author: ALLEN SHARP, Chief Judge.

text:
    Bill WILLIAMS, Plaintiff, v. J.R. DUCKWORTH, J. Bradley, R. Bronnenberg, and R.D. Freake, Defendants.
    No. S 81-437.
    United States District Court, N.D. Indiana, South Bend Division.
    Dec. 8, 1983.

      Bill Williams, pro se.
    Linley E. Pearson, Atty. Gen., Ronald D. Buckler, Deputy Atty. Gen., Indianapolis, Ind., for defendants.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This case was filed pursuant to 42 U.S.C. § 1983 by an inmate at the Indiana State Prison in Michigan City, Indiana, against several of the Prison’s officials. It is presently before this court on defendants’ Motion for Summary Judgment filed October 31, 1983.

At pages one through three of defendants’ motion appears the following language:

Plaintiff is hereby notified, pursuant to Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), that Rule 56(e), Federal Rules of Civil Procedure, reads as follows:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
This Rule means that in the event that you elect to respond to this motion, your response must include or be supported by sworn statements, answers to interrogatories, or sworn testimony in the form of depositions. You cannot merely rely upon any conflict or inconsistency between the contents of the complaint that you filed and the affidavit or affidavits attached to this motion. If you do not respond to this motion, or if your response does not include and is not supported by sworn statements or testimony or answers to interrogatories, then the facts set forth in the attached affidavit or affidavits will be accepted by the Court as true. If you submit an affidavit or affidavits in support of your response, the facts in each affidavit must be personally known to the person making the affidavit and not be hearsay, and the facts must be specific and not general. Merely denying the facts in the attached affidavit or affidavits or giving opinions or beliefs is not enough. Pursuant to Rule 7(b) of the Rules of the United States District Court for the Northern District of Indiana, your response must be filed within fifteen (15) days from the date of service (the date on the certificate of service found at the end of the attached memorandum in support). Failure to file a response within that time may subject this motion to summary ruling; that is, the Court may decide this motion without your response. Upon your written request, the Court may enlarge the time within which to respond; that is, give you more time to respond. The Court may also allow you more time to file affidavits if you make written request.

Notwithstanding this clear and detailed admonition, plaintiff has filed nothing in response to defendants’ motion for summary judgment. Therefore, the information set forth in the numerous affidavits and exhibits proffered by the defendants in support of their motion must be deemed uncontroverted.

Before proceeding to an examination of the merits of defendants’ motion, however, this court must first address itself to plaintiff’s renewed request for appointed counsel. Brown-Bey v. United States, 720 F.2d 467 at 471 (7th Cir.1983); Emory v. Duckworth, 555 F.Supp. 985, 987 (N.D.Ind.1983).

There is no constitutional right to appointed counsel in a civil case. Thomas v. Pate, 493 F.2d 151 (7th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974). Rather, the decision whether to appoint counsel in a case rests within the sound discretion of the court. McBride v. Soos, 594 F.2d 610 (7th Cir.1979). When considering motions for appointed counsel, this court is guided by the standards set forth in Maclin v. Freake, 650 F.2d 885 (7th Cir.1981). These standards include, but are not necessarily limited to, such considerations as the legal and factual merits of the claim presented, the degree of complexity of the issues involved, and the movant’s apparent physical and intellectual abilities to prosecute the action. See also, Merritt v. Faulkner, 697 F.2d 761 (7th Cir.1983); McKeever v. Israel, 689 F.2d 1315 (7th Cir.1982). This court is also mindful of a point not often made in these matters, and that is that the operative word in 28 U.S.C. § 1915(d) is “request”, not “appoint”, i.e., “[t]he Court may request an attorney to represent any such person unable to employ counsel.” See David Ashley Bagwell, “Procedural Aspects of Prisoner § 1983 and § 2254 Cases in the Fifth and Eleventh Circuits,” 95 F.R.D. 435, 443 (1982).

Applying the above considerations to the facts of this case as developed thus far, this court again concludes that plaintiff is not entitled to appointed counsel herein. Although plaintiff has alleged a great deal of wrongdoing on the part of the defendants, the defendants have addressed each allegation, point by point, amply supporting their positions with numerous affidavits and exhibits. As already noted, plaintiff has failed to support any of his allegations or to attempt to refute any of the defendants’ contentions.

Further, this court notes that plaintiff has not indicated any mental or physical impairment that would inhibit him from prosecuting his claim. Finally, this court takes judicial notice of the pleadings presented to date by the plaintiff. The pleadings evince an understanding of the legal and factual bases of plaintiff’s claims, as well as a passable ability to research the law relevant to the issues at hand. These considerations, coupled with an apparent lack of merit to his claims, lead this court to the conclusion that the motion for appointed counsel must be, and hereby is, DENIED. See Brown-Bey, supra, slip op. at 7; Wilson v. Duckworth, 716 F.2d 415 (7th Cir.1983) (denial of appointed counsel in habeas petition); Childs v. Duckworth, 705 F.2d 915 (7th Cir.1983) (denial of appointed counsel in § 1983 action).

Proceeding now to an examination of the merits of plaintiff’s claim, the following are the untroverted facts as ascertained from a review of the defendants’ affidavits and exhibits proffered in support of their summary judgment motion.

I.

On December 14, 1981, plaintiff Bill Williams, an inmate at the Indiana State Prison (hereinafter I.S.P.), filed this pro se complaint pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff alleges violations of his rights under the Eighth Amendment by virtue of the fact that unnamed administrators and employees of the Indiana Department of Correction (hereinafter I.D.O.C.) at the I.S.P. denied him dental care and treatment. In support of this claim plaintiff avers that in 1979 he applied for dental treatment, including the constructions of lower dentures and partial upper dentures; that he was placed on a waiting list; that the list had been exhausted a dozen times, and that he still had not received the dental treatment requested.

In Count II of his original complaint, plaintiff further alleges violations of his rights under the Fourteenth Amendment for the reason that he had been denied a pair of size 8V2 EE shoes. In support of this claim plaintiff avers that in 1977 he requested from the Receiving Department of the I.S.P. one pair of size 8V2 EE shoes and that the request was not satisfied, and that on November 17, 1981, the plaintiff was informed by unnamed employees of the I.S.P. that the shoes would not be ordered because not enough similar requests had been made to justify such an order.

On December 18, 1981, plaintiff filed a Motion to Amend the Original Pleadings. In the Amended Complaint plaintiff reasserts his claims concerning the denials of dental treatment and of size 8V2 EE shoes, by alleging that on several occasions he had by letter informed unnamed I.S.P. employees of the continuing nature of these problems. In his amended complaint, plaintiff additionally claims that he was denied medical treatment in the form of a denial of eyeglasses.

Viewed in the liberal light mandated by Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), plaintiff has presented the following issues to this court:

A. Whether the plaintiff’s Eighth Amendment right not to be subjected to cruel and unusual punishment was violated by the allegedly deliberate indifference of I.S.P. employees as manifested by the refusal of dental and optometrical care; and,

B. whether the plaintiff’s Eighth Amendment right not to be subjected to cruel and unusual punishment was violated by I.S.P. employees because the plaintiff’s request for a pair of size 8V2 EE shoes was never satisfied.

II.

On March 9, 1978, the plaintiff was first placed on a waiting list to receive dental treatment, including the construction of partial dentures. Appointments for dental treatment were made for March 13, 1978, on which date the plaintiff failed to appear, and on October 4, 1978, on which date the plaintiff again failed to appear. The plaintiff received dental work at the dental care unit on July 9, 1979, July 16, 1979, and again on August 21, 1979. At the third appointment he received a set of repaired upper and lower dentures.

On November 28, 1979, plaintiff received further dental treatment at the dental care unit; and on February 1, 1980, impressions were taken in order to remake an upper denture. The completed dentures were dispensed to the plaintiff on February 15, 1980. On June 28,1980, the plaintiff had a tooth extracted, and on July 17, 1980 an additional tooth was added to the plaintiffs upper dentures. On November 7, 1980 the plaintiffs upper dentures were adjusted.

On November 12, 1980, the plaintiff again failed to appear at the dental care unit for a scheduled appointment.

On May 11, 1981, a set of impressions were taken in order to construct a new partial lower denture for the plaintiff. On July 24, 1981, pursuant to the construction of the new lower dentures, the plaintiff had seven teeth extracted.

On October 29, 1981, primary impressions were taken of the plaintiff in order to construct new upper partial dentures.

On November 2, 1981, the plaintiff again failed to appear for a scheduled appointment at the dental care unit.

On both January 25 and February 10, 1982, the plaintiff received further dental treatment in the course of constructing new dentures.

On January 12, 1983, the plaintiff received additional dental work, and was then placed on a waiting list to receive dental work that would lead to the eventual construction of a full set of dentures. On April 20, 1983 primary impressions were taken of the plaintiff in order to construct a complete set of dentures. On April 21, 1983 the plaintiff received secondary impressions.

On April 26, 1983, plaintiff Williams received a trial fit for upper dentures at which time he became insolent, abusive, used profane language, and generally disrupted the entire dental unit. The plaintiff was removed from the dental care unit.

The dentists at the dental care unit have, since April 26, 1983, refused to treat the plaintiff until such time as he apologizes and assures them that no further disruptions will occur during dental appointments.

Dr. Reed, a licensed optometrist employed as consultant and supervisor of the I.S.P. eye care unit, first examined the plaintiff on August 23, 1977, at which time he diagnosed aphakia, opacities, and a cataract on the plaintiffs left eye.

The cataract condition was referred to Dr. Richard J. Houck, a consulting opthalmic surgeon to the I.S.P. On August 23, 1977, Dr. Reed further noted that the plaintiff had previously had a cataract on his right eye extracted in a surgical operation.

On October 13, 1977, Dr. Reed again examined the plaintiff, at which time he diagnosed further complications with plaintiffs right eye, and again noted the cataract on plaintiffs left eye. Glasses were ordered and dispensed to the plaintiff on November 11, 1977.

On November 22, 1977, Dr. Houck examined the plaintiff pursuant to Dr. Reed’s referral, and scheduled a surgical operation for November 29, 1977, to remove the cataract on plaintiff’s left eye. On November 29, 1977, Dr. Houck surgically removed a cataract from the left eye of the plaintiff. Then, on April 11, 1978, Dr. Houck again examined the plaintiff and wrote a prescription for new glasses.

On May 9, 1978, Dr. Reed examined the plaintiff, noted that the cataract had been removed from plaintiff’s left eye but noted other eye problems, and ordered the new glasses.

On June 15,1978 new glasses were again ordered by Dr. Reed and dispensed to plaintiff on June 27, 1978.

Dr. Reed examined the plaintiff again on August 28, 1979, at which time another set of corrective glasses were ordered due to the development of an opacity in the vitreous. These glasses were dispensed to plaintiff on January 3, 1980.

Dr. Reed next examined the plaintiff on December 4, 1978, at which time an aphoric condition was diagnosed and corrective glasses were ordered. These glasses were dispensed to plaintiff on January 3, 1980.

On April 28, 1981, Dr. Houck examined the plaintiff, noted a defect in the construction of the plaintiffs glasses, and wrote a new prescription for glasses. These glasses were dispensed to the plaintiff in May of 1981.

On July 22, 1982, Dr. Reed examined the plaintiff, diagnosed an aphoric condition of the left eye and a dense opacity on the right eye. These conditions were noted and the plaintiff was again referred to Dr. Houck for further treatment.

On November 22, 1982, Dr. Houck examined the plaintiff and wrote a new prescription for glasses which were dispensed to plaintiff on February 22, 1983.

Officer Willie E. McCann is the correctional officer at the I.S.P. whose duty is to supervise the Receiving Department. The Receiving Department is responsible for the ordering and issuing of clothing, including shoes, to inmates.

Each incoming inmate at I.S.P. is issued a set of clothing including shoes pursuant to the size requested by the inmate. These items of clothing are replaced and reissued every six months.

Over a period of time from May 12,1978, to August 2, 1983, the plaintiff received a total of 13 pairs of shoes. Among those shoes issued plaintiff received one pair of size 9 EEE on January 19, 1982, that were specially ordered, one pair of size 8V2 EE shoes, on February 9, 1982 that were specially ordered, one pair of size 8V2 EE shoes on August 28, 1982, one pair of size 8V2 E shoes that were stretched to size 8V2 EEE on June 2, 1983, and one pair of size 9 E shoes on August 2, 1983. The plaintiff informed Officer McCann that he was satisfied with the size 9 E shoes on August 2, 1983.

Inmate requests for a specific size of shoe are filled on a regular basis if the size and width requested is common. Inmate requests for shoes of abnormal widths are generally not filled until there is in increase in demand to justify such an order, except where the need is medically prescribed. Requests for shoes of abnormal widths are filled on a regular basis by stretching common size shoes to abnormal widths by use of a special shoe stretcher at the I.S.P. shoe shop.

The records of the Receiving Department contain no notation that plaintiff had any medical need for size EE width shoes. A memorandum written by Dr. Nguyen dated January 7, 1982, indicates that the plaintiff had no deformity of the feet and did not require orthopedic shoes.

III.

In any action brought under 42 U.S.C. § 1983, the plaintiff must show both a deprivation of a federally guaranteed right and that the deprivation occurred at the hands of those acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). Once the plaintiff has successfully cleared those two hurdles, he must then overcome a third where he has alleged a violation of his Eighth Amendment right to be free from cruel and unusual punishment. Specifically, the plaintiff must show that the named defendants were deliberately indifferent to his serious medical needs such as to constitute an unnecessary and wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976).

In Estelle v. Gamble, supra, the Court held that, where the inmate plaintiff had been seen and treated on several occasions by different physicians and other medical personnel, nothing more than a case of medical malpractice had been alleged and medical malpractice, i.e., negligence, did not state a cognizable claim under 42 U.S.C. § 1983. 429 U.S. at 107, 97 S.Ct. at 292. This is true, irrespective of whether the medical officer is being sued in his personal or official capacity. Id.

Even under the most liberal interpretation of plaintiffs pleadings, mandated by Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), it is clear that he has stated, at most, a claim for alleged medical malpractice. Such is insufficient to state a claim under § 1983. Estelle v. Gamble, supra; Merritt v. Faulkner, 697 F.2d 761, 765 (7th Cir.1983); Duncan v. Duckworth, 644 F.2d 653, 654 (7th Cir. 1981); Gibson v. McEvers, 631 F.2d 95, 98 (7th Cir.1980). Even if it could be argued that plaintiffs claim is grounded on a sincere disagreement with the type and quality of diagnosis and treatment received, such disagreement with treating doctors still does not rise to the level of a constitutional deprivation. See, e.g., Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir.1975); Shields v. Kunkel, 442 F.2d 409 (9th Cir. 1971). Accordingly, plaintiffs Eighth Amendment claims regarding dental and optical “malpractice” must necessarily fail.

Turning now to plaintiffs Eighth Amendment claim regarding the failure to provide him with size 8V2 EE shoes, it is apparent that this claim must also fail.

In defining what constitutes cruel and unusual punishment the Supreme Court in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) set forth a dynamic type description:

The Eighth Amendment, in only three words, imposes the constitutional limitation upon punishments: they cannot be “cruel and unusual.” The Court has interpreted these words “in a flexible and dynamic manner,” Gregg v. Georgia, 428 U.S. 153, 171, 96 S.Ct. 2909, 2924, 49 L.Ed.2d 859 (1976) (joint opinion), and has extended the Amendment’s reach beyond the barbarous physical punishments at issue in the Court’s earliest cases. See; Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879); In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890). Today the Eighth Amendment prohibits punishments which, although not physically barbarous, “involve the unnecessary and wanton infliction of pain,” Gregg v. Georgia, supra, [428 U.S.] at 173, 96 S.Ct., at 2925, or are grossly disproportionate to the severity of the crime, Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality opinion); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). Among “unnecessary and wanton” inflictions of pain are those that are “totally without penological justification.” Gregg v. Georgia, supra, 428 U.S., at 183, 96 S.Ct., at 2929; Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976).

Id., at 345-46, 101 S.Ct. at 2392.

Pursuant to the above concept the Court, at page 347 further held that the deprivation of “basic human needs” would constitute cruel and unusual punishment, but that conditions that are “harsh” may be a part of the penalty for offenses against society:

These principles apply when the conditions of confinement compose the punishment at issue. Conditions must not involve the wanton and unnecessary infliction of pain,'nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. In Estelle v. Gamble, supra, we held that the denial of medical care is cruel and unusual because, in the worst case, it can result in physical torture, and, even in less serious cases, it can result in pain without any penological purpose. 429 U.S., at 103, 97 S.Ct., at 290. In Hutto v. Finney, supra, the conditions of confinement in two Arkansas prisons constituted cruel and unusual punishment because they resulted in unquestioned and serious deprivation of basic human needs. Conditions other than those in Gamble and Hutto, alone or in combination, may deprive inmates of the minimal civilized measure of life’s necessities. Such conditions could be cruel and unusual under the contemporary standard of decency that we recognized in Gamble, supra, at 103-104, 97 S.Ct., at 290-291. But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.

Clothing has been held to be a basic necessity, not to be withheld from those incarcerated in penal institutions. Newman v. State of Alabama, 559 F.2d 283, 286 (5th Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). However, it must be borne in mind that we are not here dealing with an outright denial of clothing, but rather with a provision of clothing (shoes) with which the plaintiff is dissatisfied.

In Sparks v. Fuller, 506 F.2d 1238 (1st Cir.1974), the court reviewed a claim that an inmate of the New Hampshire Prison was dissatisfied with the kind of clothing issued to him. After citing to Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the court at page 1239 disposed of the complaint, holding it to be frivolous:

The complaint in Cronin v. Fuller alleges: “If it were not for [petitioner's] personal clothing he would be forced to go naked or wear only the one suit of clothes that the administration has provided and be forced to wash them out at night in his cell so that they would be clean in the morning.” The petitioner apparently feels that the prison authorities have an obligation to issue him kinds and quantities of clothing. Absent an allegation that the prisoner was in any way seriously affected by this failure— here the harm alleged is totally speculative — the claim cannot be recognized in the federal courts. This is again a matter that falls within the discretion of the prison authorities.

Accord, see Sellers v. Roper, 554 F.Supp. 202, 209 (E.D.Va.1982); Tunnell v. Robinson, 486 F.Supp. 1265, 1269 (W.D.Pa.1980).

In Henderson v. Secretary of Corrections, 518 F.2d 694 (10th Cir.1975), a case directly on point, an inmate alleged that he had been diagnosed as suffering from a bilateral hammertoe condition, that a prescription for corrective shoes had been written, but that the corrective shoes were never provided. Plaintiff argued that such deprivation constituted cruel and unusual punishment pursuant to the Eighth Amendment.

At page 695 of its opinion, the Court of Appeals disagreed:

The issue of whether inadequate medical care deprived prisoners of a right secured by the Federal Constitution has been persuasively considered in Paniagua v. Moseley, 451 F.2d 228 (10th Cir. 1971) and Coppinger v. Townsend, 398 F.2d 392 (10th Cir.1968). “The prisoner’s right is to medical care — not to the type or scope of medical care which he personally desires.” Coppinger, supra, p. 394. We cannot say that the inadequacy of appellant’s normal shoes or the omission to provide the corrective shoes gives rise to a constitutional deprivation sustaining a § 1983 claim nor that appellant could collaborate this set of facts to support a claim which would entitle him to relief. See Dewell v. Lawson, 489 F.2d 877 (10th Cir.1974); Page v. Sharpe, 487 F.2d 567 (1st Cir.1973); and Kochie v. Norton, 343 F.Supp. 956 (D.C.Conn., 1972). Therefore, although portions of appellant’s complaint are cognizable as a § 1983 action, dismissal of the action is affirmed on the additional basis that the alleged inadequate medical treatment fails to state a claim on which relief can be granted.

As already noted, there is nothing to show that plaintiff had a medical reason for needing a shoe of exactly 8V2 EE dimensions; indeed, the memorandum of Dr. Nguyen specifically noted that no such orthopedic necessity existed in plaintiffs case. Thus, the prison staff consistently ordered shoes at or near the size of 8V2 EE for the plaintiff on a regular basis, then routinely altered those shoes not of exactly 8V2 EE in the prison shoe shop so that they would be usable by the plaintiff. Under no circumstances can the above facts be deemed to constitute a showing of deliberate indifference on the part of the defendants resulting in the wanton infliction of cruel and unusual punishment.

One final note in conclusion: even a liberal reading of plaintiffs complaint and other pleadings demonstrates plaintiffs failure to allege any specific, personal wrongdoing on the part of any of the individual named defendants. Even under the mandate of Haines v. Kerner, supra, such constitutes grounds for dismissal of § 1983 claims. Duncan v. Duckworth, 644 F.2d 653 (7th Cir.1981).

Accordingly, and for all of the foregoing reasons, defendants’ motion for summary judgment is hereby GRANTED in their favor, and against the plaintiff. CASE DISMISSED.

      . Plaintiffs initial request for appointed counsel was denied by order of this court on February l, 1982.

      . This court would also note that it had the opportunity to observe the plaintiff at the hearing held in this matter on May 27, 1983, at the Indiana State Prison. The plaintiff was articulate and knowledgeable of his case, filing with the court various exhibits. He also appeared to be in excellent health, and displayed no physical impairments. Finally, this court would point out that plaintiff acted as spokesman for his coplaintiffs in the hearing held on May 25, 1983, at the Indiana State Prison, in Wallace, et al. v. Pearson, et al., S 83-4.

      . Although denominated as a Fourteenth Amendment violation in his original complaint, the manner in which plaintiff has advanced the "shoe claim” makes it clear that what is actually alleged is an Eighth Amendment claim, i.e., that the failure to provide plaintiff with size 8V2 EE shoes constitutes the infliction of cruel and unusual punishment.


source: Caselaw Access Project

author: EDELSTEIN, District Judge:

license: Public Domain

text:
    In the Matter of the Arbitration between FLORASYNTH, INC., Plaintiff, v. Alfred PICKHOLZ, Defendant.
    No. 83 Civ. 6290 (DNE).
    United States District Court, S.D. New York.
    March 7, 1984.
    Francis Carling, New York City (Leo T. Crowley, Winthrop, Stimson, Putnam & Roberts, New York City, of counsel), for defendant.
    Lloyd I. Isler, New York City, for plaintiff.
   ORDER

EDELSTEIN, District Judge:

WHEREAS the plaintiff brought a motion in New York State Supreme Court, pursuant to New York CPLR § 7510 to confirm an award rendered in an arbitration between plaintiff and defendant; and

WHEREAS defendant removed the action to federal court and subsequently filed an answer and counterclaim praying for an order vacating the arbitration award; and

WHEREAS plaintiff, asserting that this case should be decided solely upon its motion to confirm the arbitration award, did not answer the defendant’s counterclaim, and a dispute arose between the parties as to the proper pleading procedure for this removed action; and

WHEREAS the court at a pretrial conference instructed the defendant to apply for a judgment by default so the issue of the proper pleading procedure could be briefed, and the defendant has applied for an order on default; and

WHEREAS a “federal court to which a state action is removed takes the action in the posture in which it existed when removed,” Istituto Per Lo Sviluppo Economico Dell’ Italia Meridionale v. Sperti Products, Inc., 47 F.R.D. 310, 312 (S.D.N.Y.1969), so that the plaintiff's motion to confirm, which was filed in state court pri- or to removal, is now pending before this court under the Fed.R.Civ.P.; and

WHEREAS in its answer defendant admitted that the arbitration between the parties was held pursuant to an agreement, that arbitration proceeded fully before a panel of three arbitrators (except that defendant contends the panel had no jurisdiction), that the panel rendered an award for plaintiff, and that the defendant brought no proceeding to vacate the award within three months of the filing of the award; and

WHEREAS the statute of limitations of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“Act”), which constitutes federal substantive law, see Southland Corp. v. Keating et al, — U.S. —, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984), applies to this case, and that limit provides: “Notice of a motion to vacate ... an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered,” 9 U.S.C. § 12; and

WHEREAS defendant contends that beyond the three month limit he may raise grounds to vacate the award as a defense to a motion to confirm an award, and he cites three federal cases, but the reasoning of these cases has been seriously questioned and their holding uniformly rejected by the recent cases: Brotherhood of Teamsters v. Celotex Corp., 708 F.2d 488, 490 (9th Cir.1983); Service Employees International Union v. Office Center Services, Inc., 670 F.2d 404, 409 (3d Cir.1982); Chauffeurs, Teamsters, Warehousemen and Helpers, Local Union No. 135 v. Jefferson Trucking Co., 628 F.2d 1023, 1026 (7th Cir.1980), cert. denied, 449 U.S. 1125, 101 S.Ct. 942, 67 L.Ed.2d 111 (1981); Tokura Construction Co. v. Corporacion Raymond, S.A., 533 F.Supp. 1274, 1276-78 (S.D.Tex.1982); Carpenters 46 Northern California Counties Conference Board v. Meddles, 535 F.Supp. 775, 778-79 (N.D.Cal.1981), all of which state that a defendant may not raise grounds to vacate an award after the three month limitation even as a defense to a motion to confirm the award; these cases are convincing on this point; and

WHEREAS the Act provides that on an application for an order to confirm an arbitration award, “the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 [which set the three month limitation],” 9 U.S.C. § 9; and

WHEREAS independent grounds to confirm the arbitration award at issue in this case exist because the defendant made no objection to the dissolution of the initial panel. It proceeded through an entire arbitration before a second panel, and made no objection within the limitations period, but waited until the plaintiff moved to confirm the award; and

WHEREAS if this court grants the plaintiff’s motion to confirm the arbitration award it need not reach the issues raised by the motion for default,

IT IS HEREBY ORDERED THAT the plaintiff’s motion to confirm the arbitration award is granted and that final judgment shall be entered thereon.


author: BRIEANT, District Judge.

text:
    Cesar A. PERALES, Commissioner of Social Services of the State of New York, Plaintiff, v. The UNITED STATES of America and John R. Block, Secretary, United States Department of Agriculture, Defendants.
    No. 83 Civ. 5850-CLB.
    United States District Court, S.D. New York.
    May 14, 1984.
    Daniel D. Kaplan, Asst. Atty. Gen., for the State of N.Y., New York City, for plaintiff.
    Rudolph W. Giuliani, U.S. Atty., for the Southern Dist. of New York by Richard A. Simpson, Asst. U.S. Atty., New York City, for defendants.
   MEMORANDUM AND ORDER

BRIEANT, District Judge.

The Food Stamp Act of 1977, as amended, 7 U.S.C. § 2011, et seq., provides assistance to eligible low income households to enable them “to obtain a more nutritious diet through normal channels of trade by increasing [their] food purchasing power ....” 7 U.S.C. § 2011. The Act’s purposes are to combat hunger and malnutrition among those of limited means, as well as to strengthen the nation’s agricultural economy through the enhancement of food marketing and distribution. Id.

The assistance provided under the Food Stamp Act is in the form of food stamp coupons that recipients use to purchase food from approved retail stores. These coupons are redeemable at face value by the Secretary of Agriculture through the facilities of the United States Treasury. 7 U.S.C. § 2013(a).

The Food Stamp Program is administered nationally by the Food and Nutrition Service of the Department of Agriculture (“FNS”). 7 C.F.R. § 271.3. It is administered locally by state agencies pursuant to plans of operation approved by the Secretary of Agriculture, which incorporate uniform standards of eligibility for assistance and specify the manner in which assistance will be processed. 7 U.S.C. § 2020. The state agencies are eligible to receive up to 50% or more of the costs of administering the program from the federal government. 7 U.S.C. § 2025.

Among the responsibilities of these state agencies are the certification of eligible households; the procurement, acceptance, storage, protection, control, accounting for and issuance of coupons; and the conduct of fair hearings for the determination of eligibility and entitlement to assistance. See generally 7 C.F.R. § 273. The Department of Social Services (“DSS”) is the state agency responsible for the administration of the program in New York, and the program is implemented by social services districts throughout the State.

Under New York’s plan of operation, as administered by DSS, an eligible individual is issued an Authorization to Participate (“ATP”) card which can be redeemed for food coupons at authorized coupon redemption centers. The ATP bears an expiration date beyond which it cannot be used. Generally, an ATP is valid for the entire month of issuance. However, if it is issued after the 25th day of the month, it will be val^d for at least twenty days thereafter, or until the end of the following month. See 7 C.F.R. § 274.2(e)(3).

In New York City, where the program is administered by the Human Resources Administration, special procedures have been implemented under the FNS’s Rapid Access System, in an effort to reduce fraud. Pursuant to these procedures, an ATP card must be transacted initially within eight days of issuance. If a household reports that an ATP card has been lost or stolen, those eligible must wait until the expiration of the eight-day period before obtaining a duplicate. If during this time the original ATP has been redeemed fraudulently by a thief or finder, or if it has not been redeemed at all, the household will receive a duplicate. However, the household will be denied this duplicate if it is determined that its member actually redeemed the original card during the first eight days of issuance.

If an eligible household fails to redeem its ATP within the eight-day period, it can obtain an immediate replacement within the month of issuance of the original. The replacement ATP is valid until the end of the month or for twenty days thereafter if issued after the 25th day of the month. It entitles the household to the same monthly coupon allotment that could have been obtained with the original card, but it will not be issued unless the household’s entitlement is confirmed and the original is surrendered.

The City and the State provide FNS with periodic reconciliation reports on forms provided by FNS that account for all redeemed ATP cards. The reports list the value of coupons issued upon acceptance of lost, stolen and expired ATP’s and this information provides the basis by FNS to compute the losses of the program.

Federal regulations make state agencies strictly liable for any shortages or losses of coupons or cash that are caused by, inter alia, theft, embezzlement, cashier errors and natural disasters. 7 C.F.R. §§ 276.-1(a), 276.2(a), (b). State agencies are also made liable for financial losses caused by the acceptance of expired ATP cards. 7 C.F.R. § 276.2(b)(3)(i). FNS is authorized to bill state agencies for the exact amount of such losses. 7 C.F.R. § 276.2(d). In the absence of payment, FNS may recover these losses through offsets against the federal share of administrative funds to which the state agency is otherwise entitled. 7 C.P.R. §§ 276.2(d), 277.16(c)(iii).

A state agency may seek administrative review of PNS claims by filing an appeal with the State Pood Stamp Appeals Board. It may also seek judicial review of an Appeals Board determination, within thirty days of the receipt thereof, by a trial de novo in a District Court. 7 U.S.C. § 2023(a); 7 C.P.R. § 276.7(j). The filing of a timely appeal for administrative review automatically stays the action of PNS to collect any claim until a final determination has been issued by the Appeals Board. 7 C.P.R. § 276.7(e). The automatic stay applies to all claims except those based on a state agency’s failure to comply with an order to reduce, suspend or cancel benefits. Id.

By letter of August 23, 1982, PNS notified DSS of the implementation of a policy of charging interest “on all debts over 30 days old which are owed to PNS by any party outside the Federal Government,” including state agencies which administer the Food Stamp Program. Interest is to accrue on all claims, including those under administrative review, from the 31st day following the date of the initial billing of the claims. The rate of interest to be assessed is established quarterly in accordance with the prevailing value of funds to the Treasury, and remains constant over the life óf a particular debt.

According to PNS, this policy was adopted under the authority of the Federal Claims Collection Standards, the Treasury Fiscal Requirements Manual, and a Treasury Department directive issued pursuant to these authorities.

PNS billed DSS on three occasions based on determinations that food stamps had been issued in New York to persons holding expired eight-day ATP cards. These billings were as follows:

Claim No. Date Period Covered Amount
1-83 1/18/83 10/80 — 3/81 $ 15,559.00
6-83 2/11/83 4/81 — 9/81 46,843.80
9-83 3/08/83 10/81 — 3/82 108,210.00
TOTAL $170,612.82

(The latter two amounts were subsequently revised, decreasing them to $43,428.80 and $102,844.00, respectively.)

DSS filed administrative appeals to the State Food Stamp Appeals Board pursuant to 7 C.F.R. § 276.7 with respect to each billing. The Appeals Board upheld each of the claims.

DSS has paid all claims. In addition, it has been assessed and has paid interest in the amount of $842.80 on the first claim, $4,234.31 on the second claim, and $8,913.14 on the third claim. Pursuant to the recently implemented FNS policy, interest was assessed retroactively to the 31st day following the initial billing of all the claims, even though the Appeals Board had not yet issued a final decision on DSS’ appeals by that date.

Plaintiffs initial complaint in this action challenged only the first billing, No. 1-83, and was timely filed on August 8, 1983, pursuant to 7 U.S.C. § 2023(a). On September 26, 1983, DSS received notice of the Appeals Board’s determination on claims Nos. 6-83 and 9-83. On November 4, 1983, over thirty days later, DSS filed an amended complaint challenging the second and third billings as well.

Defendants argue that this Court lacks subject matter jurisdiction to review the second and third billings because no complaint with respect to them was filed within the statutory period, and asks that the amended complaint be dismissed pursuant to Rules 12(b)(2) and 12(b)(6), P.R.Civ.P. Plaintiff contends that the action for judicial review of claims Nos. 6-83 and 9-83 was timely, since leave to amend was granted at this court’s scheduling conference held on October 25, 1983. At that time, plaintiff alleges leave to amend the complaint to include the two new claims was granted with consent of defendants’ counsel. There is no transcript of that conference. Usually this Court does not require attendance of a court reporter at such conferences, since most arrangements are both consensual and procedural, and to do otherwise would waste scarce resources. Plaintiff also contends that, as the amended complaint arises out of the conduct set forth in the original complaint, it relates back to the date of that pleading. Under these theories, plaintiff alleges that this Court does have proper subject matter jurisdiction.

In determining this threshold matter, we need not address the contested issue as to whether leave to file the amended complaint was granted in timely fashion with the consent of defendants’ counsel at the court conference on October 25, 1983, since, in any event, the amended complaint relates back to the date of the original complaint.

Rule 15(c), F.R.Civ.P. provides that:

“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.”

The Rule operates in this case to bring the filing of the amended complaint outside the bar of any limitations period.

Plaintiff’s amended complaint differs from the original in only two respects: it adds the United States as a party defendant pursuant to 7 U.S.C. § 2023(a), and it adds the undisputed factual allegations relating to the billing of claim Nos. 6-83 and 9-83 against DSS. The claims for relief set forth in the amended complaint are identical to, and arise out of the same conduct set forth in the original complaint. Both pleadings challenge defendants’ assessment of liability against DSS for (a) alleged ATP reconciliation shortages in the absence of actual losses to the Food Stamp Program; and (b) late payment interest.

In light of the identity of issues and claims presented by the two pleadings, the amendment relates back to the date of the original complaint. Therefore, this Court may consider the issues contained in plaintiff’s amended complaint.

Plaintiff asserts (a) that DSS is not liable to FNS for the transaction of expired eight-day ATP cards because no losses were incurred by the Food Stamp Program; and (b) that assessment of late payment interest against DSS is not authorized by common law or regulation, and contravenes the terms and policy of the Food Stamp Act and regulations.

Defendants assert (a) that DSS is strictly liable for food stamp coupons issued pursuant to expired ATP cards and that financial loss need not be proved; and (b) that under a creditor’s common law rights, FNS properly billed DSS for late payment interest.

Both claims present issues of first impression in this jurisdiction. With respect to the first issue, plaintiff’s challenge to defendants’ assessment of strict liability against DSS for redemption of expired ATP cards regardless of any proof of financial loss to the Food Stamp Program, this Court must agree with plaintiff’s contention that in the absence of any such proven loss, DSS is not liable to FNS.

Defendants do not dispute that FNS has never demonstrated that actual financial losses to the Food Stamp Program were created by the exercise of expired eight-day ATP’s in New York City. Rather, they assert that “financial loss is presumed from the improper issuance of food stamp coupons; it need not be proved,” and that consequently, DSS “is liable for food coupons issued pursuant to expired ATP cards without regard to whether any actual financial loss can be proved.” These contentions disregard the language of the Food Stamp Act and regulations.

The Food Stamp Act requires that state agencies administering the program, such as DSS, “shall be strictly liable to the Secretary for any financial losses involved in the acceptance, storage and issuance of coupons____” 7 U.S.C. § 2016(f) (emphasis added). The regulations also provide that “any shortages or losses of coupons or cash shall be a strict State agency liability and the State agency shall pay to FNS, upon demand, the amount of the missing coupons or cash regardless of the circumstances of the loss.” 7 C.F.R. § 276.1(a).

In addition to their responsibility for actual coupon shortages and losses, state agencies are liable for unauthorized issuances, including “the acceptance of expired ATP cards.” 7 C.F.R. § 276.2(b)(3)(i). Any doubt that this liability is based on other than actual losses is laid to rest by 7 C.F.R. § 276.2(d), which provides that “State agencies shall be billed for the exact amounts of losses specified in this section.”

The statute and the regulations distinguish clearly between the standard of liability to which a state agency is held, strict liability, and the measure of that liability, actual financial loss. The standard is expressed as liability “regardless of the circumstances of the loss,” while the measure is unambiguously stated as “the amount of missing coupons or cash.” 7 C.F.R. § 276.-1(a).

The cases relied on by defendants recognize this distinction, and do not support their argument that losses need not be proved. Thus, in Hettleman v. Bergland, 642 F.2d 63 (4th Cir.1981), the court upheld the validity of regulations imposing strict liability on the Maryland Department of Human Resources for an undisputed loss of $113,962 in stolen food coupons. The court did not suggest that a state agency could be held liable, strictly or otherwise, for unproven losses.

Similarly, in State of Louisiana Department of Health and Human Services v. Block, 694 F.2d 430 (5th Cir.1982), and State of Missouri v. Block, 690 F.2d 139 (8th Cir.1982), the courts concluded that the risk of loss of stolen coupons must be borne by state agencies under the strict liability standard imposed by the food stamp regulations. And, in Century Bank of Gainesville v. United States, 634 F.2d 554 (Ct.Cl.1980), the court held that the United States was not obligated to pay for food coupons that were stolen while in the custody of a bank, and that the bank had to bear the consequent loss despite the absence of negligence on its part.

Each of these cases present a significant fact lacking in the instant case — a loss of coupons. The exercise of expired eight-day ATP cards does not entail a financial loss to the program because the household receives no more than the monthly allotment of coupons to which it would otherwise be entitled. The eight-day deadline is simply a special feature of the Rapid Access System used in New York City to guard against the possibility of duplicate issuance. It does not signal the forfeiture of benefits, as does the thirty-day expiration date employed elsewhere in the State.

The regulations imposing strict liability on state agencies may dispense with the need for defendants to establish agency negligence when coupon losses or shortages occur. However, they in no way eliminate the need for defendants to prove the existence of such losses or shortages as a prerequisite to a valid claim for payment. Accordingly, this portion of plaintiffs amended complaint states a claim upon which relief can be granted.

In addition, plaintiff challenges FNS’ assessment of late payment interest charges. DSS contends that such assessment of interest against a state agency is not authorized by common law or regulation and contravenes the terms and policy of the Food Stamp Act and regulations. We agree.

DSS has paid $13,990 in interest on the three challenged claims pursuant to FNS’ policy of charging state agencies late payment interest penalties from the 31st day following the initial billing of claims. Interest is assessed by FNS for periods during which a state agency may seek administrative and judicial review of such claims. According to a notice to DSS dated August 23, 1982, FNS implemented this policy under the authority of the Federal Claims Collection Standards, the Treasury Fiscal Requirements Manual, and a May 17, 1982 Treasury “directive.” State agencies had never before been liable for interest, and there is no provision for interest in the Food Stamp Act.

Defendants recognize that the recently amended Federal Claims Collection Act expressly excludes state agencies from the definition of “persons” against whom late payment interest can be assessed. See 31 U.S.C. §§ 3701(c), 3717. Nevertheless, they argue that the United States has a common law right to interest that is not abrogated by this statute. They also maintain that the assessment of interest against DSS is authorized by regulation. There is no legal basis for either of these contentions.

The terms and conditions upon which state agencies participate in the Food Stamp Program were clearly articulated by Congress, and cannot be expanded by administrative action. In the administration of cooperative federal-state programs, state governments assume only those obligations that are explicitly imposed by statute. As the Supreme Court has stated in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981):

“[Ljegislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.” [Citations omitted]. There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. [Citations omitted]. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.”

See also Bell v. New Jersey and Pennsylvania, 461 U.S. 773, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983) (federal government has the right to recover misused education funds because of express statutory authorization); Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (Education for All Handicapped Children’s Act does not require state to provide a sign-language interpreter for a deaf child).

The “contractual” relationship into which states and the federal government enter under the Food Stamp Program is thus exclusively a creature of the Food Stamp Act and the regulations and plans of operation authorized thereunder. In the absence of an unambiguous authorization by Congress, FNS’ policy of assessing late payment interest against state agencies must be deemed invalid. This is especially so in light of the fact that the Federal Claims Collection Act, which set forth congressional policy for the collection and settlement of debts by federal agencies, was expressly made inapplicable to claims against state agencies by the Debt Collection Act of 1982.

The lack of authority for FNS’ policy is also evidenced by the fact that the assessment of interest against states in other instances is expressly authorized by statute. For example, the Medicaid Act makes a state liable for retroactive interest on disallowed matching funds that are retained by the state pending a final determination that proves favorable to the federal government. 42 U.S.C. § 1396b(d)(5). Similarly, the Social Security Act makes states liable for interest on late payments of FICA taxes under contracts for the provision of Social Security benefits for their employees. 42 U.S.C. § 418(j). These statutes also prescribe the rates of interest to be applied. The absence from the Food Stamp Act of a similar provision precludes the assessment of interest against DSS in this case. Had Congress intended to subject state agencies to late payment interest penalties under the Food Stamp Program, it would have done so explicitly.

Instead, the Food Stamp Act and regulations prescribe other, exclusive means of collecting on claims against state agencies, as well as the exclusive measure of recovery on those claims. Thus, as noted above, state agencies are liable to pay only the actual losses created by coupon shortages and unauthorized issuances, including the acceptance of expired ATP’s. 7 U.S.C. § 2016(f); 7 C.F.R. §§ 276.1(a), 276.-2(b)(3)(i). They can be billed by FNS for no more than the exact amounts of losses incurred. 7 C.F.R. § 276.2(d). Unpaid claims for these losses can be recovered through offsets against the federal share of administrative funds to which the state agency is otherwise entitled "... if the State agency has declined or exhausted its appeal rights____” 7 U.S.C. § 2022(a); 7 C.F.R. §§ 276.2(a), 277.16(c)(iii). And the filing of a timely appeal for administrative review automatically stays the action of FNS to collect any claim (other than one for noncompliance with an order to reduce, suspend or cancel benefits) until a final determination has been issued by the Appeals Board. 7 C.F.R. § 276.7(e). Nothing in the statute or regulations authorizes the assessment of interest on claims against state agencies, and their exclusivity renders common law principles irrelevant.

The cases cited by defendants are not persuasive. They involve only the right to recover interest from a private party as an incident of damages for breach of a commercial contract. They were decided prior to the enactment of the Debt Collection Act of 1982. The cases in no way suggest that the United States is entitled to collect interest from a state agency on claims governed by a statute that does not authorize it to do so. To the contrary, they recognize that federal courts will fashion the measure of interest due the United States as an element of contractual damages only in the absence of an applicable federal statute. Royal Indemnity Co. v. United States, 313 U.S. 289, 296, 61 S.Ct. 995, 997, 85 L.Ed. 1361 (1941); United States v. Seaboard Surety Company, 339 F.2d 1, 3 (2d Cir. 1964). In Rosden v. Leuthold, 274 F.2d 747 (D.C.Cir.1960), also cited by defendants, the interest awarded was specifically authorized by the District of Columbia Code.

The statutory and regulatory provisions cited above make clear that claims do not have to be paid, and cannot be collected, until a state agency foregoes an appeal or receives a final determination from the Appeals Board. They lead to the conclusion that FNS is not empowered to impose late payment interest penalties on state agencies, particularly for any period of time prior to the state agency’s waiver or exhaustion of an administrative appeal. Until an Appeals Board decision is issued, or an appeal is declined, a claim against a state agency is not final, and the United States is not entitled to recover either the disputed amount or interest thereon. For this reason, defendants’ reliance on cases which have allowed the recovery of interest pending administrative or judicial review in other circumstances is misplaced.

Defendants’ argument that the assessment of interest is a valid means of discouraging frivolous appeals and preventing windfalls to state agencies ignores the fact that the statute and regulations guarantee the right to appeal, and preclude collection of claims pending administrative review. Defendants’ retroactive assessment of interest for a period during which an appeal is pending penalizes the state agency for not paying FNS on a claim for which it has not been finally determined to be liable. It also penalizes the state agency for delays in the issuance of an Appeals Board decision, which prolong the accrual of interest through no fault of the agency.

Defendants are also mistaken in their contention that the assessment of interest against state agencies is authorized by the Federal Claims Collection Standards, which have been adopted by the Department of Agriculture and provide that “in the absence of a different rule prescribed by statute, contract or regulation, interest should be charged on delinquent debts and debts being paid in installments in conformity with the Treasury Fiscal Requirements Manual.” 4 C.F.R. § 102.12. As defendants recognize, the Federal Claims Collection Act prescribes such a different rule with respect to state agencies, by expressly excluding them from the definition of “persons” against whom interest may be charged. 31 U.S.C. §§ 3701(c), 3717. The Standards cannot be read to permit the collection of interest against state agencies when the Act under which they were promulgated expressly precludes it.

Moreover, the Treasury Fiscal Requirements Manual authorizes the collection of late payment interest only on overdué debts owed by organizations, businesses and individuals. It does not cover debts owed by state agencies. T.F.R.M. § 8020.-20. Thus, even if the Federal Claims Collection Standards were otherwise relevant, they would have no bearing on this case because of the inapplicability of the Manual.

The only pertinent regulations are those which limit FNS to the recovery of the exact amount of unpaid losses by offsetting those losses against the federal share of administrative funds. There is simply no legal authority for FNS’ policy of assessing interest against state agencies.

Accordingly, for the aforementioned reasons plaintiff’s motion for summary judgment is granted and defendants’ motion is denied.

Settle a judgment on five (5) days notice to be received by the Court for signature on or prior to May 31, 1984.

So Ordered.


author: NEALON, Chief Judge.

text:
    Paul BERNARDI, Plaintiff, v. CITY OF SCRANTON, et al., Defendants.
    Civ. No. 83-0202.
    United States District Court, M.D. Pennsylvania.
    May 21, 1984.
    See also, D.C., 101 F.R.D. 411.

      Thomas W. Jennings, Thomas H. Kohn, Sagot & Jennings, Philadelphia, Pa., for plaintiff.
    William J. Hall, Edmund J. Scacchitti, City Sol., Scranton, Pa., for defendants.
    W. Boyd Hughes, Hughes, Nicholls & Moran, Scranton, Pa., for Samuel Bevilacqua.
    Edwin A. Abrahamsen, Abrahamsen & Moran, Scranton, Pa., for Louis D’Angelo.
    Thomas J. Foley, Scranton, Pa., for Edward Dougher.
    James G. McDonough, Carbondale, Pa., for Thomas O’Hara.
   MEMORANDUM AND ORDER

NEALON, Chief Judge.

The plaintiff commenced the above-captioned § 1983 action on February 15, 1983, claiming that the defendants violated his first amendment and due process rights in discharging him from his position as a Foreman in the Department of Public Works [hereinafter “DPW”] of the City of Scranton. Presently before the court are six motions, all of which are ripe for disposition. The court finds it unnecessary to discuss all of the points argued by counsel in connection with each motion. It is sufficient to say that, after carefully considering the parties’ arguments, the court has decided to deny the defendants’ motion for a non-jury trial because the plaintiff has raised viable legal claims for pecuniary and punitive damages. The plaintiff’s motion to disqualify defense counsel will be denied because the movant has raised, at best, only a remote possibility of a conflict of interest. Finally, the court will deny, on the ground that there is a genuine issue of material fact, the defendants’ motion for summary judgment on the plaintiff’s first amendment claim. For the reasons set forth in the body of this Memorandum, however, the court will grant in major part the defendants’ motion for summary judgment on the plaintiff s due process and related pendent claims and consequently will deny the plaintiff’s motion for partial summary judgment on the same claims. The court will hold in abeyance the remainder of the cross motions for summary judgment pending an expansion of the record as discussed herein. Finally, for the reasons appearing below, the court will not reach the motion to dismiss filed by defendant Bevilacqua and the motion for summary judgment filed by defendant O’Hara.

FACTUAL BACKGROUND

According to the plaintiff, in early 1978 he was asked by his father-in-law, a member of the Civil Service Commission, if he would be interested in working for the City of Scranton. See Transcript of Deposition of Paul R. Bernardi at 4, Document 44 of the Record [hereinafter “Bernardi Deposition”]; Affidavit of Plaintiff Submitted in Support of Memorandum in Opposition to Defendants’ Motion for Summary Judgment 1Í 2, Document 60 of the Record [hereinafter “First Bernardi Affidavit”]. The plaintiff indicated that he would like such a job, and his father-in-law agreed to see if he could aid the plaintiff in securing employment with the city. Bernardi’s Deposition at 4-5. The plaintiff was referred to Gaynor Cawley, who was to become the Director of DPW when the new mayoral administration assumed office. See Affidavit of Paul Bernardi Submitted in Support of Memorandum of Law in Support of Motion for Partial Summary Judgment ¶ 2, Document 72 of the Record [hereinafter “Second Bernardi Affidavit”].

On January 19, 1978, the plaintiff filled out an application for employment with the city and indicated that he desired the position of “supervisor.” See Exhibit 1 appended to Bernardi Deposition. Subsequently, the plaintiff was asked to meet with Cawley to discuss the possibility of working for DPW. See Bernardi Deposition at 5. In affidavits submitted to the court, the plaintiff has stated:

Mr. Cawley gave me a verbal examination to test my fitness and ability for the position of Foreman in the Bureau of Highways, Department of Public Works. In doing so, he examined my construction background and knowledge, and ascertained that I was physically fit to perform the duties associated with that position.

First Bernardi Affidavit f 2; Second Bernardi Affidavit II3. On February 10, 1978, Cawley wrote to the city’s business administrator advising him that the plaintiff would be appointed to the position of foreman in the Bureau of Highways on February 13, 1978. Exhibit 2, appended to Second Bernardi Affidavit. On February 15, 1978, an unsigned memorandum was sent to the Civil Service Commission from the city’s Department of Administration. The memorandum stated:

Please be advised that Mr. Paul Bernardi, 1134 W. Gibson St., Scranton, Pa. 18504, Social Security # [ XXX-XX-XXXX ] has been appointed Foreman in the Bureau of Highways, Dept. of Public Works at a salary of $12,700.00 effective February 13, 1978.

Exhibit 2, appended to First Bernardi Affidavit (emphasis in original).

The plaintiff claims that, “[i]n early 1981, [he] was made aware of the fact that [his] position was covered by the Civil Service Rules and Classifications for Scranton.” First Bernardi Affidavit 114. On June 8, 1981, the plaintiff wrote to the new Director of DPW, Richard Novembrino, asking, “would you, as Director of Public Works, please send a letter to the Civil Service Commission of Scranton, verifying that I am entitled to ... Civil Service Status?” Exhibit 2, appended to First Bernardi Affidavit. Novembrino, in turn, wrote to the Civil Service Commission asking the Commission to “[p]lease investigate this matter and advise me of the status of this request.” Exhibit 1, appended to Second Bernardi Affidavit. Presumably as a result of Novembrino’s inquiry, the plaintiff received a letter from the Commission which stated, “[t]his is to legally certify your position this day March 19, 1981 as Foreman in the Bureau of Highways in the Department of Public Works.” Exhibit 3, appended to First Bernardi Affidavit. Subsequently, the Commission sent a second letter, stating, “[tjhis is to legally certify your position as of this day June 22, 1978 as a Permanent Employee in the Bureau of Highways in the Department of Public Works.” Exhibit 4, appended to First Bernardi Affidavit.

On March 24, 1982, the plaintiff was given a letter of termination which stated that his services were no longer required as of the end of that day. On August 16, 1982, the plaintiff’s former attorney sent a letter to the Civil Service Commission in which it was asserted that the plaintiff’s dismissal violated various provisions of the Commission’s rules. The attorney asked the Commission to investigate, stating:

By way of this letter, my client is requesting the Civil Service Commission to make a complete investigation of the above-mentioned violations amounting to a total disregard of the Rules and Classifications of the Civil Service Commission by the present administration of the City of Scranton; and further, to order his reinstatement to the position of Foreman in the Bureau of Highways, along with his back wages from March 24, 1982.

Exhibit 8, appended to First Bernardi Affidavit. The plaintiff has never received a response. First Bernardi Affidavit ¶ 12.

DISCUSSION

The plaintiff claims that the failure of the defendants to provide a hearing in connection with his dismissal constitutes a violation of his right to due process of law. To support the proposition that he was entitled to protection under the due process clause, the plaintiff asserts that he possessed a legitimate expectation of continued employment by the City of Scranton. Specifically, the plaintiff claims, various civil service statutes and city ordinances provide that Scranton’s civil service employees cannot be discharged without just cause. In addition, the plaintiff alleges that the defendants refused to provide him with a hearing and the other procedural protections provided to civil servants. This, the plaintiff claims, constitutes a violation of various provisions of state law.

The defendants argue that the plaintiff was not a civil service employee within the meaning of state and city law. According to the defendants, certain procedures must be followed in connection with an employee’s appointment before he may claim the protection of the various state and municipal civil service provisions. Asserting that the plaintiff was not appointed in accordance with these prerequisites, the defendants conclude that the plaintiff may not claim the protection of the civil service laws and that, consequently, he cannot prove that he possessed a legitimate property interest in continued employment with the city.

In resolving the question whether the plaintiff possessed a legitimate property interest in continued employment with the City of Scranton, it is necessary to refer to state law. See, e.g., Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (“Property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”). The plaintiff contends that the state and municipal civil service provisions conferred upon him a legitimate expectation of continued employment with the city.

Under Pennsylvania law, it is well settled that one who would invoke the protections afforded by civil service provisions must first demonstrate that he has been validly appointed under those laws. See, e.g., Snizaski v. Zaleski, 410 Pa. 548, 549, 189 A.2d 284 (1963); cf. Detoro v. Pittston, 344 Pa. 254, 260, 25 A.2d 299 (1942) (Detoro I) (“Permanency of tenure applies only to those who have appointments in compliance with the law.”). Moreover, the Supreme Court of Pennsylvania has stated numerous times that an appointment will be considered valid only if there has been strict compliance with the terms of the civil service laws. See Snizaski, 410 Pa. at 550, 189 A.2d 284; Manning v. Millbourne Borough Civil Service Commission, 387 Pa. 176, 179, 127 A.2d 599 (1956); Detoro v. Pittston, 351 Pa. 178, 182, 40 A.2d 486 (1945) (Detoro II); McCartney v. Johnston, 326 Pa. 442, 446, 191 A. 121 (1937); Scott Township Civil Service Commission Appeal, 166 Pa.Super. 486, 490, 72 A.2d 137 (1950); Substantial compliance is not sufficient. Manning, 387 Pa. at 179, 127 A.2d 599, Detoro II, 351 Pa. at 182, 40 A.2d 486. The Pennsylvania Supreme Court has explained:

The fundamental purpose of the Civil Service Acts was to regulate and improve civil service in the cities of the Commonwealth by establishing a system whereby municipal employees would be selected on the basis of their qualifications. To achieve this end, the acts required that all appointments and promotions in the civil service ... were to be made according to fitness, ascertained as far as practicable by competitive examinations ____ So that purpose may be realized, the statutory provisions regulating appointments call for strict compliance with the terms of the acts.

McCartney, 326 Pa. at 446, 191 A. 121.

Any municipal employment which does not comport with the precise terms of the applicable civil service provisions is illegal and against public policy. Detoro I, 344 Pa. at 261, 25 A.2d 299; Healey v. Jones, 152 Pa.Super. 18, 22, 30 A.2d 732 (1943). Because a failure to comply with civil service provisions concerning appointment makes the resulting employment illegal “in its inception,” Detoro I, 344 Pa. at 261, 25 A.2d 299, the administrative officials of the municipality involved cannot subsequently validate the appointment and “endow [the employee] with permanency of tenure.” Healey, 152 Pa.Super. at 22, 30 A.2d 732. Indeed, it has been stated that municipal officers have the affirmative duty to remove those appointed improperly and a prior failure to remove such employees does not amount to a waiver of the defense of illegality. Detoro I, 344 Pa. at 261, 25 A.2d 299. The Pennsylvania Superior Court has held that a person appointed in violation of the precise terms of a civil service provision attains only the status of a “provisional employee.” DeSarro v. Snowdon, 157 Pa.Super. 150, 152-53, 42 A.2d 89 (1945). Such an employee possesses essentially no protection under the civil service laws, even if the departure from the appointment provisions was caused by the Civil Service Commission itself. Id. at 153, 42 A.2d 89; accord, McCartney, 326 Pa. at 447-48, 191 A. 121 (“[N]either negligence nor connivance can cause a provisional appointment to ripen into a permanent one.”).

The Home Rule Charter

Clearly, since plaintiff relies upon civil service provisions to demonstrate that he possessed a property interest in his employment, the court must first determine whether the plaintiff was validly appointed under those laws. The parties have extensively briefed this question and have cited many state and municipal provisions. The plaintiff first cites § 801 of the Home Rule Charter of the City of Scranton. That section provides:

Employment promotion and discharge of all persons from full-time positions of employment with the city shall be accomplished through a merit personnel system which shall be based on fitness for the position demonstrated by examination or other evidence of competence. The Business Administrator and the Department of Administration shall develop appropriate measures of competence for all positions within the city’s employment. These measures or tests must be approved by the Mayor and Civil Service Commission of the city, which is hereby charged with the responsibility of approving the tests or measures of competence for all city positions and for hearing appeals from individuals who claim that employment or promotion has been awarded to other than qualified individuals. Individuals who are employed or promoted to positions in the city service on the basis of the above mentioned tests or measures of competency shall retain that position within the city service and shall not be removed, demoted, disciplined, or discharged except for just cause. Individuals removed, demoted, disciplined, or discharged from their positions shall have the right to appeal the question of just cause to the Civil Service Commission of the City. The decision of the Civil Service Commission on any appeals shall be final and binding on the individual and the Mayor and the Administration of the City.

To support his contention that he was appointed in conformity with this provision, the plaintiff argues that his interview with Gaynor Cawley was, in fact, a “verbal examination.” See Bernardi Affidavit 112. Moreover, the plaintiff argues that the Mayor implicitly approved the verbal exam as a sufficient test or “measure of competence” under § 801 when the Civil Service Commission was apprised of his appointment by a memorandum from the city’s Department of Administration. Finally, the plaintiff contends that in light of the two letters stating that his position was “legally certified,” the Civil Service Commissioners “are now hardly in a position to assert that the competency examination ... was anything less than satisfactory for purposes of Section 801.” Plaintiff’s Memorandum of Law in Support of Motion for Partial Summary Judgment at 18, Document 67 of the Record.

The court finds plaintiff’s arguments to be unpersuasive, for their adoption here would require the court to endorse a strained construction of § 801 and would not be in keeping with the Pennsylvania Supreme Court’s direction that strict compliance with civil service laws must be observed. Even accepting the plaintiff’s vague characterization of the Cawley interview as a “verbal examination,” the court cannot agree that under § 801 the Department of Administration can approve, in the Mayor’s stead, the exams and measures of competence required by that section. Section 801 provides that the Department of Administration shall formulate the exams or other measures of competence, and that the Mayor and the Civil Service Commission shall have the responsibility of approving such tests. Given this division of responsibility, it would make little sense to hold that the Department of Administration can discharge the Mayor’s responsibility to approve an exam or test when it is the Department of Administration which is charged in § 801 with formulating appropriate measures of competence in the first instance. In addition, the court cannot read § 801 to permit the Mayor and the Civil Service Commission to approve, and thereby validate, exams or other measures of competence after they have been administered, and, indeed, in the case of the Commission here, after the employee involved has been appointed and employed for a number of years.

Inasmuch as the court finds that, under the plaintiff’s version of relevant events, there has not been strict compliance with the appointment procedures set forth in § 801, that section cannot be relied upon to demonstrate a legitimate expectation of continued employment in this case. Accordingly, the defendants are entitled to summary judgment on this point as a matter of law. Similarly, the defendants are entitled to summary judgment on the pendent claim raised under the Home Rule Charter.

Rules and Classifications of the Commission

The plaintiff next contends that the 1965 Rules and Classifications of the Municipal Civil Service Commission of Scranton conferred upon him a legitimate expectation of continued employment. To support this view, the plaintiff notes that the position of “foreman” in the Bureau of Highways and Sewers is listed by the Civil Service Commission as one of the positions falling within the non-competitive class of positions. Because the Commission’s list of positions states that “the positions hereinafter named are entitled to civil service protection,” the plaintiff argues that he, as foreman in the Bureau of Highways, is entitled to protection.

The court rejects this contention. The mere listing of positions by the Commission in its rules and classifications does not confer upon all appointees to those positions the protections offered by the civil service laws. A contrary view would render meaningless the goal of the civil service laws, viz., to secure the best qualified public servants and to avoid the practice of filling positions solely on the basis of political patronage. Accord, Detoro II, 351 Pa. at 182, 40 A.2d 486. As noted, supra, the critical question here is whether the plaintiff’s appointment comported with the laws of which he wishes to take advantage. The Commission’s rules set forth procedures for the appointment of personnel to the positions falling within the noncompetitive class. Rule XVIII, 112 provides:

A vacancy in any position in the NonCompetitive Class may be filled by the appointment of any person who, upon nomination by the appointing officer to the Commission, and upon appropriate examination, shall be certified by the Commission to be qualified to perform the duties of the position.

Clearly, strict compliance with this rule would have required Cawley to nominate the plaintiff and then the Commission to examine and certify him as qualified. In the present case, however, it is undisputed that Cawley — not the Commission — administered the alleged examination. Since the rule was not followed precisely here, the plaintiff may not take advantage of the other rules affording protection to properly appointed individuals. This being the case, there is no legitimate expectation of continued employment under the Commission’s rules, and therefore, no due process violation.

Second Class City A Code

The plaintiff next relies upon the Civil Service provisions contained within the Commonwealth’s Second Class City A Code. See Pa.Stat.Ann. tit. 53, §§ 30451-30455. Section 30451 of the Code provides that covered employees cannot be discharged without a hearing conducted by a tribunal. To support his view that he is entitled to protection under this civil service provision, the plaintiff cites § 30454 of the Code, which provides:

On and after the date of passage hereof, municipal employes of the cities of the second class A listed in the competitive and non-competitive classes on the roster of the civil service commission and having served their probationary period shall be considered as having the status of civil service employes.

The defendants contend that this provision is not available to the plaintiff because his name never appeared on a roster and, in fact, could not appear because he had never been examined by the Commission. See Defendants’ Brief in Opposition to Plaintiff’s Motion for Partial Summary Judgment at 29, Document 83 of the Record.

The plaintiff asserts that he “clearly satisfied his probationary period and was certified in writing by the Civil Service Commission as having attained regular status.” Accordingly, the plaintiff contends, he is entitled to claim civil service protection by virtue of § 30454. The plaintiff asks the court to construe § 30454 liberally as did President Judge Hoban in Lucas v. City of Scranton, 66 Lacka.Jurist 45 (1965), wherein it was stated:

It seems reasonable to believe that the three month probationary period ought to be sufficient time within which the appointing authority could determine whether or not the appointee had the requisite qualifications of age, physical condition, passage of examination, etc., and if the regularity of the appointment could not be determined within that period, the [section] protects the appointee against future attacks. In so holding, we pass no judgment upon the possibilities of abuses under the Act, but simply consider the intention of the legislature as expressed in its plain words.

Id. at 50. Significantly, however, in Lucas, it was conceded by the City that the plaintiff therein was listed on the Commission’s roster as a civil service employee. Id. at 48. There is no such concession in the present case. On the contrary, the defendants argue that the fact that the plaintiff was never given an exam by the Commission would preclude the listing of his name on the roster.

According to the cases reviewed by the court, § 30454 will not aid an individual whose name does not appear on the Commission’s roster. Whyte v. City of Scranton, 55 Pa.Cmwlth. 353, 423 A.2d 473, 475 (1980); Bonnert v. Hanlon, 48 Lacka.Jurist 177 (1947). This requirement that one’s name be included on the roster means “something more than inclusion on the city payroll.” 423 A.2d at 475. Indeed, an individual cannot benefit from the section even if the failure of his name to appear is occasioned by the Commission’s failure to maintain an official roster. Bonnert, 48 Lacka.Jurist 177.

The court notes that the defendants’ statement regarding the non-inclusion of the plaintiff’s name in the Commission’s roster was made in a brief and not in an affidavit, deposition or other document acceptable for consideration under Rule 56. This being the case, the court will withhold decision on this aspect of the summary judgment motion for twenty (20) days to allow both the plaintiff and the defendants to submit proper documentation concerning the inclusion or non-inclusion of the plaintiff’s name on the roster. Local Agency Law

The plaintiffs final contention concerns the Pennsylvania Local Agency Law, 2 Pa.Cons.Stat.Ann. §§ 551-555 (Purdon Supp.1983-1984). Under this law, any decision by a local agency affecting property rights is invalid if the party affected was not afforded “reasonable notice of a hearing and an opportunity to be heard.” 2 Pa.Cons.Stat.Ann. §§ 101, 553. The test for determining whether a property right has been affected for purposes of the Local Agency Law “tracks the inquiry mandated by the Supreme Court as to whether an employee has a ‘legitimate expectation’ of continued employment for purposes of the Fourteenth Amendment due process clause.” Abraham v. Pekarski, 537 F.Supp. 858, 868 (E.D.Pa.1982) (footnote omitted), aff'd, 728 F.2d 167 (3d Cir.1984). Clearly, the Local Agency Law does not create a property interest in continued employment. Rather, it protects interests conferred elsewhere. Hence, the defendants are entitled to judgment to the extent that the plaintiff relies upon the Local Agency Law to support his claim of a property interest in continued employment under a due process theory. As to his pendent state claim under this statute, see Complaint, Count VIII, the court will hold the summary judgment motions in abeyance pending receipt of the additional evidence referred to in connection with § 30454 of the Second Class City A Code, see supra, for the Code might very well provide the property interest needed to state a claim under the Local Agency Law.

An appropriate Order shall enter.

ORDER

In accordance with the reasoning set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:

(1) The defendants’ motion for a non-jury trial is denied.
(2) The plaintiff’s motion to disqualify defense counsel is denied. Defense counsel is directed to apprise each defendant fully of the risks inherent in multiple representation.
(3) The defendants’ motion for summary judgment is granted in part, denied in part and partially held in abeyance.
(4) The plaintiff’s motion for summary judgment is denied in part and partially held in abeyance.
(5) The motion to dismiss and motion for partial summary judgment filed by defendants Bevilacqua and O’Hara, respectively, are held in abeyance.
(6) The parties shall expand the record to demonstrate whether plaintiff’s name was included on a civil service roster in 1978. This evidence shall be filed of record within twenty (20) days from the date of this Order.

      . The plaintiff also has included in his complaint an Age Discrimination in Employment Act (ADEA) claim and various pendent state claims. He has since dropped the ADEA claim. See Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment at 9 n. 2, Document 59 of the Record.

      . According to the Code of Professional Responsibility, an attorney must withdraw from the representation of multiple clients "if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).” Pa. Code of Professional Responsibility DR 5-105(B), 42 Pa.Cons.Stat.Ann. (Purdon Supp. 1983-1984).
      To support his view that a conflict exists here, the plaintiff points to the Second Circuit’s recent decision in Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir.1984). Even a casual reading of the facts involved in Dunton demonstrates the acute nature of the conflict implicated therein. Although the plaintiff attempts to demonstrate a similar conflict or potential for a conflict by pointing to the purported failure of defense counsel to interpose a "good faith immunity” defense in the instant case, see generally Harlow v. Fitzgerald, 457 U.S. 800, 818-19 & n. 30, 102 S.Ct. 2727, 2738-39 n. 30, 73 L.Ed.2d 396 (1982), it is apparent that the defendants intend to raise such a defense at trial. See Memorandum of Law in Opposition to Plaintiff's Motion to Disqualify Counsel at 6-7. It suffices to observe that the purported potential conflicts cited by the plaintiff are not supported in the instant record. Accordingly, the motion will be denied. This, however, shall be without prejudice to a renewal of the motion if circumstances should warrant such a course. Finally, the individual defendants should be advised "of the possible advantages of retaining separate counsel.” Kerry Coal Co. v. United Mine Workers, 470 F.Supp. 1032, 1036 (W.D.Pa.1979). In an effort to ensure that the individual defendants are so informed, the court will direct defense counsel to make "full disclosure of the possible effect of [multiple] representation on the exercise of his independent professional judgment on behalf of each [client].” DR 5-105(C).

      . The court’s decision to deny the motion also applies to the pendent claims raised pursuant to the free speech and assembly principles contained within the Pennsylvania Constitution.

      . All facts relied upon are taken from materials submitted by the plaintiff. All fair inferences to be drawn therefrom are taken in the light most favorable to the plaintiff.

      . The plaintiffs father-in-law, Samuel Bevilacqua, is a defendant in this action.

      . Strangely, Novembrino’s letter to the Commission is dated June 15, 1981, but the Commission’s letter to the plaintiff is dated March 19, 1981. The plaintiff states in his affidavit, however, that he did not receive the Commission’s March 19th letter until after Novembrino sent his June 15th letter. See Second Bernardi Affidavit ¶ 6. This statement has not been disputed by the defendants. Accordingly, it is accepted as true for purposes of the present motions.

      . Specifically, the plaintiff raises pendent claims under the Pennsylvania Local Agency Law, 2 Pa.Cons.Stat.Ann. §§ 551-555, 751-754 and Article VIII, § 810 of the Home Rule Charter and Administrative Code of the City of Scranton.

      . The plaintiff asserts that "[e]ven if it normally would have been required that [he] pass a Civil Service Examination, the Defendants’ argument that he did not pass such an examination would be without merit because they did not offer to administer an examination to him." Plaintiff's Reply to Defendants’ Brief in Opposition to Motion for Partial Summary Judgment at 4, Document 93 of the Record. Despite his protestations to the contrary, see id. at 8, the plaintiff's argument sounds suspiciously like estoppel. The court observes that an estoppel here would operate against a new administration but would arise from the failure of the prior administration to comply with the law existing at the time of the plaintiffs appointment. This would seem anomalous, for it appears that a new administration would have a legal duty to remove those appointed improperly by the prior administration. See Detoro I, 344 Pa. at 261, 25 A.2d 299.
      Be that as it may, the plaintiffs argument might nonetheless have some persuasive force if it could be said that the civil service statutes were designed exclusively, or at least primarily, for the protection of government employees. Significantly, however, the “fundamental purpose" of these provisions is to secure the most qualified individuals for municipal employment. McCartney, 326 Pa. at 446, 191 A. 121. Hence, if we were to endorse the plaintiff’s argument, we would be departing from both the legislative purpose and the Pennsylvania Supreme Court's direction to ensure that the statutory provisions are followed strictly. We decline to take such a departure. Finally, the court notes that the case cited by plaintiff to support his argument, Cornman v. Philadelphia, 380 Pa. 312 (1955) is inapposite.

      . The court does not reach the defendants’ contention that the plaintiff’s appointment did not comply with § 802 of the Home Rule Charter.

      . The court does not reach the defendants' contentions that the position held by the plaintiff was not the "foreman” position set forth in the 1965 rules.

      . The court will not discuss the plaintiffs claim that he is entitled to protection under the State Civil Service Law, Pa.Stat.Ann. tit. 71, § 741.1 et seq. because it is undisputed that he was not employed by the Commonwealth of Pennsylvania.

      . Because the analysis set forth above applies with equal force to defendants Bevilacqua and O’Hara, the court does not reach the motions filed by these two individuals. These motions, however, shall be held in abeyance pending submission of the evidence referred to above concerning the Civil Service Commission’s roster. In addition, although defendants D’Angelo and Dougher have not filed motions, the court may grant summary judgment in their favor to the extent set forth in the discussion above by virtue of the plaintiff's motion for partial summary judgment. See, e.g., 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720 at 29-30 (”[T]he weight of authority is that summary judgment may be rendered in favor of the opposing party even though he has made no formal cross-motion ...”). Accordingly, the court grants partial summary judgment in their favor and holds in abeyance the question regarding those claims which are dependent upon the content of the Commission’s roster.


author: NORMA HOLLOWAY JOHNSON, District Judge.

text:
    Judith Jacklin BELUSHI, Plaintiff, v. Bob WOODWARD and Simon & Schuster, Inc., Defendants.
    Civ. A. No. 84-1628.
    United States District Court, District of Columbia.
    June 4, 1984.
    George M. Galloway, Stoel, Rives, Boley, Fraser & Wyse, Washington, D.C., for plaintiff.
    Floyd Abrams, New York City, Cahill, Gordon & Reindel, Washington, D.C., Dean Ringel, Cahill, Gordon & Reindel, New York City, for defendants.
   MEMORANDUM OPINION

NORMA HOLLOWAY JOHNSON, District Judge.

Plaintiff brings this action pursuant to the Copyright Act of 1976, 17 U.S.C. §§ 101-810 (1982) to enjoin defendants from distributing for sale copies of the book, Wired: The Short Life & Fast Times Of John Belushi, authored by defendant Bob Woodward and published by defendant Simon & Schuster. Plaintiff claims that defendants infringed upon her copyright of a photograph entitled “John and Nena,” which appears as photograph number 28 in Wired. As approximately 145,000 copies of the book have been distributed to bookstores nationwide, plaintiff’s request for injunctive relief pertains to the approximately 30,000 copies of the first printing that remain in the control of Simon & Schuster. The Copyright Act authorizes temporary and final injunctive relief in infringement actions. 17 U.S.C. § 502(a) (1982).

For temporary injunctive relief to issue, the Court must determine that plaintiff has satisfied the familiar four-fold test articulated in Virginia Petroleum Jobbers Association v. Federal Power Commission 259 F.2d 921, 925 (D.C.Cir.1958). See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). For the purposes of the motion for a temporary restraining order, plaintiff has demonstrated the likelihood of -success on the merits of her infringement claim. Plaintiff has obtained a Certificate of Registration of her copyright and has demonstrated that the copyrighted photograph was used in Wired, allegedly without authorization.

In copyright cases, if a probability of success — a prima facie case of infringement — is shown “the allegations of irreparable injury need not be very detailed, because such injury can normally be presumed when a copyright is infringed.” Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 94 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 78 S.Ct. 730, 54 L.Ed.2d 759 (1978). See Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 620 (7th Cir.), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982). Even under such a diminished burden, plaintiff must demonstrate that equitable relief is warranted. If a legal remedy will adequately compensate for any infringement, then injury, if any, is not irreparable. The Court is not persuaded, however, by plaintiff’s presentation that her injury is irreparable.

In addition, plaintiff must establish that defendants will not be unduly harmed by the issuance of relief. Defendants assert that if relief issues their carefully orchestrated and costly plans for selling and marketing the book will be disrupted, costing them a substantial amount in lost sales. Defendants emphasize that successful marketing of a book like Wired depends upon the coordination of advertising, serialization, author appearances, and reviews, and the release to the public of the book. When this hardship is balanced against the harm to plaintiff if relief is denied, the balance tips in favor of defendants. See Mosely v. Follet, 209 U.S.P.Q. 1109, 1114 (S.D.N.Y.1980); McGraw Hill, Inc. v. Worth Publishers, Inc., 335 F.Supp. 415, 422 (S.D.N.Y.1971). Since plaintiff currently does not have a book on the market competing with Wired and since legal remedies may adequately address plaintiff’s injury, the potential harm to defendants outweighs the potential harm to plaintiff.

The public interest clearly favors maintaining the integrity of the copyright laws. In this case, however, it appears that legal remedies would vindicate any rights that may have been impinged. Further, there is a competing public interest in this case: the promotion of free expression and robust debate. If this were a case in which relief would enjoin the distribution of an average commercial product, relief would not be so drastic. As stated by the Court in reversing the grant of a preliminary injunction against the distribution of a biography of Howard Hughes notwithstanding the inclusion of significant portions of three copyrighted articles:

A preliminary injunction is always a drastic remedy and the one seeking to invoke such stringent relief is obliged to establish a clear and compelling legal right thereto based upon undisputed facts. The normal reluctance to impose a summary restraint in advance of a full and complete trial is particularly acute in a case such as this which deals with the publication of a book. Before the court will intrude into an area fraught with sensitivity in its possible impingement upon fundamental democratic and intellectual institutions, it will require a showing by the movant of a right, both legal and factual, in most unequivocal terms.

Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 311, 23 A.L.R.3d 122 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967), quoting Estate of Hemingway v. Random House, Inc., 49 Misc.2d 726, 268 N.Y.S.2d 531, 534 (Sup.Ct.1966). Thus, the Court finds that the public interest would not be furthered by granting relief.

Based on the foregoing, the Court must deny the motion of plaintiff for a temporary restraining order.