text:
    Norma K. VERRILL, Social Security No. [ XXX-XX-XXXX ], Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. No. 84-0361 P.
    United States District Court, D. Maine.
    April 23, 1985.
    David Smart, Jefco, May & Smart, Portsmouth, N.H., for plaintiff.
    Paula D. Silsby, Asst. U.S. Atty., Portland, Me., for defendant.
   MEMORANDUM OF DECISION

GENE CARTER, District Judge.

This is an action under 42 U.S.C. § 405(g) for review of the final decision of the Secretary of Health and Human Services, which denied Claimant’s application for disability insurance benefits. Claimant is a 50-year-old woman who alleged that she became disabled on August 7, 1980 and remains disabled to the present. Claimant’s application was denied administratively, and after hearing, by an Administrative Law Judge (AU), who dismissed that part of the claim relating to the period before the end of October 1982. The reason for the dismissal was that Claimant had been granted benefits for a closed period of disability beginning August 7, 1980 and ending August 31, 1982. The case is before the Court on Claimant’s Motion for Summary Judgment and Defendant’s Motion for Order Affirming the Decision of the Secretary.

The Court has thoroughly reviewed the entire record, including the transcript of the hearing below, the exhibits, and the briefs submitted by counsel. After careful consideration the Court finds that the case must be remanded for more specific findings on the issue of whether Claimant’s impairments meet the requirements of or are equivalent to the impairments listed in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix I. The Court also finds that Secretary’s determination of Claimant’s residual functional capacity unsupported by substantial evidence.

The AU found that
claimant has severe status post multiple lumbosacral fusions with a solid fusion mass, degenerative osteoarthritic changes of the lumbosacral spine, and a history of hiatus hernia, sometimes symptomatic, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in, Appendix 1, Subpart P, Regulations No. 4.

Record at 18. Claimant’s treating physician, Dr. Howell, stated specifically in a letter dated February 4, 1984, that Claimant’s spine disorders meet the listings for arthritis and osteoporosis set forth in Appendix 1, § 1.05(A) and (B). Referring to Section 1.05(A) Dr. Howell states: “Arthritis manifested by ankylosis ...” etc. under number 1, the criteria is very clear. It says, and I quote, “Calcification of the anterior and lateral ligaments” ... “This patient manifests this finding as outlined in this rule and regulation description.” Ex. B32, Record at 262. The AU rejected Dr. Howell’s evaluation, stating that “[w]hile the Claimant does suffer from arthritis and some calcification of the anterior and lateral ligaments, she does not suffer from an-kylosis or fixation of the cervical or dorso-lumbar spine at any number of degrees of flexion measured from the neutral position let alone at more than 30°.” Record at 16. In order to meet the requirements, Claimant must show ankylosis at 30° or more of flexion.

In general, the Court will defer to the superior medical expertise of the Secretary when the reasoning is clear. Blaisdell v. Heckler, Civ.No. 84-0125-P (D.Me. March 28, 1983). Here, however, the Court cannot effectively understand why the AU and treating physician differ so markedly on the question of ankylosis, with the AU finding that it does not exist and the physician implying that there is no question but that it exists.

Ankylosis refers to stiffening, rigidity or fixation of the joint. The Court would assume that the requirement of ankylosis goes to the lack of movement in Claimant’s joints, although it is unclear from the language of the regulation whether the joint must be fixed at 30° or more flexion or whether there must be no movement beyond 30° or more. Dr. Howell’s examination of July 20, 1983, shows that Claimant has “only about 5% of normal flexion and all of that’s in the upper lumbar segments. There is no movement whatsoever in the lower lumbar segments, not at least clinically.” Ex. B21. Residual functional capacity assessments done by Drs. Hornber-ger and Brinkman in July and October 1983 refer to “immobility in lumbar area,” “markedly limited flexion,” Ex. B22, and “2° to no flexion lumbar spine.” Without more specific explanation, the Court cannot adequately assess the AU’s finding that this Claimant, who undisputedly has little or no motion in her lumbar spine, does not meet the listed impairment set forth in Section 1.05(A).

The AU also found that “[w]hile the Claimant does suffer from generalized osteoporosis, as required by section 1.05(B), there are .no documented paravertebral muscle spasms as required nor are there any compression factors documented by X-ray as required.” In part, this finding is contrary to the clinical findings of Dr. Hornberger who noted “muscle spasm and markedly limited flexion and osteoarthritic changes in entire spine.” Ex. B22. It appears, then, that Claimant’s osteoporosis more closely resembles the listed impairments than the AU thought.

The regulations provide that the Secretary shall consider whether Claimant’s impairments meet, or are equal in severity and duration to, the listed findings. 20 C.F.R. § 404.1526. The AU is to compare the symptoms, signs and laboratory findings about Claimant’s impairments with the medical criteria shown with the listed impairment. Id. “If you have more than one impairment, and none of them meets or equals a listed impairment, we will review the symptoms, signs and laboratory findings about your impairments to determine whether the combination of your impairment is equal to any listed impairments.” Id.

Following his analysis of why Claimant’s impairments do not meet the listings for arthritis set forth in § 1.05(A) and osteoporosis set forth in § 1.05(B), the AU stated: “Therefore, the Claimant’s impairments do not meet nor are they the medical equivalence in severity of these impairments.” Record at 16. The implication of this finding is that because the impairments do not meet the listings they are not the equivalent of the listings either. Since the comparison, if performed, was not made explicit with specific findings, the Court cannot effectively review the ultimate finding of nonequivalence. It is clear to the Court that even if Claimant’s arthritis is not ultimately determined to meet the listing in § 1.05(A), each of Claimant’s impairments comes close. The record does not show that the AU conducted the prescribed analysis of the combination of Claimant’s impairments to see if they equal a listed impairment. 20 C.F.R. § 404.1526.

The AU found that despite her impairments, Claimant has the residual functional capacity to perform the full range of sedentary work. This finding was predicated on the AU’s determination that Claimant “can sit for extended periods of time utilizing only the normal breaks during the work day to move about or change position.” Record at 17. For this determination, the AU relied on Claimant’s testimony and a residual functional capacity evaluation performed by Dr. Paul Berry. Id. After careful review of the record, the Court finds that the finding that Claimant can sit for extended periods of time is not supported by substantial evidence. ■ Claimant testified that she can sit and embroider while watching television for only fifteen minutes or a half hour but must then lie down because she is uncomfortable sitting. Record at 35. On the way to the hearing, a car trip of something over an hour, Claimant’s son had to stop the car twice so she could stand and alleviate the discomfort in her back. In no way does Claimant’s testimony support the finding that she can sit for extended periods.

The initial medical evaluation of Dr. Berry is, in many respects, difficult to read. The form which he filled out indicates that it is based on an 8 (eight) hour work day. In the blank provided for number of hours Claimant is able to sit, the number filled in looks like a 12 (twelve). This, of course, is not consonant with the directions to determine capacity based on an eight hour day. Moreover, the 12 looks very much like a 1/2 without the line indicating that the number is a fraction. The Court is convinced that the latter is the more likely interpretation because, in a letter submitted to the Appeals Council, Dr. Berry stated that “[i]n my opinion, she could not sit for more than a 1/2 hour at a time...” Ex. AC1, Record at 266. Since Claimant cannot sit for extended periods, on remand the AU should redetermine her residual functional capacity.

Accordingly it is ORDERED that this case be, and is hereby, REMANDED to the Secretary for proceedings consistent with the opinion herein.

So ORDERED.

      . Following an examination on August 25, 1982, Dr. Chen found that Claimant had 50° of flex-ion. This examination took place at the end of Claimant’s previous period of disability, which was determined to have ended on August 31, 1982, and cannot form the basis for a finding during the period now in question.


source: Caselaw Access Project

author: GENE CARTER, District Judge.

license: Public Domain

text:
    Alison DANDENEAU, Social Security No. [ XXX-XX-XXXX ], Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. No. 84-0367 P.
    United States District Court, D. Maine.
    April 23, 1985.
    Arthur R. Dingley, Holder & Grover, Portland, Me., for plaintiff.
    Paula D. Silsby, Asst. U.S. Atty., Portland, Me., for defendant.
   ORDER FOR REMAND AND PAYMENT OF BENEFITS PENDING DECISION ON THE MERITS

GENE CARTER, District Judge.

This is an action brought under 42 U.S.C. § 405(g) and 1383(c)(3) for review of a final decision of the Secretary of Health and Human Services which denied Plaintiffs applications for disability insurance benefits and supplemental security income payments.

This Court granted the Secretary’s Motion for Extension of time to file the administrative- record on January 18, 1985. The Secretary sought extension on the ground that the hearing transcript contained 139 “inaudibles” within 22 pages.

The Secretary filed the administrative record on February 4, 1984. The hearing transcript is prefaced by the following remark by the Secretary’s transcriber:

The recording of this hearing was done with improper recording. I had the transcriber all the way up and everything came out a whisper. The whole first side was impossible to hear and there are a lot of blank spaces on the rest of the transcription because of this.

Record at 24.

The claimant; Carlyle B. Voss, M.D., a Medical Advisor to the Secretary; and Barbara Blue, a vocational expert, testified at the hearing. In his decision, the ALT relied heavily upon the testimony of Dr. Voss. See Record at 19. Plaintiff here challenges Dr. Voss’s conclusion that Plaintiff's impairment does not meet or equal that listed in Section 12.04(A) and (B) of Appendix 1 to 20 C.F.R. Part 404, Subpart P. The Court must have an accurate transcript of Dr. Voss’s testimony in order to conduct adequate judicial review. Due to recording or transcription difficulties, Dr. Voss’s testimony has virtually been rendered incomprehensible. Therefore, the case must be remanded for a new hearing. If the Secretary continues to rely on Dr. Voss’s opinion, his testimony must be taken again. In addition, if the testimony of the claimant is relevant to the issue as to whether her impairment met or equaled the listings, as raised by Plaintiff in her action for judicial review, her testimony must also be retaken.

The Secretary has the burden of compiling and filing a transcript of the record “including the evidence upon which the findings and decision complained of are based.” 42 U.S.C. § 405(g). By offering this woefully defective transcript, the Secretary has utterly failed to fulfill her statutory obligation. Section 405(g) further provides in pertinent part:

The Court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary...

Here, the Secretary has not moved for remand, but she has made remand necessary by filing a defective transcript. Good cause has not been shown. See Poliquin v. Heckler, 597 F.Supp. 1004, 1006 (D.Me.1984).

The delay occasioned by the need for remand prejudices the claimant, who will be forced to wait for judicial review of her claim. If the transcript had been adequate, this Court would have decided this case on or about the date of this decision. Accordingly, to redress the prejudice, the Court will order the Secretary to pay the claimant disability and supplemental security income benefits beginning the date of this decision and continuing until this Court issues a decision on the merits of Plaintiff’s request for judicial review. See Poliquin, 597 F.Supp. at 1007; LePage v. Heckler, Civil No. 84-0123-P (D.Me. June 19, 1984) (unpublished order); Longley v. Heckler, Civil No. 84-0088-P (D.Me. June 29, 1984) (unpublished order).

Accordingly it is ORDERED:

(1) that this case be, and is hereby, REMANDED to the Secretary for further proceedings in accordance with this Order for Remand; and
(2) that the Secretary shall award Plaintiff disability and supplemental security income benefits commencing the date of this Order and continuing until this Court issues a final decision on Plaintiffs request for judicial review. Payment of such benefits shall commence no later than twenty (20) days from the date of this Order.
(3) The Court retains jurisdiction for purposes of overseeing and enforcing the Secretary’s compliance with paragraph 2 of this Order.

So ORDERED.


text:
    Michael G. TIBBETTS, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. No. 82-0208 P.
    United States District Court, D. Maine.
    April 23, 1985.

      James R. Crotteau, Bangor, Me., for plaintiff.
    Paul D. Silsby, Asst. U.S. Atty., Portland, Me., for defendant.
   MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District Judge.

This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the final decision of the Secretary of Health and Human Services which denied Plaintiff’s applications for disability insurance benefits and supplemental security income benefits. Plaintiff is a 32-year-old man who- alleges that he became disabled in June 1979 as a result of several psychological and physical impairments. The Secretary denied his applications in a final decision on May 10, 1982. Plaintiff obtained judicial review of the Secretary’s decision, and this Court remanded to the Secretary for further findings. Order Remanding Action to Secretary, Civil No. 82-0208-P (March 31,1983) (per Cyr, C.J.). The Court ordered the Secretary to “determine whether plaintiff’s nonéxertional impairments are significant enough to limit his ability to perform some jobs in his strength category which are not contraindicated by his exer-tional impairments” and to “make more detailed findings that plaintiff does not have an impairment equivalent” to those listed in Sections 12.00(B)(2) or 12.-00(B)(3)(b) of Appendix 1 to 20 C.F.R. Part 404, Subpart P. Id. at 14.

Upon remand, the Appeals Council remanded to the Administrative Law Judge (AU) for the taking of further evidence. The AU recommended that Plaintiff’s application be denied, and the Appeals Council adopted the recommended decision of the AU. Plaintiff again sought judicial review and has raised several challenges to the AU’s decision.

The AU found that Plaintiff has a severe depressive disorder, recurrent shoulder dislocations, a hiatal hernia, mild chronic headaches, a possible personality disorder and minor side effects from prescribed medication, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in, Appendix 1 to Subpart P, 20 C.F.R. Part 404. See 20 C.F.R. § 404.1520(d). He found that Plaintiff has the residual functional capacity to work, except for lifting over 10 pounds, working around stress or tension, working around dangerous machinery, or working in jobs requiring more than minimal interpersonal contact. He found that Plaintiff cannot perform his past relevant work, see 20 C.F.R. § 404.-1520(e), but that he does have the residual functional capacity to perform jobs existing in significant numbers in the regional economy.

I.

The ALJ found that Plaintiffs chronic headaches impose no significant functional restrictions upon Plaintiff. Record at 176. Plaintiff contends that this finding is not supported by substantial evidence.

Three medical experts noted the existence of Plaintiff’s chronic headaches. See Record at 262, 264, 274. At least one physician, M. Eisengart, M.D., suggested that the headaches may be caused by tension and his psychological problems. Record at 262. The medical reports cited by Plaintiff do not, however, contain conclusions as to the degree to which the headaches may cause functional restrictions.

The only evidence cited by Plaintiff which directly supports his contention that the headaches cause significant functional restrictions is the testimony of Plaintiff. On questioning by the ALJ, Plaintiff testified:

A These throw off my judgment, I’m very (inaudible), anything at all will make me nauseous.
Q When you say your judgment is thrown off, can you describe that a little more?
A It seems like (inaudible). It seems like how you miss, it’s further away than it actually is. I sometimes stagger. It throws my equilibrium right off.
Q Do you ever get nauseous with mi-granes [sic]?
A Yes (inaudible).
Q Is there any pain associated with these headaches?
A Yes, it’s very intense pain. Just, sometimes I think it’s about to break open your head. I just can’t stand it.

Record at 193. Plaintiff testified that the frequency and duration of his headaches “depends upon the stress and tension,” but that he gets approximately two headaches a week, and that they last as long as a week. Record at 194, 195.

The AU found that Plaintiff suffers from chronic headaches, but he disbelieved Plaintiff’s testimony as to their severity and frequency. Record at 176. He found Plaintiff’s testimony to be inconsistent with the objective medical evidence. Id.

Plaintiff argues that his testimony as to the severity and frequency of the headaches is uncontradicted, and that the AU’s refusal to believe it was not supported by substantial evidence.

The Claimant has the burden of proving that he is disabled. 20 C.F.R. § 404.-1512(a); Reyes Robles v. Finch, 409 F.2d 84, 86 (1st Cir.1969). In this case, the only evidence concerning the disabling effects of Plaintiff’s headaches is Plaintiff’s own testimony as quoted and paraphrased above. Plaintiff’s brief testimony concerning his headaches includes no description of the extent to which they restrict his activities. The testimony, if fully credited, could support an inference that the headaches do significantly restrict his functioning. The AU, however, did not give full credit to his testimony. This the AU is entitled to do, even though the testimony is not contradicted by medical evidence. See Reyes Robles v. Finch, 409 F.2d 84, 87 (1st Cir.1969). The ALJ, as hearing examiner, is particularly well situated to evaluate credibility, and a reviewing Court will rarely upset such findings. See Seavey v. Heckler, 594 F.Supp. 587 (D.Me.1984); Monroig v. Secretary of Health and Human Services, 538 F.Supp. 710 (D.P.R.1982). Issues of credibility and the drawing of permissible inferences are the prime responsibility of the Secretary. Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir.1965). Therefore, this Court will not disturb the Secretary’s findings as to the disabling effects of Plaintiff’s headaches.

Plaintiff relies on this Court’s decision in Seavey to support his argument that the Secretary cannot disregard uncontradicted testimony as to pain. Seavey is distinguishable. In Seavey, the AU had determined after questioning the claimant that her extensive testimony as to the disabling effects of her pain was credible. This finding was overturned by the Appeals Council, which had no opportunity to observe the claimant’s testimony. The Court concluded that the Appeals Council had no basis to upset the AU’s credibility finding. Likewise, the Court will not upset the ALJ’s credibility finding in this case.

As an alternative means of attacking the ALJ’s finding regarding the effects of Plaintiff’s headaches, Plaintiff argues that the AU used an improper standard in assessing the evidence. Plaintiff gains nothing by this argument. The AU’s finding that Plaintiff’s headaches do not cause significant functional restrictions is properly supported by the record. A reasonable mind, reviewing the record as a whole, could accept it as adequate to support the AU’s conclusion. See Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1st Cir.1981). This Court is to go no further in reviewing the decision of the Secretary.

II.

Plaintiff contends that in several instances in his decision the AU improperly supplied expert evidence. He argues that the AU erroneously refused to acknowledge that the headaches are psychologically caused. The AU did note that there were no neurological or other objective findings establishing a severe headache impairment. Record at 176. He did not, however, expressly rule out a psychological cause. He merely noted the absence of evidence supporting Plaintiff’s testimony as to the headaches’ severity and frequency. The AU’s failure to make a finding as to the cause of the headaches does not undermine his conclusion as to their disabling effects. There was no error in the AU’s approach; as noted above, his finding regarding the headaches was supported by substantial evidence.

Plaintiff also contends that the AU improperly based his finding as to whether Plaintiff’s impairment met or equaled the listings upon his observations of the Plaintiff. See Steffanick v. Heckler, 570 F.Supp. 420, 426 (D.Md.1983). The AU did find Plaintiff’s appearance and performance at the hearing to be inconsistent with a conclusion that his depressive disorder has functional significance. Record at 177. The AU, however, also cited the reports of three medical experts, H. Wayne Tobin, M.D., a psychiatrist; Frank A. Wood, Ph.D., a clinical psychologist; and Carlyle B. Voss, M.D., the Medical Advisor, in support of his conclusion. Record at 176, 177. Accordingly, there was substantial evidence, apart from the AU’s observations of the claimant, supporting his finding that the claimant’s impairments did not meet or equal the listings.

Plaintiff further argues that the AU improperly reached conclusions as to the presence of dangerous machinery in certain jobs which he found Plaintiff could successfully perform. The AU found that Plaintiff could not work with dangerous machinery. Record at 179. However, he failed to include this limitation in the hypothetical he posed to the vocational expert at the hearing. See Record at 219. He utilized the vocational expert’s detailed descriptions of jobs the claimant could perform to determine which ones involved the use of dangerous machinery. Record at 179. Plaintiff argues that the AU was incompetent to determine whether the jobs involve dangerous machinery. Having heard an expert’s description of the machinery involved in several jobs, however, the AU had sufficient evidence to make findings as to the danger involved. His approach was cautious; he expressly excluded one job, that of press folder and feeder, because the vocational expert “did not describe the specific mechanism of this machine.” Record at 179. It is clear that the AU’s findings were properly based on competent testimony and inferences drawn therefrom.

III.

Plaintiff argues that the hypothetical the AU posed to the vocational expert did not describe his functional limitations with sufficient particularity, and that, therefore, the expert’s opinion is irrelevant under the standard of Arocho v. Secretary of Health and Human Services, 670 F.2d 374 (1st Cir.1982). Arocho provides that in order for an answer to a hypothetical question to be relevant, the question must fairly state the conclusions drawn from the medical evidence.

Here, the AU acknowledged in his decision that he did not tell the vocational expert that Plaintiff could not work around dangerous machinery. Record at 179. But the AU expressly noted this additional restriction when analyzing the conclusions of the expert. Id. As noted above, he considered the restriction when he made his findings as to jobs the Plaintiff could perform. Therefore, the expert’s opinion was relevant to the extent that it was relied upon by the AU.

Plaintiff argues that the AU also omitted from his hypothetical evidence regarding Plaintiffs tendency to explosive behavior, migraine headaches and withdrawal. Because he found the headaches imposed no significant functional restrictions, see supra, the AU had no reason to include them in the hypothetical. The evidence indicates that Plaintiffs occasional explosive behavior and tendency to withdraw are brought on by stress, tension and contact with people. Record at 265, 269. The AU asked the vocational expert to assume that Plaintiff has a nonexertional impairment “which limits him from employment situations of a stressful nature, from employment situations where tension would be a factor, from employment situations where there are lots of people involved, people contact situations in other words.” Record at 219. Thus the AU adequately accounted for Plaintiffs explosive behavior and tendency to withdraw by indicating that he could not work in stressful situations, which would be likely to produce such reactions. Therefore, the AU’s omission of these psychological reactions from his hypothetical question was not erroneous.

Accordingly, it is ORDERED that the decision of the Secretary of Health and Human Services be, and is hereby, AFFIRMED.

So ORDERED.


text:
    Dianna PEHRSON, Plaintiff, v. Kevin W. CONCANNON, et al., Defendants.
    Civ. A. No. 84-0235 P.
    United States District Court, D. Maine.
    April 23, 1985.

      Richard Poulos, John S. Campbell, Portland, Me., for plaintiff.
    Linda S. Crawford, Asst. Atty. Gen., Augusta, Me., for defendants.
   MEMORANDUM OF DECISION AND ORDER ACCEPTING MAGISTRATE’S RECOMMENDED DECISION

GENE CARTER, District Judge.

This is a three-count action brought by the plaintiff mother on her own behalf and on behalf of her minor daughter against state officials of the Maine Department of Mental Health and Mental Retardation, based on defendant officials’ actions in attempting to gain access to the medical records of plaintiff’s daughter.

In early 1983 plaintiff, an American Indian, enrolled her daughter, here referred to as Jane Doe, in Elan, a private residential school. Upon admission an agreement was executed whereby Elan agreed to comply with federal law and keep all of Jane’s records strictly confidential. In January, 1984 Jane wrote a letter to U.S. Representative Olympia Snowe’s office making abuse allegations against Elan. At some later date Jane wrote a subsequent letter to Representative Snowe’s office indicating she did not intend to pursue the matter further. Ms. Snowe’s office contacted the plaintiff regarding the letters and plaintiff expressed her desire that Jane not be contacted. A representative from Ms. Snowe’s office later attempted to contact Jane but was denied contact by Elan.

In April, 1984 the defendant officials from the State Department of Mental Health and Mental Retardation requested that Elan allow them to speak to Jane. Elan refused to allow contact. Plaintiff phoned defendant Ellis and expressed her desire that her daughter not be contacted by state officials. In May 1984 defendant officials requested access to Jane’s records at Elan. Elan stated that it must refuse this request unless plaintiff consented or defendants stated in writing the basis for the request, its purpose, and the scope of the inspection. In July, 1984 defendant officials made repeated requests to examine Jane’s records. All requests were refused.

Plaintiff claims violation of federal confidentiality provisions governing drug and alcohol treatment records (42 U.S.C. §§ 290dd-3(a), 290ee-3(a)), infringement upon plaintiff’s parental rights as protected by the Fourteenth Amendment, and infringement upon the Fourth Amendment, Due Process, and Equal Protection rights of plaintiff mother, her daughter, and Elan.

The Magistrate found that the basis of the lawsuit was plaintiff’s contention that, “On information and belief, defendants intend to take adverse actions in the immediate future against Elan, plaintiff or plaintiff’s child on the basis of the refusal to produce confidential treatment records.” He concluded that, “This allegation of some undefined future action by the defendants which is not based upon direct knowledge but only information and belief, with no specification of what it is the defendants might do to the mother or daughter, does not create a sufficiently concrete controversy to sustain this court’s jurisdiction.” The Magistrate recommended that the complaint be dismissed. This action is presently before the Court on plaintiff’s objection to the Recommended Decision of the Magistrate.

Plaintiff objects to the Magistrate’s ruling on the grounds that: plaintiff sought damages for past unconstitutional state action as well as prospective declaratory and injunctive relief; the alleged threatened state action is sufficient to give rise to a case or controversy; and defendants’ counsel’s statement during litigation, that they would continue to seek plaintiff’s daughter’s confidential records, supplements plaintiff’s allegations of threatened state action.

A. Claim of Damages for Past Action

Although plaintiff summarily states that her claim for past damages states a cause of action which is ripe, the facts of this case, and the cases cited by plaintiff, do not support this proposition. The complaint makes clear that there has not yet been a breach of confidentiality as prohibited by the federal provisions. Elan has consistently refused to provide any information on plaintiff’s daughter to the defendant officials without plaintiff’s consent. Therefore, even if a private cause of action were created under 42 U.S.C. §§ 290dd-3 and 290ee-3, since no violation of these confidentiality provisions has occurred there can be no cause of action under their provisions.

Plaintiff also claims past damages under Counts II and III of her complaint, which allege infringement of her parental rights and the Fourth Amendment, Equal Protection and Due Process Rights of plaintiff, her daughter and Elan. Since Elan is not a party, any injury to its rights is irrelevant to this action.

To state a case or controversy under Article III plaintiffs must allege some threatened or actual injury which is real and immediate. O’Shea v. Littleton, 414 U.S. 488, 493-94, 94 S.Ct. 669, 674-65, 38 L.Ed.2d 674 (1974); Warth v. Seldin, 422 U.S. 490, 507-08, 95 S.Ct. 2197, 2209-10, 45 L.Ed.2d 343 (1975); Roe v. Wade, 410 U.S. 113, 128, 93 S.Ct. 705, 714, 35 L.Ed.2d 147 (1973); Coombs v. Town of Ogunquit, 578 F.Supp. 1321 (Me.1984). The past futile actions of the defendants to obtain Jane Doe’s records cannot be said to have actually injured plaintiff or her daughter. Although the courts have often recognized the general importance of a parent’s interests in the custody and control of their child, see Santosky v. Kramer, 455 U.S. 745, 755, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599 (1982); Parham v. J.R., 442 U.S. 584, 603-05, 99 S.Ct. 2493, 2504-06, 61 L.Ed.2d 101 (1979); Whelehan v. County of Monroe, 558 F.Supp. 1093 (W.D.N.Y.1983), plaintiff has pointed to no precedent which would indicate that the courts would recognize a cause of action for infringement of parental rights based on a state agency’s unsuccessful attempts to obtain a child’s medical records from a private hospital. Such an alleged infringement or injury is ephemeral and cannot sustain jurisdiction.

B. Claim for Declaratory and Injunc-tive Relief from Future Actions

Plaintiff contends that her claim for injunctive relief, to prevent defendants from continuing to attempt to obtain the medical records of plaintiff’s daughter, and for declaratory relief, to declare Maine regulations which purportedly conflict with the federal statute unconstitutional, present a ripe case and controversy. To state a true case or controversy plaintiff must allege an actual or threatened injury which is real and immediate and not conjectural or hypothetical. O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974); Coombs v. Town of Ogunquit, 578 F.Supp. 1321 (Me.1984). Plaintiff states that her threatened injury is that “there is every indication that the State intends to continue its efforts to obtain Jane Doe’s confidential records without complying with the federal confidentiality statute.” Plaintiff’s Memorandum in Support of Plaintiff’s Objections at 11. To constitute a threatened injury to plaintiff the court must also assume that defendants’ attempts would be successful.

Perhaps recognizing the questionable nature of her threatened injury, plaintiff asserts that it meets the relaxed case and controversy requirements stated in Babbitt v. United Farm Workers National Union, 442 U.S. 289, 301-03, 99 S.Ct. 2301, 2310-11, 60 L.Ed.2d 895 (1979). However, Babbitt (and all the other cases cited by plaintiff) provides only that where a party is faced with an actual threat of prosecution for performing an illegal act they may challenge the validity of the ordinance or statute which makes the activity illegal even though they have not yet violated the law. Clearly these cases provide no support for plaintiff’s claim. Plaintiff is not threatened with prosecution. Plaintiff has no desire to perform an illegal act. Rather, plaintiff is concerned that upon the insistent urgings of defendants Elan will not continue to obey federal law. Elan has repeatedly stated they will follow federal confidentiality requirements and have entered a contract with plaintiff stating that they will preserve the confidentiality of Jane Doe’s records. Under such circumstances plaintiff’s claim of a threatened injury is, at least at this juncture, conjectural and hypothetical. It does not create a case or controversy upon which this court may exercise its jurisdiction.

The Court has conducted a de novo review of those portions of the Magistrate’s Recommended Decision objected to by plaintiff. 28 U.S.C. § 636(b). Accordingly, it is ORDERED that the Recommended Decision of the Magistrate be, and is hereby, ACCEPTED. Defendant’s Motion to Dismiss is hereby GRANTED.

SO ORDERED.

      , Section 290dd-3(a) provides:
      Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to alcoholism or alcohol abuse education, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.
      Section 290ee-3(a) provides:
      Records of the identity, diagnosis, prognosis, or treatment of any patient are maintained in connection with the performance of any drug abuse prevention function conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.


author: OWENS, Chief Judge:

text:
    Jerry Lee PHILLIPS, Plaintiff, v. SOUTH CAROLINA INSURANCE CO., Defendant.
    Civ. A. No. 82-361-1-MAC.
    United States District Court, M.D. Georgia, Macon Division.
    April 23, 1985.
    Stewart R. Brown, Macon, Ga., for plaintiff.
    M. David Merritt, Atlanta, Ga., for defendant.
   OWENS, Chief Judge:

In this diversity action, plaintiff seeks “no-fault” benefits under the Georgia Motor Vehicle Accident Reparations Act, O.C. G.A. §§ 33-34-1, et seq. (1982), pursuant to the theory of recovery set forth in a line of Georgia cases beginning with Jones v. State Farm Mutual Auto. Ins. Co., 156 Ga.App. 230, 274 S.E.2d 623 (1980). Presently before the court is plaintiff’s motion for partial summary judgment on the applicability of Georgia law.

FINDINGS OF UNDISPUTED FACT

1. On November 20, 1979, plaintiff was a resident of South Carolina. On that date, he applied for a policy of automobile liability insurance to be issued by defendant. Russell Affidavit ¶¶ 6-8.

2. In his application, plaintiff rejected coverage for personal injury protection as defined by South Carolina law. Exhibit A to Russell Affidavit.

3. Defendant accepted plaintiff’s application and issued policy number ADA 3877445 to plaintiff for the period of November 20, 1979, to November 20, 1980. Russell Affidavit ¶ 12.

4. On or about August 27,1980, defendant was informed that plaintiff had changed his mailing address to P.O. Box 308, Monticello, Georgia. Russell Affidavit 1114.

5. On October 17, 1980, plaintiff advised defendant that he had purchased a new vehicle, and he requested that this new vehicle be substituted under policy number ADA 3877445. Replacement coverage was so executed. Russell Affidavit ¶¶ 15-16. Plaintiff by affidavit avers that he again advised defendant that he was living in Georgia. Phillips Affidavit 116. Defendant does not deny that it was so advised.

6. On November 7, 1980, plaintiff was injured in a motor vehicle collision occurring in Putnam County, Georgia and involving the vehicle covered by policy number ADA 3877445.

7. As a result of this collision, defendant paid plaintiff $5,000.00 in personal injury protection benefits under policy number ADA 3877445. Defendant has refused to pay the maximum benefits set forth in O.C. G.A. §.33-34-5 (1982), despite plaintiffs demand and tender of an additional premium.

CONCLUSIONS OF LAW

O.C.G.A. § 33-34-3 (1982) provides in pertinent part:

All policies of motor vehicle liability insurance issued in this state must be in accordance with the requirements of [the Georgia Motor Vehicle Reparations Act]....

Id. § 33-34-3(a)(l). The Act goes on to provide that “[e]ach insurer shall also make available on an optional basis [additional, maximum no fault benefits].” Id. § 33-34-5. Plaintiffs cause of action is predicated on his claim that defendant failed to offer the optional no fault benefits in the manner prescribed by the statute. See Flewellen v. Atlanta Casualty Co., 250 Ga. 709, 300 S.E.2d 166 (1982); Jones v. State Farm Mut. Auto. Ins. Co., 156 Ga.App. 230, 274 S.E.2d 623 (1980). The issue presented in this motion is whether defendant was required to comply with the Georgia statute upon notice that its insured had moved to Georgia. Defendant argues that “the burden of insuring compliance with the [no fault law] resided with plaintiff.” Brief of Defendant at 7.

When plaintiff moved to Georgia and notified his insurance company of his change in address, an offer of novation occurred. See American Service Mut. Ins. Co. v. Bottum, 371 F.2d 6, 8-10 (8th Cir.1967). Defendant was certainly free to. adjust its premium in light of any increase in risk, or to refuse to extend coverage altogether if it opposed the policies of Georgia’s no-fault law. It did neither; by allowing coverage to continue while plaintiff resided in Georgia, defendant effectively accepted the offer of novation and caused its policy to be subject to Georgia law. Georgia law clearly places upon the insurer the burden to make optional no-fault benefits available. O.C.G.A. § 33-34-5(a) (1982). Accordingly, defendant was required to comply with Georgia’s Motor Vehicle Reparations Act.

Defendant argues that the recent decision of the Georgia Supreme Court in Doran v. Travelers Indem. Co., 254 Ga. 63, 326 S.E.2d 221 (1985) is dispositive of this case. In Doran, the court held that an insurer who issued a policy of automobile liability insurance to a Florida resident for a business vehicle licensed and registered in Florida was not subject to the optional no-fault benefits statute, as construed in Jones and Flewellen, even though the insurer knew that the vehicle was garaged at the insured’s branch office in Waycross, Georgia. Because the policy was issued in Florida and the named insured remained a Florida resident, the court ruled that the policy was not “issued” in Georgia and thus was not subject to O.C.G.A. § 33-34-5 (1982). Id., 326 S.E.2d at 226 (“It is where the policy was issued, and not where the vehicle was licensed or garaged, which is a [the ?] factor used.to determine whether all provisions of the no-fault act apply_”).

This action is factually distinguishable from Doran and is not controlled by that decision. Doran involved a policy insuring a fleet of company vehicles owned by a Florida businessman. The vehicle in question, though garaged in Georgia, continued to be owned and operated by the Florida business. It was therefore governed by the general liability policy issued in Florida covering all of the Florida owned vehicles. In contrast, this case involves an individual policy covering a vehicle intended for personal use. The named insured moved to Georgia and apparently severed all ties to South Carolina. Unlike the named insured in Doran, plaintiff no longer remained a resident of the state in which the policy was originally issued, nor did he continue to conduct business there. Because a change of state residence is such a fundamental change in a contract of automobile insurance, an offer of novation occurred. See American Service Mut. Ins. Co. v. Bottum, supra. Defendant by its silence assented to this novation. In effect, a new policy of insurance was “issued” in Georgia, and it was subject to all requirements of Georgia law.

Plaintiffs motion for partial summary judgment on his claim-that defendant was required to make available to plaintiff optional no fault coverages in the manner set forth under O.C.G.A. § 33-34-5 (1982) is hereby GRANTED.

      . There is a disputed question of fact as to whether defendant agreed to cause a local, Georgia agent to contact plaintiff regarding his new residence in Georgia. However, defendant does not deny that it was twice advised that plaintiff was living in Georgia.


author: WEXLER, District Judge.

text:
    AMOCO OIL COMPANY, Plaintiff, and Tartan Oil Corp., Plaintiff-Intervenor, v. D.Z. ENTERPRISES INC. and Dinc H. Karabag, Defendants.
    No. CV 84-3202.
    United States District Court, E.D. New York.
    April 24, 1985.

      Townley & Updike, New York City, for plaintiff.
    Carl S. Levine, Garden City, N.Y., for plaintiff-intervenor Tartan Oil Corp.
    Burns & Berger by Lawrence Berger, Garden City, N.Y., for defendants.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

Amoco Oil Company (Amoco) brings this action for trademark infringement under the Lanham Act, 15 U.S.C. §§ 1114, 1125, and New York General Business Law § 368 (McKinney 1984), and termination of its franchise dealership agreement with defendant D.Z. Enterprises, Inc. and its president Dine H. Karabag (collectively Kara-bag) under the Petroleum Marketing Practices Act (PMPA or Act). 15 U.S.C. §§ 2801-2806. Tartan Oil Corporation (Tartan Oil), which has broker agreements with Amoco and Karabag and leases a service station to Karabag, was granted leave to intervene as plaintiff-intervenor. Tartan Oil seeks to end Karabag’s leasehold.

When Amoco filed this action it also sought a preliminary injunction, which was withdrawn when plaintiff and defendant entered into a debranding agreement. Discovery has proceeded, and based on information from interrogatories and depositions Amoco now moves for partial summary judgment against Karabag, Rule 56(b), Fed.R.Civ.P. Plaintiff asks this Court to hold as a matter of law that Karabag has violated the Amoco trademark and that Amoco’s termination of the franchise agreement is valid under the terms of the PMPA and the agreement itself. Tartan Oil also moves for partial summary judgment in its favor and asks this Court to hold Karabag in breach of the broker agreement and the service station lease agreement and order defendant to vacate the premises, and dismiss defendant’s counterclaims. Karabag opposes both motions, maintaining that defendant has not violated the Amoco trademark, and that oral modifications of the agreements with Tartan Oil preclude any action for breach. Karabag has raised a number of affirmative defenses and counterclaims against both plaintiff and intervenor.

I.

Karabag operates an Amoco station at Route 112 and Sunrise Highway in Pat-chogue, New York. Defendant took over the lease to those premises by assignment in June of 1982 from liter Karakurt. Tartan Oil is the landlord of the service station but Amoco owns certain of the fixtures and equipment and its distinctive trademark designations displayed about the station. In addition to owning and leasing the gas station, Tartan Oil is a motor fuel broker. As such Tartan Oil does not distribute or take title to any of the motor fuels it brokers. There are four agreements linking the three parties together: a broker agreement between Amoco and Tartan Oil, a broker agreement between Tartan Oil and Karabag, a lease on the Sunrise Highway station between Tartan Oil and Karabag, and a supply contract between Amoco and Karabag. Breach of the last three agreements is at issue here.

II.

The Court first addresses Amoco’s motion for summary judgment against Kara-bag for violation of §§ 32(l)(a) and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114(l)(a) and 1125(a), and for termination under the PMPA, 15 U.S.C. §§ 2801-2806.

Amoco is a refiner and distributor of petroleum products. The Amoco mark is registered as a trademark with the United States Patent and Trademark Office and so comes under the protection of the Lanham Act. It is undisputed that Karabag is dispensing through Amoco-branded pumps gasoline that was not sold to defendant by Amoco or designated by Amoco as Amoco-brand gasoline. In his deposition, answers to interrogatories, and affidavit Dine Kara-bag declares that he bought gasoline from Petroleum Haulers, Inc., paying cash and retaining no receipts, and sold it to the public from Amoco pumps. Defendant contends that this is not a violation of Amoeo’s trademark because defendant is selling exactly the same gas that Amoco supplies. As an affirmative defense to the trademark violation Karabag argues that the practice of commingled storage, which is common in this area, vitiates Amoco’s trademark. Defendant also claims that failure to add patented additives voids the trademark.

Commingling is a practice whereby several refiners deposit and draw their product from a common storage facility. The commingled storage tanks in this case are in Setauket, and the gasoline drawn from these tanks by Amoco, therefore, is not necessarily refined by Amoco. Nevertheless, gasoline from commingled storage can be made unique by mixing in special additives when the tank truck draws the gas. Amoco has patented Amotone, an additive that cleans an automobile’s carburetor, and claims that it is added to all the gasoline that Amoco distributes for sale through Amoco-branded stations. Karabag claims not only that Petroleum Haulers’ gas is from the same storage tanks at Setauket as Amoco’s, but that drivers delivering Amoco-branded product told him that Amo-tone was frequently not added .to their tanker loads. This, Karabag argues, vitiates any basis for Amoco’s claim that Kar-abag has violated its trademark.

Not surprisingly, defendant cites no law in support of his position. There is none. Nor need the Court labor long over the trademark issue. The law is clear and unequivocal. It is of no importance whether Amoco sells commingled gas, whether Petroleum Haulers draws from the same storage facility as Amoco, or whether Amotone is added. What is important is the undisputed fact that Karabag sells from Amoco pumps gasoline that Amoco had not designated as Amoco-brand gasoline.

It is settled that the trademark holder need not actually manufacture the branded product in order to receive trademark protection, but can merely select and designate the product bearing its mark. Menedez v. Holt, 128 U.S. 514, 9 S.Ct. 143, 32 L.Ed. 526 (1888). This principle has been applied explicitly to cases of gasoline branding like the one at hand. In Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 478 F.Supp. 243 (E.D.Pa.1979), aff'd, 637 F.2d 105 (3d Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981), the plaintiff contended that since Texaco purchased gasoline from other refiners and sold it to plaintiff as Texaco gasoline, Texaco could not claim plaintiff violated its trademark by doing the same thing. This is exactly Karabag’s argument. The law, however, holds the contrary to be true. As the Sweeney Court held, what constitutes a particular brand of gasoline is for the trademark holder in its discretion to determine. Id. at 279. Moreover, commingling, the refinery of the gasoline, and the presence or absence of patented additives are not determinative of the trademark. Id. As the Sweeney Court held,

Clearly, Texaco had the right to put its trademark on whatever gasoline it deemed suitable. The crucial point ... is that just because Texaco, the owner of the trademark, could decide what gasoline to market under that trademark does not mean that Sweeney, who had only the right to sell gasoline so marked, had a like right to decide which gasoline to call Texaco.

Id. at 279-80. In short, the trademark need not designate a source to be valid, but can be a quality mark. Nor is the mark dependent on the presence of an additive. See, Power Test Petroleum Distributors, Inc. v. Calcu Gas, Inc., 754 F.2d 91 (2d Cir.1985).

• Again, the underlying principle is that the owner of the trademark alone has the right to decide what gasoline meets its standards and qualifies to bear its trademark. Karabag would have the Court uphold the trademark only if it designates gasoline refined by Amoco or mixed with the patented Amotone additive. Clearly this runs contrary to the law. Moreover, it flies in the face of logic and reality. The Amoco brand attaches a distinctive label to a product, with it comes customer recognition and goodwill. Even more importantly, with the Amoco brand comes national advertising and the Amoco credit card system, already in place and yielding great benefit to the gas station operator yet well beyond his ability to afford on his own. Karabag appears to argue that the dealer can do what he likes with the Amoco trademark, benefit from the recognition and goodwill Amoco has built up, and pay Amoco nothing. Amoco receives no rent for the Karabag station, or its equipment, or the use of its logo, but takes payment for the use of its trademark from the sale of gasoline to the franchisee. For Karabag to use the Amoco trademark as defendant pleases while depriving Amoco of any revenue from its trademark is to attack the core purpose of trademark and franchise as it exists in this country.

Furthermore, there is evidence that Kar-abag is playing fast and loose with the Amoco trademark in a manner that substantially impairs its value and identity. While the Court does not take it as a proven fact, plaintiff has alleged and submitted an affidavit and documents in support showing that the gasoline Karabag has sold through Amoco pumps fails to meet its standards on lead content. Tests performed on June 14, 1984 showed that gasoline taken from the Karabag station’s unleaded regular gasoline pump exceeded Amoco’s lead limit of .05 by .011 grams per gallon, and gasoline from the unleaded premium pump exceeded the lead limit of .05 by .016 grams per gallon (Affidavit of John Roberts, ¶ 5). If these allegations are true, this case presents more than a legal violation of the Amoco trademark and impairment of its value and identity, it presents a palming-off on the public of an inferior product under another’s trademark with concomitant loss of reputation and customer goodwill for the real product. See, Spring Mills, Inc. v. Ultracashmere House, Ltd., 689 F.2d 1127 (2d Cir.1982).

Finally, Karabag’s argument that the agreement with Amoco allowed the purchase and sale of non-Amoco gasoline from defendant’s station is irrelevant. The agreement did not allow the use of Amoco-branded or owned equipment for the storage or sale of non-Amoco products. Any contention that Amoco knowingly would allow gasoline over which it had no quality control and derived no revenue to be sold from Amoco pumps is incredible to the point of absurdity or patent falsehood. While the agreement may entitle Karabag to sell unbranded gas from unbranded pumps on the premises, the point is immaterial to the Lanham Act violation.

The law and the facts are unambiguous. Accordingly, the Court holds that by selling through Amoco-branded pumps gasoline that Amoco had not sold to Karabag or particularly and specifically designated as Amoco gasoline, Karabag, as a matter of law, violated the Lanham Act and state law. 15 U.S.C. § 1114 and N.Y. General Business Law § 368-b. Summary judgment on this point is granted for Amoco.

III.

The Court next addresses Amoco’s motion for summary judgment under the PMPA, 15 U.S.C. §§ 2801-2806. Specifically, Amoco asks the Court to hold that Kar-abag’s trademark violation violated the terms of the franchise agreement, and to allow immediate termination of the franchise under the PMPA.

The PMPA was enacted to protect the interests of the retail dealer in the face of the overwhelming power of the franchising refiner and distributor. Specifically, it seeks to limit the termination of a franchise agreement to material violations of the agreement, set out notice requirements and time limits in order to restrain arbitrary action by the franchisors, and allow the franchisee to cure any violations and preserve the franchise.

Under the PMPA a franchise includes a contract between a refiner and a retailer that provides for the use of a trademark in connection with the sale of motor fuel. 15 U.S.C. § 2801(l)(A)(ii). A refiner is defined as one who refines crude oil into motor fuel, a term that clearly includes Amoco, and a retailer is one who purchases motor fuel for resale to the general public, a term clearly applicable to Karabag. 15 U.S.C. § 2801(5) and (7). The PMPA, then, applies to the franchise relationship between Amoco and Karabag.

In relevant part § 2802 provides:

(b)(1) Any franchisor may terminate any franchise ..., if—
(A) the notification requirements of section 2804 of this title are met; and
(B) such termination is based upon a ground described in paragraph (2) ....

15 U.S.C. § 2802. Paragraph (b)(2) of the section then provides in pertinent part:

(2) for purposes of this subsection, the following are grounds for termination of a franchise ...:
******
(C) The occurrence of an event which is relevant to the franchise relationship and as a result of which termination of the franchise or nonrenewal of the franchise relationship is reasonable, if such event occurs during the period the franchise is in effect and the franchise first acquired actual or constructive knowledge of such occurrence—
(i) not more than 120 days prior to the date of which notification of termination or nonrenewal is given, if notification is given pursuant to section 2804(a) of this title; or
(ii) not more than 60 days prior to the date on which notification of termination or nonrenewal is given, if less than 90 days notification is given pursuant to section 2804(b)(1) of this title.

Further on § 2802 declares:

(c) As used in subsection (b)(2)(C) of this section, the term “an event which is relevant to the franchise relationship and as a result of which termination of the franchise or nonrenewal of the franchise relationship is reasonable” includes events such as
(10) willful adulteration, mislabeling or misbranding of motor fuels or other trademark violations by the franchisee;

Without question, Karabag’s admitted misbranding and violation of the Amoco trademark is an event relevant to the franchise relationship that justifies termination of the franchise. In Wisser Company v. Mobil Oil Corp., a case directly on point with the instant one, the Court of Appeals for the Second Circuit held that misbranding by the franchisee retailer not only was a ground for termination, but under the PMPA was a ground for termination forthwith. 730 F.2d 54 (2d Cir.1984). In holding that Mobil could give less than the usual ninety day notice of termination, the Wisser Court declared, “It is clear from the structure of the statute that Congress meant to give franchisees the right to cure for some kinds of conduct that if continued would warrant termination or nonrenewal, but did not intend to require a second chance for other kinds of conduct or conditions.” Id. at 59 (citations omitted). The Wisser Court explicitly held that the mis-branding is conduct that does not warrant a chance to cure under the PMPA. Thus, Amoco would not be required to give the at least ninety days notice provided in § 2804(a)(1), but could give less than ninety days notice as provided in § 2804(b)(1). Further, the Wisser Court held that in the case of misbranding, forthwith notice was reasonable under § 2804(b)(1).

In addition, the Court of Appeals held that failure of the franchisor to act on the first instance of knowledge of misbranding within the sixty days required by § 2802(b)(2)(C)(ii) does not permanently waive the franchisor’s right to terminate. Rather, a repeat occurrence of the mis-branding renews the franchisor’s right to terminate on that ground. Wisser Company v. Mobil Oil Corp., 730 F.2d at 60. On August 1, 1984 plaintiff commenced this action by filing a complaint alleging violation of the Lanham Act, 15 U.S.C. §§ 1114, 1125, and New York General Business Law §§ 360-368 (McKinney 1984). On September 7, 1984 plaintiff filed its First Amended Complaint, which as its Ninth Cause of Action added the allegation of violation of the franchise agreement and the propriety of termination of the supply agreement under the PMPA, in fact asking the Court to enter an order terminating the agreement. The plaintiff specifically alleged misbranding and product adulteration as the reason for termination of the franchise, pursuant to 15 U.S.C. § 2802(c)(10). On September 7, 1984 plaintiff sent by certified mail a cover letter captioned “Termination Notice” enclosing the First Amended Complaint and the summary of the PMPA required under § 2804(c)(3)(C). The plaintiff asks the Court to consider this the notice of termination in conformance with 15 U.S.C. § 2804.

Section 2804 lays out the requirements for notice of termination thusly:

(c) Notification under this section—
(1) shall be in writing;
(2) shall be posted by certified mail or personally delivered to the franchisee; and
(3)shall contain—
(A) a statement of intention to terminate the franchise or not to renew the franchise relationship together with the reasons therefor;
(B) the date on which such termination or nonrenewal takes effect;
(C) the summary statement [of PMPA rights and remedies published by the Secretary of Energy.]

Notably, Amoco did not name the date on which it intended to terminate the agreement. Amoco has explained in proceedings before the Court that because of an earlier restraining order issued by the state court and the already pending suit and motion for a preliminary injunction in this Court, it chose to defer to the Court on the date of termination. The plaintiff’s notice form is certainly unusual and perhaps unprecedented in the short history of the PMPA. While it clearly conforms to PMPA requirements by giving notice of intent to terminate, the reason for termination, and notice of the franchisee’s rights under the PMPA, strictly speaking, plaintiff has not given the required notice of the effective date. 15 U.S.C. § 2804(c)(3)(B). This leaves the Court with several alternatives: the Court can hold the notice of termination invalid for failure to meet the notice requirements of the PMPA, it can read in either the ninety day or 120 day notice period provided by the Act, or it can deem it a forthwith notice of termination.

In considering the termination notice and the PMPA requirements the Court takes note of certain events. Under the auspices of the Court plaintiff and defendant came to a negotiated agreement on September 10, 1984 in place of pursuing the application for a preliminary injunction. The gist of the agreement was that defendant would debrand the station by removing the Amoco mark from pumps dispensing unbranded gas and allowing Amoco to remove the large, oval, pole-mounted Amoco sign. The stipulation also allowed Amoco to remove its equipment after sixty days. Obviously, the agreement allowed Karabag to cure its trademark violations by either deb-randing the station or returning to the terms of the franchise agreement. By letter dated November 14, 1984 plaintiff’s attorney protested Karabag’s failure to comply. Specifically, counsel charged defendant with violating every element of the stipulation, including barring Amoco’s contractor from entry on the premises to remove Amoco’s equipment. Clearly, Kara-bag has no interest in taking advantage of any opportunity to cure, whether it is given by the notice requirements of the PMPA, or by the grace of the plaintiff or the Court.

Considering that the purpose of the Act is to protect the franchisee, the Court is inclined to give it a strict construction that would not tend to allow the franchisor latitude in conforming to the requirements. Nevertheless, an overly technical interpretation is not desirable. While the PMPA is meant to protect the franchisee, this Court refuses to interpret it or apply it so as to shield a franchisee from the reasonable consequences of its bad act. Looking to the particular configuration of facts in this case — specifically, the tangle of legal proceedings and maneuvers among three parties trying to preserve disparate rights, the pendency of the case before the Court when the notice to termination was made, the events that de facto gave Karabag time tó cure any violations, and Karabag’s manifest unwillingness to cure violations or live up to the negotiated agreement that substituted for action on the preliminary injunction application, and the egregious nature of the violation of the franchise agreement — the Court will not hold Amoco’s termination notice void under the PMPA. Rather, the Court holds that the September 7, 1984 notice is a notice to terminate forthwith.

The Court next considers whether the termination notice was timely. That is, whether under § 2802(b)(2)(C) Amoco acted within the required time after acquiring knowledge of Karabagjs violation of the agreement. On June 14, 1984 testing by an Amoco representative of Karabag’s gasoline showed that the gasoline did not meet Amoco’s lead standards. (Affidavit of John Roberts, 115). In his deposition of July 6, 1984, Dine Karabag declared that he was buying his gas from Petroleum Haulers, Inc. Furthermore, it is clear from Karabag’s submissions that the trademark violations are ongoing and continuing, and not one or two isolated incidents. Section 2802(b)(2)(C) requires that notice of termination in less than ninety days must be based on a violation of which the franchisor acquired knowledge no more than sixty days before. Amoco initiated its suit for misbranding on August 1, 1984 and amended the complaint on September 7, 1984, using the amendment as part of its termination notice. Again, where there are repeat occurrences of the violative conduct, each new event is a ground for termination. Wisser Co., Inc. v. Mobil Oil Corp., 730 F.2d at 59-60. In this instance it is undisputed that continued purchases and sales of non-Amoco gasoline in violation of the trademark and the franchise agreement extended through August and September of 1984. The Court, therefore, finds the September 7th notice of termination timely under the PMPA.

Accordingly, the Court concludes that Amoco’s termination notice of September 7, 1984 meets the requirements of the PMPA as notice to terminate forthwith the franchise agreement. Plaintiff’s motion for summary judgment on this point is granted.

IV.

The Court next addresses intervenor Tartan Oil’s motion for summary judgment. Tartan asks that the Court uphold termination of the lease and broker agreement, that the Court hold Karabag liable for damages for breach of the agreements, that Tartan be awarded possession of the gas station leased to Karabag, and that Kara-bag’s counterclaims be dismissed.

By registered letter of July 2, 1984 (In-tervenor’s Exhibit 10) Tartan Oil notified Karabag that it was terminating the lease for Karabag’s failure to purchase gasoline as required by the lease. As provided in the lease, termination was effective in five days. Karabag sought an injunction in state court to prevent termination and eviction. Amoco filed this suit on August 1, 1984, and thereafter the state suit was discontinued (Intervenor’s Exhibit 13) and Tartan Oil intervened in this action.

As a threshold issue the Court notes that the Tartan Oil-Karabag agreements are not governed by the PMPA. Tartan Oil is not a franchisor-distributor under the Act as it does not take possession, title, or control of motor fuels. 15 U.S.C. § 2801(6). Thus the Tartan Oil-Karabag relationship is not a franchise under the PMPA. 15 U.S.C. § 2801(1)(A) and (B). Rather, the relationship is defined by a lease for the Sunrise Highway gas station (Intervenor’s Exhibit 8) and a broker agreement (Intervenor’s Exhibit 9). In addition, Tartan Oil has a broker agreement with Amoco (Intervenor’s Exhibit 1) and Kara-bag has a supply contract with Amoco (Intervenor’s Exhibit 6). Karabag originally assumed the lease of liter Karakurt in June 1982. The current lease was entered into in February 1984 and runs through June 1985, as does the broker agreement.

Nevertheless, Karabag contends that under the state version of the federal PMPA, the New York motor fuels franchise act, New York General Business Law § 199 (McKinney Supp.1984-1985), Tartan Oil is a “distributor” and must conform to the statutory termination requirements. A distributor is defined by § 199-a, subd. 1. as “any person engaged in the sale, consignment, or distribution of motor fuels to dealers.” There is no further elucidation or case law interpretation. Tartan Oil contends that it is a broker, not a distributor within the meaning of the New York motor fuels franchise act, hence its relationship with Kara-bag is not governed by the act.

In this instance Karabag has a direct contract with the gasoline supplier, Amoco. Under that agreement defendant called an Amoco office or agent, - left an order message on a tape, took delivery of gasoline from a tanker truck driven by an employee or hireling of Amoco, and paid Amoco for the gasoline. Tartan Oil then received a commission for each gallon of gas purchased by Karabag. Tartan Oil does not take title, possession, or a bailment of any motor fuel under this arrangement.

A distributor is generally defined as a person or legal entity that “stands between the manufacturer and the retail seller in purchases, consignments, or contracts for sale.” Black’s Law Dictionary at 427 (West Pub. Co., 5th ed. 1979). The term is synonymous with “wholesaler”, or one who buys in large quantity for sale to retailers, not consumers. Id. at 1432. Consignment means to take possession or bailment of goods for transport or sale, without necessarily taking title. Id. at 278. Under the common meaning of the terms used by the statute, taking title or possession is a necessary part of being a distributor. In contrast, a broker brings seller and buyer together, negotiates contracts between them, and receives a commission. Id. at 174-75. The Court concludes that Tartan Oil, because it does not take title or possession of motor fuels, or even act as an intermediary in the process of ordering and supplying gasoline, is not a distributor within the meaning of § 199-a, subd. 1. Accordingly, neither the PMPA or the New York motor fuels franchise statute control the Tartan Oil-Karabag relationship.

Pursuant to the Tartan Oil-Amoco broker agreement, Tartan Oil receives a commission of 2.5<p for each gallon of gas sold by Amoco to Karabag (Intervenor’s Exhibit 1, if 6 and Sched. A). Under the gas station lease Karabag pays Tartan Oil $3400.00 a month in rent and pursuant to § 4.07(d) of the lease, covenants to purchase a minimum of 100,000 gallons of gasoline a month from a supplier designed by Tartan Oil (Intervenor’s Exhibit 8). Failure to purchase the minimum gives Tartan Oil the option of cancelling the lease or charging 3c per gallon of the shortfall from 100,000 gallons. The broker commission on Kara-bag’s purchase of gasoline supplies from the designated supplier (Amoco) then is a material term of the interlocking lease and Tartan Oil-Karabag agreement, both by virtue of the substantial revenues it yields to Tartan Oil and the explicit terms of the lease and broker agreement.

Under ¶ 13 of the Tartan Oil-Karabag broker agreement (Intervenor’s Exhibit 9), Amoco is designated as Karabag’s supplier. This broker agreement also provides for the 100,000 gallon minimum purchase, purchased exclusively from the designated supplier, and trademark authorization. The agreement is almost completely pre-printed with blanks filled in by typewriting for dates, the station address, quantities and the designated supplier. All the fill-ins are initialed, except for the If 13 designation of Amoco as the authorized trademark and gasoline supplier for the Sunrise Highway station. Defendant makes much of the fact that this paragraph is not initialed. This might be important if the designation of Amoco were a surprise to Karabag. But it is not. Karabag’s station carries the trademarked Amoco logo and color configuration. There is a supply and trademark contract between. Karabag and Amoco (Exhibit 6) and Karabag ordered and paid for gasoline from Amoco.

Obviously Karabag was not hornswog-gled into an agreement, the terms of which he could not and did not know. Karabag is not now being held to contract provisions sprung on him out of the blue. Dine Kara-bag signed a lease and a broker agreement with Tartan Oil, both of which refer to the other and repeatedly provide that Karabag shall obtain motor fuels only from a supplier designated by Tartan Oil. That Kara-bag chose to operate in an Amoco-branded station, and bought Amoco-supplied gasoline for many months without apparent objection to either the designation clause or Amoco, manifests a knowledge and acceptance of the supplier arrangement. Defendant cannot now gainsay these terms of the contract after such long use.

Karabag further contends as an affirmative defense that Tartan Oil knew and acquiesced in defendant’s abandonment of Amoco as a supplier and thus waived its claim for breach of contract. Karabag asserts that Tartan Oil had constructive knowledge that Karabag was purchasing unbranded gasoline instead of Amoco gasoline because of the decline in reported purchases from Amoco over a period of months. The argument of constructive knowledge and waiver is insubstantial. Defendant would be the first party to protest as unreasonable termination by Tartan Oil based on several months of declining purchases from Amoco. That Tartan Oil did not act until there was an unambiguous trend that could only be explained by purchases of unbranded gasoline was fair and reasonable under the circumstances. Arguments as to constructive knowledge are untenable and baseless in this case. Equally so, there is no basis for claiming waiver. Tartan Oil gave Karabag what amounted to a cure notice in July 1983 and by May 1984 had moved to terminate.

It is clear that defendant has defaulted on a material provision of its lease and broker agreement with Tartan Oil. Second only to the rental provision, the interdependent terms of a designated supplier, minimum purchases and commissions thereon, with provisions for payments in cases of purchase deficiencies and supply shortages, are integral to the purpose of the lease and the primary purpose of the broker agreement. Karabag insists that the lease and broker agreement were orally modified to allow defendant largely to abandon Amoco as a supplier. Were this true it would provide no escape from adherence to the written terms of the lease and contract. By the law of the two agreements and of the state, oral modification is not valid. Nor has the defendant shown any reason for this Court to look outside the four corners of the written agreements and allow parol evidence as to the lease, the broker agreement, or any purported modification of them. The language is clear and unambiguous in both agreements.

Moreover, Amoco’s termination of the supply contract with Karabag, upheld earlier, in effect cancels the Tartan OilKarabag broker agreement. Karabag has breached the lease and broker agreement and rendered lifeless any claim of permission to sell unbranded gas on the station premises by violating Amoco’s trademark. By destroying the Karabag-Amoco relationship, defendant has vitiated the broker agreement and material provisions of the lease. Karabag has unilaterally deprived Tartan Oil of the fruits of its bargain with Amoco and an important source of revenue under the lease.

Accordingly, the Court concludes that Karabag defaulted on the lease and broker agreement. Tartan Oil is entitled to termination of the lease and broker agreement and damages under both.

V.

Karabag has asserted several counterclaims against Amoco. The issues raised largely have been dealt with above. Briefly, Karabag first alleges that Amoco breached the supply contract by commingling and failing to add Amotone to the gasoline it supplied to Karabag, and second, by the same omission, violated New York Business Law § 349, entitled Deceptive Acts and Practices Unlawful. As a third counterclaim against Amoco, Kara-bag alleges that Amoco violated New York General Business Law, art. 22-A (False Advertising; Civil Penalty). Karabag claims there is no remedy at law for these violations and seeks the equitable relief of injunction.

It is axiomatic that he who seeks equity must have clean hands. Should the Court hold Karabag to this principle defendant is in dire straits, indeed. Karabag complains that Amotone was not added to the Amoco brand gasoline sold to him, but fails to allege with any specificity the dates, places, and persons involved, the factual basis for his assertion, or the damage done him. As discussed earlier, failure to add Amotone does not impair the trademark, nor does commingling. More to the point, Karabag apparently attaches little real importance to the quality of Amoco or any other gasoline he sells. Defendant did not protest the absence of Amotone when he allegedly learned of it. In fact, defendant chose to sell unbranded gas instead. Evidence was presented that this gas exceeded lead limits, which worse than lacking Amo-tone, can harm the workings of a large number of cars. Karabag’s allegations are perhaps based on misplaced indignation rather than provable fact and concern for product quality. Defendant’s counterclaims lack sufficient factual allegations and specificity. The prayer for injunctive relief is without principle or support, and no factual grounds for money damages have been set forth. Accordingly, defendant’s counterclaims against Amoco are dismissed.

VI.

Karabag also interposes counterclaims against Tartan Oil. Again, most of the issues raised as counterclaims have been discussed and resolved earlier. First Karabag claims that Tartan Oil by its lease and broker agreements and its practices has violated the anti-trust laws. On the facts stated, as a matter of law the antitrust claim fails. See, Power Test Petroleum Distributors, Inc. v. Calcu Gas, Inc., 754 F.2d 91 (2d Cir.1985). Second, defendant claims that Tartan Oil committed fraud and misrepresentation by supplying gas to Karabag from commingled sources. The undisputed facts are that Tartan Oil exercised no control over the Amoco products delivered to Karabag and cannot be liable for the commingling, if commingling is indeed a ground for fraud and misrepresentation. Accordingly, this counterclaim must be dismissed. The third counterclaim alleging the same sort of product adulteration fails for the same reason.

The fourth and fifth counterclaims are based on Tartan Oil’s violation of the PMPA and New York General Business Law § 199. As discussed fully above, neither of these laws or their requirements apply to Tartan Oil.

Finally, Karabag alleges that Tartan Oil unilaterally foisted Amoco on defendant as the designated exclusive supplier. Karabag claims that Tartan Oil made representations that Karabag could get fuel supplies from any source and did not fill in the blanks in ¶ 13 of the broker agreement with Amoco’s name until after the agreement was signed. As noted earlier, defendant has not presented any ground for going outside the plain language of the agreements with Tartan Oil and allowing parol evidence. Both the lease and the broker agreement provided repeatedly for a designated exclusive supplier. In fact, without the designation of an exclusive supplier the broker agreement is almost meaningless. It is absurd for Karabag to think that he could operate an Amoco-branded station without selling Amoco gasoline. The lease and the broker agreement both stipulate that they can be modified only in writing. If the understanding between Karabag and Tartan Oil was that defendant had a free choice of suppliers, then the blanks in 1113 should have been lined out and the lease and broker agreement modified, as it has been in other terms, to reflect this alleged oral understanding. Otherwise, Karabag is held to the plain meaning of the written agreements. The lack of initials alongside II13 does not by itself support the introduction of parol evidence in the case. Defendant’s counterclaim for breach of contract based on an alleged unilateral and arbitrary imposition of an exclusive supplier must fail. Dine Karabag is an educated businessman who will be held to the terms of the contracts he signs.

VII.

It is undisputed that Karabag is selling unbranded gasoline through Amoco-brand pumps and is not purchasing motor fuels from Amoco. As a matter of law, therefore, defendant has violated plaintiffs trademark and a material term of the supply agreement. Accordingly, Amoco is entitled to summary judgment on the issues of trademark violation and termination of the supply agreement. Defendant’s three counterclaims against Amoco must be dismissed as baseless and the application for injunctive relief denied.

As a matter of law defendant has also breached the terms of the lease and broker agreement with Tartan Oil, and the inter-venor is therefore entitled to summary judgment on those issues. Defendant’s six counterclaims against Tartan Oil are without factual or legal support and must be dismissed.

Accordingly, plaintiff’s and intervenor’s motions for partial summary judgment are granted. Amoco is entitled to terminate its supply agreement with defendant and remove its trademark logo and equipment from the Sunrise Highway station. Defendant is permanently enjoined from using the Amoco trademark and is liable for trademark violation. Tartan Oil is entitled to terminate its lease and broker agreement with defendant and to take possession of the premises at Route 112 and Sunrise Highway, Patchogue, New York. Defendant is also liable for damages stemming from breach of these agreements. The issues of the amount of damages for trademark violation and the breach of the léase and Tartan Oil-Karabag broker agreement remain unresolved. Further proceedings to determine the amount of damages will be scheduled by the Court.

SO ORDERED.

      . It is alleged in Mr. Roberts affidavit that Mr. Karabag grabbed the samples taken for laboratory octane testing from Mr. Roberts’ possession.

      . The four line text of the letter referred Mr. Karabag to the enclosures for the substance of the notice.


author: GONZALEZ, District Judge.

text:
    Catherine COOK, Plaintiff, v. The STATE OF FLORIDA and Linda Noble, Defendants.
    No. 84-8599-CIV.
    United States District Court, S.D. Florida, N.D.
    April 24, 1985.

      Sue Keen, West Palm Beach, Fla., for plaintiff.
   ORDER OF DISMISSAL

GONZALEZ, District Judge.

THIS CAUSE has come before the court for review sua sponte. Plaintiffs complaint, filed on November 27, 1984, charges the State of Florida and one of its employees, Linda Noble, with falsely arresting and erroneously charging defendant with violating her probation in violation of 42 U.S.C. § 1983.

Although unstated in plaintiffs complaint, her action really is brought against the State of Florida Department of Corrections; Ms. Noble is alleged to be a probation officer employed by that Department. See Appendix A, Complaint, attached. Plaintiff maintains that as a result of her arrest, she lost pay, had to pay court fines and costs, and suffered humiliation, mental anguish and physical stress and, therefore, seeks damages from the State and its employee.

The Eleventh Amendment to the United States Constitution provides that

[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const.amend. XI.

The law is well-settled that the Eleventh Amendment stands for the proposition that an unconsenting state is immune from suits brought in federal court by citizens of other states. See, e.g., Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); Ford Motor Co. v. Department of Treasury of State of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). This limitation on federal jurisdiction derives from the fundamental principle of sovereign immunity. Ex parte State of New York No. 1, 256 U.S. 490, 497, 41 S.Ct. 588, 589, 65 L.Ed. 1057 (1921).

Equally clear is the fact that the Eleventh Amendment bars suits against States or their officers for money damages when the awards will have to be paid out of the States’ treasury. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Shashoua v. Quern, 612 F.2d 282 (7th Cir.1979); Arthur v. Florida Department of Transportation, 587 F.Supp. 974, 976 (S.D.Fla.1984) (quoting Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963)) (Gonzalez, J.).

Courts have applied the aforesaid policy to bar § 1983 suits in federal courts against States and their officers. See, e.g., Burton v. Waller, 502 F.2d 1261, 1273 (5th Cir.1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975); Ferrell v. Busbee, 91 F.R.D. 225, 232 (N.D.Ga.1981); C. Antieau, Federal Civil Rights Acts § 213 at 356 & n. 32 (2nd ed. 1980 & Supp.1984).

In this case plaintiff seeks money damages from the State of Florida and one of its officers for actions that are not alleged to be beyond the scope of their duties. Moreover, any damages plaintiff might recover would have to be paid out of the State Treasury. In accordance then with the well-developed law of the Eleventh Amendment and § 1983 suits, it is

ORDERED AND ADJUDGED that this case be DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.

APPENDIX A

COMPLAINT

Plaintiff, CATHERINE COOK, by and through her undersigned attorney, sues the Defendants above and states:

1. This is an action brought pursuant to 42 U.S.C. Section 1983.

2. Plaintiff is a resident of Palm Beach County, Florida, and at all times relevant to the wrongful acts of Defendants, was serving a term of two years probation on a criminal drug offense.

3. The Defendant, STATE OF FLORIDA, hereinafter referred to as STATE, operated a parole and probation office in Palm Beach County, Florida through its Department of Corrections where Plaintiff reported to her probation officer while serving her two year term of probation.

4. Defendant, LINDA NOBLE, hereinafter referred to as NOBLE, was a probation officer employed by the State of Florida Department of Corrections during all times relevant to the wrongful acts described herein; whereby, said Defendant acted under color of law in the commission of those acts.

5. On or about November 21, 1984, Plaintiff was arrested and incarcerated in the Palm Beach County Jail for a period of five days based upon an affidavit of violation of probation filed by Defendants against Plaintiff which was patently erroneous as to the charge contained therein. 6. As a result of the false affidavit, Plaintiff’s constitutional right against deprivation of liberty and property without due process of law was violated.

7. The acts of Defendants in erroneously charging Plaintiff with a violation of her probation and causing her to be incarcerated were performed willfully, recklessly, and/or negligently in that the Defendants knew or should have known that the Plaintiff had performed all acts which she was falsely charged as not having performed under the affidavit; namely, that Plaintiff had made a timely payment of her last monthly probation check, such that she would not have been charged with a violation of her probation for that reason.

8. As a proximate result of said wrongful and unconstitutional acts of the Defendants, Plaintiff incurred damages including [but] not limited to lost pay from her work, court fines and costs and the suffering of humiliation, mental anguish, and physical stress during and after the incarceration.

9. The Plaintiff has been required to retain the services of the undersigned attorney to prosecute this action and is obligated to pay a reasonable attorney’s fee therefor.

WHEREFORE, Plaintiff demands judgment for actual and punitive damages as the law shall allow against the Defendants. Plaintiff demands trial by Jury. Plaintiff demands judgment for attorney’s fees.

/s/ Sue Keen SUE KEEN, ESQ. 315 Third Street — Suite 201 West Palm Beach, FL 33401 655-8009