author: DIANA E. MURPHY, District Judge.

text:
    Anthony DeGIDIO, James Murray, Antti John Haavisto, Anthony DeGidio, Sr., individually and on behalf of all others similarly situated, Plaintiffs, v. Rudy PERPICH, individually and as Governor of the State of Minnesota, Orville B. Pung, individually and as Corrections Commissioner of the State of Minnesota, Robert Erickson, individually and as Warden of the Minnesota Prison at Stillwater, Dr. James Allen, individually and as Medical Director of the Minnesota State Prison at Stillwater, Sister Mary Madonna Ashton, individually and as Commissioner of Health, Defendants.
    Civ. No. 4-84-352.
    United States District Court, D. Minnesota, Fourth Division.
    June 12, 1985.

      Terence J. McCloskey, Kevin Shea and Robert Kircher, Johnson, Sands, Lizee, Fricker & McCloskey, Minneapolis, Minn., for plaintiffs.
    Richard D. Hodsdon, Sp. Asst. Atty. Gen., St. Paul, Minn., for defendants Rudy Perpich, Orville B. Pung, Robert Erickson, and Sister Mary Madonna Ashton.
    Audrey Zimmerman, Geraghty, O’Loughlin & Kenney, St. Paul, Minn., for defendant Dr. James Allen.
   MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

Plaintiffs, Anthony DeGidio, et al., brought this action for compensatory and punitive damages and injunctive relief, against Rudy Perpich, Governor of Minnesota; Orville Pung, Corrections Commissioner of Minnesota; Robert Erickson, Warden of the Minnesota Correctional Facility at Stillwater (Stillwater); Sister Mary Madonna Ashton, Commissioner of Health of Minnesota; and the State of Minnesota. Plaintiffs allege that the defendants failed to provide Stillwater inmates with adequate medical care to treat tuberculosis and to prevent its spread to prisoners or visitors. Jurisdiction is alleged under 28 U.S.C. §§ 1343(a)(3) and (4), and 42 U.S.C. § 1983. By order dated October 10, 1984, this court dismissed the State of Minnesota from the action. The matter is now before the court upon the motion of defendants Perpich, Pung, Ashton, and Erickson for dismissal, or alternatively, for summary judgment. Plaintiffs have filed a motion for partial declaratory judgment, and a motion for leave to amend their complaint and for class certification.

Background

Three of the four named plaintiffs—DeGidio, Jr., Haavisto and Murray—are inmates or former inmates of Stillwater who contracted tuberculosis. They allege that defendants subjected them to cruel and unusual punishment in violation of the Eighth Amendment by failing to protect them from exposure to tuberculosis and provide adequate treatment. They also allege negligent diagnosis, treatment and failure to segregate affected inmates, as well as intentional mistreatment, in violation of Minn.Stat. §§ 243.57, 144.651 and 609.23. Further, plaintiffs allege that DeGidio, Sr. contracted tuberculosis from his regular visits to his son. They seek to certify a class of former, current and future inmates at Stillwater who have contracted tuberculosis and have been in the past or may be in the future “intentionally and/or negligently mistreated, ‘obviously neglected, misinformed, fraudulently misrepresented, and/or intentionally and/or negligently deprived of necessary and adequate medical care, including diagnosis, prognosis, and treatment while incarcerated therein.” Plaintiffs’ Second Amended Complaint. They also seek to certify a subclass of visitors and other members of the public who have come into contact with infected inmates and contracted the disease. Following hearing on this matter the court requested and received additional briefing on the issue of the import of Hines v. Anderson, 439 F.Supp. 12 (D.Minn.1977), for this case.

Discussion

A. Class Certification

Plaintiffs contend that their proposed class and subclass meet the prerequisites of Fed.R.Civ.P. 23(a). They argue that 160 prisoners are suspected to have contracted tuberculosis, that many of these people are located in various Minnesota prisons or throughout the nation and that a class action will enable indigent litigants to redress their grievances. Plaintiffs argue that common questions of fact and law exist among the potential class ■ members and that the requirements of Fed.R.Civ.P. 23(b)(1), (2) or (3) are met.

Defendants, by contrast, claim that plaintiffs’ proposed class and subclass are undefinable and conditional and fail to meet the requirements of numerosity and commonality of law or facts. They argue that each person in the proposed class presents unique and individual problems of treatment and that class members would have an inherent conflict because some infected others. Defendants also submit that plaintiffs have not met the requirements of Fed. R.Civ.P. 23(b). Moreover, defendants assert that to the extent the action seeks injunctive relief, the motion for class certification is superfluous because a class has already been created in prior litigation concerning the provision of health care to inmates at Stillwater. See Hines v. Anderson, 439 F.Supp. 12 (D.Minn.1977).

Fed.R.Civ.P. 23(a) requires that the parties seeking to proceed as a class must demonstrate that:

1) the class is so numerous that joinder is impracticable, 2) there are questions of law or fact common to the class, 3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and 4) the representative parties will fairly and adequately protect the interests of the class.

Where a class is divided into subclasses, these requirements apply to each subclass. Fed.R.Civ.P. 23(c)(4)(B); Betts v. Reliable Collection Agency Ltd., 659 F.2d 1000, 1004-1005 (9th Cir.1981); Johnson v. American Credit Company of Georgia, 581 F.2d 526, 532 (5th Cir.1978). The burden is upon those seeking class certification to prove that all such requirements have been met. See Thompson v. Sun Oil Co., 523 F.2d 647, 649 (8th Cir.1975); Taylor v. Safeway Stores, 524 F.2d 263, 270 (10th Cir.1975). Once the prerequisites of Fed.R.Civ.P. 23(a) have been met, the proposed class must establish that there is an additional basis under Rule 23(b) to proceed with a class action.

In the instant case, plaintiffs have failed to show that their proposed subclass of visitors meets the numerosity requirement. Review of the pleadings to date reveals that only one person claims to have contracted tuberculosis as a result of visiting an inmate at Stillwater. Speculation about others who may have been infected is not enough to satisfy plaintiffs’ burden. Certification as to the subclass of visitors is therefore denied.

Plaintiffs have, however, fulfilled the requirements of Fed.R.Civ.P. 23(a) concerning the proposed class of prisoners. They claim that approximately 160 inmates have contracted tuberculosis at Stillwater and have submitted approximately 19 affidavits of such individuals. Plaintiffs have also submitted an administrative chart regarding Mantoux testing at Stillwater showing that on February 13, 1984, a total of 89 inmates were shown to be positive converters. In 19 of these cases, plaintiffs have received copies of medical records from Stillwater which verify the Mantoux testing. Considering this showing and the latency period of tuberculosis, the court finds that enough plaintiffs are involved to make joinder impracticable.

Plaintiffs have also shown that common questions of fact arise since the potential class members are or were inmates of Still-water who were infected with tuberculosis by defendants’ allegedly inadequate treatment procedures. Common questions of law concern the standard of care required of the defendants and whether they breached any duty in a way which deprived plaintiffs of their civil rights. Similarly, plaintiffs have demonstrated that the claims of the named representatives are typical of the class and that their counsel is experienced and able to conduct the proposed litigation.

In addition, the court finds that plaintiffs’ proceeding is maintainable under Fed. R.Civ.P. 23(b)(2) which provides:

The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.

Here, plaintiffs claim that defendants violated their Eighth Amendment rights by refusing to follow the necessary procedures to treat and prevent the spread of tuberculosis. They seek an order enjoining defendants to provide adequate treatment to those with positive tuberculosis and to protect others by a quarantine or other measures.

Plaintiffs also are seeking a substantial sum of money, over $40 million in damages. Such an amount cannot be labeled “incidental” to the injunctive relief plaintiffs seek. Moreover, it appears that each plaintiff must individually show causation between his injury and misconduct by defendants, as well as prove the amount of ensuing damages. Accordingly, under Fed.R.Civ.P. 23(c)(4)(A), the court will confine the class action to those issues pertaining to the alleged constitutional violation and injunctive relief. Thus, individuals will be required to present evidence of causation and their particular damages separately. See, Denberg v. U.S. Railroad Retirement Bd., 696 F.2d 1193, 1207 n. 8 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1706, 80 L.Ed.2d 180 (1984); Hill v. Western Elec. Co., 672 F.2d 381 (4th Cir.1982), cert. denied, 459 U.S. 981, 103 S.Ct. 318, 74 L.Ed.2d 294 (1982). See also 7A Wright & Miller, Federal Practice and Procedure: Civil § 1790 (1972).

B. The Effect of the Order and Consent Decree in Hines v. Anderson

Defendants argue that since 1977 the operation of the medical care program at Stillwater has been subject to the terms of an order and consent decree entered by the Honorable Earl R. Larson in Hines v. Anderson, 439 F.Supp. 12 (D.Minn.1977). They claim that the Hines court retained jurisdiction and that Stillwater inmates who seek injunctive relief concerning medical care should return to it for enforcement of the previous decree. They state that certification is thus unnecessary and that the injunctive claims should be dismissed to maximize judicial economy and avoid conflicting decisions.

Plaintiffs contend, on the other hand, that they rely on Hines not to enforce or modify its order, but merely as authority to show that defendants violated the standard of care owed to inmates at Stillwater. They assert that a careful reading of the order demonstrates that inmates and new parties were not barred from seeking injunctive or monetary relief in a separate action in the future.

Plaintiffs in Hines v. Anderson, 439 F.Supp. 12 (D.Minn.1977), brought suit in 1973 under 42 U.S.C. § 1983, alleging that the medical facilities and medical care at the Minnesota State Prison in Stillwater violated the Eighth and Fourteenth Amendments. The parties then settled and agreed upon the terms and provisions of the consent decree. The decree provided, among other things, that the “Patients’ Bill of Rights”, Minn.Stat. § 144.651, shall apply to inmates who receive medical care and treatment at the Minnesota State Prison to the fullest extent possible. The decree also specified the necessary medical staff and determined the hours that such a staff should be available, as well as outlining the types of minor surgical procedures which could be performed at Stillwater.

Defendants claim that Hines, if relevant at all to this case, forecloses plaintiffs from bringing their separate suit involving an alleged outbreak of tuberculosis at Stillwater. Defendants have cited little authority for such a restrictive reading, however.

Nor does the language of Hines support such a result. Nothing in the order and consent decree bars future inmates from bringing a case concerning different facts. The class in Hines is broadly defined, and the consent decree covers the topic of medical care generally. The circumstances of this case involving tuberculosis are different from those underlying Hines. The narrow issue here—prevention and treatment of tuberculosis—has not been litigated. In fact, only a few of the proposed class of plaintiffs were even in prison at the time of the Hines order. It is highly doubtful that the Hines court intended to maintain jurisdiction over any medical case arising at the state prison years later. Under these circumstances, this court finds it proper to entertain plaintiffs’ claims for injunctive relief. Cf. Hams v. Pernsley, 755 F.2d 338 (3d Cir.1985).

C. Motion for Dismissal or for Summary Judgment

Defendants claim that the Eleventh Amendment bars the plaintiffs’ claims for retroactive monetary damages arising from their official actions. They also assert that the amendment entitles them to dismissal of those portions of plaintiffs’ complaint which allege violations of state law, including any state law-based claim for injunctive relief. Further, defendants claim that none of them are proper parties to this § 1983 suit. They contend that they had no direct or personal involvement in the matters subject to this action and therefore, cannot be held responsible under § 1983. Defendants claim that since dismissal of the federal claims is proper, no jurisdictional basis remains on which to base the pendant state claims.

Plaintiffs contend, on the other hand, that the Eleventh Amendment does not bar monetary damages or injunctive relief. They maintain that Minnesota has explicitly waived its sovereign immunity in Minn. Stat. § 3.736 and assert that its officers can therefore be subject to suit in federal court. Moreover, they argue that the defendants’ conduct cannot be considered discretionary, and thus immune, because of Hines v. Anderson, 439 F.Supp. 12 (D.Minn.1977). They also argue that the defendants are proper parties under § 1983 because each defendant has affirmative duties imposed by various state laws and by the Hines consent decree. These duties, according to plaintiffs, give each defendant the necessary personal involvement under § 1983. Further, plaintiffs state that each of the defendants had a supervisory duty to use their powers reasonably and to prevent abuses by their subordinates. They contend that defendants knew that their subordinates were causing constitutional deprivations, but acquiesced in the conduct. Finally, plaintiffs argue that it is premature at this point to dismiss the defendants until plaintiffs have had a chance to determine the nature and extent of their control.

1. Eleventh Amendment

Under the Eleventh Amendment, states are immune from damage suits brought by citizens in federal courts. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The immunity extends to state officials when “the state is the real, substantial party in interest.” Ford Motor Co. v. Dept, of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945) as quoted in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). The general rule is that a suit is against the sovereign if the liability sought must be paid from state funds. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). As the court in Hughes v. Blankenship, 672 F.2d 403 (4th Cir.1982) stated:

[O]fficial capacity suits represent but another way of pleading an action against the entity of which the officer is an agent, ... and damages may be awarded against a defendant in his official capacity only if they would be recoverable against the governmental entity itself. (Citations omitted.) 672 F.2d at 406.

A sovereign’s immunity may be waived, however, and a state may consent to suit against it in federal court. See, e.g., Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Waiver of immunity by a state will be found “only where stated ‘by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’ ” Florida Department of Health & Rehabilitation Services v. Florida Nursing Home Association, 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981), quoting Edelman v. Jordan, 415 U.S. at 673, 94 S.Ct. at 1360. See, also, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). “[A] state’s waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts.” Pennhurst at -, 104 S.Ct. at 907, n. 9.

While Minnesota has waived its sovereign immunity to some extent in Minn. Stat. § 3.736, the language of subdivision 2 of that section does not clearly show that Minnesota intended to waive any claim of sovereign immunity in federal court.

Nor can the court construe the state’s past consent in Hines v. Anderson, 439 F.Supp. 12 (D.Minn.1977), as an unqualified waiver of its sovereign immunity. In Hines, the state did not agree to be liable for any monetary damages. It did agree, however, that its agents should implement the standard of care imposed by the decree. The state also consented to language that bound not only the defendants, but also their successors, to maintain that basic level of care. No time period was specified. Accordingly, the court finds that the state’s consent in Hines is a basis for a waiver of its immunity with respect to injunctive relief based on the state law claims in this case. Apart from this limited waiver, however, the Eleventh Amendment bars plaintiffs’ § 1983 and pendent state claims against the defendants sued in their official capacities.

2. Proper Parties

42 U.S.C. § 1983 imposes liability only for conduct which “subjects, or causes to be subjected” the complainant to a deprivation of a constitutional right. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1975). To state a cause of action under § 1983 for an Eighth Amendment violation, plaintiffs must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Liability under § 1983 may not be imposed on the theory of respondent superior. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

In the instant case, plaintiffs argue that the Governor should be held liable because he is at the top of a “chain of responsibility” which knew or should have known of the alleged tuberculosis epidemic. Further, they argue that he appoints the Commissioners of Health and Corrections and is responsible for their actions. The Governor has submitted an affidavit which states that he has had no personal involvement with any of the matters in the complaint. Defendants have not rebutted this affidavit and have not shown that the alleged constitutional violation occurred as a direct result of specific administrative policies under the control of the Governor. While plaintiffs are entitled to the benefits of all reasonable inferences to be drawn from the pleadings and affidavits, they may not merely rest upon allegations, or denials of the defendants’ pleadings. Burst v. Adolph Coors Co., 650 F.2d 930, 932 (8th Cir.1981). Plaintiffs have failed to set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial as to the Governor’s role. Accordingly, the Governor is entitled to dismissal. See Marchant v. City of Little Rock, 741 F.2d 201 (8th Cir.1984); Melanson v. Rantoul, 421 F.Supp. 492 (D.R.I.1976).

Summary judgment is inappropriate, however, on the grounds that Commissioner Pung, Commissioner Ashton and Warden Erickson are not proper parties under § 1983. All three have submitted affidavits minimizing their personal involvement in the matters before the court. Construing plaintiffs’ complaint in the most favorable light, however, it states a claim against those in charge of the prison and of public health, for their alleged policy decision not to segregate affected inmates. See Marchant v. City of Little Rock, 741 F.2d 201 (8th Cir.1984). While indifference to an immate’s wellbeing “cannot exist absent some knowledge triggering an affirmative duty to act on plaintiff’s behalf, ... actual knowledge of a specific harm is not the only type of knowledge that will suffice.” Doe v. New York City Dept. of Social Services, 649 F.2d 134 (2d Cir.1981). Defendants may be held liable if they “exhibited deliberate indifference to a ... specific duty, and their failure to perform the duty or act to ameliorate the risk or injury was a proximate cause of plaintiff’s deprivation of rights under the Constitution.” Id. at 145. See also Messimer v. Lockhart, 702 F.2d 729 (8th Cir.1983).

In the instant case, Commissioner Pung has a statutory duty to control and supervise the Department of Corrections, and to appoint and define the duties of a chief executive officer for each facility under his control, including Stillwater. Minn.Stat. §§ 15.06, 241.01. His duties include establishing minimum health and safety standards for the facilities and ensuring that these standards are met. Minn.Stat. § 241.021 subd. 1. Additionally, Minn. Stat. § 243.57 grants him the authority in case of an epidemic, to authorize the removal of inmates affected by the contagious disease. Minn.Stat. § 243.57. Thus, the Commissioner may be liable for his failure to act and his affidavit stating that he had no involvement in these matters is not sufficient to justify summary judgment.

Similarly, Warden Erickson may institute quarantine procedures under Minn.Stat. § 243.57 and is responsible for correcting any deficiencies in the minimum standards of his facility under Minn.Stat. § 241.021, subd. 1(4). He too may be liable for his failure to act. Additionally, Warden Erickson was actively involved in the situation when he wrote a memorandum informing the staff and inmates of the nature and extent of the tuberculosis and of the proposed Mantoux testing. Plaintiffs charge that this memorandum intentionally or negligently concealed the nature and the extent of the tuberculosis.

Commissioner Ashton also may be liable for failing to perform her duties. She is charged by Minn.Stat. § 144.05 with planning and facilitating the organization of services for the prevention and control of illness and disease. As part of her duties, the Commissioner has the power to control, by licensing or other means, the treatment in institutions such as hospitals and prisons of persons suffering from communicable diseases, including the disinfection and quarantine of persons. See Minn.Stat. 144.12 subd. 1(7). Additionally, Commissioner Ashton, as Commissioner of Health, is the successor of the Secretary and Executive Officer of the Minnesota Health Board and may have additional duties under the order and decree of Hines v. Anderson, 439 F.Supp. 12 (D.Minn.1977).

For these reasons, the court finds that summary judgment is inappropriate as to Commissioners Pung and Ashton and Warden Erickson upon the current record.

D. Partial Declaratory Judgment

Plaintiffs ask the court to declare jurisdiction over all pendent and ancillary claims, arguing that those claims arise out of a common nucleus of operative facts as the Eighth Amendment claim. Plaintiffs have failed to cite any convincing authority to show that such a partial declaratory judgment is appropriate at this stage of the proceedings, however. The question of subject matter jurisdiction can be raised at any point during the trial proceedings. Fed.R.Civ P. 12(h)(3). And a court may decline to grant declaratory relief when it will not be effective in settling the controversy which gives rise to the proceedings. See Advisory Committee Notes to Fed.R. Civ.P. 57. The court sees no good reason to grant this motion.

E. Amendment of the Complaint

Plaintiffs seek to amend their complaint to include an allegation of violation of the order and consent decree in Hines v. Anderson, 439 F.Supp. 12 (D.Minn.1977). Defendants have not specifically opposed such an amendment.

Fed.R.Civ.P. 15(a) provides that leave to amend shall be freely given when justice so requires. Under these circumstances, where defendants have not shown that such an amendment would prejudice them, the court finds that plaintiffs’ motion should be granted.

ORDER

Accordingly, based on the above and all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that

1. Plaintiffs’ motion for class certification is granted and a class shall be maintained solely to pursue injunctive relief under Fed.R.Civ.P. 23(b)(2). The class is defined as persons who are, or have been, incarcerated at the Minnesota State Prison at Stillwater, Minnesota who contract, or had, tuberculosis or develop positive reactions demonstrating exposure to tuberculosis while being held there.

2. Defendants’ motion to dismiss or alternatively for summary judgment is granted with respect to defendant Perpich, and all claims against defendant Perpich are dismissed. Plaintiffs’ claims against defendants Mary Madonna Ashton, Robert Erickson, and Orville B. Pung acting in their official capacities are also dismissed. In all other respects, defendants’ motion to dismiss or for summary judgment is denied.

3. Plaintiffs’ motion for declaratory judgment is denied.

4. Plaintiffs’ motion to amend their complaint is granted.

      . Counsel stated at the hearing that the sole constitutional claim is under the Eighth Amendment.

      . Defendant Dr. James Allen joins the other defendants in opposing class certification.

      . Certifying a class with respect to the causation and damage issues is inappropriate under Fed. R.Civ.P. 23(b)(1) or (b)(3). Plaintiffs have not demonstrated that separate actions would create a substantial risk of inconsistent adjudications with respect to individual class members and thus establish incompatible standards of conduct for the party opposing the class. Nor have plaintiffs shown that adjudication as to one person would substantially affect the rights of others. While common questions of law or fact exist, they do not predominate over individual questions of causation and damages. Moreover, the record shows that over 50 individual proceedings have been initiated in Washington County District Court.

      . Plaintiffs originally brought suit against Wendell Anderson, individually and as Governor; Kenneth Schoen, individually and as Corrections Commissioner; Bruce McManus, individually and as Warden of the Minnesota State Prison; Dr. James Cicero, individually and as Medical Director of the Minnesota State Prison; and Dr. Warren Lawson, individually and as Secretary and Executive Officer of the Minnesota State Board of Health.
      The order and consent decree substituted Warden Frank M. Wood in his official capacity for the former Warden, McManus. The parties also agreed to dismiss defendants Anderson and Cicero.

      . Since the parties have submitted matters outside the pleadings and the court has considered these materials, the motion will be treated as one for summary judgment. See Fed.R.Civ.P. 12(b)(6).

      . Subdivision 2 provides:
      Claims of various kinds shall be considered and paid only in accordance with the statutory procedures provided. Where there is no other applicable statute, a claim shall be brought pursuant to this section as a civil action in the courts of the state.

      . The court notes that these officials have not yet been deposed, and discovery appears to be in its early stages.


source: Caselaw Access Project

author: SHADUR, District Judge.

license: Public Domain

text:
    CONSOLIDATED FREIGHTWAYS CORPORATION, Plaintiff, v. NIEDERT TERMINALS, INC., Defendant.
    No. 84 C 1535.
    United States District Court, N.D. Illinois, E.D.
    June 12, 1985.

      D. Sidney Condit, Bell, Boyd & Lloyd, Chicago, 111., for plaintiff.
    John R. Doyle, John J. Jawor, McDermott, Will & Emery, William Levander, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Consolidated Freightways Corporation (“Consolidated”) has charged Niedert Terminals, Inc. (“Niedert”) with breach of warranty and fraudulent misrepresentation in connection with Niedert’s sale of a trucking terminal to Consolidated. Each party has filed a Fed.R.Civ.P. (“Rule”) 56 summary judgment motion: Consolidated as to the breach of warranty counts and Niedert as to all counts. For the reasons stated in this memorandum opinion and order, Niedert’s motion is granted (and of course Consolidated’s is therefore denied).

Facts

In 1956 Niedert bought a parcel of vacant land in unincorporated Cook County. In 1957 Niedert built a motor freight terminal on the property, comprising an office building, a loading dock and a parking and loading yard surfaced with crushed stone and gravel. All the improvements conformed to the County’s zoning requirements.

In 1974, at Niedert’s request, the City of Des Plaines (“City”) enacted an ordinance annexing Niedert’s property. Under City’s zoning ordinance any land so annexed was automatically zoned Single Family Residential. Niedert promptly applied for and was granted rezoning to “M-2 General Manufacturing District.”

City’s Zoning Ordinance of 1960 (the “Ordinance”) § 9.1.8.4.2.1 requires all off-street parking and loading facilities to be paved with a “hard surface.” However, a grandfather clause in Section 9.1.1 provides an exemption for off-street parking and loading facilities “[f]or all buildings and structures erected and all uses of land established” before 1960, and there is a comparable grandfathering of nonconforming uses in Section 11.3.1.

In 1973 (before the annexation) Niedert had considered extending its loading dock and paving the yard. It ordered a set of plans to be drawn covering both proposed improvements. Later in 1973 Niedert decided against paving when cost estimates proved prohibitive. Instead it decided to proceed only with the dock extension plans.

Accordingly, on the same day in 1974 that City annexed the property, Niedert applied for two City permits to begin the dock extension work. One application covered the footings and foundation and the other applied to the building extension. Niedert attached to the permit applications its plans showing the proposed dock extension. Because those plans were still in the form originally prepared for Niedert, they contained one page with the no-longer-contemplated paving and drainage plans (for which no permit was sought). City ultimately approved the applications, issuing Building Permit 9417 to "alter” a “truck terminal building.” City required a permit fee of $600 to cover the work Niedert “estimated at $150,000.”

Niedert completed the dock extension in 1974 and promptly occupied and used the new area. It never obtained a final inspection or certificate of compliance from City as required by City’s building code (the “Code”). However, City never objected to either Niedert’s or (later) Consolidated’s use and occupancy of the new structure.

In 1979 Niedert sold the entire facility to Consolidated. During negotiations Consolidated inspected the premises—including the yard—several times. Both parties recognized the yard would require some repairs after the winter, including “grading, graveling and filling ... chuckholes” (Complaint Ex. D). Initially Niedert agreed to perform those repairs (id.), but ultimately the parties agreed the yard would be transferred “as is” in all respects save the removal of debris by Niedert (Amendment to id.).

In 1975 Niedert had obtained a soil inspection report covering the yard. That report had revealed a number of inadequacies in the subsoil, particularly excessive moisture content and high water table levels. Niedert did not reveal the report to Consolidated during or after their negotiations (Complaint Count III ¶ 15; Answer Count III ¶ 15).

During the course of negotiations Consolidated sought assurance from Niedert as to the property’s compliance with the Ordinance and the Code. Niedert had obtained in 1974—after submitting its permit applications and plans to City—a “Certificate of Zoning” from City Zoning Administrator Michael E. Richardson (“Richardson”) (Stip.Ex. 6):

This certifies that the proposed building, structure and/or land use complies with all Zoning Ordinances of the City of Des Plaines.

On February 16, 1979—before execution of the Niedert-Consolidated contract (the “Contract,” Complaint Ex. A)—Niedert obtained Richardson’s certification that the 1974 certificate was “still in full force and effect.”

Niedert warranted in Contract Art. VII(d):

that all improvements on said property conform to applicable local laws and ordinances, that the improvements are conforming uses under all applicable zoning and ordinances, and that Niedert has not received any notice from any local, state, or federal governmental authority nor has any knowledge of any zoning, building, fire, or environmental law or health code violations with respect to the Niedert property that has not heretofore been corrected.

Up to the date Niedert sold the property to Consolidated City, had never informed Niedert that:

1. “its use and occupancy of the property was unlawful”;
2. “a certificate of compliance must be obtained for any of the construction work that had been performed on the property”; or
3. “the construction of the building violated the City’s Building Code.”

In July 1979, after Consolidated had begun operating from the property, a City building department inspector orally advised Consolidated the Ordinance required Consolidated to pave the yard. Consolidated considered paving but instead decided merely to install a drainage system. It began that work without notifying City or obtaining a permit.

After Consolidated had spent $84,000 and completed about 75% of the drainage system, City learned of the work and ordered Consolidated to stop. Eventually City and Consolidated (without having involved Niedert) worked out an agreement allowing Consolidated to complete the drainage work on the condition that Consolidated would pave the yard as well. Consolidated completed both projects at a cost of $480,-000.

Breach of Warranty

Complaint Counts I and II charged Niedert violated its express warranties in three respects:

1. Its yard did not conform to the Ordinance.
2. Niedert’s occupation of the dock extension and its failure to obtain a final inspection and certificate of compliance violated the Code.
3. Niedert knew of those violations.

But Consolidated has now conceded City never notified Niedert of any zoning or building code violation. And in response to Niedert’s motion Consolidated has not produced a shred of evidence Niedert was aware of any violation. Consequently the only warranty issues that need discussion depend on whether Niedert committed an actionable breach of its warranty of compliance with all City codes, ordinances and regulations.

I. Compliance with the Ordinance

Consolidated claims Niedert breached its warranty of conformance to the Ordinance because the yard was not paved. One of Niedert’s responses is that reasonable reliance is a prerequisite to recovery for a breach of warranty. Michuda v. Sanitary District of Chicago, 305 Ill.App. 314, 349-50, 27 N.E.2d 582, 597-98 (1st Dist.1940). Consolidated retorts by urging Michuda has been overruled by Vasco Trucking, Inc. v. Parkhill Truck Co., 6 Ill.App.3d 572, 286 N.E.2d 383 (4th Dist.1972) (and Consolidated also cites some earlier cases in support of the same substantive rule it ascribes to Vasco). But even were that true (a matter as to which this Court need not express an opinion) Consolidated’s claim must fail.

Vasco, 6 Ill.App.3d at 576, 286 N.E.2d at 386 emphasized the very nature of a warranty is to represent facts, quoting for that purpose Metropolitan Coal Co. v. Howard, 155 F.2d 780, 784 (2d Cir.1946) (L. Hand, J. ):

A warranty is an assurance of one party to a contract of the existence of a fact upon which the other party may rely. It is intended precisely to relieve the promisee of any duty to ascertain the fact for himself; it amounts to a promise to indemnify the promisee for any loss if the fact warranted proves untrue, for obviously the promisor cannot control what is already in the past. To argue that the promisee is responsible for failing independently to confirm it, is utterly to misconceive its office.

Vasco, id. also quoted Black’s Law Dictionary, the current edition (5th ed. 1979) of which (at page 1423) defines warranty as:

A promise that a proposition of fact is true____ A promise that certain facts are truly as they are represented to be and that they will remain so, subject to any specified limitations.

But the Illinois rule as to representations of law is very different indeed. Where as here the factual posture of the property (its being unpaved) is patent and equally known to the purchaser, a seller’s representation as to the property’s conformity to the zoning regulations in that respect is solely one of law. Hamming v. Murphy, 83 Ill.App.3d 1130, 1135, 39 Ill.Dec. 435, 439, 404 N.E.2d 1026, 1030 (2d Dist.1980) (citations omitted) said in a case also involving zoning law:

Generally, one is not entitled to rely upon a representation of law as both parties are presumed to be equally capable of knowing and interpreting the law____ The existing zoning of the property and the procedures under which a zoning ordinance could be modified, or a variance or permit could be granted, are a matter of public record available to both parties. We conclude plaintiff was charged with knowledge of the permitted uses of this property under applicable zoning ordinances and cannot base her action for rescission on any contrary representations made by defendant.

Here the only significant fact bearing on the yard’s compliance with the Ordinance was its unpaved condition. Consolidated concedes it was well aware of that condition by virtue of its inspections. And whether an unpaved yard complied with the Ordinance was a pure question of law —a matter that Niedert was in no better position than Consolidated to evaluate. Hence Hamming bars Consolidated’s reliance on that “warranty” (if that term is even applicable) of law, and the pre-Hamming decision in Vasco cannot alter that result.

2. Compliance with the Code

Consolidated does not claim Niedert violated any substantive Code provision in connection with the dock extension work. Rather Consolidated contends Niedert violated the Code’s procedural rules by failing to obtain a final inspection and certificate of compliance before it occupied the extension.

Of course that omission did not at all injure Consolidated in its use of the new dock, because City never objected to Consolidated’s use and occupancy of the premises any more than it had objected to Niedert’s. And in its zeal to establish Niedert’s asserted Code violation, Consolidated has wholly failed to explain how that alleged violation caused any other damage to Consolidated. Certainly no causal nexus has been shown to link the “violation” to the unpaved yard.

In that respect Consolidated’s position appears to be that if City had conducted a final inspection of the dock extension, it might have noticed the paving had not been done and might have informed Niedert if was required to pave the yard. But that contention, based as it is on a chain of attenuated sheer speculation, is insufficient to establish a causal link in legal terms between the violation and the injury. Bugariu v. Conley, 93 Ill.App.3d 571, 573, 49 Ill.Dec. 29, 31, 417 N.E.2d 719, 721 (1st Dist.1981); W. Keeton, Prosser & Keeton on the Law of Torts § 41, at 269 (5th ed. 1984).

Fraudulent Misrepresentation

Consolidated claims Niedert made other misrepresentations, in this instance bearing on the yard’s physical condition, during the negotiations over purchase of the terminal. Complaint Count III charges those misrepresentations took both active and passive forms:

1. In response to Consolidated’s oral inquiries, Niedert falsely represented the yard drained well and weathered the winter without any significant problems (Count III 1111 21-23).
2. Niedert failed to inform Consolidated of the existence or conclusions of the 1975 soil inspection report revealing problems with the yard (Count III M 16, 27-28).

Kinsey, 124 Ill.App.3d at 335, 79 Ill.Dec. at 589, 463 N.E.2d at 1364 rehearsed the familiar elements of a fraudulent misrepresentation claim:

(1) false statement of material fact (2) known or believed to be false by the party making it, (3) intent to induce the other party to act, (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance.

Were Niedert now advancing a Rule 12(b)(6) motion, challenging the Complaint’s sufficiency to state a claim in those terms, the motion would of course have to be denied. But the parties have gone far beyond the pleading stage, into the world of Rule 56. And Rule 56(e) expressly prohibits Consolidated from now relying on the allegations in its Complaint:

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 of his pleadings, but his response, by affidavits 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 Court has repeatedly held a non-movant may not hold back evidence on a summary judgment motion. See, e.g., Keene Corp. v. International Fidelity Insurance Co., 561 F.Supp. 656, 665-66 (N.D.Ill.1982). As Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir.1972) put it:

A party opposing a motion for summary judgment simply cannot make a secret of his evidence until the trial, for in doing so he risks the possibility that there will be no trial. A summary judgment motion is intended to “smoke out” the facts so that the judge can decide if anything remains to be tried.

Though our Court of Appeals has not spoken to this issue until recently, it has now embraced the Keene principle not only by its specific approval in the course of affirming Keene, 736 F.2d 388, 393 (7th Cir.1984) but by its opinion last month in Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir.1985).

In response to Niedert’s motion Consolidated has produced no evidence at all in support of its Count III allegations. Niedert’s Answer to the Complaint admits only (by its failure to deny, see Rule 8(d)) the existence and nondisclosure of the soil inspection report. In addition the parties agree there was a mutual recognition the yard would require some grading, gravel and chuckhole filling after the 1979 winter.

Those facts alone are insufficient to raise a genuine question of material fact on Consolidated’s behalf. They establish only (1) the parties recognized there were some repairs that should be made and (2) Niedert failed to divulge certain information about defects. There is no evidence that Niedert represented the yard was in better shape than it was or even that Niedert engaged in a material omission by its nondisclosure of the report when it had the duty to disclose. Though Rule 56 entitles the nonmovant to reasonable inferences from the evidentiary facts, it does not require the court to construct inferences where the necessary building blocks for that construction have not been furnished it. Consolidated has simply failed to meet its Rule 56(e) burden.

Conclusion

There is no genuine issue of material fact, and Niedert is entitled to a judgment as a matter of law. This action is dismissed with prejudice.

Appendix

1. Pleadings as to Allegedly False Statements

Count III ¶¶ 21-23 deal with Niedert’s alleged affirmative misrepresentations. In each instance the Complaint paragraph is followed by the corresponding paragraph in the Answer:

21. During the course of plaintiffs initial inspection of the property, plaintiffs representative asked defendant whether the yard complied with all necessary codes. Defendant responded for the purpose of inducing plaintiff to rely on its response and thus to purchase the property by stating that the yard complied with all building code requirements. Defendant further responded by saying words to the effect that no other topping was necessary and that it used bankrun gravel to fill the holes in the yard.
21. Niederfs personnel have no recollection of making the statements referred to in paragraph 21, but if such statements were made, they were true statements.
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22. While making its initial inspection plaintiff also asked defendant’s personnel then present if there were any problems with the yard’s drainage. Defendant replied that there weren’t any and that normally it drained very well around defendant’s property, or words to that effect.
22. Niederfs personnel have no recollection of making the statements referred to in paragraph 22, but if such statements were made, they were true statements.
23. During the course of said inspection, plaintiff asked Niedert how the yard usually held up through the winter. Niedert responded by stating words to the effect that the yard went through fine; that it (Niedert) only had to put down a little gravel and have it graded every so often; that it bought gravel locally; and that it did not cost too much to have the gravel brought in.
23. Niederfs personnel have no recollection of making the statements referred to in paragraph 23. The “Niedert Inspection Report,” prepared by Consolidated personnel, stated that “the yard appeared to be in good condition” even though “grading, graveling, filling all chuckholes,” was needed. (See paragraph 17(b) above.)

2. Pleadings as to Undisclosed Soil Inspection Report

Once again Complaint If 15 is followed by the corresponding paragraph in the Answer:

15. On or about July 15, 1975 Niederfs architects for the project, Roy T. Christiansen-S. Tinucci, Architects Inc. (“Christiansen and Tinucci”), obtained on Niederfs behalf a certain report from Novak, Dempsey & Associates, Inc. (“Novak, Dempsey”), entitled “Soil Investigation Niedert Motor Service For Christiansen & Tinucci” dated July 15, 1975. The report set forth the location and results of 17 subsurface soil borings Novak, Dempsey made on the Niedert property. Among the findings stated in the report were the following: 1) the existence of silts that contained varying amounts of clay, sand and gravel under the surface materials; 2) the existence of “top soil or otherwise organic material;” 3) the existence of “water within 1.5 feet of finished grade” at three locations “at completion of drilling operations;” 4) the existence of “moisture contents of 20% or more” in 10 locations, and in the case of four of those, “these high moisture contents were within 4 feet of the existing grade, therefore possibly contributing to frost leave effects;” 5) “the resultant high water tables in [four] borings ... makes this subgrade also susceptable [sic] to frost heave.” Because “[t]o remove all of the wet, low bearing or otherwise undesirable material would result in high cost,” Novak, Dempsey recommended, among other things, with respect to the paving of the yard, that
“the organic material at the west end of the property be removed to the depth of 4.0 feet below finished grade and be replaced by approved suitable fill compacted to at least 95% standard proctor density.”
15. Niedert makes no answer to paragraph 15, since the Report speaks for itself.

      . Rule 56 imposes on the party moving for summary judgment the burden of establishing the lack of a genuine issue of material fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). For that purpose the court must, in viewing the evidence, draw all reasonable inferences in the light most favorable to the nonmovant. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984). Throughout this opinion the recitals of facts adhere to those principles, with Consolidated treated as the nonmovant (because this opinion ultimately rules in Niedert’s favor). All facts are drawn from the parties’ Stipulation of Facts unless otherwise indicated.

      . Post-1960 amendments to the Ordinance have not altered it in any respect material to the present controversy.

      . All further citations to the Ordinance will simply take the form "Section—.”

      . That amount clearly reflected only the dock extension work. Consolidated Rule 12(e) Statement of Supporting Uncontested Facts f 20.

      . In October 1977, without notice to or knowledge of Niedert, City declared forfeit a $1,000 bond Niedert had posted for the permits. That fact is really of no consequence to the issues discussed here.

      . Consolidated has filed—and Niedert has moved to strike in large part—a supplemental affidavit of Richardson containing (1) his legal conclusions as to the interpretation of the Ordinance and (2) his interpretation of the plans when the permits were applied for. Although this Court’s disposition of the summary judgment motions renders unnecessary resolution of the motion to strike, the challenged matters in the supplemental affidavit appears both improper and irrelevant:
      1. Rule 56(e) requires that "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 the matters stated therein.” Richardson’s legal discussion fails on all counts.
      2. Richardson’s legal opinion and his interpretation of the plans are in any event irrelevant unless he communicated them to Niedert—which his affidavit shows he did not.

      . These quotations are drawn from Niedert’s Rule 12(e) Statement of Uncontested Material Facts ¶¶ 25-27. Because Consolidated’s Rule 12(f) responsive submission does not deny any of the statements, they are established as facts for purposes of this case.

      . That lack of evidence also disposes of Count III to the extent Consolidated there charges fraudulent misrepresentation of the property’s zoning or building code status.

      . Niedert also submits extensive argument to urge the yard is not subject to the Ordinance's paving requirement, while Consolidated spends as much effort in vigorous advocacy on the other side of the issue. Indeed, though this Court has foregone the mildly depressing chore of counting the pages devoted to that issue, it clearly occupied the bulk of the more than 250 pages of submissions (memoranda and General Rule 12(e) and 12(f) statements) on the current motions. Though preliminary scrutiny indicated Niedert appeared to have the better of the argument on that score, ultimate resolution of the complex issue is unnecessary in light of this Court's treatment of the legal effect of Niedert’s warranty. One particularly complex corner of the dispute—not fully analyzed by the parties— is the effect to be given Consolidated’s caving in to City’s position without involving Niedert in the decision whether settlement should take place and without asserting any legal challenge to City’s demand.

      . To be sure, Kinsey v. Scott, 124 Ill.App.3d 329, 338-39, 79 Ill.Dec. 584, 591, 463 N.E.2d 1359, 1366 (2d Dist.1984) held an apartment building seller’s implied representation the building conformed to building codes to be primarily a representation of fact. But in that case the building’s status turned on statements the seller had made to the city’s building department in his permit applications. Thus the buyer’s knowledge of the building codes alone could not have enabled him to determine the building’s conformance (indeed, Kinsey approved the Hamming principle next referred to in the text, but distinguished that case on precisely the basis stated in this footnote). No such inequality of knowledge between Consolidated and Niedert was involved here.

      . No Code provision required the yard to be paved. Consolidated attempts to argue paving was required by Code § 5.3.1(n)(l) (Stip Ex. B):
      All work performed under a permit issued by the Building Commissioner shall conform to the approved application and plans, and any approved amendments thereto. It shall be unlawful for any owner, agent, architect, structural engineer, contractor or builder ... to make any departure from drawings or plans as approved by the Building Commissioner, of a nature which involves any violation of the provisions of this ordinance.
      According to Consolidated, once Niedert was issued permits based on plans that included a page with paving specifications (even though the permits plainly did not extend to any paving work), Niedert was required to implement the plans in every respect. But the quoted provision does not mandate that work be undertaken in the first instance. Rather it mandates that once work has begun it cannot be performed other than in the previously-approved way. Moreover, Consolidated concedes in the Stipulation of Facts Niedert was never issued a permit for paving. Niedert could therefore not even have begun paving without thereby violating the Code’s permit requirement.

      . Niedert denies any Code violation, and Consolidated has not clearly shown Niedert’s conduct fits the "violation” description. Nonetheless for purposes of the current motions a violation will be assumed.

      . That argument seems to underlie Richardson Aff. ¶¶7-13. Richardson’s suggestions to that effect are unpersuasive for two reasons:
      1. Clearly the permits issued to Niedert covered only the dock extension. Accordingly an inspector determining Code compliance under those permits would have no cause to concern himself with the yard.
      2. Richardson claims his 1979 certification of zoning compliance was based on his belief the 1974 paving plans were still "open” and would eventually be carried out. If that is not simply a post hoc rationalization and he really had counted on compliance with the plans and not the permits (which controlled the work Niedert had a right to do), it is hard to believe that five full years after he approved them Richardson would not at least inquire of Niedert why it had not yet performed the paving. And if a full five-year delay did not prompt Richardson to take action in 1979, it is even more difficult to believe an inspector would have been concerned in 1974 with Niedert’s failure to have paved the yard less than a year after approval of the plans.
      For current purposes the controlling factor is that Consolidated has not established its set of dependent hypotheticals as a reasonable inference creating a material fact issue.

      . So that the full flavor of what Niedert has and has not admitted by its pleading may be appreciated, this Court has set out the relevant paragraphs of the Complaint and Answer in full in the Appendix to this opinion.

      . Consolidated’s Complaint Count III ¶ 15 described and quoted excerpts from the report. Niedert’s Answer admits the report's existence (both are fully set out in the Appendix to this opinion). However, neither party saw fit to provide this Court with a copy of the report. This Court must therefore assume Consolidated’s characterization is accurate.

      . Consolidated could perhaps seek to argue in a technical sense that Niedert’s Answer to Complaint Count III ¶¶ 21-23 (see Appendix) admitted (by its failure to deny) at least that Consolidated inquired about the condition of the yard, its drainage capacity and its ability to withstand the stress of winter weather. Were that so, an inference might possibly be drawn from the facts set out in the text that Niedert responded in a misleading manner. But Niedert’s Answer, fairly read, denies the allegations of those paragraphs in their entirety—even though the Answer specifically focuses on Niedert's responses rather than Consolidated’s questions. Any narrower reading of the Answer would violate the liberal pleading spirit of the Rules. More critically, the current motions for summary judgment squarely put into issue all Consolidated’s claims. If Consolidated had evidence to support the linchpin for its misrepresentation (or misleading omission) claim, the "no-holding-back" concept described earlier in the text obliged Consolidated to tender that evidence now. It is simply insufficient to rely on any notion of pleading admissions for that purpose, given the nature of the pleadings here.