General, 598 F.Supp. 49, 50-51 (W.D.Okla.1984) (describing duties in detail). He was hired for a 90-day probationary period.

2. Plaintiff is a natural born left-handed person. Except for writing, he uses his left hand as his primary hand.

3. After completion of a three-day general orientation course, Plaintiff reported to work at the Fairview Station, where he received three days of initial training in street mail delivery by Cecil Lewis, a certified trainer.

4. Plaintiff experienced difficulty in associating the mail with street addresses using his right hand and in locating mail boxes.

5. Plaintiff’s Supervisor James Walker, after personal observation and review of records, felt that Plaintiff was taking inordinate time to complete his appointed rounds. Walker arranged for Plaintiff to receive an additional 16 hours of training from Jose Luis Cuellar, also a certified trainer.

6. Both of the trainers instructed Plaintiff to use his right hand to “finger” and deliver mail. Neither had previously trained a left-handed carrier, and had received no specialized training in doing so.

7. Although the “casing” procedure is currently structured and oriented so as to require it to be performed right-handed, there is no physical reason why the delivery of mail cannot be done with a carrier’s left hand. Both trainers instructed Plaintiff to use his right hand because he appeared awkward to them when he used his left hand.

8. Plaintiff testified that, after his initial training, he reverted to using his left hand to deliver mail when he was on his routes unsupervised.

9. Mail casing at Fairview in July 1978 was to be performed with the right hand, regardless of whether the carrier was right or left handed. Although Plaintiff had some opportunity to acquaint himself with the casing process, the greater weight of the evidence suggests that his termination was not related to any inability to case mail efficiently. Station Manager Floyd did state at the EEOC hearing, however, that this was a contributing consideration. Plaintiff’s Exhibit 2 at 91.

10. On July 2, 1978, Walker observed Plaintiff and his son in a postal vehicle, a violation of safety regulations.

11. On July 3,1978, Walker completed a Standard Form 1750 “Employee Probationary Evaluation Report”. Plaintiff was rated unsatisfactory in four of twelve areas, and his termination was recommended.

12. Plaintiff was terminated effective July 14, 1978.

13. Defendants now claim that Plaintiff was terminated due to his continued slowness in delivering the mail, despite the additional training provided him and unrelated to the hand Plaintiff may have chosen to utilize. In support of this contention, Defendants proffer Exhibit 14, a reconstructed version of the destroyed original of Form 1750, copy of which is Defendants’ Exhibit 1, which purports to illustrate that Plaintiff’s time to complete his assigned “splits”, or overflow mail from regular carriers’ routes, were excessive, with no indication of improvement.

14. The circumstances surrounding the preparation of the date on Exhibit 14, several inconsistencies within it, and the destruction of the underlying documentation is suspicious. See Plaintiff’s Motion to Strike Defenses. Plaintiff’s testimony that the times are exaggerated is, for the most part, credible. He asserts that any delays were attributable solely to his unfamiliarity with the territory, and his termination was due to a most peculiar bias of Walker against southpaws.

15. Ernest Gamboa, a left-handed carrier who began his career at Fairview, stated that he had never encountered any difficulty whatsoever in delivering mail with his right hand. He confirmed, though, that his trainer, Cecil Lewis, required the use of his right hand.

16. Plaintiff’s expert witness, Dr. William Tedford, a clinical psychologist at Southern Methodist University, testified that Plaintiff is a “moderately left-handed” individual on a continuum of handedness, and the attempt to convert him away from the use of his preferred hand would cause muscle strain, emotional upset, awkwardness, and slower performance times.

Conclusions of Law

1. The Court has jurisdiction over the subject matter and parties to this action. Venue is proper in the Northern District of Texas.

2. Title 29, United States Code, § 794 provides, in relevant part:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination ... by the United States Postal Service.

Section 706(7) defines “handicapped individual” as:

any person who (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.

3. Plaintiff argues that he was regarded by personnel at Fairview as having a handicap by virtue of being a left-handed letter carrier.

4. The term “handicapped” is not defined in the Rehabilitation Act. The EEOC regulations promulgated under the Act provide guidance that is entitled to some deference. See Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir.1981). 29 C.F.R. § 1613.702 provides:

(b) “Physical or Mental Impairment” means (1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or (2) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. ■
(c) “Major Life Activities” means functions, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.
* • # * * * *
(e) “Is regarded as having such an impairment” means (1) has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer as constituting such a limitation; (2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of an employer toward such impairment; (3) or has none of the impairments defined in (b) of this section but is treated by an employer as having such an impairment.

5. Plaintiff has the burden of proving, by a preponderance of the evidence, that he is a “handicapped individual”. Doe v. New York University, 666 F.2d 761 (2d Cir.1981). Plaintiff has not carried this burden. Being left-handed is “a physiological condition ... affecting the neurological and musculoskeletal systems”, but it is no more so than (and no more of impairment than) being right-handed or ambidextrous. The Court is of the opinion that “impairment” cannot be divorced from its dictionary and common sense connotation of a diminution in quality, value, excellence or strength. Plaintiff, in all evident manifestations, enjoys perfect health, has performed a wide variety of jobs without apparent difficulty and was an accomplished college athlete. To apply the terms of the Rehabilitation Act, the purpose of which was to prevent employment discrimination that would render futile the federal programs of vocational rehabilitation, Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 1253 and n. 12, 79 L.Ed.2d 568 (1984), would bind Congress to the formation of a wholly unimaginable civil rights violation.

The Court is unable to find any probative federal case law. In American Motors Corp. v. Labor and Industry Review Commission, 8 F.E.P. Manual 421:661 (No. 82-389), the Wisconsin Court of Appeals rejected a plaintiffs claim that her short stature, the employer’s basis for declining to hire her, constituted a handicap for purposes of a state employment discrimination law. The court observed that the plaintiff had “no condition that could be considered a physical disability or impairment”, and that the recognition of her claim would yield “no logical stopping point for the myriad heights and weights that could become handicaps”.

Accordingly, Plaintiff cannot prevail under 29 C.F.R. § 1613.702(e)(1) or (e)(2). The Court also rejects Plaintiff’s contention that his forced conversion to a right-handed carrier at Defendants’ command rendered him handicapped. Such an interpretation would permit a cause of action for any job-related stress.

6. This conclusion is reinforced by the authority interpreting “substantial limiting of major life activities”.

An impairment that interferes with an individual’s ability to do a particular job, but does not significantly decrease that individual’s ability to obtain satisfactory employment otherwise is not “substantially limiting” for purposes of the Rehabilitation Act. Jasany v. United States Postal Service, 755 F.2d 1244, 1249 (6th Cir.1985); E.E. Black, Ltd. v. Marshall, 497 F.Supp. 1088, 1099-1100 (D.Hawaii 1980).

Defendants did not regard Plaintiff as one “substantially limited” from working, based on this interpretation of the statute. If he was so regarded, neither he nor Gamboa would have been hired in the first place.

7. Not having a statutorily cognizable impairment, Plaintiff is only potentially eligible for the classification in § 1613.-702(e)(3), i.e., has no impairment but is treated by an employer as having one. This category is presumably directed to protecting individuals who may be completely recovered from a previous mental or physical impairment (such as the mentally restored, or those who have had heart attacks or cancer) or individuals who may have been erroneously classified as handicapped (such as the developmentally disabled). Or, simply put under § e(3), there must be evidence that Plaintiffs supervisors regarded him as having an impairment as that term is defined in the regulations. Stevens v. Stubbs, 576 F.Supp. 1409, 1414 (N.D.Ga.1983) (no impairment found in case of transitory illnesses) (emphasis added). While Plaintiff was certainly recognized as being left-handed, and Defendants may well have regarded that as a trait that would have to be overcome and repressed, there is no indication that it was regarded as an “impairment” within the terms of the Rehabilitation Act.

8. Accordingly, Defendants are not liable to Plaintiff under the Rehabilitation Act. A judgment will be entered accordingly.

SO ORDERED.


author: DUPREE, Senior District Judge.

text:
    Robert (Bobby) SMITH, Ronald D. Carnes, Richard A. Carter, and Bradford Mizell Lilley, Plaintiffs, v. Vernon Lee BOUNDS, Commissioner, State Dept. of Correction, and Stanley Blackledge, Warden, Central State Prison, Raleigh, N.C., Defendants. Donald W. MORGAN, Franklin D. Strader, and John H. Russell, on behalf of themselves and all others similarly situated, Plaintiffs, v. R.L. TURNER, Superintendent of Odom Correctional Institution of the N.C. Dept. of Correction, Defendant. John HARRINGTON, Alonzo Watts, Clifton Speight, William Ryder, Ronney McBride and Ray Forbes, Plaintiffs, v. James HOLSHOUSER, Governor, State of N.C.; V. Lee Bounds, Commissioner, N.C. Dept. of Corrections; Dr. Stanley Blackledge, Warden, Central Prison, F.R. Moore, Sergeant, Central Prison, Franklin Mahan, Regional Superintendent, M.S. Lee, Captain, Washington County Unit 3560 Creswell, N.C., Defendants.
    Civ. Nos. 3052 and 4277 Raleigh Division and 790 Washington Division.
    United States District Court, E.D. North Carolina, Raleigh/Washington Division.
    May 14, 1985.

      Barry Nakell, Chapel Hill, N.C., for plaintiffs.
    Jacob L. Safron, Asst. Atty. Gen., N.C. ' Dept, of Justice, Raleigh, N.C., for defendants.
   OPINION

DUPREE, Senior District Judge.

In the early 1970’s, plaintiffs brought these actions challenging the adequacy of the North Carolina Department of Correction’s legal research facilities. The cases were consolidated and in 1974, Judge Larkins granted plaintiffs’ motion for summary judgment, ordering the state to submit either a plan to provide inmates with adequate library facilities or some reasonable alternative plan. The state submitted a plan which was separated into three components. First, the state would establish regional law libraries in prisons across the state. Second, the state would develop procedures for their use by inmates. And third, the state would train inmate paralegals to staff each of the libraries. This plan was approved by Judge Larkins, who also ordered the state to file upon implementation of the plan a Certificate of Compliance. Judge Larkins’ order was affirmed by the Fourth Circuit Court of Appeals, Smith v. Bounds, 538 F.2d 541 (4th Cir.1975), and by the Supreme Court, Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). The Supreme Court specifically held

that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.

Id. at 828, 97 S.Ct. at 1498.

At the time he entered his 1974 order, Judge Larkins directed the state to implement its plan within 120 days. However, the state made no effort to advise the court of its progress until June of 1978, more than a year after the Supreme Court’s decision, when it sent Judge Larkins a letter informing him that all of the law libraries were in place and new regulations had been adopted regarding their use. In reliance on that letter, the court dismissed these actions. After plaintiffs protested this action, the state filed on November 1, 1978 a Certificate of Compliance raising essentially the same contentions as in its letter and asserting that it accordingly was in full compliance with its plan. Pursuant to the court’s order, the state subsequently purchased copies of a legal research book for its eleven core libraries and filed another Certificate of Compliance asserting that it was in full compliance with the court’s 1974 order, as modified.

On appeal, the Court of Appeals vacated the district court’s order, Harrington v. Holshouser, 598 F.2d 614 (4th Cir.1979) (unpublished) (Harrington I), concluding that the burden was on the state to show compliance with all aspects of the plan. Specifically, the Court of Appeals ordered this court to consider plaintiffs’ claims that: (1) defendants had failed to comply with the requirements that there be a trained inmate paralegal at each library; (2) they had failed to provide any information regarding free copying services for indigent inmates; (3) defendants had failed to show that there were adequate bed spaces available at the prison units with libraries for inmates seeking short-term transfers to use those libraries; and (4) the policy of limiting access to the libraries for inmates on disciplinary segregation was impermissible.

On remand, the action was referred to Magistrate Logan Howell for further proceedings. When Magistrate Howell became ill, the case was withdrawn from his docket and eventually transferred to the undersigned. During this period, plaintiffs sought to monitor the state’s progress and insure implementation of its plan by propounding interrogatories and requests for production. They filed their first set of interrogatories on July 26, 1979. Having heard nothing after three months, plaintiffs filed a motion to compel. Defendants then filed a motion for extension of time until November 1, 1979 to answer, which motion was granted by the court. However, that date passed with no answers or objections being filed. Plaintiffs then sought a hearing on the motion, and one was set for June 3,1980. On May 29,1980, five days before the hearing was to be held, defendants filed their answers to plaintiff’s interrogatories. No explanation was given for the state’s failure to respond earlier. Furthermore, the answers were contained in an affidavit submitted by W.L. Kautzky, then deputy director of the Division of Prisons. The affidavit was dated November 6, 1979, almost six months before the answers were filed and served on the plaintiffs. Again, no reason was given for this delay.

A similar delay occurred with respect to plaintiffs’ fourth set of interrogatories, served September 9, 1982. The state did not offer any response whatsoever until the court granted plaintiffs’ unopposed motion to compel on December 1, 1982. On December 9, they filed a motion to extend time to answer until January 15, 1983, which motion was granted. Defendants subsequently filed their answers on January 11.

The case proceeded in this manner throughout. For example, on February 17, 1981, defendants were directed to submit within ninety days a statement of the means by which they would promptly comply with their obligation to train inmate paralegals. They were further ordered to file within thirty days a profile of the actual operation of Department of Correction Regulation 5 N.C.A.C. 2G.0203 regarding the limited use of law library facilities by inmates on disciplinary segregation. On May 8, 1981, defendants asked for and received an extension of time to respond until August 7, 1981. Their response was filed on that date, and consisted of affidavits of two Department of Correction employees regarding the implementation of the inmate paralegal training program and the use of law library facilities by inmates serving on disciplinary segregation.

The parties continued to conduct discovery, and on January 28, 1982 plaintiffs filed a “Motion for an Order that Defendants Comply with Their Plan.” The state did not respond to the motion until May 3, 1982, two weeks after the court had issued an order directing defendants to show cause within ten days why plaintiffs’ motion should not be granted. In that response, defendants basically summarized their previous filings. With respect to the inmate paralegal training program, no mention was made as to whether that program had actually been instituted. Consequently, the court entered an order on May 7, 1982 directing the parties to submit within thirty days satisfactory alternatives to (1) the program schedules for the training of paralegals, (2) the bed space requirement to library access by inmates from non-library units and (3) library access for inmates on disciplinary segregation who did not have legal deadlines. Plaintiffs filed their response on May 28, 1982. Defendants did not respond to the order until September 3, 1982, when a hearing was held before this court. At the conclusion of the hearing, the court ordered the state to file a statement detailing its efforts to comply with each provision of its plan. Defendants did so, and based on that statement, the court dismissed the action.

Plaintiffs again appealed and the Court of Appeals affirmed this court’s decision in part, vacated it in part, and remanded the action for further proceedings. Harrington v. Holskouser, 741 F.2d 66 (4th Cir. 1984) (Harrington II). The court found that the defendants had adequately provided bed space for inmates who needed to be transported from prisons without library facilities, and affirmed this court’s decision on that issue. Id. at 69.

With respect to the question of library use by segregated inmates, the state’s regulations provide that requests for law library use are divided into two categories, the first being those made by inmates with legal deadlines to meet and the second being those without deadlines. Inmates serving on disciplinary segregation were, until recently, only permitted to use the law library if they made a Category I request. However, at the time this action was appealed, 5 N.C.A.C. 2B.0205 provided that inmates could serve only fifteen days in a row on disciplinary segregation and were entitled to a forty-eight hour release from segregation at the end of each fifteen-day period. Therefore, those inmates with Category II requests would have to wait a maximum of fifteen days before being permitted to use the law library. The Court of Appeals concluded that this length of time was constitutionally acceptable, and affirmed this court’s ruling on that issue. Id. at 68-69.

However, the Court of Appeals reversed as to the issues of free copying for indigents and the use of inmate paralegals. With respect to the former issue, the court found that the state had not provided any information about the availability or the use of copy machines by any prisoners. Thus, they concluded, the issue must be remanded to the district court to assess whether the state’s policies are in accord with its plan. Id. at 69.

The Court of Appeals also found that the state had failed to show that it had staffed the law libraries with trained inmate paralegals, as required by the plan. Hence, this court was required to determine whether, in the interim, the state had begun adequate training programs for inmate paralegals and whether it had placed those paralegals in the law libraries to assist other inmates. Id. at 69-70.

Finally, the Court of Appeals noted that defendants’ answers to interrogatories disclosed that only seventy-six percent of inmates requesting library use at Central Prison and sixty-four percent of those requesting use at Polk Youth Center had actually been scheduled for use. The court directed this court to make findings concerning requests that were not scheduled to determine whether the denials were justified. The court also directed this court to inquire into any other matters addressed by the parties or that it deemed appropriate. Id. at 70.

The action was again remanded to this court, where the plaintiffs promptly filed motions for partial summary judgment and for an order compelling defendants to report on their obligation to provide inmates with adequate legal facilities. Defendants again failed to respond to the motions in any manner. The motion for partial summary judgment related to the question of law library access for inmates on disciplinary segregation who had no legal deadlines to meet. The Court of Appeals ruled that since 5 N.C.A.C. 2B.0205 required the Department of Correction to release inmates for forty-eight hours after each fifteen-day term, those inmates could be denied access for at most fifteen days, and that this delay was reasonable.

However, while the action was pending before the Court of Appeals, the Department changed its regulations regarding the length of time an inmate may serve on disciplinary segregation. Inmates now may receive consecutive terms in disciplinary segregation for a maximum of thirty days without any interval between them, 5 N.C.A.C. 2B.0205, thus requiring an inmate to wait as long as thirty days before his Category II request for law library use was allowed. Based on this change, plaintiffs’ motion for summary judgment was granted on the grounds that a thirty-day delay between law library appointments was not constitutionally reasonable. The state was ordered to submit, within thirty days, its plan for providing inmates on disciplinary segregation with reasonable access to prison law libraries.

Plaintiffs’ motion to compel compliance sought to have this court compel defendants to comply with the mandate of the Court of Appeals and come forward with evidence showing that the state is or will shortly be in compliance with its plan regarding the training and use of inmate paralegals, the free use of copying machines by indigent inmates, and the availability of prison law libraries in light of the large number of requests which had been denied. This motion was allowed and defendants were ordered to file within thirty days all materials showing that they had met their burden of providing all inmates with constitutionally adequate law library facilities.

As with past orders, defendants filed no response. Plaintiffs consequently moved the court, on January 30, 1985, to issue its judgment finding that defendants are not in compliance with their constitutional obligations. The time for response has run, defendants again have not responded, and the motion accordingly is ripe for disposition.

With one exception, plaintiffs’ motion will be granted. That, exception involves the use of the law libraries by inmates on disciplinary segregation. In November of 1984, the Department of Correction amended its regulations regarding this issue. 5 N.C.A.C. 2G.0203(d) now provides as follows:

(1) Inmates assigned to disciplinary segregation shall be permitted to use the law library. Inmates transferred while on disciplinary segregation shall not receive segregation credit for days spent out of their cells for library purposes.
(2) After proper notice and hearing, an inmate who poses a threat of harm to the staff, or the law library facility can be denied permission for law library research while assigned to disciplinary segregation. Advance written notice on form DC-138 shall be given to an inmate if the question of restricted law library use is to be considered by the disciplinary committee. The notice shall advise the inmate that the disciplinary committee will hear evidence and make a recommendation to the Area Administrator, Institution Head, or their respective designees as to whether the inmate poses such a threat of harm as to require that he should not be released from segregation. Such notice must reasonably inform the inmate of the reasons why he poses a threat of harm to the law library or its staff. At the hearing, the inmate shall be confronted with any relevant information tending to indicate that he is a danger to the library or its staff. He shall be given an opportunity to present relevant evidence, including statements from witnesses, and to refute the information against him. A record of the proceedings shall be maintained on form DC-188(c). The committee’s recommendation shall be forwarded to the Area Administrator, Institution Head or their respective designees. The decision of the Area Administrator, Institution Head or designee must be based upon the record of the hearing.

The court concludes that this regulation insures that inmates confined to disciplinary segregation will have the same access to the law libraries as all other inmates. Therefore, the court must decline to grant plaintiffs’ judgment with respect to this issue.

However, with respect to the remaining issues, that is, the availability of free photocopying of the legal materials of indigent inmates, the training and placement of inmate paralegals and the availability of prison law libraries to all inmates, plaintiffs’ motion will be allowed. Defendants’ plan for assuring adequate law library facilities has been in existence for over a decade, yet they have consistently failed to implement that plan in a constitutionally adequate manner. With respect to the availability of free copying services, the state has yet to show this court that it provides indigent inmates with the facilities to photocopy free of charge all materials required to be filed with the court. Upon independent research, the court notes that the Department of Correction has amended its regulations regarding the use of photocopying machines for legal materials. 5 N.C.A.C. 2G.0202(a) now provides, in pertinent part, that

All inmates will be provided free of charge with the number of copies of the petition, the complaint, and exhibits required by the Court, plus one copy of the complaint, petition, and exhibits for retention by the inmate. No additional photocopying will be furnished.

However, this provision does not permit indigent inmates free copies of other required filings, such as affidavits or memoranda. Therefore, it does- not appear that the regulation as amended satisfies the state’s obligations under its plan.

With respect to the use of inmate paralegals, the Court of Appeals’ review in Harrington II of the state’s efforts (or lack thereof) in this area is particularly illuminating.

The plan approved by the Supreme Court visualized inmates assigned to work in the libraries on a regular basis and “trained to the best extent possible” in legal research and assisting other inmates with research as an important component of the plan. A description of the State’s efforts in this area since then is a chronology of failure. After several years of apparent inaction, the State conducted a single training session for paralegals in 1980; only two of thirty-one inmates staffing the library at that time had participated in that session. Two years later, only one more training session had been conducted for the State, this one by a professor of law at the University of North Carolina. After an unsuccessful attempt to find professionals at North Carolina Central University, Meredith College, and Campbell University to conduct the workshops, the State reported on October 1, 1982, that it had contracted with Durham Technical Institute to provide three five-day workshops annually. As we have observed earlier, the record before this court contains no indication that this proposed training program has even been undertaken, let alone been successful'.

741 F.2d at 69-70. More than two and one-half years after the state’s October 1, 1982 report, there still is no indication that even one inmate ever took this training program.

The large number of law library requests which have been denied, for which the state has offered no explanation, further indicates that the state has been unable to meet the legal needs of its inmates. Accordingly, a separate order will be entered finding that defendants are not in compliance with their constitutional obligation to provide inmates of the North Carolina prisons with adequate assistance in their access to the courts.

Of course, such a determination will mean little unless some remedy is fashioned which will insure that inmates do receive adequate access to the courts. Plaintiffs’ counsel has maintained throughout the course of this litigation that the best method to insure such access would be to set up a prisoner legal services program or provide some other form of assistance of counsel. The court now concludes that due to the state’s inability or unwillingness to implement its plan, plaintiffs’ proposal should be adopted in some form.

This conclusion has not been reached lightly. In Harrington II, filed in August of 1984, the Court of Appeals specifically rejected this proposal. 741 F.2d at 70. However, at some point, it must be recognized that in some cases the best laid plans are doomed to fail. This is one such case. When such a failure occurs, it is the court’s duty to find an acceptable alternative which will insure that inmates receive adequate access to the courts. The court concludes that the best alternative would be to provide them with some form of assistance from trained attorneys.

This conclusion should not come as a revelation to anyone. In Bounds v. Smith, the Supreme Court clearly expressed its preference for the use of some form of legal services program for inmates.

It should be noted that while adequate law libraries are one constitutionally acceptable method to assure meaningful access to the courts, our decision here, as in [Younger v. ] Gilmore, [404 U.S. 15, 92 S.Ct. 250, 80 L.Ed.2d 142 (1971),] does not foreclose alternative means to achieve that goal. Nearly half the States and the District of Columbia provide some degree of professional or quasi-professional legal assistance to prisoners. Brief for Respondents, Ex. B. Such programs take many imaginative forms and may have a number of advantages over libraries alone. Among the alternatives are the training of inmates as paralegal assistants to work under lawyers’ supervision, the use of paraprofessionals and law students, either as volunteers or in formal clinical programs, the organization of volunteer attorneys through bar associations or other groups, the hiring of lawyers on a part-time consultant basis, and the use of full-time staff attorneys, working either in new prison legal assistance organizations or as part of public defender or legal services offices. Legal services plans not only result in more efficient and skillful handling of prisoner cases, but also avoid the disciplinary problems associated with writ writers, see Johnson v. Avery, 393 U.S. [483]; at 488 [89 S.Ct. 747, 750, 21 L.Ed.2d 718]; Procunier v. Martinez, 416 U.S. 396, 421-422 [94 S.Ct. 1800, 1815, 40 L.Ed.2d 224] (1974). Independent legal advisors can mediate or resolve administratively many prisoner complaints that would otherwise burden the courts, and can convince inmates that other grievances against the prison or the legal system are ill-founded, thereby facilitating rehabilitation by assuring the inmate that he has not been treated unfairly. It has been estimated that as few as 500 full-time lawyers would be needed to serve the legal needs of the entire national prison population.

430 U.S. at 830-32, 97 S.Ct. at 1499-1500 (footnotes omitted).

Furthermore, this court is not the first to conclude that a state’s law library system did not provide inmates with meaningful access to the courts and consequently directed a state to devise a plan providing for the assistance of counsel. In Hooks v. Wainwright, 536 F.Supp. 1330, 1341 (M.D.Fla.1982), appeal dismissed, 716 F.2d 913 (11th Cir., 1983), Senior District Judge Charles R. Scott held “that meaningful access to the courts on behalf of Florida’s prisoners can be realized only through the assistance of attorneys, in one form or another.” See also Canterino v. Wilson, 562 F.Supp. 106 (W.D.Ky.1983). Judge Scott concluded that defendant’s law library plan did not meet the requirements of Bounds v. Smith due to the following four grounds. First, the inmate paralegal program did not provide prisoners with adequate legal assistance.

The principal deficiency of the inmate law clerk plan ... is that ... it casts, with official sanction, laymen in the role of lawyers. While recognizing that the defendant’s inmate law clerks serve a useful purpose, the plain and simple truth of the matter is that they are not qualified to function as lawyers. They are only law library assistants. The mere thought that a 30-hour “How To” course in legal research transforms an otherwise uneducated and untrained prisoner into someone capable of understanding and formulating meaningful legal reasoning is ludicrous.

536 F.Supp. at 1347 (footnote omitted).

Judge Scott also pointed out that inmate ■litigants and paralegals are unable to utilize outside resources to any meaningful degree, such as investigating cases or interviewing witnesses. Id. at 1348. Finally, Judge Scott noted that inmate law clerks might be unwilling to really “go to the mat” for a fellow inmate whose claim they thought meritorious for fear of jeopardizing their coveted position. Id. at 1348-49. All of these arguments apply in this case as well, especially where defendants have shown their inability to provide an adequate inmate paralegal training program.

Judge Scott’s second observation was that the high degree of illiteracy among Florida’s inmates made it virtually impossible for them to conduct meaningful research. Id. at 1341. Defendants’ answers to plaintiff’s interrogatories indicate that the level of illiteracy in North Carolina is just as great or greater than in Florida. The number of inmates who are achieving at or below seventh grade level is approximately seventy-five percent. The typical North Carolina inmate also has a below normal IQ, with twenty-nine per cent at dull normal or below and 11.4 percent at borderline retarded or below. One of the major reasons for initially requiring trained inmate paralegals in the state’s original plan was to provide some minimal assurance that illiterate inmates would have some assistance in pursuing their legal claims. The state’s total failure to develop an adequate training program has left these inmates to their own devices. Such action clearly denies illiterate inmates their constitutional right to meaningful access to the courts.

The third ground for finding that Florida’s law library plan did not meet the requirements of Bounds v. Smith was that inmates housed in administrative confinement were not permitted to use the law library but were required to request specific legal materials from their cells. Id. at 1341. Thus, inmates on segregation were denied meaningful access to the court. See Williams v. Leeke, 584 F.2d 1336 (4th Cir. 1978), cert. denied, 442 U.S. 911, 99 S.Ct. 2825, 61 L.Ed.2d 276 (1979). Prior to the amendments in the Department of Correction regulations discussed supra at pages 601-602, North Carolina inmates on disciplinary segregation also were denied meaningful access, because they might have to wait as long as thirty days before being permitted to use the law library. However, with the recent changes, they may use the law library on substantially the same basis as other inmates. Therefore, the third factor cited by Judge Scott is not a problem in North Carolina and accordingly is no longer at issue in this case.

The fourth and final factor indicating the inadequacy of Florida’s law library system dealt with the large number and wide geographic dispersal of its correctional facilities, which made it difficult if not impossible to guarantee all inmates physical access to law libraries. 536 F.Supp. at 1343. This problem was addressed by the Fourth Circuit Court of Appeals in Harrington II when it directed this court to inquire regarding answers to interrogatories showing “that only 76 percent of the inmates requesting library use at Central Prison, and 64 percent of those requesting use at Polk Youth Center, were scheduled for use.” 741 F.2d at 70. The court attempted to make that inquiry in the December, 1984 order, but defendants failed to respond to that order in any fashion. Therefore, it must be concluded that inmates in North Carolina’s prisons are not receiving adequate physical access to the prison law libraries to meet their legitimate legal research needs.

Thus, except for the issue of library access by inmates on disciplinary segregation, North Carolina’s prison law library system suffers from the same inadequacies as Florida’s system. Furthermore, Judge Scott’s first, second and fourth grounds for deciding against the implementation of law libraries, all of which are present in North Carolina, clearly have a greater impact than the third factor, since they affect a much greater number of inmates. It should also be noted that Judge Scott found Florida’s proposed law library plan inadequate prior to its implementation. North Carolina’s law library system, which has been in operation for over ten years, has proven itself inadequate to assure inmates meaningful access to the courts.

Finally, the court would like to reemphasize some of the findings by the Supreme Court in Bounds v. Smith regarding the efficacy of giving inmates the opportunity to consult attorneys. Inmates raise many complaints relating to their confinement which do not raise constitutional grounds and which consequently are dismissed by the courts. These complaints waste a great deal of the courts’, the state’s and indeed, the inmates’ time. The opportunity to consult with a disinterested outsider with knowledge of their legal rights clearly will ease the frustration many inmates feel, even where they do not receive all the relief they would like. Furthermore, the introduction of attorneys should help curb if not eliminate the abuse of courts’ time by writ writers, who often will file a totally frivolous lawsuit for another inmate for a fee or will bring an action in their own name in the hope of receiving a free trip to the court to escape prison life for a day. Finally, the institution of a comprehensive plan which includes the use of attorneys will insure that those inmates’ claims which do have merit will receive full and fair consideration, that settlement of these claims will become a real possibility, and that if they do reach the trial stage, they will not be hampered by the inmates’ lack of knowledge and education.

During the course of this opinion, reference has been made to the adoption of some form of legal services plan. The court does not intend to indicate, at this' time, that a particular plan should or should not be adopted. As the Supreme Court said in Bounds v. Smith, there are a number of alternatives. To insure that all alternatives are considered, counsel for both sides will be directed to submit, within sixty days, a new plan which provides, in some form, for the assistance of licensed counsel. Defendants’ current plan shall continue to be in effect in the interim, but as soon as the new plan is submitted, approved by the court, and in place it will supplant the law library plan currently in existence.

In 1974, the North Carolina Department of Correction was ordered to develop and implement a plan to guarantee its inmates meaningful access to the courts. The plan developed involved the institution and use of prison law libraries, which was expressly approved by the Supreme Court in Bounds v. Smith if the plan was properly implemented. However, eleven years after the court’s order, the state has failed to implement that plan. It has proven itself unable or unwilling to insure that its law libraries are constitutionally adequate to meet its inmates’ needs. Therefore, some alternative method must be found. For the reasons set out hereinbefore, the court today concludes that that method must include, in some form, the assistance of counsel.

An order will be entered in accordance with this opinion.

ORDER

In accordance with the opinion entered this day, it is hereby

ORDERED that:

1. The defendants are not in compliance with their constitutional obligation to provide inmates of the North Carolina prisons with adequate assistance in their access to the courts;

2. The only way to insure that inmates do receive meaningful access to the courts is to require defendants to provide them, in some form, with the assistance of counsel;

3. The parties are hereby directed to submit, within sixty days from the date of this order, their proposed plans for insuring that inmates do receive adequate legal assistance. As soon as a new plan is adopted by the court and in place, it will supplant the plan currently in existence.

      . It should be noted that defendants did not submit these amendments or even inform the court of their existence. The court receives a copy of the Department of Correction regulations and noted the changes when it received the amendments in the mail.

      . See Footnote 1, supra, at page 601.

      . “[RJoughly half of Florida’s inmates read at or below the seventh grade level. The typical inmate has a below average IQ, while twenty-two percent ... of the prisoners have an IQ of less than 80, i.e., at or below the level that would be considered borderline retarded.” Id. at 1343.

      . These factors were also discussed in Canterino v. Wilson, supra, where Judge Edward H. John-stone of the Western District of Kentucky ruled that the state should provide female inmates with the assistance of counsel because, unlike the male prison population in general, they did not have a history of self-help in the legal field and until recently had little access to adequate legal resources. 562 F.Supp. at 112.

      . Defendants are hereby placed on notice that the court will not tolerate any failure to respond to this order.


author: SHADUR, District Judge.

text:
    Kenneth V. PAYNE, Jr., Plaintiff, v. CITY OF LaSALLE, et al., Defendants.
    No. 85 C 4116.
    United States District Court, N.D. Illinois, E.D.
    May 15, 1985.

      Edward F. Diedrich, DeKalb, Ill., for plaintiff.
    Donald A. Gift and T. Donald Henson, LaSalle, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Kenneth Payne, Jr. (“Payne”) has filed an all-too-familiar type of 42 U.S.C. § 1983 (“Section 1983”) Complaint, charging gratuitous brutality on the part of individual police officers and a general and continuing failure on the part of their municipal employer (here the City of LaSalle, “LaSalle,” rather than the most frequently encountered City of Chicago) to have controlled such conduct. LaSalle has moved for its dismissal under Fed.R.Civ.P. (“Rule”) 12(b)(6). For the reasons stated in this memorandum opinion and order, LaSalle is dismissed from the Complaint without prejudice.

Payne’s kind of complaint has produced differing views among the members of this District Court, epitomized on the one hand by Judge Decker’s dismissal of the complaint affirmed last month in Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985) and on the other by Judge Marshall’s opinion in Means v. City of Chicago, 535 F.Supp. 455 (N.D.Ill.1982), disapproved in Strauss, at 769-70. This Court has from the beginning shared Judge Marshall’s view that to require evidentiary pleading of the facts demonstrating a city’s pattern of knowing acquiescence in police misconduct creates a Catch 22 situation. Assume a plaintiff has been subjected to a wanton beating by the police. Until the victim has obtained, through discovery, the official disciplinary file of the officer or officers involved, how is the victim able to allege in his or her complaint evidentiary facts (as contrasted with ultimate or conclusory facts) to support a charge of knowing acquiescence against the employing city?

And that is of course the easier case. Assume rather the plaintiff wants to prove inaction by the municipality in the face of pervasive police misconduct (say toward black arrestees), not just misconduct by the specific arresting officers. If proved, that could legitimately lead a jury to infer the city, by its tacit encouragement of brutality toward (say) blacks, had the necessary proximate causal nexus to support direct liability under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-94, 98 S.Ct. 2018, 2035-38, 56 L.Ed.2d 611 (1978). But without the city as a named defendant in the first instance, discovery of such misconduct by officers other than the direct offender could not be obtained even given the low threshold of discoverability under Rule 26(b)(1).

Despite those considerations (acknowledged only in part by the Court of Appeals’s opinion), Strauss has just upheld the Rule 12(b)(6) dismissal of a complaint much like the one filed by Payne here. Though Strauss purports to find support in the liberal pleading standard of Conley v. Gibson, 355 U.S. 41, 45-46, 47, 78 S.Ct. 99, 101-02, 102, 2 L.Ed.2d 80 (1957), in fact it appears to create a real double standard— one in which a Section 1983 complaint must meet a more stringent fact-pleading requirement than any other. Whether or not that is so, or whether it is instead reflective of a more general current trend in our Court of Appeals, it does violence to the mandate of Rule 8(a)(2) (“a short and plain statement of the claim showing that the pleader is entitled to relief”).

Lest this be thought an unfair criticism, it is only necessary to read the forms of complaint included in the Appendix of Forms following the Rules, incorporated by reference in Rule 84: It is plain indeed that pleading evidentiaryfacts as Strauss requires, rather than conclusory facts, is not the way the draftsmen of the Rules viewed the idea of notice pleading. Indeed, as this Court said in Thompson, 503 F.Supp. at 252, the Rules’ draftsmen knew very well how to mandate “particularity” in pleading when they wanted to; see Rule 9(b), imposing just such a requirement as to “the circumstances constituting fraud or mistake.” And no “particularity” is marked out by the Rules for Section 1983 actions generally or for Monell allegations specifically.

The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.

If this approach rather than that exemplified by Strauss creates more work for the district courts, that is a lesser price to pay than the price of foreclosing injured plaintiffs municipal defendants, the presence of the stricter standard under amended Rule 11 offers a shield against abuse by plaintiffs or their lawyers who file or pursue obviously groundless claims — or who pursue claims that may have appeared tenable at the outset, once their factual groundlessness becomes obvious.

For all this, however, this Court is duty bound to obey Strauss. Although Payne provides detailed allegations of the claimed use of unjustified force and violence by the defendant officers, his allegations against LaSalle (Complaint Count I K 1 and all of Counts III and IV) are of the summary form condemned in Strauss. Accordingly this Court dismisses Counts III and IV and dismisses LaSalle from this action as a defendant — all however without prejudice to Payne’s possible ability to surmount the Strauss hurdle in the future.

      . “All-too-familiar” is used in two senses: first to indicate this Court’s distress at the general prevalence of like complaints (many of which ultimately prove ill-founded), and second to indicate its distress at the number of such complaints that unfortunately prove well-founded.

      . This Court’s first published opinion in this area, Magayanes v. City of Chicago, 496 F.Supp. 812, 813-14 (N.D.Ill.1980) dismissed out the City because the allegation of a “single instance of individual officers’ misconduct" was not coupled with allegations that overcame the Monell bar against mere respondeat superior liability. But shortly thereafter Thompson v. Village of Evergreen Park, 503 F.Supp. 251 (N.D.Ill.1980) voiced concerns much like those expressed in this opinion, and all this Court’s opinions since then have consistently approved the skeletal types of allegations contemplated by the notice-pleading mandate of the Rules. As Thompson, id. at 252 pointed out, that approach does not give plaintiffs a risk-free entree into the federal courts — the "floodgates” concern expressed by Strauss, at 770.

      . Indeed that dilemma could pose a double Catch 22 problem for the plaintiff (Catch 44?). After all Fed.R.Evid. 404(b) bars evidence of other acts or wrongs to show a defendant is a bad person — "to prove the character of a person in order to show that he acted in conformity therewith." Some other predicate for admissibility must exist: plan, motive, intent and so forth. Were the discovery standard to be applied with the same rigor as the pleading standard defined in Strauss, a plaintiff forced to limit his or her complaint to the individual brutal officer would never be able to find out that same officer had been brutal in the past (and brutal to the city’s knowledge), thus permitting joinder of the city on a direct (not respondeat superior) liability basis. It is to be hoped most (though perhaps not all) of us who labor at the District Court level would spare a plaintiff that ultimate injustice by reading Rule 26(b)(1) with its intended breadth ("if the information sought appears reasonably calculated to lead to the discovery of admissible evidence”) and therefore by permitting such discovery of the disciplinary files of the defendant officer or officers.

      . Remember Monell did not set any new and different standards of proximate cause. As in the conventional tort-law context, the test of liability is that the defendant must have been a proximate cause, not the proximate cause, of plaintiff's injuries. And the familiar defense of intervening or supervening cause involving another tortfeasor (in this case, the brutal officer) does not logically apply where that other tortfeasor’s actions are of precisely the type the first tortfeasor (the employing municipality) has had reason to know would be encouraged by its own misconduct — its failure to supervise or discipline like conduct in the past. Familiar case law supports Section 1983 liability for governmental creation or encouragement of a climate of lawlessness. See Lenard v. Argento, 699 F.2d 874, 885-86 (7th Cir.1983).

      . Most recently Hishon v. King & Spalding, — U.S. -, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984) has reconfirmed the viability of the Conley principles.

      . It does seem the Court has had a tendency recently to disavow the clear teaching of Conley altogether. See Sutliff, Inc. v. Donovan Co., 727 F.2d 648, 654 (7th Cir.1984), cited with approval in Strauss, at 768.

      . Were a law student forced to copy one of those terse archetypical complaint forms 100 times on a blackboard, to reinforce his or her understanding of the real meaning of the Rule 8 criterion, the student could scarcely complain of cruel and unusual punishment.

      . Strauss, at 770 expresses its concern that “the doors of the federal courtroom would swing open” under “Judge Marshall’s approach” in Means. But in the vast majority of such cases those doors are already open, for the suit against the individual officers is in court and not subject to dismissal. That means the case burden of the district courts is not really assisted by the Strauss approach (even assuming calendar management concerns can justify foreclosing a possible constitutional claim).

      . See this Court’s opinion in In re Ronco, 105 F.R.D. 493 (N.D.Ill.1985) and cases cited there; see generally Schwarzer, Sanctions Under the New Federal Rule 11 — A Closer Look, 104 F.R.D. 181, 189, 191.

      . That was the caveat this Court issued in Thompson, 503 F.Supp. at 252, pointing to 42 U.S.C. § 1988 and to district courts’ inherent power to deal with frivolous claims. That opinion was written before Rule 11 was tightened up in 1983, making it much easier to sanction clear abuses in this area.


author: BARRINGTON D. PARKER, District Judge.

text:
    Francine K. WEISS, et al., Plaintiffs, v. Linda Lehman GIBSON, et al., Defendants.
    Civ. A. No. 85-0721.
    United States District Court, District of Columbia.
    May 15, 1985.

      Emil Hirsch, Lerch, Early, Roseman & Frankel, Bethesda, Md., for plaintiffs.
    Harry C. Storm, Kenneth R. West, Abrams, West & Storm, P.C., Bethesda, Md., for defendants.
   MEMORANDUM ORDER

BARRINGTON D. PARKER, District Judge.

This action arises from the plaintiffs’ investments in certain real estate joint ventures formed by Linda Gibson and her deceased husband Morton, through a corporation known as Lehman-Gibson Associates, Inc. (“LGA”). The defendants are Ms. Gibson, who is sued both in her individual capacity and her capacity as the representative of her husband’s estate, LGA, and Hy-Bob Co., Inc., the entity which allegedly owned the real estate interests prior to their acquisition through the joint ventures. The complaint alleges violations of the Securities Act of 1933 (“1933 Act”), 15 U.S.C. § 77a et seq., the Securities Exchange Act of 1934 (“1934 Act”), 15 U.S.C. § 78a et seq., the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., the District of Columbia Securities Act, D.C.Code § 2-2601 et seq., the Maryland Securities Act, Md.Corps. & Ass’ns Code Ann. § 11-101 et seq., and various breaches of duty under the common law. The Gibson defendants have moved to dismiss the complaint as to all of these claims, and have moved for a protective order staying the time within which they must file a response to Plaintiffs’ First Request for Production of Documents until such time as the Court rules on the motion to dismiss. For the reasons set forth below, the Court determines that the motion to dismiss is premature with respect to all claims save the RICO claim (Count 7), and the claims under sections 17(a)(1), (2) and (3) of the 1933 Act, 15 U.S.C. § 77q(a)(l), (2) and (3). The motion with respect to those claims is granted; the resolution of the other claims awaits further discovery. The reasons for that determination are set forth below.

Securities Law Claims: Counts 1-6, 8-12

The defendants argue that the statute of limitations bars all of plaintiffs’ claims under the federal and state securities laws. The applicable statutes of limitations for these claims vary in their specifics, but all provide either a one or a two-year limitations period. See 15 U.S.C. § 77m; D.C.Code § 2-2613(e); Md.Corps. & Ass’ns Code Ann. § ll-703(f). Although the plaintiffs allege that they purchased securities between 1979 and 1982, they also assert that fraudulent concealment prevented them from discovering these violations, see complaint at jffl 23, 26, 27, and have filed affidavits stating that they were not aware of the relevant facts until January 1985. Affidavits of Dr. Jacob Katzow and Francine K. Weiss, filed May 3, 1985. Given these assertions, it would be inappropriate to dismiss this case on the pleadings. The defendants may renew their claims in a motion for summary judgment after discovery, if such a motion is warranted at that time. The plaintiffs should, however, amend their complaint to affirmatively plead compliance with the statute of limitations under Count 2 of the complaint, and to set forth with greater particularity the dates of the alleged purchases.

With respect to four of the securities counts, the defendants advance other reasons supporting dismissal, in addition to their assertions based on the statute of limitations. First, they argue that the cause of action for conspiracy to violate the federal securities laws (Count 6) should be dismissed because this cause of action is not independently actionable, and only establishes vicarious liability for an underlying wrong. As a matter of both federal and local law, the defendants’ analysis of the nature of a conspiracy cause of action is correct. See Zabriskie v. Lewis, 507 F.2d 546, 553-54 (10th Cir.1974) (federal securities law); Ferguson v. Omnimedia, Inc., 469 F.2d 194, 197-98 (1st Cir.1972) (federal securities law); Halberstam v. Welch, 705 F.2d 472, 479 (D.C.Cir.1983) (applying local law). Nevertheless, to the extent that Count 6 purports to allege a claim premised on vicarious liability for the wrongful actions of others, it will survive a motion to dismiss. The plaintiffs may include in their amended complaint the correct description of the basis for their cause of action; their failure to indicate the derivative nature of the liability they wish to impose will result in dismissal of this count.

Second, the defendants argue that the causes of action under § 17(a) of the 1933 Act, 15 U.S.C. § 77q(a)(l), (2) and (3) (counts 3-5) should be dismissed because § 17(a) does not afford a private right action. In Deane v. Thomson McKinnon Securities, Inc., 586 F.Supp. 44, 47 (D.D.C.1984), affd mem. op. 762 F.2d 137 (D.C.Cir.1985), this Court adopted this view and now reaffirms it here. The claims asserted in counts 3-5 are accordingly dismissed.

RICO Claim: Count 7

The defendants argue that the RICO claim should be dismissed because it fails to state a claim upon which relief can be granted in the absence of a prior criminal conviction. It is undisputed that none of the defendants have been convicted of criminal securities law violations, the predicate offense on which the plaintiffs’ RICO claim is premised. Both the Second Circuit and Judge Johnson of this District Court have recently held that a criminal conviction on one of the predicate offenses is a necessary element of a civil RICO action. Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482, 503 (2d Cir.1984), cert. granted, — U.S. -, 105 S.Ct. 901, 83 L.Ed.2d 917 (1985); Berg v. First American Bank-shares, Inc., 599 F.Supp. 500, 506 (D.D.C.1984). On April 17, 1985, the Supreme Court heard argument on this issue. 53 U.S.L.W. 3751 (U.S. Apr. 23, 1985) (No. 84-848). Although the circuit courts are divided on this question, see e.g., USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 95 n. 1 (6th Cir.1982), this Court has adopted the position advanced by the Second Circuit and Judge Johnson. See Goldstein v. S & A Restaurant Corp., No. 84-2093 (D.D.C. order filed May 8, 1985). The Court sees no reason to deviate from its previous holding, and accordingly dismisses count 7 for failure to state a cause of action.

Common Law Claims: Counts 13-16

Lastly, the defendants argue that the common law claims should be dismissed for lack of personal jurisdiction. The affidavits filed by the plaintiffs, however, allege that numerous transactions relating to the joint venture took place in the District of Columbia. These facts, if true, are sufficient to establish this Court’s personal jurisdiction over the defendants under the federal securities laws and the District of Columbia long-arm statute, as well as the appropriateness of venue. If the defendants wish to deny these allegations at a later date, they may file an appropriate pleading and affidavits. Dismissal on the basis of the current state of the record is inappropriate.

Moreover, contrary to the defendants’ assertions, the plaintiffs have alleged the proper elements of a claim for punitive damages for their fraud and breach of fiduciary duty claims. By alleging that the defendants acted “wantonly” and “maliciously,” Complaint jffl 76, 81, plaintiffs have met minimal pleading requirements. Knippen v. Ford Motor Co., 546 F.2d 993, 1002 (D.C.Cir.1976). Dismissal of these claims at this time would be premature.

Accordingly, it is this 15th day of May, 1985,

ORDERED

That the defendants’ motion to dismiss is granted with respect to counts 3, 4, 5 and 7 of the complaint and denied with respect to the remainder of the complaint.

That the plaintiffs shall file an amended complaint which clarifies the nature of their cause of action for conspiracy under the securities laws, sets forth the approximate dates of the relevant transactions, affirmatively pleads compliance with the statute of limitations in count 2, and otherwise complies with the terms of this Order. This complaint shall be filed by May 24, 1985, and served on all parties by the same date.

That the defendants shall file an answer to the amended complaint by June 7, 1985.

That the defendants’ motion for a protective order is denied. Defendants shall respond to plaintiffs’ First Request for Production of Documents by June 7, 1985.

      . Their assertions that service of process was insufficient is premised on the dismissal of the federal securities claims. Since those claims are retained at this time, this assertion must be rejected.