author: RICE, District Judge.

text:
    Gaston BOUQUETT, Plaintiff, v. R.H. CLEMMER, et al., Defendants.
    No. C-3-82-146.
    United States District Court, S.D. Ohio, W.D.
    July 10, 1985.

      Richard Austin, Atty. at Law, Dayton, Ohio, for plaintiff.
    Gene W. Holliker, Asst. Atty. Gen., Columbus, Ohio, for defendants Johnson, Young, State Bd. of Pharmacy and State Medical Bd.
    Robert A. Burke, Atty. at Law, Dayton, Ohio, for defendants Clemmer, Gentry, Reynolds and City of Dayton.
   DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS’ MOTIONS TO DISMISS; INDIVIDUAL DEFENDANTS TO FILE ANSWERS WITHIN STATED PERIOD OF TIME

RICE, District Judge.

This is a civil rights action in which the Plaintiff seeks redress for the alleged malicious prosecution he suffered at the hands of Defendants. The Plaintiff in this case is a black ophthalmologist. There are eight Defendants herein: R.H. Clemmer, Charles E. Gentry and Robert Reynolds, former members of the Organized Crime Unit of the City of Dayton Police Department; the City of Dayton; two agencies of the State of Ohio, the State Board of Pharmacy and the State Medical Board (“state agencies”); and two investigators of the state agencies, David G. Johnson and Charles F. Young. This cause is now before the Court on the Defendants’ Motions to Dismiss. See Docs. #3, #4. Because the motions to dismiss raise common issues, the Court will discuss them together.

Initially, the state agencies argue that the Eleventh Amendment prohibits imposition of liability upon them. The Court agrees. The Eleventh Amendment applies to state agencies as well as to the state. Hall v. Medical College of Ohio, 742 F.2d 299 (6th Cir.1984). Without question, the State Board of Pharmacy and the State Medical Board are agencies of the State of Ohio, as opposed to political subdivisions. See Ohio Rev.Code § 4729.01 et seq.; § 4731.01 et seq. As such, the Eleventh Amendment is an absolute bar to the imposition of liability upon the state agencies. See, e.g., Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979).

Plaintiff does not seriously argue otherwise. However, Plaintiff asserts that because he has requested the Court to award “such other and further relief as may be just and proper,” this case comes within the exception to the Eleventh Amendment for cases seeking prospective injunctive relief. See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Court does not agree. Initially, the Court does not accept Plaintiffs basic premise that the above quoted language, along with the remainder of Plaintiffs complaint, is sufficient to state a claim for prospective injunctive relief against either of the state agencies. However, even assuming arguendo that Plaintiff has stated a claim for prospective injunctive relief, there would not be a present case or controversy between the Plaintiff and the state agencies sufficient to invoke the Court’s exercise of its subject matter jurisdiction. Therefore, the Court could not grant injunctive relief. Generally, past exposure to unlawful or unconstitutional behavior by the police does not give a person standing to request prospective injunctive relief to enjoin the behavior complained of absent a showing that he or she is likely to be exposed to similar unconstitutional behavior in the future. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Therefore, there would be no case or controversy, sufficient to support a claim for injunctive relief.

The Court concludes that the Eleventh Amendment is an absolute bar to Plaintiff’s claims against the state agencies. Accordingly, Plaintiff does not have a viable claim for injunctive relief against the state agencies, and it follows that the state agencies cannot be liable for attorney’s fees. The Court hereby orders the State Board of Pharmacy and the State Medical Board dismissed as Defendants to this action.

The City of Dayton argues that Plaintiff’s claims against it are barred by Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In his complaint, Plaintiff alleges:

The City of Dayton, the State of Ohio Medical Board and the State of Ohio Board of Pharmacy are vicariously libel for the wilfull, malicious and negligent action of its employees, Defendants Clemmer, Gentry, Reynolds, Johnson and Young, and were negligent in the manner in which they trained and supervised the said individual Defendants in the performance of their official duties.

Doc. # 1 at 118. Without question, Monell prevents the Plaintiff from attempting to hold the City of Dayton vicariously liable, under a respondeat superior theory, for his claim arising under 42 U.S.C. § 1983. Additionally, Courts have extended Monell to claims arising under 42 U.S.C. § 1985(3). See, e.g., Bell v. City of Milwaukee, 536 F.Supp. 462 (E.D.Wisc.1982), modified, 746 F.2d 1205 (7th Cir.1984); Vasquez v. City of Reno, 461 F.Supp. 1098 (D.Nev.1978). However, a municipality may be vicariously liable under 42 U.S.C. § 1981. Leonard v. City of Frankfort Electric and Water Plant Board, 752 F.2d 189, 194 n. 9 (6th Cir.1984). Additionally, the Sixth Circuit has consistently held that a municipality or other governmental employer may be held liable for the negligent training and supervision of its employees. Ryman v. Davis, 754 F.2d 158 (6th Cir.1985); Hays v. Jefferson County, 668 F.2d 869 (6th Cir.1982), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1983).

Therefore, this Court concludes that the Plaintiffs claims, under §§ 1983 and 1985, in which Plaintiff seeks to impose vicarious liability upon the City of Dayton, must be dismissed. Otherwise, Plaintiffs allegations against the City of Dayton state claims for relief.

All remaining Defendants move to dismiss Plaintiffs claims under §§ 1981, 1983 and 1985. The Court will discuss these arguments in order.

(1) 42 U.S.C. § 1981

In asserting that Plaintiffs § 1981 claim must be dismissed, the Defendants raise two arguments. First, it is argued that Plaintiffs complaint is fatally deficient because it does not contain an allegation that he was subjected to the actions complained of because of his race. Second, it is argued that Plaintiffs underlying claim, for malicious prosecution, is not actionable under § 1981.

As to the first argument, the Court agrees with Defendants that allegations and proof of racial discrimination are necessary to recovery under § 1981. However, the Court cannot concur with Defendants’ assertion that Plaintiff’s complaint fails to allege that he is the victim of racial discrimination. Recently, the Sixth Circuit restated the standard governing the dismissal of civil rights actions:

In civil rights actions, pleadings are to be liberally construed and a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Fitzke v. Shappell, 468 F.2d 1072 (6th Cir.1972).

Leonard, 752 F.2d at 193. In the present case, Plaintiff alleges that he is of African descent and that by the initiation of the malicious, criminal prosecution of him, the Defendants denied him equal protection of laws because of his race or color. While the allegations in Plaintiff’s complaint are “bare-bones” to say the least, they are sufficient to meet the standard set forth in Leonard.

The second contention of the Defendants raises a much more perplexing question. Defendants contend that malicious prosecution is not proscribed by § 1981 even if the prosecution is initiated with a racially discriminatory intent.

Section 1981, unlike §§ 1983 and 1985, is substantive rather than remedial. Section 1981 provides that all persons within the United States shall have the same right in every state to make and enforce contracts, to sue, to be parties, to give evidence and “to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” The Court does not read § 1981 as narrowly as do the Defendants. Courts have looked to the final two clauses of § 1981— the “equal benefit” and “like punishment” clauses — and concluded that various types of racially motivated police misconduct is actionable under § 1981. Mahone v. Waddle, 564 F.2d 1018 (3rd Cir.1977), cert. denied, 438 U.S. 904, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978); Spriggs v. City of Chicago, 523 F.Supp. 138 (N.D.Ill.1981);, Jones v. City of Philadelphia, 491 F.Supp. 284 (E.D.Pa.1980); Raffety v. Prince George’s County, 423 F.Supp. 1045 (D.Md. 1976). Likewise, this Court concludes that Plaintiffs claim that he was subjected to a racially motivated, malicious prosecution is actionable under § 1981.

(2) lf2 U.S.C. § 1983

The Defendants move to dismiss Plaintiff's claim under § 1983 arguing that he does not allege the deprivation of a constitutional right. In particular, Defendants assert that Plaintiff's claim for malicious prosecution, without more, does not state a claim for relief under § 1983. This Court agrees. Courts have generally held, that with certain exceptions, a valid § 1983 action is not made out simply by alleging that the state tort of malicious prosecution was committed by a person acting under color of law. See, e.g., Cramer v. Crutchfield, 648 F.2d 943, 945 (4th Cir.1981); Bell v. Brennan, 570 F.Supp. 1116, 1118 (E.D. Pa.1983). Cf. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). (Every common law tort of false imprisonment committed by a person acting under color of state law does not give rise to a violation of § 1983). However, the Court does not read Plaintiffs’ Complaint as narrowly as do Defendants. It is the exceptions to this general rule which are of paramount importance in this case. In Cline v. Brusett, 661 F.2d 108, 112 (9th Cir.1981), the court explained:

The general rule is that malicious prosecution does not constitute a deprivation of life, liberty or property without due process of law and, therefore, is not cognizable under 42 U.S.C. § 1983. Paskaly v. Seale, 506 F.2d 1209 (9th Cir.1974). However, an exception to this rule exists for malicious prosecution conducted with the intent of denying a person equal protection or which otherwise subject a person to a denial of constitutional rights. Norton v. Liddel, 620 F.2d 1375 (10th Cir.1980); Beker Phosphate Corporation v. Muirhead, 581 F.2d 1187 (5th Cir.1978).

See also, Dunn v. State of Tenn., 697 F.2d 121 (6th Cir.1982) (Allegation of malicious prosecution coupled with assertion that plaintiff suffered violation of his Fourth Amendment rights states a claim for relief under § 1983.)

Herein, the Plaintiff alleges that he was the victim of a malicious prosecution and that he suffered a deprivation of his right to the equal protection of the laws because of his race. Therefore, the Court concludes that Plaintiff has stated a viable claim for relief under § 1983 for malicious prosecution, to the extent that he asserts that the prosecution was maliciously initiated by Defendants because of his race. To the extent that Plaintiff merely alleges that his prosecution resulted in a deprivation of due process, the Court agrees with Defendants that Plaintiff does not state a claim under § 1983 because such a claim is nothing more than an assertion of the common law tort committed by persons acting under color of law. See, e.g., Cline v. Brussett.

(3) 42 U.S.C. § 1985(3)

The Defendants also argue that Plaintiff has not stated a claim for relief under § 1985(3). The only argument which the Court deems necessary to address is the Defendants’ contention that the Plaintiff does not allege that he was the victim of racial discrimination. This assertion is meritless. The thrust of Plaintiff’s complaint is that he was maliciously prosecuted because of his race. This is a sufficient allegation of racial discrimination.

In summary, the Court has sustained in part and overruled in part the motions to dismiss, in the following manner:

1. The motions are sustained to the extent that:
a) the state agencies have been ordered dismissed;
b) the claims against the City of Dayton based upon vicarious liability and arising under §§ 1983 and 1985 have been dismissed;
c) the Court has concluded that Plaintiff may not maintain a § 1983 action against any Defendants for malicious prosecution merely because the prosecution results in a deprivation of due process. However, Plaintiff has stated a viable claim for relief under § 1983 for malicious prosecution, to the extent that he asserts that the prosecution was maliciously initiated by Defendants because of his race.
2. Otherwise, the Court has overruled the motions to dismiss.

As a result of the foregoing, the following Defendants remain with respect to the following claims for relief:

a) Clemmer, Gentry, Reynolds, Johnson and Young remain as Defendants to Plaintiff’s claims under §§ 1981 and 1985 and Plaintiff’s claim under § 1983, except to the extent Plaintiff asserts a claim for malicious prosecution based solely upon a deprivation of due process;
b) the City of Dayton remains a Defendant to Plaintiff’s § 1981 claim and to Plaintiff’s § 1985 claim, except that it cannot be held vicariously liable under a respondeat superior theory.
c) the City of Dayton remains a Defendant to Plaintiff’s § 1983 claim, alleging negligent training and supervision of the individual Defendants under their supervision and control. However, the City of Dayton cannot be held vicariously liable under a respondeat superior theory and it cannot be held liable for Plaintiff’s allegations in his § 1983 claim for malicious prosecution based solely on a deprivation of due process.

Clemmer, Gentry, Reynolds, Johnson, Young and the City of Dayton are directed to file their answers within 15 days of the entry of this Decision,

      . The state agencies raised similar arguments. However, because the Court has concluded that the Eleventh Amendment precludes imposing liability on these Defendants, it is not necessary to consider their arguments in this regard.

      . Plaintiff also asserts violations of the Fifth and Fourteenth Amendments. The Defendants also move to dismiss these claims. It is not entirely clear whether Plaintiff is alleging a Bivens-type action [Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)] based on violations of the Fifth and Fourteenth Amendments, or whether these are merely the alleged predicate constitutional violations for Plaintiff’s § 1983 claim. See Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L:Ed.2d 420 (1981). For reasons that follow, this Court is constrained to assume the latter. First, the Fifth Amendment applies only to the federal government. Second, courts have generally concluded that following Monell, all actions against government officials for constitutional deprivations must be brought under § 1983. See Harris v. City of Canton, 725 F.2d 371, 374 n. 3 (6th Cir.1984). Therefore, the Court will treat Plaintiff's assertions of constitutional deprivations as the predicate allegations for his § 1983 claim.

      . Section 1981 provides:
      Equal Rights Under the Law
      All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

      . The Court rejects Defendants’ argument that because Plaintiff alleges that he was indicted, he cannot maintain an action for malicious prosecution. Defendants contend that the indictment returned against Plaintiff means that as a matter of law, they had probable cause to prosecute him. Thus, an essential element of Plaintiffs claim, that the prosecution was undertaken without probable cause, cannot be established. The fatal flaw in this argument is that the cases cited by Defendants do not support the proposition that an indictment establishes probable cause as a matter of law. Rather, these cases hold that an indictment is prime facie evidence of probable cause. See, e.g., Hruska v. Severance Specialty, Inc., 498 F.2d 796 (6th Cir.1974).


source: Caselaw Access Project

author: SUHRHEINRICH, District Judge.

license: Public Domain

text:
    MICHIGAN TEAMSTERS JOINT COUNCIL NO. 43, a labor organization, Plaintiff, v. William E. BUFALINO, Sr., et al., Defendants.
    Civ. A. No. 82-74597.
    United States District Court, E.D. Michigan, S.D.
    July 29, 1985.

      Robert E. Day, Bloomfield Hills, Mich., for plaintiff.
    William E. Bufalino Sr., St. Clair Shores, Mich., in pro. per.
    Kenneth E. Kinkel, Birmingham, Mich., for defendant Detroit Teamsters Temple Ass’n.
    Mallín, Kushner & Chupack, Birmingham, Mich., Susan A. Harris, Asst. Atty. Gen., S. Allen Early Jr., Mary Richman, Detroit, Mich., Gerry M. Miller, Milwaukee, Wis., Charles S. Stroad, Dist. Counsel, IRS, Roy C. Hayes, Detroit, Mich., for defendants.
   MEMORANDUM OPINION

SUHRHEINRICH, District Judge.

This matter is before the Court on plaintiff’s renewed motion for partial summary judgment, or in the alternative, Judgment on the pleadings. The Court heard oral argument on plaintiff’s original motion on May 14, 1985, denying that motion without prejudice and affording plaintiff an opportunity to further address certain issues. Through the present motion plaintiff seeks a certification of its proposed interpleader, pursuant to Fed.R.Civ.P. 22. See also 7 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1714 (1972 and Supp. 1985).

I.

This matter has grown out of the revocation of Teamster Local 985’s charter on April 19, 1982 by its parent organization the International Brotherhood of Teamsters (IBT). At that time, the Local had amassed debts in excess of $150,000 including approximately $107,000 in delinquent dues owed to plaintiff Teamster Joint Council No. 43 and affiliate Detroit Teamster Temple. Defendant Bufalino was the defunct Local’s president and seeks $28,500 in back wages. Eight additional claimants seek amounts from $238 to $1,800 and five small claim holders have not answered the complaint.

Plaintiff Joint Council is a mid-level labor organization which serves Teamster Locals within the State of Michigan. The Joint Council acted as interim successor to Local 985 during the April 1982 to August 1982 time period. Subsequently, the Local 985 membership were assigned to new locals pursuant to procedures defined in the International Brotherhood of Teamsters Constitution (hereinafter referred to as Constitution). During the April 1982 to August 1982 time period, dues collected from the defunct local membership were placed in an escrow account. The plaintiff, Joint Council, served as caretaker of these funds and subsequently filed this interpleader action to invoke the Court’s assistance in the disbursement of the funds. Those dues collected by the Joint Council comprise a “stake” in excess of $39,000.

II.

In this portion of the proceeding plaintiff asks the Court to certify the interpleader as proper, enter a judgment relieving the Joint Council of any liability to any defendant (claimant) in this lawsuit either arising out of the stake or out of liability incurred by former Local 985. Further, plaintiff seeks an injunction restraining defendants from prosecuting individual actions to recover portions of the stake, and requiring claimholders to interplead their claims arising out of former Local 985’s liabilities. The requested relief has been labeled as the “first stage” of an interpleader action pursuant to Fed.R.Civ.P. 22.

Interpleader is a remedy involving two steps or stages. During the first the court determines the right of the party invoking the remedy to compel the claimants to litigate their claims to the stake in one proceeding____ The second stage of the interpleader involves the determination of the respective rights of the claimants to the stake____

7 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1714 (1972).

In granting the relief requested by the plaintiff, the Court must determine that there is a legitimate threat of multiple lawsuits directed against a single fund. See 7 C. Wright & A. Miller, supra, at § 1704. The Court’s concern in this action is the appropriateness of the fund itself as a proper source for payment of Local 985’s debts. Plaintiff’s position, essentially, is that the fund is properly applied to Local 985’s debts and further, that the fund represents the only assets of the Local available to satisfy Local 985’s debts. These issues are now examined by the Court.

III.

A threshold issue presented by the parties is whom or what entity is entitled to dues monies collected by the Joint Council after Local 985’s charter revocation. The IBT Constitution provides guidance in this regard, clearly contemplating that the International shall succeed to the assets of the Local Union.

In the event of succession, dissolution or disqualification, all properties, funds and assets, both real and person, of such Local Union or Joint Council or other subordinate body shall become the property of the International Union____

IBT Constitution, Art. XX (1981).

Thus, the International clearly succeeds to the assets of the defunct Local. In this case it appears clear that the International authorized the application of the subject interim funds collected by the Joint Council to the debt of the defunct Local. In a letter dated July 20, 1982, International General President Williams authorized the Joint Council to pay debts of Local 985 from the escrow account. (Attachment E to affidavit of Elton Shade filed January 30, 1985.)

The next issue presented by the parties is whether the dues were properly required of the membership at all in the absence of Local Union representation. The Court is persuaded that representation of the defunct Local 985 membership was provided on an interim basis by the Joint Council and contractual benefits negotiated by the Local continued during this interim period. Therefore, the Local 985 membership remained contractually bound to continue dues payments during the April 1982 to August 1982 time period. In this regard the Court notes that the membership’s dues payments were required to defray the cost of negotiating and administering the collective bargaining agreement. The membership, therefore, remained bound to make payments for these services.

It also appears clear that members of a local union are also members of the International. International Brotherhood of Teamsters v. United States, 275 F.2d 610, 612 (4th Cir.1960), cert. denied 362 U.S. 975, 80 S.Ct. 1060, 4 L.Ed.2d 1011 (1961). Further, it appears that the IBT Constitution establishes that dues are a legal obligation of the membership. “Dues of members of the International Union, payable through their respective local unions shall not be less than____” IBT Constitution, Art. X, § 3(d) (emphasis supplied). See also IBT Constitution Art. XXVI, § 1.

The Court concludes that the membership of Local 985 continued to receive all benefits afforded under the collective bargaining agreement during the April 1982 to August 1982 time period and remained contractually bound to continue making dues payments under the IBT Constitution.

The final issue which the Court must consider is whether the Joint Council as successor to Local 985 assumed responsibility for the debts of the Local. Little case law appears to exist on this precise issue, however, plaintiff has cited the Court one applicable case, Lawless v. Brotherhood of Painters, 143 Cal.App.2d 474, 300 P.2d 159 (1956). In Lawless, the approach taken by the court was similar to that suggested by the present plaintiffs. There, the court concluded that the International by assuming control over a dissolved local became liable for the just debts of the local only to the extent of the local’s assets. Lawless, 300 P.2d at 163. Indeed, this approach is consonant with the IBT Constitution. “However, in no event shall the International Union without its consent become liable for the obligations of a subordinate body which has succeeded, disaffiliated, dissolved or been dissolved, or has been suspended, merged or has forfeited its charter.” IBT Constitution, Art. X, § 13 (1981). As the Lawless court also noted, such an approach is analogous to a transfer by a corporation of all of its assets to a successor corporation without a merger. Lawless, 300 P.2d at 163. In such a situation a creditor may trace only the transfer- or’s physical assets in the hands of the transferee. The transferee is not held fully liable for the predecessor's debts. The only apparent physical assets of Local 985 are embraced in the current stake.

IV.

The Court concludes that the proposed stake in this action is appropriate and that interpleader under Fed.R.Civ.P. 22 is a proper method of resolving the rights of former creditors of former Teamster Local 985. Therefore, the Court has determined that:

1) The plaintiff shall be discharged of any independent liability to any defendants in this action arising out of the stake or arising out of the liabilities of former Local 985;
2) All defendants shall be enjoined from prosecuting individual actions to recover a portion of the stake or to recover on the liabilities of former Local 985;
3) All defendants shall interplead their claims arising out of said stake and said liabilities of former Local 985, framing the issues in their pleadings; and,
4) Plaintiff may assert its claim to a portion of the stake.

An appropriate order in conformance with this opinion shall be entered.


author: CRABB, Chief Judge.

text:
    DCA FOOD INDUSTRIES, INC., Plaintiff, v. TASTY FOODS, INC., Tapud Co. a/k/a Sha’ar Hanegev Ltd. and Jack Scanlon, Defendants.
    No. 85-C-364-C.
    United States District Court, W.D. Wisconsin.
    Sept. 3, 1985.

      John W. Markson, Bell, Metzner & Gierhart, S.C., Madison, Wis. (Alfred B. Engelberg, New York City, of counsel), for plaintiff.
    John C. Mitby, Madison, Wis. (Maurice B. Stiefel, Stiefel, Gross, Kurland & Pavane, P.C., New York City, of counsel), for defendants.
   ORDER

CRABB, Chief Judge.

Plaintiff DCA has brought this action for patent infringement against the defendants. DCA alleges that it is the owner, as assignee of Yechiel Smadar, of United States Patent No. 3,650,766 (DCA ’766 patent) covering an invention entitled “Extruded Food Products and Method of Producing Same”; that defendants Tasty Foods and Scanlon are infringing the DCA '766 patent by the sale and offering for sale of extruded onion rings; and that defendant Tapud is actively inducing and contributing to the infringement of the DCA ’766 patent by defendants Tasty Foods and Scanlon by manufacturing the onion rings and delivering them to Tasty Foods and Scanlon. DCA further alleges that the process used by Tapud to produce extruded onion rings is described in United States Patent No. 4,436,759 (the '759 patent) issued in the names of David M. Trilling and Yechiel Smadar entitled “Production of Shaped Food Products,” and that the extruded onion ring production process of the ’759 patent infringes the claims of the DCA ’766 patent. DCA seeks declaratory and injunctive relief and money damages for the alleged infringement. Jurisdiction is asserted under 28 U.S.C. § 1338(a).

The defendants are represented by Maurice B. Stiefel of the New York law firm of Stiefel, Gross, Kurland & Pavane, P.C., and by John C. Mitby of the Madison firm of Brynelson, Herrick, Gehl & Bucaida. DCÁ has moved to have Stiefel disqualified from representing the defendants in this case, asserting that because of Stiefel’s prior relationship with DCA in connection with an earlier action involving the DCA ’766 patent, he may not now represent the defendants. For the reasons discussed in this order, I will deny the motion to disqualify Stiefel.

From affidavits submitted by Alfred B. Engelberg, Maurice B. Stiefel and Yechiel Smadar, I find the following facts for the purposes of deciding this motion.

FACTS

Yechiel Smadar was employed by DCA from 1968 to 1971, during which time he invented the subject matter claimed in the DCA ’766 patent. (Prior to working for DCA, Smader had worked for Nabisco.) Smadar assigned his interest in the patent to DCA. From 1973 through 1977 Smadar had a consulting agreement with DCA, under which he agreed to be available for consultation, to maintain in confidence any confidential information received from DCA, and not to engage in any competing business. Under the agreement, Smadar received $3,000.00 per year in 1973 and 1974, and $2,000.00 per year in 1975, 1976 and 1977. At the time of the meetings and deposition at issue in this motion, Smadar was not a DCA employee and had no contractual relationship with DCA. Shortly after the deposition, DCA paid Smadar $5000.00 for his cooperation in preparing for and giving deposition testimony.

In 1975, DCA became involved in litigation in which the validity, enforceability and infringement of the DCA ’766 patent were at issue. Modern Maid et al. v. DCA Food Industries, Inc., No. 75 Civ. 1785 (E.D.N.Y.). In late 1977, in connection with this litigation, Smadar was subpoenaed by Modern Maid to appear at a deposition. After discussions among DCA’s attorney (Alfred Engelberg), Smadar’s personal attorney (David Drabkin) and Modern Maid’s attorney, Smadar agreed to appear voluntarily at a deposition, at DCA’s expense, in January of 1978. DCA, Smadar, and Drabkin also agreed that Smadar could retain additional patent counsel at DCA’s expense. At Drabkin’s recommendation, Smadar retained Maurice B. Stiefel. Neither DCA nor Engelberg was involved in Smadar’s selection of Stiefel.

Engelberg, Stiefel, and Smadar agreed to meet prior to Smadar’s deposition to prepare Smadar for the deposition. On December 20, 1977, Engelberg sent Stiefel a number of documents to review, all of which were matters of public record. The three met in Engelberg’s office on January 23 and 24, 1978. Engelberg’s recollection of what was discussed at that meeting seven years ago differs from Stiefel’s and Smadar’s recollections.

The Nabisco materials discussed at the January 23 and 24 meetings were confidential .proprietary information of Nabisco, not DCA.

The prior art patents reviewed at these meetings involved public documents, not DCA’s confidential proprietary material.

Smadar was deposed on January 25 and 26, 1978. The deposition transcripts show appearances by Stiefel on behalf of the witness Smadar and Engelberg on behalf of DCA.

In 1981, Smadar and David Trilling retained Stiefel to prepare and prosecute a patent application on their invention involving extruded food products. In March, 1984, this application issued as the ’759 patent, with Caribou Fisheries, Inc. of Boston as assignee. Defendants operate under the ’759 patent and it is this patent that plaintiff alleges infringes the DCA ’766 patent. Stiefel is being paid by Smadar to represent defendants in this action.

DISPUTED FACTS

Because of the differing versions of the January 23 and 24 meetings set forth by Engelberg, Smader, and Stiefel in their affidavits, I can make no findings of fact on this subject except with respect to a "few undisputed details set forth above. Set forth below is a summary of each person’s recollection.

Engelberg states that he is unable to recall the details of his conversations with Stiefel and Smadar, but that his primary concern was to refresh Smadar’s recollection fully about his role in the development of the invention leading to the DCA ’766 patent, and he says that this required a “comprehensive review” of Smadar’s participation. Whether that review included Smadar’s DCA notebooks, which had remained in DCA’s possession, and other DCA documents is disputed. Engelberg points to the following passage in Smadar’s 1978 deposition to support his assertion that Smadar reviewed Smadar’s DCA notebooks:

Q Can I draw your attention to page 18, Mr. Smadar, of that same notebook.
A Yes.
Q There is a note down at the bottom, near the bottom, it says, “a more detailed planning is in the onion ring folder.” Did you maintain a separate onion ring folder by that name?
A Yes, as a matter of fact, I thought about this folder.
I mentioned it to Mr. Engelberg the other day.

Both Smadar and Stiefel deny that there was a comprehensive review of Smadar’s role in the invention. Like Engelberg, Stiefel says he has no specific recollection of the discussions. He does not remember seeing Smadar’s DCA notebooks and states that he is confident that he would recall them if he had. Smadar states that they did not review his DCA notebooks, citing the following testimony from his deposition:

Q Are they in your notebook, that is what I am asking you.
MR. ENGELBERG: I object. I want to note for the record that the — counsel has had these notebooks for two years, and the witness has had them for two minutes, and there are four hundred pages here, and I don’t see anyway this • witness could be expected to know what is on every page of this notebook that he probably has not seen—
Q Did you reveiw [sic] these notebooks before this deposition?
A No

Engelberg asserts that in addition to reviewing the factual history of the invention, “it would have been crucially important for me to provide Mr. Smadar and Mr. Steifel [sic] with my detailed impressions and conclusions with respect to the major strengths and weaknesses of our litigation position and the types of ‘trap’ questions that might be asked during a skillful cross-examination for the purpose of furthering Modern Maid’s attack on the DCA ’766 patent.” However, Engelberg does not state that he actually recalls this discussion. Stiefel says that he has no recollection of such a discussion and that he strongly doubts this discussion took place.

OPINION

The precepts of the Code of Professional Responsibility as well as the prior case law determine the resolution of the ethical questions presented by the plaintiff’s motion to disqualify Stiefel. The fundamental principle to be applied is the ethical obligation of the lawyer to maintain the confidentiality of information relating to the representation of his or her client (Canons 4 and 9). See Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721 (7th Cir.1982).

The law imposes on courts the duty to safeguard the confidentiality of the attorney-client relationship, and provides them the authority to disqualify counsel as one means of insuring that Canons 4 and 9 are not violated. Freeman, 689 F.2d at 721. At the same time, courts must bear in mind that “a party to litigation also has an important interest in enjoying the counsel of its choice, and the prophylactic rule [of disqualification] ought not be applied so indiscriminately as to undercut this interest without justification.” Moritz v. Medical Protective Co., 428 F.Supp. 865, 874 (W.D. Wis.1977). Although disqualification of counsel protects one attorney-client relationship, it destroys another such relationship by depriving a party of its prerogative to proceed with counsel of its choice. For this reason, the Court of Appeals for the Seventh Circuit has described disqualification as “a drastic measure which courts should hesitate to impose except when absolutely necessary.” Freeman, 689 F.2d at 721; see also Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir.1983).

I. Disqualification under Canon 4

The appropriate test for disqualification of an attorney under Canon 4 is well settled in this circuit. When a lawyer represents a party in a matter in which the adverse party is that lawyer’s former client, the lawyer may be disqualified if the subject matter of the two representations is “substantially related.” See LaSalle National Bank v. County of Lake, 703 F.2d 252, 255 (7th Cir.1983); Westinghouse Electric Corp. v. Gulf Oil Corp, 588 F.2d 221, 223 (7th Cir.1978). Once a court finds that there is a substantial relationship between the two representations, it must proceed to determine whether disqualification is warranted. Freeman, 689 F.2d at 722; International Paper Co. v. Lloyd Manufacturing Co., 555 F.Supp. 125, 131 (N.D. Ill.1982).

But there is a threshold question which must be answered before the court may apply the substantial relationship test: whether there was an attorney-client relationship between DCA and Stiefel that would subject Stiefel to the obligations of Canon 4. See Hughes v. Paine, Webber, Jackson & Curtis Inc., 565 F.Supp. 663, 667, 669 (N.D.Ill.1983); International Paper, 555 F.Supp. at 131. DCA concedes that no formal attorney-client relationship existed between DCA and Stiefel. Instead, DCA relies on Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir.), cert. denied 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978), for its argument that its relationship with Stiefel comes within the terms of Canon 4.

In Kerr-McGee, three of the defendants, including Kerr-McGee, were members of the American Petroleum Institute, a trade association represented by Kirkland & Ellis. The institute retained Kirkland to analyze the antitrust aspects of proposed oil industry divestiture legislation. Kirkland’s tasks included interviewing various members of the institute, among them Kerr-McGee, and in the course of this work Kirkland acquired secret and confidential information. Kirkland filed a report with the institute which contained references to its members’ involvement in the production and marketing of uranium. On the same day Kirkland released its report to the institute, another client of Kirkland & Ellis, Westinghouse, filed suit against Kerr-McGee and others, alleging price-fixing in the uranium industry.

The district court denied Kerr-McGee’s motion to disqualify the Kirkland firm on the grounds that there had been no attorney-client relationship between Kirkland & Ellis and Kerr-McGee, only a relationship between the firm and the American Petroleum Institute. 448 F.Supp. 1284, 1303 (N.D.Ill.1978). The court of appeals reversed, noting that Kerr-McGee had -submitted confidential information to Kirkland & Ellis with the reasonable belief that the firm was acting in the undivided interest of Kerr-McGee and the other institute members. 580 F.2d at 1321. The court of appeals held that an implied attorney-client relationship and its attendant ethical obligations may arise “when the lay party submits confidential information to the law party with reasonable belief that the latter is acting as the former’s attorney____” 580 F.2d at 1312, 1319-20; see also International Paper, 555 F.Supp. at 132.

In the recent case of Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263 (7th Cir.1983), the Court of Appeals for the Seventh Circuit again discussed how the sharing of confidential information may create an attorney-client relationship. Ma-lee was an employee and one of three co-owners of NPD. The other two co-owners offered Malee additional shares in the company, and told Malee to find a lawyer who would structure the transaction in the least expensive way. Malee contacted Fine of the law firm of Schwartz & Freeman. Fine devised a plan that required him to place a value on the NPD stock. NPD gave Fine the information necessary for the valuation, including information on NPD’s financial condition, sales trends and management, and Fine fixed a value which the corporation adopted. Fine billed NPD for his services and NPD paid the bill.

Several months later, Malee left NPD and sold his stock back to the other co-owners. At the same time, Malec’s wife, who also had worked for NPD, also left NPD and formed Analytica. (Malee himself never had a position with Analytica.) Less than a year after the Malees had left NPD and Analytica had been formed, Analytica retained Schwartz & Freeman as its counsel in a private antitrust action Analytica brought against NPD.

On NPD’s motion, the trial court disqualified Schwartz & Freeman from representing Analytica. On appeal, Schwartz & Freeman did not assert that it had not received confidential information about NPD in the course of the stock transfer representation, but argued that its client had been Malee, not NPD. The court rejected this argument on two grounds. First, all three NPD shareholders, not just Malee, had retained the firm. The court noted that all three had had a common interest in structuring the transfer as cheaply as possible, that NPD paid the legal bill (and apparently NPD did not usually pay its officers’ legal expenses), and that neither NPD nor the other shareholders were represented by other counsel. 708 F.2d at 1268. Second, it made no difference whether NPD or Malee was the client; disqualification was necessary under the Kerr-McGee decision.

If NPD did not retain Schwartz & Freeman — though we think it did — still it supplied Schwartz & Freeman with just the kind of confidential data that it would have furnished a lawyer it had retained____ NPD thought Schwartz & Freeman was its counsel and supplied it without reserve with the sort of data ... that play a key role in a monopolization suit____

708 F.2d at 1269.

Under Kerr-McGee and Analytica, therefore, a party seeking to establish an implied attorney-client relationship for the purposes of the Code must show (1) that it submitted confidential information to a lawyer, and (2) that it did so with the reasonable belief that the lawyer was acting as the party’s attorney.

Turning to the case before the court, I will examine these requirements as they bear on DCA’s motion, guided by the rule that “the moving [party] bear[s] the heavy burden of proving facts required for disqualification.” Evans v. Artek Systems Corp., 715 F.2d 788, 794 (2d. Cir.1983); see also Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d. Cir.1978) (“high standard of proof” applied in disqualification matters).

Although, as set forth above, Engelberg asserts that he discussed several types of confidential information with Smadar and Stiefel, I conclude that DCA has not met its burden of proof on this point. The present record does not permit a factual finding to the effect that Engelberg provided Smadar and Stiefel with confidential information about Smadar’s work at DCA. Moreover, even if I could find that Engelberg had engaged in an extensive review of Smadar’s work with Smadar and Stiefel, I question whether it would be accurate to describe such an exchange as the disclosure of confidential information. If a comprehensive review of Smadar’s work at DCA did take place, the discussion would have involved information with which Smadar was already familiar. Smadar could have discussed this information with Stiefel even if Engelberg had not provided Stiefel with Smadar’s notebooks, though any material which Engelberg might have provided would likely have refreshed Smadar’s recollection. DCA does not assert that Engelberg revealed any proprietary information about the DCA ’766 patent that Smadar did not already know.

Engelberg claims that the Nabisco documents the three reviewed were confidential material. Because this material was proprietary to Nabisco, not DCA, Engelberg did not disclose any of DCA’s confidential information when he showed the Nabisco material to Smadar and Stiefel.

Engelberg also describes the discussions of prior art patents with Smadar and Stiefel as a disclosure of confidential information. These discussions involved a review of DCA’s copies of public documents and therefore did not constitute a disclosure of confidential information.

Engelberg states that it would have been important for him to give Smadar and Stiefel his impressions and conclusions about the strengths and weaknesses of DCA’s litigation position in the Modem Maid case. Undoubtedly such information would have been confidential. But Engelberg does not recall that he actually shared his legal opinions, and Stiefel does not recall any such discussion. I conclude that DCA has not met its burden of proof on whether Engelberg shared confidential work-product information with Stiefel and Smadar.

Even if DCA had met its burden of proof on the sharing of confidential information, it has not shown that it did so in the reasonable belief that Stiefel was acting as its attorney. Smadar was not an officer, employee or agent of DCA. Cf. Analytica, 708 F.2d at 1268. Engelberg was aware that it was Smadar, not DCA, who had selected and retained Stiefel, and was certainly aware that DCA had its own counsel. Id. There is no evidence that DCA or Engelberg consulted with Stiefel with the expectation of obtaining legal advice. Cf. International Paper, 555 F.Supp. at 132. The fact that DCA paid Stiefel’s attorney’s fees for the representation of Smadar does not establish an attorney-client relationship between DCA and Stiefel. See Kerr-McGee, 580 F.2d at 1317; International Paper, 555 F.Supp. at 132.

DCA asserts that there was a “unanimity of interest” between DCA and Smadar analagous to that in Kerr-McGee or Analytica. Yet the record shows no such common interest. Undoubtedly DCA hoped that Smadar’s testimony would be useful in its defense of the Modern Maid case. But at the time of the 1978 meetings and deposition, Smadar had no financial interest in the validity of the DCA ’766 patent and he did not have any contractual relationship with DCA.

Engelberg contends that he treated Stiefel as co-counsel. I conclude, however, that whatever subjective impression Engelberg may have had about Stiefel’s role, under these circumstances he could not have reasonably believed that Stiefel was acting as DCA’s attorney.

II. Disqualification under Canon 9

DCA asserts that Stiefel should be disqualified under the general admonition of Canon 9 that a lawyer should avoid even the appearance of professional impropriety. However, Canon 9 is not to be interpreted to “override the delicate balance created by Canon 4.” Schloetter v. Railoc of Indiana, 546 F.2d 706, 713 (7th Cir.1976), quoting Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751, 757 (2d Cir.1975). When a lawyer has demonstrated that his or her conduct is within the bounds of Canon 4, the possible appearance of impropriety is “simply too weak and too slender a reed on which to rest a disqualification order ... particularly where the mere appearance of impropriety is far from clear.” Freeman, 689 F.2d at 723; see also Interstate Properties v. Pyramid Co. of Utica, 547 F.Supp. 178, 183 (S.D.N.Y. 1982).

Under the circumstances of this case, I find that there is no appearance of impropriety in Stiefel’s representation.of the defendants. Moreover, having already concluded that disqualification is not warranted under Canon 4, I would be extremely reluctant to hold that disqualification is required under Canon 9 even if there were some appearance of impropriety. I conclude, therefore, that Canon 9 does not require Stiefel's disqualification in this case.

ORDER

IT IS ORDERED that plaintiff’s motion to disqualify defendants’ attorney is DENIED.

      . I find this fact after considering Engelberg’s assertions that he discussed with Smadar and Stiefel certain Nabisco documents, and the fact that Smadar had worked for Nabisco before coming to DCA, and that the documents included Smadar's Nabisco laboratory notebooks. Smadar’s 1978 deposition testimony confirms that Engelberg showed him this material; Stiefel does not remember seeing any Nabisco documents. DCA obtained these materials from Modern Maid in the course of discovery, subject to a protective order. This order states that the Nabisco documents "shall be treated as confidential proprietary information of Nabisco____"

        . I find this fact after reviewing the affidavits in which Engelberg says that the three men reviewed prior art patents at the meetings, and both Smadar and Stiefel say they recall discussing the prior art Rivoche patent. Stiefel asserts, and Engelberg does not dispute, that any review of prior art patents involved only public documents.

      . Although the record does not reveal Smadar's present relationship with the defendants, I accept for the purposes of this motion DCA’s assertion in its memorandum that "Mr. Stiefel is Mr. Smadar’s attorney and is being paid by Mr. Smadar to defend the defendants in this action.”

      . Canon 4 states: “A Lawyer Should Preserve the Confidences and Secrets of a Client." Canon 9 states: “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.”

      . A finding of a substantial relationship does not always require disqualification. When the successive representations involve not the same individual attorney but different members of a law firm successively representing adverse parties, or when one member of a law firm changes jobs and later she or her new firm is retained by an adversary of a client of her former firm, the court must examine the sharing of confidences among the members of the firm or firms involved before determining that disqualification is appropriate. See, e.g., Schiessle, 717 F.2d at 420-21; Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1266-68 (7th Cir.1983). This additional analysis is unnecessary in this case because Stieffel himself was involved in both the 1978 discussions and the present representation; he would necessarily have been privy to any confidential information discussed in both situations.


author: VAN SICKLE, Senior District Judge.

text:
    Rhonda SCHAUER, Plaintiff, v. BURLEIGH COUNTY; Burleigh County Sheriff's Department; Sheriff Bob Harvey, in his official capacity and individually; Burleigh County Deputy Sheriff Corrine Christiansen, in her official capacity and individually; Burleigh County Deputy Sheriff Collin Rixen, in his official capacity and individually, Burleigh County Social Services; and Burleigh County Assistant State's Attorney Patricia Burke, Defendants.
    Civ. No. A1-85-37.
    United States District Court, D. North Dakota, Southwestern Division.
    Sept. 17, 1985.

      Judith Atkinson, Kathryn L. Dietz, Bismarck, N.D., for plaintiff.
    John J. Fox, Ass’t State’s Atty., John C. Kapsner, Bismarck, N.D., for defendants.
   MEMORANDUM AND ORDER

VAN SICKLE, Senior District Judge.

This is a civil rights action, under 42 U.S.C. § 1983, arising from the execution of a warrant issued by an Indian tribal court. Plaintiff seeks declaratory relief, injunctive relief, and monetary damages.

On March 7, 1985, this court issued a preliminary injunction, enjoining Defendants “from taking further action against the plaintiff or her children relative to a criminal warrant from the Turtle Mountain Tribal Court.” On March 20, 1985, this court entered an order establishing a schedule for expedited disposition of this case. On May 31, 1985, Plaintiff filed a motion for summary judgment and for a permanent injunction. On June 13, 1985, Defendants filed a motion to dismiss, or in the alternative for summary judgment or partial summary judgment and a brief in opposition to Plaintiff’s May 31, 1985 motion. On July 22, 1985, this court requested supplemental briefing on the question of abstention pending exhaustion of attacks on the validity of the custody exerted over Plaintiff. That briefing has now been completed, and this memorandum is addressed to the question of abstention.

FACTS

On February 4, 1985, Turtle Mountain Tribal Court Chief Judge Victor DeLong issued a warrant for the apprehension of Plaintiff. The warrant, which stated that Plaintiff had been charged with the offense of abduction of her minor children without the consent of their legal guardian, was delivered to the Burleigh County Sheriff’s Office on February 7, 1985. Two Burleigh County Sheriffs Deputies arrested Plaintiff that same day at United Tribes Educational Technical Center, where she was employed.

Following her arrest, Plaintiff was taken to the Burleigh County Jail and held there for two hours; she was released after she posted cash bond of $150.00. The amount of the bond was determined by Tribal Court Judge DeLong. Though no date for a court appearance was set, the bond was intended to secure Plaintiff’s appearance before the tribal court. Plaintiff was not afforded an appearance before a judicial officer at any time before or after she posted bond. The cash bond posted by Plaintiff remains in the possession of the Burleigh County Sheriff’s Department.

DISCUSSION

Plaintiff alleges that the warrant pursuant to which she was apprehended was not valid outside the physical boundaries of the Turtle Mountain Indian Reservation and that her apprehension by Burleigh County authorities was thus wrongful.

Defendants assert that this action must be dismissed because Plaintiff’s exclusive attack on the validity of her custody is in an action for habeas corpus relief. Plaintiff asserts that she need not pursue an action in habeas corpus because she is not in Defendants’ custody, and that in any event this court should not abstain in this case because she has no other adequate relief available.

Plaintiff argues first that she need not pursue habeas corpus relief because she is not “in custody” for habeas corpus purposes. She concedes that, had the cash bond which she posted been forwarded by Burleigh County authorities to Turtle Mountain tribal authorities, she would be “in custody” of the tribal authorities for habeas corpus purposes. She asserts that she cannot be considered to be in the custody of Burleigh County. In support of her position, Plaintiff cites authorities for the proposition that when an officer who has no authority to accept a cash bond nonetheless accepts such a bond, the money remains the property of the depositor and the officer merely holds the money in trust for the depositor. Plaintiff argues that the Burleigh County deputies had no authority to accept her cash bond as agents of the Turtle Mountain Tribal Court and that because they had no such authority, there was no bail taken or custody exercised for habeas corpus purposes. This court is not persuaded by Plaintiffs reasoning.

Custody, for purposes of habeas corpus, is a restraint on a person’s liberty not shared by the public in general. Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 376, 9 L.Ed.2d 285 (1963) (person released on parole “in custody” for habeas corpus purposes). Plaintiff posted cash bond of $150.00 to secure her release from the Burleigh County Jail. That is a restraint on liberty not shared by the public in general. See Hensley v. Municipal Court, 411 U.S. 345, 353, 93 S.Ct. 1571, 1575, 36 L.Ed.2d 294 (1973) (person released on own recognizance “in custody” for habeas corpus purposes). A violation of the bond could subject Plaintiff to other restraints on her liberty. Regardless of whether the burden of posting bond was imposed on Plaintiff wrongfully, the burden was imposed. This court concludes that Plaintiff is in custody for habeas corpus purposes. Whether she is in the custody of Burleigh County or of the Turtle Mountain Tribal Court need not be decided at this juncture.

Having concluded that Plaintiff is “in custody” for habeas corpus purposes, this court must consider the question of abstention on the instant § 1983 claim pending exhaustion of attacks on the validity of custody. In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court held that the sole federal remedy for a state prisoner challenging the very fact or duration of confinement is a writ of habeas corpus and not an action under 42.U.S.C. § 1983. In the instant case, though Plaintiff may be in state custody, she is charged in a tribal court rather than in a state court. Considerations underlying the Preiser decision, however, are analogous whether the action is in tribal court or in state court. Davis v. Muellar, 643 F.2d 521 (8th Cir.), cert. denied, 454 U.S. 892, 102 S.Ct. 387, 70 L.Ed.2d 206 (1981). Comity principles are grounded on desires to avoid unnecessary interference with another court and to give another court the first chance to remedy any mistakes it may have made. Id., 411 U.S., at 491, 93 S.Ct. at 1837. Thus, insofar as Plaintiff seeks equitable relief, her sole federal remedy lies in the writ of habeas corpus. This action cannot be considered as a petition for a writ of habeas corpus because Plaintiff has not exhausted state or tribal remedies or shown any reason why exhaustion should not be required.

In addition to equitable relief, Plaintiff seeks monetary damages. Defendants assert that this court should abstain from deciding Plaintiff’s § 1983 suit for damages pending the collateral exhaustion of attacks on the custody itself. The Supreme Court has not ruled on the issue. It recently observed:

We therefore have no occasion to decide if a Federal District Court should abstain from deciding a § 1983 suit for damages stemming from an unlawful conviction pending the collateral exhaustion of state-court attacks on the conviction itself.

Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984). Several of the Courts of Appeals have, however, faced that question and have determined that the federal courts should properly abstain from deciding § 1983 claims in such circumstances. Hadley v. Werner, 753 F.2d 514.(6th Cir.1985); Meadows v. Evans, 529 F.2d 385 (1976), affd en banc, 550 F.2d 345 (5th Cir.), cert. denied, 434 U.S. 969, 98 S.Ct. 517, 54 L.Ed.2d 457 (1977); Martin v. Merola, 532 F.2d 191 (2nd Cir.1976); Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir.1974); see also Franklin v. Webb, 653 F.2d 362 (8th Cir.1981). Plaintiff’s claim for damages is intertwined with her claim for equitable relief and a determination on Plaintiffs damage claim would require a determination of the validity of Plaintiffs custody. Therefore, this court will abstain from deciding Plaintiffs damage claim pending her exhaustion of attacks, in the state or tribal courts, on the validity of her custody. See Miner v. Brackney, 719 F.2d 954 (8th Cir.1983); Caldwell v. Camp, 594 F.2d 705 (8th Cir.1979).

Plaintiff argues that disposition of her damages claim could not annul the proceedings of another court and so principles of comity do not dictate abstention. While disposition of the damage claim may not be intertwined with disposition of the tribal court charge against Plaintiff, the same cannot be said for the damage claim and Plaintiffs claim for equitable relief through a habeas corpus proceeding; both involve a determination of the validity of Plaintiffs custody.

Plaintiff asserts that she cannot be afforded complete relief in a habeas corpus proceeding. This is true. But this court concludes that considerations of comity outweigh considerations of judicial economy in this case.

Plaintiff then argues, citing Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974), that exhaustion is not required because she seeks prospective equitable relief. In Wolff, the Court found that, while state proceedings to seek restoration of good time credits were pending, the federal district court properly considered a § 1983 damage claim which involved a determination of the validity of procedures employed for imposing sanctions for prisoner misconduct. The damage claim in Wolff, unlike the instant damage claim, did not require a determination that was central to the state proceeding. In any event, it is clear from the language of Tower quoted above that the Supreme Court does not consider its decision in Wolff to have resolved the question of abstention pending exhaustion of attacks on the conviction itself.

Plaintiff also asserts that her case is distinguishable from those requiring exhaustion because there has been no criminal conviction or because there is no pending state criminal proceeding. Though there has apparently been no further action taken against Plaintiff, the tribal court charge against her awaits disposition; it is therefore clear that there are criminal proceedings pending against Plaintiff. As discussed above, Plaintiff is “in custody” for habeas corpus purposes and has not exhausted attacks on that custody. She suggests no considerations which would dictate differentiating between cases where the validity of a conviction is attacked and cases where the validity of pretrial custody is attacked.

Plaintiff argues finally that she simply has no other adequate form of relief. However, Plaintiff will be free to pursue her claim for equitable relief in a habeas corpus proceeding and to pursue her § 1983 damage claim when habeas corpus remedies have been exhausted. Dismissal of this action will entail dissolution of the preliminary injunction currently in force. In issuing that injunction, this court expressed its doubts over the validity of the procedure employed for execution of the tribal warrant for Plaintiff’s arrest, but did not decide that question on its merits. Proceedings on disposition of the tribal charge will not be affected by dissolution of the injunction; this court’s order did not enjoin those proceedings and, as Plaintiff observed in her brief, her alleged unlawful arrest would likely not affect the outcome of the tribal court proceedings unless fruits of the unlawful arrest were used in those proceedings. Dismissal of this action, without prejudice, will not leave Plaintiff without a remedy which she would otherwise have had.

In Franklin v. Webb, the Eighth Circuit suggested that a § 1983 damage claim might be considered before state remedies are exhausted if the § 1983 action might be barred by a statute of limitations by' the time state remedies were exhausted. 653 F.2d at 364. That case was remanded for a determination on the statute of limitations question. Since the actions which are the subject of this complaint occurred only approximately seven months ago, it appears unlikely that the applicable statute of limitations will have run before Plaintiff has an opportunity to exhaust attacks on the validity of her custody. This court would be open to a motion for reconsideration if Plaintiff demonstrated otherwise.

In light of these conclusions, it is not necessary that this court address the other motions pending in this action.

CONCLUSION

For the foregoing reasons, IT IS ORDERED:

1) . This action, insofar as Plaintiff seeks equitable relief, is dismissed under the doctrine of Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).
2) . This action, insofar as Plaintiff seeks monetary damages, is dismissed without prejudice to the commencement of another action on the same cause or causes and without costs to any party.
3) . The preliminary injunction issued March 7, 1985 is dissolved.


author: WHITE, District Judge.

text:
    Rudolph F. PIECUCH, Plaintiff, v. GULF & WESTERN MANUFACTURING COMPANY, Defendant.
    No. C83-2938.
    United States District Court, N.D. Ohio, E.D.
    Sept. 23, 1985.
    Mark Cohn, Cleveland, Ohio, for plaintiff.
    Tom McDonald, Arter & Hadden, Cleveland, Ohio, for defendant.
   MEMORANDUM AND ORDER

WHITE, District Judge.

Present before the Court are the following motions; defendant’s motion for an order granting it judgment as a matter of law pursuant to Rule 56 of the Federal Rules of Civil Procedure because this Court lacks jurisdiction over the subject matter of the Complaint; defendant’s motion for partial summary judgment to dismiss the second and third counts of the Complaint; defendant’s motion to strike plaintiff’s demand for a jury trial regarding Count II and plaintiff’s demand for punitive damages pursuant to § 4101.17 of the Ohio Revised Code.

This case involves allegations of unlawful employment practices on the basis of age, prohibited by 29 U.S.C. § 626, et seq., the Age Discrimination in Employment Act of 1967, (ADEA); and violations of the Ohio Revised Code § 4101.17.

The defendant has moved this Court for an order granting it judgment as a matter of law based upon the ground that plaintiff failed to satisfy the jurisdictional prerequisites for the filing of his Complaint, by his failure to file a claim for Age Discrimination with the Ohio Civil Rights Commission.

The Supreme Court held in Oscar Mayer and Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), that § 14(b) of the ADEA, 29 U.S.C. § 633(b) mandates that in states where established agencies are empowered to remedy age discrimination in employment (deferral states), a person may not bring a suit under ADEA unless he has commenced a proceeding with the appropriate state agency. See also; Ewald v. Great A & P Tea Co., 620 F.2d 1183 (6th Cir.1980). Ohio is a deferral state within the meaning of § 14(b). Simpson v. Whirlpool Corp., 604 F.2d 997 (6th Cir.1979). The Ohio Civil Rights Commission (OCRC) is Ohio’s agency which is empowered to remedy age discrimination in employment. Brownlow v. Edgcomb Metals Co., 573 F.Supp. 679 (N.D.Ohio 1983).

In the instant case, plaintiff has failed to file his charge with the OCRC. The record is devoid as to any proof that the OCRC was ever notified that a charge was filed with the Equal Employment Opportunity Commission (EEOC). Therefore, in light of plaintiff’s failure to commence state proceedings as mandated by 29 U.S.C. § 633(b), this Court lacks jurisdiction over the subject matter of this Complaint. Accordingly, this Court holds this action in abeyance while the plaintiff files his charge with the OCRC. Oscar Mayer and Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979); Simpson v. Whirlpool Corp., 604 F.2d 997 (6th Cir.1979).

IT IS SO ORDERED.


text:
    Wilma J. GRANT, Plaintiff, v. ARA SERVICES, INC., et al., Defendants.
    No. C-3-84-478.
    United States District Court, S.D. Ohio, W.D.
    Sept. 27, 1985.

      Christine Lobas Magee, Miamisburg, Ohio, Deborah K. Badonsky, Dayton, Ohio, for plaintiff.
    Jonas B. Katz, Cincinnati, Ohio, for defendant Union.
    John A. Cumming, Dayton, Ohio, for defendant ARA Services.
    Richard C. Brooks, Dayton, Ohio, for defendant Gwen Chenoweth.
   DECISION AND ENTRY SUSTAINING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (DOCS. # 29, 31, 34); TERMINATION ENTRY

RICE, District Judge.

This case comes before the .Court for resolution of the Motions for Summary Judgment filed by the remaining Defendants in this case, Hotel Employees and Restaurant Employees Local 70, ARA Services, Inc., and Gwen Chenoweth (Docs. # 29, 31 and 34).

This case is brought under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Plaintiff Wilma J. Grant claims her employer, ARA Services, Inc., breached the collective bargaining agreement governing her employment in discharging her and that her Union, Hotel Employees and Restaurant Employees Local Union No. 70 (“the Union”) breached its duty of fair representation in the handling of her grievance. Plaintiff also invokes the pendent jurisdiction of this Court for her claim against Defendant Chenoweth.

Even though Plaintiff has not exhausted her contractual remedies, she may be excused from this failure if she can show that the Union failed to fairly represent her in processing her grievance. Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). The Union can be found to breach its duty of fair representation to a member when its conduct towards that person is arbitrary, discriminatory or in bad faith. Poole v. Budd Company, 706 F.2d 181, 183 (6th Cir.1983). If a union handles an employee grievance in a perfunctory manner, it can be held liable for breaching its duty of fair representation. Poole, 706 F.2d at 183; Farmer v. ARA Services, Inc., 660 F.2d 1096 (6th Cir.1981). Mere negligence, however, is insufficient to establish a breach of the duty of fair representation. Gross mistake or inaction which has no rational explanation may, on the other hand, constitute a breach of the duty of fair representation. Poole, 706 F.2d at 184.

In exploring the type of union conduct which has been found to be arbitrary and thus a breach of the duty of fair representation, the Court notes that unexplained union action which substantially prejudices a member’s grievance may be-sufficiently arbitrary to be considered unfair representation. Ruzicka v. General Motors Corp., 649 F.2d 1207, 1211 (6th Cir.1981). Arbitrariness may be found if the union accepts an employer’s version of an employee’s inability to work, and fails to investigate the employee’s own claim that he is able to work. Wyatt v. Interstate & Ocean Transport Company, 623 F.2d 888, 891 (4th Cir.1980); see Minnis v. International Union, 531 F.2d 850, 853 & n. 5 (8th Cir.1975). A union’s failure to properly investigate a grievance and to interview pertinent witnesses may be unfair representation. Monroe v. International Union, UAW, 540 F.Supp. 249, 254 (S.D.Ohio 1982), affd, 723 F.2d 22 (6th Cir.1983). Simply put, a Union must give a member the opportunity to participate in the grievance process. Miller v. Gateway Transportation Co., Inc., 616 F.2d 272, 277 (7th Cir.1980). Plaintiff urges the Court, in her memorandum contra Defendant’s Motions for Summary Judgment, that genuine issues of material fact exist as to whether the Union acted perfunctorily and arbitrarily in the handling of her grievance.

Plaintiff was discharged for dishonest conduct by her employer, Defendant ARA Services, Inc., on August 3, 1983. On August 2, 1983, Plaintiff’s supervisor, Defendant Chenoweth, observed Plaintiff remove four five-dollar bills from her cash register at Monarch Marketing. A video tape recording of Plaintiff’s conduct at her cash register was subsequently undertaken by means of hidden cameras. Defendant Chenoweth later found eleven dollars stuffed under the cash tray of Plaintiff’s register. Defendant Chenoweth also charged that, as documented by the tape, Plaintiff had failed to ring up customers on her register after they paid her for their meals. Plaintiff was discharged the following morning, August 3, 1983.

With the assistance of Union personnel, Plaintiff filed a grievance to protest her discharge. The Union pursued said grievance through the various levels of grievance proceedings without obtaining Plaintiff’s reinstatement. Plaintiff was asked whether she wanted to settle the grievance at that juncture or to try for reinstatement through arbitration. Before making that decision, Plaintiff went out of town, and did not contact the Union. Union representatives went ahead and submitted Plaintiff’s case to their Executive Board to determine whether or not to pursue the grievance through arbitration. The Executive Board decided not to take Plaintiff’s case to arbitration, and sent her a letter informing her of its decision.

The materials submitted by both Plaintiff and Defendants indicate to this Court that the Union adequately investigated Plaintiff’s case and determined that her discharge did not warrant arbitration.

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

(1) Failing or refusing to investigate charges against Plaintiff, including failure to interview witnesses;
(2) Failing or refusing to permit Plaintiff an opportunity to view and rebut the evidence against her;
(3) Failing or refusing to rebut inaccurate company evidence against Plaintiff; and
(4) Failing or refusing to recommend Plaintiff’s grievance for arbitration.

(Doc. # 1 at ¶ 21).

Contrary to Plaintiff’s assertions, Union representatives did not simply accept Plaintiff’s employer's version of her discharge, as was the case in Wyatt, 623 F.2d at 891. Rather, they did conduct their own investigation, which included interviewing Plaintiff. Union representatives viewed the tape of Plaintiff’s conduct on the day before her discharge. They asked and received permission to examine a cash register similar to that which Plaintiff had used in order to compare or verify allegations which had been made about the money found wedged behind the drawer of Plaintiff’s cash register. Union representatives also examined cash register tapes and food production sheets to investigate the charge that the average check was smaller when Plaintiff operated the cash register than when other employees performed the job.

At her initial grievance hearings, Plaintiff was unable to provide an explanation of her work performance on the date at issue, or to explain the missing five dollar bills or the money found folded behind her cash drawer. She also indicated that she could think of no witnesses who could contradict her supervisor’s charges of dishonesty. Union representatives then requested that Plaintiff meet with them again. After some delay on Plaintiff’s part, the meeting was held. The tape and the allegations of Plaintiff’s former supervisor were again discussed with Plaintiff. Plaintiff continued to be unable to explain her conduct as seen on the video tape. The Union representatives asked Plaintiff once more for aid in finding witnesses or otherwise contesting her former employer’s version on the date in question. Plaintiff was unable to provide any such assistance.

Plaintiff now contends that the Union failed to properly investigate her grievance, in that they did not allow her the opportunity to view the tape with them during the course of the grievance proceedings. Plaintiff also points to the Union’s failure to interview those customers, shown on the tape, whose meal charges Plaintiff was alleged not to have rung up on August 2, 1983. These contentions notwithstanding, the Court notes that the Union gave Plaintiff several opportunities to rebut her former supervisor’s charges of dishonesty and Plaintiff failed or was unable to do so. As noted by the Court in Haupt v. Michigan Bell Telephone Company, 599 F.Supp. 265, 269 (E.D.Mich. 1984), it is difficult to fault the Union for not investigating further than they did when Plaintiff, who knew the most about the circumstances of her work on August 2nd, could not and did not attempt to explain the inaccuracies which she believed to exist in the allegations of her dishonesty. Plaintiff now suggests that the Union should have interviewed the customers whom she served on that date, but Plaintiff apparently never mentioned this avenue of inquiry to the Union during the course of the grievance proceedings. With respect to the tape, Plaintiff’s deposition, at best, reveals that she was doubtful that such a tape even existed, and that she would “like to see it if they had one.” (Grant deposition, p. 71). The record provides no indication that Plaintiff demanded to see the tape and that Union representatives refused to let her see it or to prod Monarch personnel into allowing her to have access to it.

The investigation of the Plaintiff’s grievance by the Union may not have been perfect. Even, however, if the Union’s judgment was flawed, in that they may have produced a meritorious argument or favorable witness had Plaintiff viewed the tape with them, the record conclusively demonstrates that the Union adequately evaluated and investigated Plaintiff’s claim. As noted supra, an employee must show more than mere negligence or mistaken judgment to establish a breach of the duty of fair representation. The grievance process is not expected to be error-free, and courts must hesitate to interfere with legitimate internal union decisions which, fairly evaluate whether a claim warrants resort to the arbitral machinery. Poole, 706 F.2d at 184. Plaintiff had been given a warning for unsatisfactory performance, which included being short of cash in her register without explanation, just prior to the date of her discharge. Plaintiff recalled receiving at least one other such warning in mid-1982. (Grant deposition at pp. 6-7). The Union, having investigated, was unable to adequately explain Plaintiff’s conduct on the date in question. Their conclusion that arbitration would not be fruitful had a rational basis and thus is not, without more, a breach of the duty of fair representation. Vaca, 386 U.S. at 191, 87 S.Ct. at 917; Poole, 706 F.2d at 184.

For these reasons, the Motion for Summary Judgment filed by Defendant Hotel Employees and Restaurant Employees Local No. 70, is sustained (Doc. # 29). As a finding of a breach of the duty of fair representation is essential to Plaintiff’s claim against her employer, Defendant ARA Services, Inc., is likewise entitled to summary judgment in its favor (Doc. # 31).

In the absence of a federal cause of action in this case, the Court declines to extend pendent jurisdiction to the claim of slander alleged by Plaintiff against Defendant Chenoweth, and Defendant Chenoweth’s Motion for Summary Judgment is sustained on this basis. (Doc. # 34). United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The Court believes that the Ohio Savings Statute, Ohio Rev.Code § 2305.19, will permit Plaintiff to maintain this claim in state court despite the fact that the one-year statute of limitations, Ohio Rev. Code § 2305.11, applicable to claims of slander has expired. See Harris v. City of Canton, 725 F.2d 371, 375 (6th Cir.1984); Cero Realty Corp. v. American Manufacturers Mutual Ins. Co., 171 Ohio St. 82, 167 N.E.2d 774 (1960).

The Court believes the requirements for invocation of the Ohio Savings Statute to have been met in this case. Plaintiff’s action was timely filed in this Court for purposes of the one-year limitation of Section 2305.11. Cero, 167 N.E.2d at 777. As for whether dismissal for lack of pendent jurisdiction is “otherwise than upon the merits,” the Ohio Supreme Court’s interpretation of that phrase indicates that the test is whether the dismissing court reached the substance of a plaintiff’s claim. Id. A dismissal in federal court for lack of diversity has been held to have been “otherwise than upon the merits” for purposes of a timely re-filing in state court pursuant to the Ohio Savings Statute. Wasyk v. Trent, 174 Ohio St. 525, 191 N.E.2d 58 (1963). Dismissal for lack of pendent jurisdiction likewise pays no heed to the merits of a claim, but rather reflects notions of comity and judicial economy. Thus, should Plaintiff so choose, her claim of slander would appear to be viable in state court for one year after the entry of judgment by this Court pursuant to Section 2305.19.

The instant case is hereby ordered terminated upon the docket records for the United States District Court for the Southern District of Ohio, Western Division at Dayton.

      . To the extent that Plaintiff also claims that Union Representative Ruth Rhoden was hostile to her, the Court notes that Plaintiffs displeasure with Rhoden was based solely on a perception that "every grievance that was filed went for the company.” (Grant deposition, p. 37). When questioned further, Plaintiff stated that she and Rhoden got along. Plaintiff could not articulate a reason why Rhoden might not have advocated Plaintiffs position in the grievance procedure. Id.

        . The tape in question was in the possession of Monarch Marketing, which had contracted with Defendant ARA Services, Inc., for the services of Plaintiff.


text:
    Floyd MATTSON, Arbadella G. Brandner, and Laurie M. Crevier, on their own behalf and on behalf of all others similarly situated, Plaintiffs, and Dorothy L. Roy, Intervenor, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. No. A1-84-53.
    United States District Court, D. North Dakota, Southwestern Division.
    Sept. 30, 1985.

      Edwin W.F. Dyer, II, Duane Houdek, Legal Ass’t of No. Dak., Bismarck, N.D., for plaintiffs.
    Jerome C. Kettleson, Ass’t U.S. Atty., Bismarck, N.D., for defendant.
   MEMORANDUM AND ORDER

VAN SICKLE, Senior District Judge.

This is an action for review of decisions denying disability benefits under the Social Security Act. By order dated August 2, 1984, this court denied Plaintiffs’ motion for class certification. That order also denied cross motions for summary judgment. The order of August 2, 1984 was affirmed on reconsideration by order dated December 31, 1984.

On November 16, 1984, Defendant again moved for summary judgment. On December 17, 1984, Plaintiffs again moved for summary judgment. Since the filing of those motions and briefs in support of those motions, both parties have filed several “Notices of Significant Decisions” as other courts have decided issues similar to those raised in this case.

This order is addressed to the pending cross motions for summary judgment.

FACTS

Each of the plaintiffs applied for and was denied disability benefits under the Social Security Act. Each alleges that the denial was erroneous. The central issue presented by each of the plaintiffs is whether the Secretary’s practice of “sequential evaluation” is valid. Under that practice, an applicant cannot receive benefits unless she or he is first determined to be “severely disabled.” The determination of whether an applicant is “severely disabled” is made without regard to factors such as age, education, and work experience. The claim of each of the plaintiffs was denied because the Secretary determined the “severely disabled” standard was not met. Each of the plaintiffs alleges that, if her or his disability were found to be “severe,” she or he would meet each of the other requirements for receiving disability benefits.

DISCUSSION

Regulations promulgated by the Secretary set out a sequential process for evaluation of disability claims under the Social Security Act. See 20 C.F.R. §§ 404.1520, 416.920 (1985). A finding of “not disabled” at any one of the steps terminates consideration of the application. 20 C.F.R. § 404.-1520(a) (1985).

The sequential process involves the following steps:

1). A determination of whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 404.-1520(b) (1985).
2) . A determination of whether the claimant’s impairment is “severe,” without consideration of the claimant’s age, education, or work experience. 20 C.F.R. § 404.1520(e) (1985).
3) . If the impairment is considered to be “severe,” a determination of whether the claimant’s impairment is listed in Appendix 1 of the Secretary’s regulations. 20 C.F.R. § 404.1520(d) (1985). If the impairment is listed, the claimant is considered disabled.
4) . If the impairment is considered to be “severe,” but is not listed in Appendix 1 of the Secretary’s regulations, a determination of whether the claimant can do past relevant work. 20 C.F.R. § 404.-1520(e) (1985).
5) . A determination of whether, considering the claimant’s residual functional capacity, age, education and past work experience, the claimant can perform any other work. 20 C.F.R. § 1520(f) (1985).

It is the second step in the process which Plaintiffs challenge.

The Social Security Act (the Act) includes the following definition of “disability”:

[I]nability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

42 U.S.C. § 423(d)(1)(A). The Act further provides:

For purposes of paragraph (1)(A)—
[A]n individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy____

42 U.S.C. § 423(d)(2)(A).

The Secretary argues that she has the authority, under the Act, to deny disability benefits to persons who do not have a physical or mental impairment that is “severe” under her definition of that term. Plaintiffs argue that since the Secretary’s determination on the question of severity is, under the regulations as promulgated, made without regard to the claimant’s ability to perform substantial gainful activity, claimants who are in fact unable to perform substantial gainful activity are denied disability benefits.

A number of courts have recently considered the validity of the “severity regulation” as applied. In Stone v. Heckler, 752 F.2d 1099 (5th Cir.1985), the Fifth Circuit concluded that the Secretary’s construction of the “severity regulation” rendered the regulation invalid because it denied benefits to persons who are disabled within the meaning of section 423(d). The court stated:

The ultimate object of this statute, by its own definition, is to provide assistance for that person who is unable “to engage in any substantial gainful activity.” 42 U.S.C. § 423(d)(a). To ensure that only those truly unable to work receive benefits, Congress has added the requirement of a medically determinable physical or mental impairment of twelve months’ duration and specified that the impairment must either prevent the applicant from continuing his or her previous work or performing other gainful work — taking into consideration that person’s age, education, and work experience. If we read this statute to authorize the Secretary to deny “disability” to a claimant suffering a physically or mentally disabling impairment, and for that reason unable to engage in substantial gainful work, whenever the Secretary is not satisfied with the “severity” of the impairment, we would be holding contrary to the expressed Congressional purpose and rewriting the statute to leave the determination of disability solely to the Secretary’s discretion about severe impairments. We can find no justification in the statutory language, nor in the history of this legislation, for the Secretary’s position.

Id. at 1104.

In reaching its decision, the Stone court considered the legislative history of the 1984 amendments to the Act:

Under current policies, if a determination is made that a claimant’s impairment is not severe, the consideration of the claim ends at that point---- [I]n the interests of reasonable administrative flexibility and efficiency, a determination that an individual is not disabled may be based on a judgment that an individual has no impairment, or that the medical severity of his impairment or combination of impairments is slight enough to warrant a presumption, even without a full evaluation of vocational factors, that the individual’s ability to perform [substantial gainful activity] is not seriously affected. The current “sequential evaluation process” allows such a determination and the conferees do not intend to either eliminate or [to] impair the use of that process. The conferees note that the Secretary has stated that it is her plan to reevaluate the current criteria for nonsevere impairments and expect that the Secretary will report to the Committees on the results of this evaluation. [Conference Rep., H.R. 3755, 98th Cong., 2d Sess., 130 Cong.Rec. 9821-39 (1984)]. The prevailing idea, then, among the courts and Congress, is that some impairments are so slight that the ability of the claimant to work can be decided without a full evaluation of vocational factors. The factfinder is entitled to follow a sequential process that disposes of those cases at that early stage. But it is impermissible to make that disposition on the basis of a standard of severity that denies disability benefits to claimants who are in fact unable to perform substantial gainful activity.

752 F.2d at 1102. (Emphasis added.)

In Baeder v. Heckler, 768 F.2d 547 (3rd Cir.1985), the Third Circuit adopted the same position as had the Fifth Circuit in Stone. The Third Circuit observed:

The Act defines a disability as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. [42 U.S.C.] § 423(d)(1)(A). It goes on to state that a “ ‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” [42 U.S.C.] § 423(d)(3). Thus, on its face, the statute provides for benefits for any person who cannot work due to any medically determined problem. It therefore appears to require consideration of both medical and vocational factors.

Id. at 551. In concluding that the “severity regulation” was invalid as applied by the Secretary, the court stated:

We believe that section 1520(c) of the regulations does more than allow the Secretary to deny benefits summarily to those applicants with impairments of a minimal nature which could never prevent a person from working. It also allows the Secretary to bypass a full-scale evaluation, which would consider and relate both medical and vocational factors, of an applicant who might actually be entitled to benefits were his age, education and work experience considered. We cannot analyze the severity regulation except according to its plain language and the manner in which the Secretary uses it. We will not rewrite the regulation to make it conform to the statutory mandate, although other courts have directed the Secretary to apply the regulation only to bar the claims of those with de minimis medical complaints. [Citations omitted]. As it stands, we hold that the severity regulation, 20 C.F.R. § 404.1520(c), is inconsistent with the Social Security Act, and therefore, is invalid.

Id. at 553.

In Johnson v. Heckler, 769 F.2d 1202 (7th Cir.1985), an Illinois class action, the court enjoined the Secretary from enforcing the “severity regulation.” In reaching its conclusion, the court rejected the Secretary’s argument that the legislative history of the 1984 amendments to the Act supported her position:

Step two of the sequential evaluation process was not, however, the focal point of the 1984 Amendment, contrary to the Secretary’s sweeping assertions. To the extent that Congress in the 1984 Amendment addressed step two, Congress disapproved of the Secretary’s “severity” regulations and relied on the upcoming revision of the evaluation process to remedy its disapproval:
The Committee is concerned that the consideration of eligibility for disability benefits be conducted using criteria that clearly reflect the intent of Congress that all those who are unable to work receive benefits. It is of particular concern that the Social Security Administration has been criticized for basing terminations of benefits solely and erroneously on the judgment that the person’s medical evaluation is “slight,” according to very strict criteria, and is therefore not disabling, without making any further evaluation of the person’s ability to work.
The Committee believes that in the interests of reasonable administrative flexibility and efficiency, a determination that a person is not disabled may be based on a judgment that the person has no impairment, or that the impairment or combination of impairments are slight enough to warrant a presumption that the person’s work ability is not seriously affected. The current “sequential evaluation process” allows such a determination, and the committee does not wish to eliminate or seriously impair use of that process. However, the Committee notes that the Secretary has already planned to reevaluate the current criteria for non-severe impairments, and urges that all due consideration be given to revising those criteria to reflect the real impact of impairments upon the ability to work.
[Citations omitted]. The House Report reflects a Congressional suspicion that the Secretary’s step two regulations did not comport with the original intent of the Social Security Act, but stops short of condemning the regulations, relying instead on the Secretary’s promised reevaluation of the regulations. The suspicion evidenced in the House Report’s analysis of step two is derivative of the general purpose of the 1984 Amendment, which was to help “insure that no beneficiary loses eligibility for benefits as a result of careless or arbitrary decision making by the Federal government.” ...

Id. at 1211.

Other Courts of Appeals have, at the least, questioned the validity of the “severity regulation.” In Chico v. Schweiker, 710 F.2d 947 (2d Cir.1983), the Second Circuit found it unnecessary to “resolve the ... close question of the validity of the ‘severity’ regulation.” Id. at 953. In Brady v. Heckler, 724 F.2d 914 (11th Cir.1984), the Eleventh Circuit endorsed a more narrow definition of a “non-severe” impairment than the Secretary’s regulations imply:

An impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education, or work experience.

Id. at 920. In Valencia v. Heckler, 751 F.2d 1082 (9th Cir.1985), the Ninth Circuit described a two step process to determine whether a Social Security claimant is disabled:

First, it must be determined whether the applicant can perform his “previous work.” If not, the Secretary must then determine whether the claimant can engage in other, less demanding, work which exists in the national economy.

Id. at 1086. The two step process as described above is not consistent with the Secretary’s sequential evaluation process.

The Sixth Circuit has taken a contrary position and has upheld the validity of the “severity regulation.” In Gist v. Secretary of Health and Human Services, 736 F.2d 352, 357 (6th Cir.1984), a panel of the Sixth Circuit stated:

We find no merit in Gist’s contention that the sequential procedure for evaluating disability, under which no further inquiry is necessary if a claimant is determined not to have a severe impairment, see 20 C.F.R. § 416.920(a) (1983), is improper. The requirement that an impairment be severe flows directly from the statute. See 42 U.S.C. § 1382c(a)(3)(B). Since the severe impairment requirement is an absolute one, in that if a claimant lacks a severe impairment he can receive benefits under no conceivable set of facts, there is no need for the Secretary to consider other factors, such as age, education, and vocational skills, if this crucial element is lacking. .

The Sixth Circuit is apparently the only circuit that has expressly approved the validity of the “severity” regulation.

The Eighth Circuit has expressly reserved a decision on the validity of the “severity regulation.” McCoy v. Schweiker, 683 F.2d 1138, 1145 n. 6 (8th Cir.1982).

The Secretary has cited, in support of her position, a decision issued in another division of this district. Laughery v. Heckler, 628 F.Supp. 11 (D.N.D. 1985). Though that decision implied the “severity regulation” was valid, it is not clear that the regulation itself was challenged in that case as it is in the instant case.

Based on the decisions of the Third, Fifth, and Seventh Circuits, this court concludes that the “severity regulation,” 20 C.F.R. § 404.1520(c) (1985), is invalid as inconsistent with the Social Security Act.

Because the Secretary’s decision on the application of each of the plaintiffs was based on the “severity regulation,” it is necessary to remand each of the cases to the Secretary for further proceedings. On remand, the Secretary is instructed to consider the application of each of the plaintiffs without regard to 20 C.F.R. § 404.-1520(c) (1985).

Because Plaintiffs’ briefs on the instant motion do not address the claim of Plaintiff Laurie M. Crevier, this court will not address its order to her claim.

CONCLUSION

For the foregoing reasons, IT IS ORDERED:

1) . Defendant’s motion for summary judgment is denied.
2) . The claims of Floyd Mattson, Arbadella G. Brandner, and Dorothy L. Roy are remanded to the Secretary for further proceedings consistent with this order.
3) . Plaintiffs shall show, cause, if any there be, why the claim of Plaintiff Laurie M. Crevier should not be dismissed.