author: KANE, District Judge.

text:
    Gregory Phillip GARCIA, Plaintiff, v. Dan WYCKOFF, et al., Defendants.
    Civ. A. No. 84-K-530.
    United States District Court, D. Colorado.
    July 15, 1985.

      David Graham, Graham & Graham, San Luis, Colo., for plaintiff.
    David J. Bruno, Bruno, Bruno & Colin, P.C., Lakewood, Colo., for Wyckoff and Scanlan.
    Carl R. Mangino, Asst. City Atty., Denver, Colo., for City and County of Denver.
    Theodore S. Halaby, Denver, Colo., for all defendants.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This is a civil rights action for damages and declaratory and injunctive relief. It is difficult to conceive of how a complaint could be more poorly drafted. On March 2, 1982, detective Dan Wyckoff, a Denver police officer, shot plaintiff Gregory Garcia as he eluded Wyckoff in a foot chase following his arrest. Plaintiff alleges that Wyckoff violated his civil rights by using excessive force in apprehending him. He also avers that police officer M.J. Scanlin deprived him of his constitutional rights when Scanlin purportedly concealed Wyckoff’s actions and intimidated plaintiff. In addition to these civil rights claims, Garcia purportedly asserts pendent state claims for relief against the City and County of Denver, former Denver Police Chief Art Dill, and current Chief Thomas Coogan, alleging negligence in failing adequately to supervise, train, discipline and control Wyckoff in the use of a deadly weapon. Wyckoff and Scanlin filed crossclaims against the City and County of Denver.

Two pending motions are now before the court: defendant City and County of Denver’s motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12 and plaintiff’s motion for partial summary judgment pursuant to Fed.R.Civ.P. 56. Having carefully reviewed the parties’ briefs and motions, as well as the entire file, I am now prepared to rule.

BACKGROUND

On March 2, 1982, a Greenwood Village police officer observed plaintiff sitting in a stolen car. The officer approached the car and plaintiff fled. Following a 20 minute foot chase, Denver police detectives Dan Wyckoff and Chuck Friend caught Garcia and arrested him for suspicion of auto theft and burglary. At the time of his arrest, Garcia wore only tennis shorts and shoes. Wyckoff and Friend handcuffed plaintiff, placed him in the back of their unmarked police car, and drove to Cherry Creek High School where the Greenwood Village police officer identified Garcia as one of two suspects who ran from the stolen car. At the high school, plaintiff complained to Wyckoff that the handcuffs were cutting off the circulation in his hands, so the detective loosened them.

Wyckoff and Friend then proceeded to take plaintiff to Denver police headquarters. Before they arrived, however, plaintiff escaped. While the police car stopped for a traffic light near the intersection of Alameda and Lincoln, plaintiff slipped one hand out of the handcuff, opened the door and fled. As he crossed Lincoln Street, Garcia was hit by a car. He got up and continued running. Wyckoff chased him through several backyards, down an alley and over fences. In the course of the chase, Wyckoff fired two shots at plaintiff. Although the first shot missed him, the second shot hit Garcia on the left side. He suffered a superficial gunshot wound that was treated at Denver General Hospital. Following his release from the hospital four hours later, Garcia was taken to Denver County Jail. He avers that defendant Scanlin questioned him at approximately 6:00 a.m. the next day and made promises of benefits and medication in exchange for signing a confession.

DISCUSSION

I

Before I can reach the merits of either pending motion, preliminary pleading problems require resolution. Specifically, the statutory bases for maintaining the civil rights claims are not clear. The complaint states in the “jurisdiction” paragraph that this action is brought “pursuant to 42 U.S.C. 1981, 1983, 1985, 1986 and 1988 and the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution.” (para. 1, complaint). The only cause of action that purports to aver violations of plaintiffs civil rights, however, is the first one. There plaintiff alleges that Scanlin concealed acts of Wyckoff and intimidated plaintiff, that Wyckoff unlawfully harmed plaintiff while acting under color of his authority, that defendants subjected plaintiff to cruel and unusual punishment, and that Wyckoff and Scanlin violated “plaintiffs fourteenth amendment rights to be secure in his person, to be free from punishment without due process, and to equal protection of the laws.” (para. 31, complaint).

Contrary to plaintiff’s statement that this is a §§ 1981, 1983, 1985, 1986 and 1988 action, I find that, at best, it is only a § 1983 action. Plaintiff fails to state adequate claims for relief under 42 U.S.C. §§ 1981, 1985, 1986 and 1988. A § 1981 action requires at least an accusation of intentional discrimination. There is no such allegation in the complaint. See Arnold v. Ballard, 448 F.Supp. 1025 (N.D. Ohio 1978). As I explained in Sager v. City of Woodland Park, 543 F.Supp. 282, (D.Colo.1982), “[t]o state a claim under 42 U.S.C. § 1985(3), a complaint must allege five elements:

(1) a conspiracy; (2) motivated by “racial or perhaps otherwise class-based individious discriminatory animus”; (3) “for the purpose of depriving either directly, or indirectly, any person or class of persons of equal protection of the laws, or equal privileges and immunities under the laws”; (4) that the conspirator committed some action in furtherance of the conspiracy; and (5) that the plaintiff was either “injured in his person or property” or was “deprived of having and exercising any right or privilege of a citizen of the United States.” ” Id. at 291.

See Griffin v. Breckenridge, 403 U.S. 88, 102-103, 91 S.Ct. 1790, 1798-1799, 29 L.Ed.2d 338 (1971). Garcia neither alleges a conspiracy nor discrimination of any kind, let alone invidious discrimination.

The complaint also fails to state a claim under § 1986. It is well established that if a plaintiff is unable to state a claim under § 1985, then a derivative claim under § 1986 must fail as well. Mollnow v. Carlton, 716 F.2d 627 (9th Cir.1983), cert. denied — U.S. —, 104 S.Ct. 1595, 80 L.Ed.2d 126; Buchanan v. Sowa, 592 F.Supp. 1009 (D.Ohio 1984). Finally, I reject plaintiff’s reliance upon 42 U.S.C. § 1988 as an independent basis for maintaining this civil rights action. That section is only intended to complement those Acts which create federal causes of action. Section 1988 neither creates an “act of Congress providing for the protection of civil rights within the meaning of 28 U.S.C. § 1343”, Moor v. Alameda County, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), nor grants a district court subject matter jurisdiction. Barr v. United States, 478 F.2d 1152 (10th Cir.1973), cert. denied 414 U.S. 910, 94 S.Ct. 233, 38 L.Ed.2d 148. Accordingly, all claims purportedly filed by plaintiff pursuant to 42 U.S.C. §§ 1981, 1985, 1986 and 1988 are hereby dismissed for failure to state a claim upon which relief can be granted.

This leaves only 42 U.S.C. § 1983, which provides that

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress____

In order to establish a claim under 42 U.S.C. § 1983, plaintiff must show that some person deprived him of a federal right while acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Because § 1983 creates no substantive rights, where a complaint fails to allege a deprivation or violation of a protected right, the cause of action must be dismissed.

Here Garcia maintains that Scanlin violated his constitutional rights by concealing Wyckoff's acts, intimidating plaintiff, and punishing plaintiff. I am not persuaded that any of these charges rise to the level of a violation of any of plaintiffs constitutional rights. Plaintiff alleges legal conclusions without stating any factual bases or grounds for his assertions. Consequently, I dismiss the first cause of action as it relates to Scanlin. Insomuch as this is the only claim for relief against Scanlin, he is dismissed from the lawsuit.

The only civil rights claim over which this court has jurisdiction is plaintiffs allegation that Wyckoff violated Garcia’s civil rights under § 1983. Plaintiff urges that Wyckoff deprived him of his “right to be free from excessive force in his apprehension—presumably a right secured by the fourth and fourteenth amendments.” City of Oklahoma City v. Tuttle, — U.S. —, —, 105 S.Ct. 2427, 2432, 85 L.Ed.2d 791 (1985). With this confusion clarified, I turn now to the pending motions.

II

A. Defendant City and County of Denver’s motion for judgment on the pleadings.

The City and County of Denver seeks dismissal because plaintiff failed to allege federal jurisdiction over it. The only claim for relief asserted- against it relates to negligent training of police officers; and plaintiff never established the jurisdictional grounds for maintaining such a cause of action against the city. Plaintiff insists that he properly alleged federal jurisdiction over the city in connection with the civil rights claims.

I agree with the City and County of Denver. The only reasonable construction of this inartfully drafted complaint is that the civil rights claims only involve defendants Wyckoff and Scanlin. (See first cause of action). If plaintiff intended to assert a § 1983 claim for negligent training of police officers, see Tuttle, supra, then he should have done so expressly. Notice pleading requires something more than shadow-like images of claims for relief. Plaintiff had an affirmative obligation to put the city on notice that he is asserting a § 1983 action against it. He failed to do so.

I further find that plaintiff fails to allege proper jurisdiction over the pendent state claims against the city. The complaint states that “jurisdiction is found in 28 U.S.C. § 1331 and 1343, 42 U.S.C. § 1988, and in the United States Constitution. There are also pendent state causes of action.” This is the only reference to jurisdiction in the complaint. I find that it is woefully inadequate. Plaintiff fails to identify not only the basis for asserting pendent jurisdiction, but more importantly, the specific claims subject to this form of jurisdiction. A casual reference to the existence of pendent state causes of action is insufficient to establish jurisdiction over specific causes of action. I therefore grant the City and County of Denver’s motion and dismiss plaintiffs negligence claims against the city.

Defendants Dill and Coogan are identically situated to the City and County of Denver with respect to this jurisdictional shortcoming. Specifically, the only claims for relief asserted against them are pendent state claims for relief for negligence. This court does not have jurisdiction over those claims. I dismiss plaintiffs negligence claims against Dill and Coogan, sua sponte, for the same reasons. Dill and Coogan are not named as parties in the crossclaims and are therefore dismissed from the lawsuit.

Even if I were to ignore numerous lacunae in the pleadings, I would still not allow the case to continue against these defendants under the doctrine of pendent jurisdiction. The doctrine gives this court the power to entertain pendent claims when the state and federal claims “derive from a common nucleus of operative fact.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). However, the power need not be exercised in every case as the doctrine is one of discretion not of right. Gibbs, supra at 726, 86 S.Ct. at 1139 (1966). Here, the “common nucleus of operative fact” connecting training with actual performance is at best tangential. I exercise my discretion and deny pendent jurisdiction. Accordingly, I hold that plaintiffs negligence claims against defendants City and County of Denver, Dill and Coogan should be dismissed for lack of subject matter jurisdiction under the doctrine of pendent jurisdiction.

Finally, even if there were in fact a § 1983 claim for negligent training of officers against the city, it would have to be dismissed for failure to state a claim upon which relief can be granted. In Tuttle, supra the Supreme Court defined the contours of § 1983 actions against municipalities and thereby reaffirmed the Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) requirement that municipal liability under § 1983 can only be imposed for injuries inflicted pursuant to government “policy or custom.” The complaint is void of any allegation that government policy or custom caused these alleged constitutional violations and consequently fails to state such a § 1983 claim against the City and County of Denver.

B. Plaintiffs motion for partial summary judgment.

Garcia moves for partial summary judgment arguing that there are no genuine issues of material fact surrounding two issues: whether Wyckoff used excessive force in shooting plaintiff and whether good-faith immunity is available to Wyckoff as an affirmative defense. Defendants maintain that the question of excessive force is a factual question that cannot be determined as a matter of law and is therefore inappropriate for summary judgment. Defendants also contend that Wyckoff is entitled to raise a qualified immunity defense.

The first question raised is whether Wyckoff’s excessive use of force was unreasonable and illegal as a matter of law. Plaintiff suggests that the United States Supreme Court recently decided this issue in Tennessee v. Garner, — U.S. —, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), when it held that

[wjhere the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. Id. at —, 105 S.Ct. at 1711.

In Garner, the majority of the Supreme Court declared that “a police officer may not seize an unarmed, non-dangerous suspect by shooting him dead,” and found the Tennessee statute unconstitutional “insofar as it authorizes the use of deadly force against such fleeing suspects.” Id. at —, 105 S.Ct. at 1700. While I agree with defendants’ assertion that the Court’s specific ruling is limited to deadly force that is intended and in fact produces death, I disagree with defendants’ position that Gar ner is not instructive. The Court’s analysis is relevant to the instant case notwithstanding the fact that Garcia was only injured. See also Acoff v. Abston, 762 F.2d 1543 (11th Cir.1985) (where the court applied Garner retroactively).

The Supreme Court approached the propriety of using deadly force through the fourth amendment. It began by characterizing the use of force by police as a seizure subject to the reasonableness requirements of the fourth amendment. The Garner majority then subjected the seizure or intrusion to a careful balancing test, weighing the “nature and quality of the intrusion on the individual’s fourth amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Id. at — U.S. at —, 105 S.Ct. at 1699. In the context of killing a fleeing suspect, the Court balanced the suspect’s fundamental interest in life against the governmental interests in effective law enforcement and concluded that the use of deadly force is not a “sufficiently productive means of accomplishing them [these goals] to justify the killing of nonviolent suspects.” Id. at —, 105 S.Ct. at 1700.

Because Garcia was only injured, it cannot be said that Garner establishes as a matter of law that Wyckoff’s use of force was unreasonable. Nevertheless, Garcia was the subject of a seizure, and I read Gamer as requiring that the determination of whether Wyckoff’s use of force violated Garcia’s fourth amendment rights be based upon the foregoing balancing test. This is significant because it renders this critical issue a question of law for the court to decide. See e.g., United States v. Burrell, 720 F.2d 1488 (10th Cir.1983) (where the court held that determining whether outrageous police conduct violated due process is a question of law); United States v. Syzcher, 585 F.2d 443 (10th Cir.1978). This inquiry is further simplified by the Supreme Court’s ruling in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), repudiating the subjective prong of qualified immunity in order to make it easier to resolve insubstantial claims by summary judgment. Following Harlow, I must “apply an objective standard of reasonableness in judging the allegations of official misconduct.” Buchanan, supra at 1016.

In balancing Garcia’s interest in being free from intrusive seizures that jeopardize his health against the government’s interest in effective law enforcement, I am persuaded that under the totality of the circumstances, Wyckoff’s conduct was justified and reasonable. In contrast to Garner, the force used did not frustrate society’s interest in judicial determination and guilt. Nor did it abridge Garcia’s fundamental interest in life, a critical factor in the Court’s decision. Moreover, the facts and circumstances preceding Wyckoff’s use of force were substantially different. Garcia had already been lawfully arrested and placed in custody. He then deceived Wyckoff into loosening the handcuffs so that he could escape en route to police headquarters. Despite repeated warnings to stop, plaintiff continued to elude Wyckoff until he was shot. Based upon these important differences, I hold that Wyckoff’s use of force was reasonable and justified and did not violate plaintiff’s fourth amendment rights. Finally, I conclude that no other constitutional rights were violated by Wyckoff’s conduct. See Garner, supra at — U.S. at —, 105 S.Ct. at 1711; Baker v. McCollan, 443 U.S. 137, 144, 99 S.Ct. 2689, 2694, 61 L.Ed.2d 433 (1979) (due process); Bell v. Wolfish, 441 U.S. 520, 538, 99 S.Ct. 1861, 1873, 60 L.Ed.2d 447 (1979) (eighth amendment). I therefore deny plaintiff’s motion for partial summary judgment and dismiss the last remaining claim for relief against Wyckoff. This, in turn, disposes of the entire lawsuit.

Having already dismissed the § 1983 action against Wyckoff, the second part of plaintiff’s motion regarding qualified or good-faith immunity is rendered moot.

IT IS THEREFORE ORDERED THAT:

1. Defendant City and County of Denver’s motion for judgment on the pleadings is granted.

2. Plaintiff’s motion for summary judgment is denied.

3. The entire action is dismissed with prejudice.

4. Defendants shall have judgment for their costs herein.


source: Caselaw Access Project

author: COHN, District Judge.

license: Public Domain

text:
    Frederick SPALLA, Petitioner, v. Dale FOLTZ, Respondent.
    Civ. No. 84-CV-2425-DT.
    United States District Court, E.D. Michigan, S.D.
    July 15, 1985.

      Stuart B. Lev, Asst. Defender, State Appellate Defenders Office, Detroit, Mich., for petitioner.
    Thomas Kulick, Asst. Atty. Gen., Corrections Div., Lansing, Mich., for respondent.
   OPINION AND ORDER

COHN, District Judge.

I.

A.

Petitioner, presently confined to the State Prison of Southern Michigan, challenges his conviction for second degree murder, M.C.L. § 750.317, in habeas corpus, 28 U.S.C. § 2254. His petition includes a 42 U.S.C. § 1983 claim for injunctive and declaratory relief; this claim is subsumed in the decision on the habeas action.

On February 28, 1976 petitioner was convicted by an Oakland County Michigan jury of first degree murder, M.C.L. § 750.316, and sentenced to life imprisonment. The conviction was affirmed by the Michigan Court of Appeals with a dissent, 83 Mich. App. 661, 269 N.W.2d 259 (1978), but reversed by the Michigan Supreme Court for the reasons expressed in the Court of Appeals dissent, 408 Mich. 876, 290 N.W.2d 729 (1980).

On. retrial, on August 28, 1981, Petitioner was again convicted by a jury of first-degree murder and again sentenced to life imprisonment. On March 3, 1983, the Michigan Court of Appeals affirmed the conviction in an unreported opinion. (Docket No. 60683). The Michigan Supreme Court, however, on April 27, 1984, reduced the conviction to second-degree murder because of insufficient evidence of premeditation. M.C.L. § 750.317. 419 Mich. 863, 346 N.W.2d 841 (1984). Petitioner was resentenced on October 2, 1984, to a term of life imprisonment.

B.

The petition before me was filed on July 24, 1984 raising only two issues. On January 16, 1985 I denied the petition and on February 4, 1985 I granted a motion to amend the petition and raise different issues.

II.

A.

Petitioner first argues. that the evidence against him was insufficient to support his conviction as a matter of law. This claim requires that I review the evidence in a light most favorable to the prosecution to see if each element of the crime was established beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). I may not reverse the jury’s verdict if there is substantial evidence to support it. United States v. Chandler, 752 F.2d 1148, 1151 (1985). The evidence must afford a substantial basis from which a fact in issue can reasonably be inferred. Brown v. Davis, 752 F.2d 1142, 1145 (6th Cir.1985). Moreover,

the relevant question for the federal court in the habeas corpus proceeding is not whether it believes the evidence at the state trial established guilt beyond a reasonable doubt, but whether, after viewing the totality of the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Id. at 1147. I must draw all available inferences and resolve all credibility issues in favor of the jury’s verdict. Id. “Only when the record evidence cannot support a finding of guilt beyond a reasonable doubt can we hold that there has been a constitutional denial of due process.” Id. The prosecution need not negate every reasonable theory consistent with innocence. Jackson, supra, 443 U.S. at 326, 99 S.Ct. at 2792; Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

B.

The record showed that on August 20, 1975, at about 7:30 p.m., petitioner and Ronald Furby left Furby’s house just outside Utica, Michigan. They were observed leaving by Steven Bonno who thought the car they left in was a Vega and described it as goldish-colored or coppertone in color. Petitioner told Bonno that the two of them were driving north to Lake Orion. Petitioner was driving a 1974 brownish Dodge Colt he had borrowed from a Ruth Kuehn Briggs. Petitioner had picked up the car from her at 5:30 p.m. in New Baltimore.

At about 7:45 p.m., James Malatesta heard gunshots coming from a cornfield just off of Snell Road west of Rochester, Michigan. This field is directly between Furby’s home and Lake Orion. On investigating, he found Furby’s body. He then heard two car doors slam and then saw a two-door small car drive onto Snell Road. He described the car as having a copperish color. He thought it might be a Nova. Although he said it could have been Briggs’ Dodge Colt, he was not able to positively identify it.

Ruth Spencer, at about 7:50 p.m., while she was driving down Snell Road, she saw “an orange color, not real orange, but ... a definite orange-brown color” pull out of a cornfield and almost hit her and then drive away very quickly. She thought that the car might be a Vega. She too stated that it could have been the Dodge Colt but was not sure.

Bernard Stechschulte, between 7:30 and 8:00 p.m., saw a buff color subcompact car driving down Snell Road very quickly.

Paul McGrath, a friend of petitioner’s, saw petitioner driving eastbound between 8:00 and 8:10 p.m. on Twenty-Four Mile Road by Dequindre Road. Although he knew the car petitioner was in belonged to Briggs, he described it as a brown or tan Opel Cadet. Although he went between fifteen and twenty miles over the speed limit trying to catch up with petitioner, he was unable to do so.

Bonno, Malatesta, Spencer, Stechschulte and McGrath each describe the car they saw as small, two-door, with a sloping roof and generally of the same color.

Petitioner gave the car back to Briggs at her place of work, Lou’s Lounge, in New Baltimore at about 8:30 p.m.

Early the next morning, Oakland County Detective Gregory Putman talked with petitioner. Petitioner admitted picking up Furby at Furby’s house at about 7:30 p.m. in the 1974 Dodge Colt. Petitioner also admitted giving back the car to Briggs in New Baltimore at about 8:30 p.m. Petitioner told Putman that the last he saw of Furby was after he gave the car back to Briggs when he saw Furby walking toward the docks on Lake St. Clair.

A crumpled pack of Marlboro cigarettes was found in the field close to Furby’s body. Furby smoked Kool cigarettes. Petitioner smoked Marlboros. Both Marlboro and Kool cigarette butts were found in the Dodge Colt’s ashtray.

Putman said that it took him fourteen minutes to drive the 8.4 miles from Furby’s house to the cornfield on Snell Road in his eight cylinder car at the speed limit at 5:00 a.m. He also testified that it took him thirty-seven minutes to drive the 25.2 miles between the cornfield on Snell Road to Lou’s Lounge in New Baltimore under the same conditions travelling via Twenty-Four Mile Road.

C.

The proper resolution of petitioner’s first claim involves an analysis of two decisions by the Court of Appeals for the Sixth Circuit. The first is Speigner v. Jago, 603 F.2d 1208 (6th Cir.1979), cert. denied, 444 U.S. 1076, 100 S.Ct. 1023, 62 L.Ed.2d 758 (1980). In that case:

[T]he victim’s automobile was stopped at 5:02 a.m., a few hours after his murder, a short distance from the place where his body was discovered. At that time, blood stains of the victim’s type were in the car; a bloody but unidentified fingerprint was on the door; a sawed-off shotgun was under the passenger’s seat; a vent window was shattered and glass was strewn on the floor. From this evidence, a jury could reasonably infer that the victim’s car might have been at the scene of his murder. When we add to this inference the facts that petitioner was a passenger in the vehicle when it was stopped at 5:02 a.m., that he was seated directly over the shotgun, and that he later admitted knowing both the victim and the driver of the vehicle, we must conclude that the record in this case contains “some” evidence relevant to the elements of second degree murder.

Id. at 1211.

In a two to one decision, the Sixth Circuit found the evidence in Speigner legally insufficient to convict. The prosecution was unable to show how long the petitioner had been in the victim’s car. Moreover, the petitioner was never connected with the shotgun other than by proof that it was under his seat when he was arrested. Further, although the victim died of two pistol shots and one shotgun blast, the shotgun found in the car was never connected with the crime. The Sixth Circuit found the evidence too speculative to be sufficient. See also Fuller v. Anderson, 662 F.2d 420, 424 (6th Cir.1981), cert. denied, 455 U.S. 1028, 102 S.Ct. 1734, 72 L.Ed.2d 150 (1982).

The second Sixth Circuit case involved Speigner’s co-defendant, Scott v. Perini, 662 F.2d 428 (6th Cir.1981), cert. denied, 456 U.S. 909, 102 S.Ct. 1758, 72 L.Ed.2d 167 (1982). In a two to one decision, the Sixth Circuit distinguished Speigner. Unlike Speigner, Scott had given two separate statements to the police and then testified. Each of his versions was different. In the first version he admitted having been with Speigner and the victim just before the murder had occurred. Based on this evidence, the Sixth Circuit said:

The jury could likewise have concluded ... that Scott and Speigner formed a decision to kill [the victim] and either or both of them carried out the plan by shooting [him] with his own pistol, later discarded, and by shooting him in the back of the head with the sawed-off shotgun which was later found in the car in which they were stopped.
* * * * * * *
Under Jackson v. Virginia, supra, the primary emphasis must always be upon that evidence which was in fact presented to the jury. When sufficient evidence is presented from which a jury can conclude guilt beyond a reasonable doubt, it is not for the appellate court to ponder why other evidence was not presented.
* * * * * * *
The permissible inferences from the statements and testimony of Scott place [the victim] in his own car in the presence of both Scott and Speigner at the time of the murder, a circumstance which is altogether missing in evidence presented in Speigner’s trial.

Id. at 434, 435. The Sixth Circuit acknowledged that “mere presence” at the scene is insufficient under Ohio law to convict as an aider and abettor. Scott, however, was placed within a time frame from which the jury could have concluded that Scott, Speigner, and the victim were together. Id. at 434, fn. 8.

D.

I conclude that the facts here more closely resemble Scott than Speigner, i.e. that petitioner killed Furby, see id. at 434. Here, the prosecution failed to show motive. However, in Michigan, as in Ohio, motive is not an element of the crime of murder. People v. Cipriano, 238 Mich. 332, 335, 213 N.W. 104 (1927). The prosecution also failed to show a murder weapon. Petitioner, however, was questioned by the police shortly after the murder. As in Scott, the jury could, have reasonably concluded that petitioner discarded the gun by the time he was questioned.

As in Scott, petitioner and Furby were together just before the murder. Importantly, petitioner admitted being alone with Furby less than half an hour before he was obviously murdered.

Petitioner also lied to Putman when questioned. I do not dispute petitioner’s contention that, standing alone, opportunity combined with a false statement is insufficient. The facts here, however, show substantially more than mere opportunity. Three witnesses gave identification testi mony concerning the car that left the cornfield right after the murder. From this testimony the jury could have reasonably concluded that it was petitioner’s car. In addition, the jury could reasonably have concluded that it was Petitioner’s cigarettes that were found on the scene of the crime. Lastly, petitioner was seen going in a direction from the scene of the crime at a high rate of speed shortly after the victim was discovered and gave a false explanation of the circumstances of their parting.

As in Delk, supra, 665 F.2d at 100, “Much of the evidence was of a type which did not involve credibility or resolution of conflicts.” Although the evidence in the case was mostly circumstantial, the law generally does not distinguish between circumstantial and direct evidence. Scott, supra, 662 F.2d at 434, fn. 7. Based on the evidence at trial viewed in a light most favorable to the prosecution I conclude “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”, Jackson, supra, 443 U.S. at 319, 99 S.Ct. at 2789.

III.

A.

Petitioner next argues that the prosecution, in closing rebuttal argument, adversely commented on his Fifth Amendment right not to testify. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The disputed statements are as follows:

No doubt that when the Defendant shot and killed Ron Furby that the evidence has proven overwhelmingly that he did, he had a reason for doing that, but there was no evidence before you as to what that reason was..
* * * * * *
But when you consider the lack of motive and the lack of evidence, I ask that you consider how that might be proved. Who would know the motive? The killer would know the motive and the evidence is proven that the killer is the Defendant, Frederick Spalla. Yet when Frederick Spalla was questioned about the police, what did he do? He lied to them in every detail, he lied to them. Who else might know the motive? Well, perhaps Ron Furby might. But as the saying goes, dead men tell no tales.
The Defense began their argument by saying the Defendant didn’t kill Ron Furby. Well, weigh all that evidence and then ask yourselves the truth or falsity because that’s the issue. That is the issue, whether or not the Defendant killed Ron Furby.

B.

Because this is a habeas case and not a direct appeal, the inquiry on this issue is less stringent. United States v. Robinson, 716 F.2d 1095, 1099 (6th Cir. 1983), cert. denied, — U.S. —, 104 S.Ct. 722, 79 L.Ed.2d 183 (1984).

A distinction is drawn between a direct comment on the defendant’s right not to testify and on an indirect comment. Raper v. Mintzes, 706 F.2d 161, 164 (6th Cir.1983). If the comment is direct, a conviction will be reversed unless the error was harmless beyond a reasonable doubt. Id. Here, however, the statements were not direct comments on Petitioner’s right not to testify. Consequently, the cases cited by Petitioner, Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir.1979), Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. 1978), and Berryman v. Colbert, 538 F.2d 1247 (6th Cir. 1976), are distinguishable.

In determining whether the argument constitutes an indirect comment on the defendant’s right not to testify, four factors must be analyzed: (1) whether the comments were “manifestly intended” as such and would not naturally and necessarily be taken as such by the jury, Butler v. Rose, 686 F.2d 1163, 1170 (6th Cir.1982), (2) whether the comments were isolated or extensive, (3) whether the evidence of guilt was otherwise overwhelming, and (4) whether curative instructions were given and when. Hearn v. Mintzes, 708 F.2d 1072, 1077 (6th Cir.1983). The reviewing court is to use a probing analysis of the context to resolve the issue. Raper, supra; United States v. Robinson, 651 F.2d 1188 (6th Cir.1981), cert. denied, 454 U.S. 875, 102 S.Ct. 351, 70 L.Ed.2d 183 (1981).

When looked at in their proper context, the prosecution’s statements were not an adverse comment on petitioner’s right not to testify. In closing arguments, petitioner had, among other things, argued that the prosecution’s case was insufficient because it had not proven motive. To a large extent, the prosecution’s arguments were in response. Wide latitude is given a prosecutor in rebuttal argument. Angel v. Overberg, 682 F.2d 605 (6th Cir.1982). Although the reply doctrine serves only to permit neutralization of improper defense argument and does not operate as a license for an improper affirmative attack, United States v. Elkins, 732 F.2d 1280, 1288 (6th Cir.1984), United States v. Somers, 496 F.2d 723 (3rd Cir.1974), cert. denied, 419 U.S. 832, 95 S.Ct. 57, 42 L.Ed.2d 58 (1974), People v. Wise, 134 Mich.App. 82, 351 N.W.2d 255 (1984), lv. denied, 422 Mich. 852 (1985), an otherwise improper argument is mitigated if made in response to a defense argument. Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.1979), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979).

The prosecution’s argument as quoted above is not the complete story. Just before the prosecution said that petitioner shot and killed Furby but there was no evidence of the reason, the prosecution said: “And lastly, the Defense says, ‘Well, the Prosecution hasn’t proven any motive and people don’t kill people without reasons.’ I certainly don’t quarrel with that. No doubt there was a very good reason. I shouldn’t say ‘a very good reason.' ” Immediately after the first quoted statement, the prosecution said that the jury need not find a motive to find petitioner guilty of murder.

Just before the second quoted statement regarding consideration of the lack of evidence of a motive the prosecution argued: “The law recognizes the difficulty you have with a murder case and specifically says that [i.e., evidence of motive] is not required.” Consequently, I conclude that, when viewed in context, these arguments were in response to petitioner’s argument about a lack of evidence of motive and were not intended as a comment on Petitioner’s failure to testify. In Steele v. Taylor, 684 F.2d 1193, 1205 (6th Cir.1982), cert. denied, 460 U.S. 1053, 103 S.Ct. 1502, 75 L.Ed.2d 932 (1983), the Sixth Circuit said: “where, in context, a prosecutor’s comment is reasonably subject to an interpretation other than as a comment on the defendant’s failure to testify, clearly curative instructions will ordinarily eliminate the error.”

After closing arguments, petitioner objected. I accept the prosecution’s response to the objection that he made the argument in the first two quoted paragraphs in response to petitioner’s lack of evidence of motive argument and not as a comment on petitioner’s right not to testify:

The first statement was clearly not a comment on the Defendant’s silence. The Defense had very strongly raised the fact that I had not been able to prove motive. It was obviously necessary for me to respond to that so I did and I said to the jurors, “How can you prove that? Who would know? Well, the killer would know. The evidence has shown the Defendant as the killer. You have placed before you a statement made by the Defendant and the Defense themselves have admitted, that it’s a lie. The deceased might know but he’s dead.” With an explanation of why we, given the evidence we have, we can’t show motive. I said nothing whatsoever about the Defendant’s failing to take the stand. Obviously, he could take the stand and lie, too. The point is not whether or not he took the stand. The point is the only evidence before them was a statement from the Defendant—was a statement made by him that the Defense themselves admits is a lie.

Furthermore, I do not construe the argument quoted in the third paragraph regarding what petitioner’s counsel said in his opening as a comment on petitioner’s right not to testify. Just prior thereto, the prosecution had summarized the evidence in the case. I accept the prosecutor’s statement that when he said “weigh all that evidence” he was referring to his own case and not to petitioner’s lack of a case:

Secondly, with regard to the second statement I made where the Defense says that’s a comment on their failure not to produce evidence. Not at all, I was talking about the evidence that had been produced. I went down the whole list of all the things we produced, asked the jury to put it all together. Then I said the Defense began their argument by saying that Ricky Spalla didn’t kill Ron Furby. Take all of this evidence, all the evidence they had before them that I had put in and weigh it and you will find that’s not so. It was a comment on the quality of my proofs. It had nothing to do with what they did or did not do.

Furthermore, as in Steele, during voir dire petitioner’s counsel told the jury that petitioner might not testify. During closing instructions, the trial court instructed the jury not only that counsels’ arguments were not evidence but that Petitioner had the right not to testify and that the jury was “not permitted to consider his silence in [its] deliberations and [that] his silence must not influence [its] verdict in any matter whatsoever.”

In United States v. Roberts, 548 F.2d 665, 669 (6th Cir.1977), cert. denied, 431 U.S. 920, 97 S.Ct. 2188, 53 L.Ed.2d 232 (1977), one of the defense attorneys had argued “indeed, you might ask yourselves, what were you doing at 3:15 on August 27, 1973?” In response, the prosecution stated, “do you think you would remember when you were arrested for bank robbery?” The Sixth Circuit held that the prosecution was entitled to its argument under the facts of the case. Likewise, I conclude that here, the prosecution’s remarks fairly considered in context made in response to petitioner’s arguments did not impermissibly comment on petitioner’s right not to testify.

IV.

Petitioner next argues that the trial court violated his right to a fair trial by refusing to grant jury requests for transcripts. Some time after the jury began its deliberations, it sent the trial judge a request through the bailiff stating “Transcript, please.” When the trial court asked what this meant, the jury foreman answered: “what we mainly wanted was some of the times, a transcript of some of the times, what some of the witnesses said about some of the times that it took to get from the different points.” In response, the trial court stated:

Well, again, it will take—hopefully you could remember it. If we have it typed up, we’ll have to reach a decision what witness’ testimony would have to be typed up and that will take some time.
Why don’t you go back and see what you can do and if you can’t reach a decision in a reasonable length of time without having these portions typed up, when we’ll have to have it typed up, but it will require additional time.
With that, then, let’s recess and see what you can do and if you can’t reach a decision, we’ll have to agree on—we’ll have to get together with Counsel and agree on what witness’ testimony would be used, what portion would be typed up and that will take some time.

The next day, the jury requested the transcripts that have already been typed up to aid the attorneys in closing arguments. However, while the attorneys and the trial court were still considering how to respond to this request, the jury reached its verdict. Petitioner now argues that he was deprived of his Fourteenth Amendment right to a fair trial because the available transcripts could have influenced the deliberations.

Respondent argues that because Petitioner failed to timely object, the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) applies. This standard does not apply, however, if the state appellate courts did not invoke the procedural default rule in deciding the issue. Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Hockenbury v. Sowders, 620 F.2d 111 (6th Cir. 1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981). The Michigan Court of Appeals specifically addressed the merits of this issue and did not rely on a procedural default. Consequently, the cause and prejudice standard does not apply.

This issue, however, is not cognizable in a habeas proceeding. Errors in state law are not usually cognizable unless they rise to the level of depriving the petitioner of fundamental fairness. Matlock v. Rose, 731 F.2d 1236, 1242 (6th Cir.1984). After reviewing the record, I conclude that petitioner has failed to make this showing.

V.

Petitioner also asks me to reconsider my earlier ruling that petitioner was not deprived of due process when he was charged in the information with an open count of murder and not specifically with first-degree murder. I decline. As stated on page 5 of my earlier opinion, “Petitioner has never claimed that he lacked notice of second-degree murder. Since he now stands convicted of second-degree murder and not first-degree murder, this particular notice claim is moot.” An information charging petitioner with an open count of murder is “merely a state law claim and [does] not state an issue cognizable in a habeas proceeding.”

Petitioner argues, on the other hand, that because the information did not specify the degree of murder, the state circuit court did not have jurisdiction. Citing Hill v. United States, 368 U.S. 424, 428-429, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962), and Sunal v. Large, 332 U.S. 174, 182, 67 S.Ct. 1588, 1592, 91 L.Ed. 1982 (1946), the Fourth Circuit in Hailey v. Dorsey, 580 F.2d 112, 115 (4th Cir.1978), cert. denied, 440 U.S. 937, 99 S.Ct. 1282, 59 L.Ed.2d 495 (1979), stated that in the absence of a fundamental defect, the error in a state procedural law “is cognizable in federal habeas corpus proceedings if, and only if, that failure means that the sentencing court had no jurisdiction to sentence the appellant to jail.”

To the extent that Hailey accurately states the law in the Sixth Circuit, petitioner’s claim still fails because the circuit court, according to Michigan law, did have jurisdiction. The information listed the statutory number for first-degree murder. Where the information lists the proper statutory number, jurisdiction is conferred on the circuit court. People v. Covington, 132 Mich.App. 79, 90, 346 N.W.2d 903 (1984), lv. denied, 419 Mich. 917 (1984) (Maher, J., concurring); People v. Igaz, 119 Mich.App. 172, 195, 326 N.W.2d 420 (1982), lv. denied, 418 Mich. 893, 341 N.W.2d 467 (1983). Moreover, even if the circuit court did not have jurisdiction for the charge of first-degree murder, it did have jurisdiction for the charge of second-degree murder. People v. Calvin, 60 Mich. 113, 122, 26 N.W. 851 (1886).

VI.

Petitioner also asks me to reconsider my decision that the issue of whether the State of Michigan unconstitutionally deprived him of bail pending trial and pending his appeals violated his Eighth Amendment right to bail was moot. Because I have ruled against Petitioner on every other issue, however, I once again conclude that this issue is moot. Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982).

VII.

Accordingly, the petition for writ of habeas corpus is DENIED.

SO ORDERED.

      . Because his sentence is for second degree murder, petitioner is eligible for parole after ten years served. M.C.L. § 791.234(1).

      . The elements of the crime of second degree murder in Michigan are as follows: (1) that the deceased died, (2) that the death of the deceased was caused by an act of the defendant, (3) that the act of the defendant causing the death of the deceased was not justified or excused or committed under circumstances making the act of defendant a lesser crime, and (4) that the defendant intended to kill the deceased, or that the defendant committed a wanton and willful act the natural tendency of which was to cause death or great bodily harm to the deceased. Michigan Criminal Jury Instructions 16:3:01.

      . Respondent argues that the Michigan Court of Appeals’ determination that the evidence was legally sufficient is entitled to the presumption of correctness under 28 U.S.C. § 2254(d). To a certain extent, this argument is supported by Brown, supra, 752 F.2d at 1147:
      [U]nder 28 U.S.C. § 2254, the factual findings of the state court are presumed to be correct, unless one of the conditions set forth in 28 U.S.C. § 2254(d)(1)—(8) is met. To overcome the presumption of correctness, the petitioner must establish by convincing evidence that the factual determination in the state court was erroneous. And the jury's resolution of questions of credibility and demeanor—and there were many in this case—is entitled to "special deference", Patton v. Yount, — U.S. —, 104 S.Ct. 2885, 2892, 81 L.Ed.2d 847 (1984).
      I do not accept this position, however, for a number of reasons. First, despite what Brown says, § 2254(d) applies, by its own terms, only to state court findings of fact and not to jurors’ credibility determinations. Second, the citation to Patton is inapposite. Patton did not deal with a sufficiency of the evidence question but with the state court’s finding that the jury in the case had been impartial. Third, Jackson clearly imposes on the court reviewing a sufficiency claim the duty to make an independent determination of the evidence’s sufficiency. Delk v. Atkinson, 665 F.2d 90, 94 (6th Cir.1981). Hence, Brown's dicta conflicts with Jackson’s clear command. A sufficiency of the evidence question is a legal question; the presumption of correctness has no place in it. In fact, Jackson’s standard would be meaningless if the presumption of correctness were applied. Because Brown conflicts with both Jackson and Delk, I reject it on this point. See generally, Boles v. Foltz, 559 F.Supp. 1302, 1305-1306 (E.D.Mich.1983). Respondent did not argue this point at oral argument.

      . III/690-691. The transcript of the trial record consists of three volumes in which the pages are consecutively numbered. Citations to the record are by volume and page numbers thusly —/—.

      . III/683.

      . III/663-667.

      . III/655-657.

      . III/703.

      . III/725, 744. It is significant that McGrath confused the identity of the car although he was familiar with it.

      . III/684.

      . III/756/757.

      . III/708.

      . III/639-640.

      . III—781.

      . III/710.

      . III/259-260.

      . Petitioner’s counsel, in closing argument, admitted that this statement to Putman was a lie.

      . Petitioner cites People v. Besonen, 4 Mich. App. 131, 136, fn. 2, 144 N.W.2d 653 (1966), for this position. In Besonen the Michigan Court of Appeals said:
      It is often fruitless to seek precedents to support an argument involving sufficiency of the evidence but it seems clear that the people must show more than mere opportunity to commit the crime, coupled with false exculpatory statements____ As Chief Justice Shaw noted in the famous case of Commonwealth v. Webster, 5 Cush [59 Mass] 295, 317, "An innocent man, when placed by circumstances in a condition of suspicion and danger, may resort to deception in the hope of avoiding the force of such proofs.”
      The citation to Webster, however, is misleading. The complete paragraph from which the quotation in Besonen is taken in Webster reads:
      To the same head may be referred all attempts on the part of the accused to suppress evidence, to suggest false and deceptive explanations, and to cast suspicion, without just cause, on other persons: all or any of which tend somewhat to prove consciousness of guilt, and, when proved, to exert an influence against the accused. But this consideration is not to be pressed too urgently; because an innocent man, when placed by circumstances in a condition of suspicion and danger, may resort to deception in the hope of avoiding the force of such proofs.
      59 Mass, at 316-317.
      Petitioner was not "placed by circumstances in a condition of suspicion and danger." Although Putman had informed Petitioner of his Miranda rights, he did not tell him that Furby had been killed until after petitioner had given him a false statement.

      . III/864.

      . III/865.

      21. In opening argument, petitioner’s counsel said:
      The question for you is who is the person who killed the deceased. Ricky Spalla did not kill the deceased. The evidence that is going to be presented is not going to show you Ricky Spalla killed the deceased. In fact, you can see from the evidence that Ricky Spalla did not. I think some of you sadly also, will see at the conclusion of the trial you'll have virtually no better idea who killed the deceased than you have at this moment.

        * * * * * *
      You'll see that after a period of time at the deceased’s home, they left together in the Colt. You will also see after leaving they parted company, that Ricky Spalla drove back to New Baltimore to return the Colt.
      * * * * * *
      The evidence is also going to show that after the deceased and Ricky parted company, the deceased met up with someone, possibly more than one person, but it was someone else, that it was whoever he was with after parting company with Ricky Spalla he ended up north of Rochester on Snell Road and ended up dead.
      11/632-635. At oral argument, petitioner’s counsel acknowledged that trial counsel was merely "theorizing’’.

      . III/867.

      . At oral argument, petitioner’s counsel asserted that the present case was exactly like Rachel. In Rachel, the prosecutor said, “we will never know, these men won’t tell us. The only other man who could tell us is now dead and in his grave____’’ 590 F.2d at 202. Rachel is distinguishable. Here, the prosecutor did not state the reason that the motive was unknown was because petitioner was not talking but that petitioner had talked and had lied.

      . III/839-840.

      . III/864.

      . III/865.

      . III/865.

      . III/883.

      . III/884-885.

      . III/865-867.

      . III/885.

      . 1/188-605.

      . III/872.

      . III/888.


text:
    Ann K. KAPLAN and Robert Z. Kaplan, Plaintiffs, v. C LAZY U RANCH, et al., Defendants.
    Civ. A. No. 84-K-1196.
    United States District Court, D. Colorado.
    July 16, 1985.

      Scott E. Spencer, McGuire, Cornwell & Blakey, Denver, Colo., for plaintiffs.
    Alan E. Richman, Breit, Best, Richman & Bosch, Denver, Colo., for defendants.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This diversity action is based on personal injuries sustained by plaintiff when she fell from a horse owned and allegedly saddled in a negligent manner by defendants, who own and operate the C Lazy U Ranch.

Defendants have moved for partial summary judgment as to plaintiffs’ claims based upon res ipsa loquitur, strict liability for a dangerous animal, strict products liability and strict liability for failure to warn and/or instruct as to a dangerous product. Plaintiffs have responded with a brief opposing defendants’ motion for partial summary judgment.

Summary judgment is a drastic remedy and the Tenth Circuit has cautioned that any relief pursuant to Rule 56, F.R.Civ.P., should be applied with care. Jones v. Nelson, 484 F.2d 1165, 1168 (10th Cir.1973). Rule 56 states that summary judgment shall be rendered when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Pleadings and factual inferences tending to show issues of material fact should be viewed in the light most favorable to the party opposing summary judgment. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir.1980). Unless the moving party can demonstrate its entitlement beyond a reasonable doubt, summary judgment must be denied. Id.; see also Luckett v. Bethlehem Steel Corp., 618 F.2d 1373, 1383 (10th Cir.1980).

I. Res Ipsa Loquitur

Plaintiffs contend that defendants are liable under the theory of res ipsa loquitur for injuries and damages sustained by plaintiffs. Defendants have moved for summary judgment arguing that res ipsa loquitur is a rule of evidence and does not create a substantive claim for relief.

Colorado courts have long held that res ipsa loquitur is not an independent substantive cause of action, but rather a rule of evidence affecting the burden of proceeding which is peculiar to the law of negligence. Saint Luke’s Hospital v. Schmaltz, 188 Colo. 353, 534 P.2d 781 (1975); Adams v. Leidholdt, 38 Colo.App. 463, 563 P.2d 15 (1976), aff’d, 195 Colo. 450, 579 P.2d 618 (1978). A determination of whether the doctrine is applicable requires an examination of the factual context out of which the negligence claim arises. If plaintiffs meet the requisite conditions for the application of the res ipsa loquitur doctrine, they will not be foreclosed from relying upon it in their claim for negligence. Since the doctrine is not a substantive cause of action and since plaintiffs are not barred from using such doctrine in their negligence claim, defendants are entitled to summary judgment on plaintiffs’ res ipsa loquitur claim.

II. Strict Liability for Dangerous Animals

Plaintiffs claim that defendants are liable under the theory of strict liability for dangerous animals. The complaint alleges that the horse “posed an unreasonable risk of injury to persons riding her because of her unusual conformation and/or her habit of expanding her chest when saddled, resulting in a propensity for Defendants’ saddles to slip or tip to the side.” Complaint, p. 6. Defendants have moved for summary judgment claiming that horses are not wild or naturally dangerous animals to which strict liability is applicable, and that any finding of liability must be based upon proof of negligence.

Colorado courts have applied strict liability to owners of wild animals which by their nature are vicious and unpredictable, and have done so without proof of the owners’ knowledge of such propensities. Collins v. Otto, 149 Colo. 489, 369 P.2d 564 (1962). Strict liability also has been applied to owners of a domestic animal proven to be vicious where the owners were aware of their animal’s dangerous propensities. Barger v. Jimerson, 130 Colo. 459, 276 P.2d 744 (Colo.1954). Horses, however, “are regarded as domestic animals virtually everywhere, and as to these, therefore, strict liability requires a showing that the defendant knew, or had reason to know, of an abnormal propensity.” W. Prosser and W. Keeton, The Law of Torts § 76 (5th ed. 1984); see also Restatement (Second) of Torts § 509 (1977).

Plaintiffs claim that the horse had a “dangerous propensity” is untenable. A horse which is known to kick or bite persons without provocation may have a dangerous propensity. A tendency, however, to expand its chest while being saddled, while it might be classified as fractious, is not a “dangerous propensity” within the scope of this doctrine of liability. Further, that habit alone could never be the proximate cause of plaintiff’s injury. Defendant’s motion for summary judgment on this claim is granted.

III. Strict Product Liability and Strict Liability for Failure to Warn and/or Instruct

Plaintiffs allege under the theory of strict products liability that the lease or bailment of a horse and saddle constitutes the furnishing of goods for consideration and, further, that the goods furnished were defective and unreasonably dangerous. Plaintiffs also allege defendants are strictly liable for failure to warn and/or instruct as to a product which is unreasonably dangerous. In their motion for summary judgment, defendants claim that the doctrine of strict products liability does not apply to the lease or bailment of a horse and saddle because neither a “sale” nor a “product” is involved. Defendants also move for summary judgment on plaintiffs’ strict liability claim for failure to warn and/or instruct.

Colorado has adopted the theory of strict products liability as defined in the Restatement (Second) of Torts § 402A (1965). McClanahan v. American Gilsonite Co., 494 F.Supp. 1334 (D.Colo.1980); Union Supply Company v. Pust, 196 Colo. 162, 583 P.2d 276 (Colo.1978); Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (Colo.1975). Section 402A provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Colorado’s adoption of the Restatement position, however, has been further limited by the Colorado legislature. C.R.S. § 13-21-402(1) provides:

No product liability action based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, or consumer unless said seller is also the manufacturer of said product or the manufacturer of the part thereof claimed to be defective.

The effect of this Colorado provision is to preclude strict tort liability actions against most lessors and bailors. 2 Prod.Liab. (MB) 1116A(4)(b)(iii) (Nov. 1983). Only if defendant is clearly a “seller” and a “manufacturer” as defined in C.R.S. § 13-21-401 et seq. will the doctrine of strict liability be applied to defendant.

C.R.S. § 13-21-401(3) defines “seller” to include “any individual or entity who is engaged in the business of selling or leasing any product for resale, use or consumption.” C.R.S. § 13-21-401(1) defines “manufacturer” as “a person or entity who designs, assembles, fabricates, produces, constructs, or otherwise prepares a product or a component part of a product prior to the sale of the product to a user or consumer.” Whether defendant is a seller or a manufacturer, therefore, depends on whether a saddled horse, or a ride on a horse with a saddle, constitutes a product. Unless I am satisfied that defendant rented or sold a product, C.R.S. § 13-21-402(1) bars an action based on strict liability. Clearly, no person ever designed, assembled, fabricated (except the Greeks at Troy), produced, constructed or otherwise prepared a horse.

Plaintiffs’ contention that a horse and saddle constitute a “product,” while a novel idea, is rebutted by case law and the basic underlying policies of the doctrine of strict products liability. Generally, living things do not constitute “products” within the scope of the strict tort liability doctrine which requires that a product’s nature be fixed when it leaves the manufacturer’s or seller’s control. Anderson v. Farmers Hybrid Companies, Inc., 87 Ill.App.3d 493, 42 Ill.Dec. 485, 408 N.E.2d 1194 (1980) (unbred female pigs are not products); see also Whitmer v. Schneble, 29 Ill.App.3d 659, 331 N.E.2d 115 (1975) (a dog is not a product).

In an attempt to ascertain what constitutes a “product,” courts have focused on the underlying public policy reasons for strict liability and have applied the theory to those who place defective products in the stream of commerce. Lowrie v. City of Evanston, 50 Ill.App.3d 376, 8 Ill.Dec. 537, 365 N.E.2d 923 (1977). In this way, courts ensure that the costs of injuries resulting from the placing of defective products in the market are born by the manufacturer, rather than the injured persons who are powerless to protect themselves. Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 377 P.2d 897, 27 Cal.Rptr. 697 (1962). Further, the strict products liability doctrine evolved in response to the difficulty in finding the negligent party and effectuating a recovery from that party. Wright v. Creative Corporation, 30 Colo.App. 575, 498 P.2d 1179 (1972).

In this instance, negligence has been clearly alleged in plaintiffs’ complaint. Further, there is no problem in identifying the defendants as the ones responsible for the alleged act of negligence. Therefore, the underlying purposes of strict products liability theory will not be served by application in this instance. For these reasons, defendants’ motions for summary judgment pertaining to strict products liability are granted.

It is therefore ORDERED that

(1) defendants’ motion for partial summary judgment on the claim of res ipsa loquitur is granted;

(2) defendants’ motion for partial summary judgment on the claim of strict liability for dangerous animals is granted;

(3) defendants’ motion for partial summary judgment on the claim for strict products liability is granted; and

(4) defendants’ motion for partial summary judgment on the claim for strict liability for failure to warn and/or instruct is granted.

      . As stated in Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928, 931 (1969), before the doctrine of res ipsa loquitur can be applied
      the event must be one which would ordinarily not occur in the absence of someone's negligence. It must be caused by an agency or instrumentality within the exclusive control of the defendant. Further, it must not have been due to any voluntary action or contribution on the part of plaintiff. And the evidence as to the true explanation of the event must be more readily accessible to the defendant than to the plaintiff.

      . See also Tamburello v. Jaeger, 249 La. 25, 184 So.2d 544 (1966). In cases involving domestic animals with dangerous propensities, liability generally rests on an ordinary showing of negligence. See, e.g., Giles v. State, 106 Misc.2d 329, 431 N.Y.S.2d 781, 784 (1980). Strict liability is not generally applied in determining the liability of a bailor of horses for injuries to the bailee. See Annot., 6 A.L.R.4th 358 (1981).

      . Courts generally have refused to extend the concept of strict liability, as applied in products liability cases, to persons rendering services. Lewis v. Big Powderhorn Mountain Ski Corp., 69 Mich.App. 437, 245 N.W.2d 81 (1976) (no strict liability for the operation of a ski rope tow); Stuart v. Crestview Mutual Water Co., 34 Cal.App.3d 802, 110 Cal.Rptr. 543 (1973) (no strict liability for engineers rendering professional services); see abo, Annot., 29 A.L.R.3d 1425 (1970). As articulated in LaRossa v. Scientific Design Company, 402 F.2d 937 (3d Cir.1968), the rendering of services does not give rise to the doctrine of strict liability because generally, there is no mass production and distribution, nor are there consumers needing protection from an unknown manufacturer or seller. Those courts that have applied the doctrine of strict products liability to those providing a service, have done so only when defective, dangerous products were used. Newmark v. Gimbels, Inc., 54 N.J. 585, 258 A.2d 697 (1969) (strict liability for application of defective wave permanent by beauty parlor); see P. Sherman, Products Liability for the General Practitioner 238 (1981).


author: MYRON H. THOMPSON, District Judge.

text:
    Charlie HARRIS and Mose Batie, individually and on behalf of all others similarly situated, Plaintiffs, v. Charles A. GRADDICK, in his official capacity as Attorney General of Alabama; et al., Defendants, John W. Jones, Jr., as Judge of Probate of Dallas County, Alabama; et al., Defendant-Intervenors.
    Civ. A. No. 84-T-595-N.
    United States District Court, M.D. Alabama, N.D.
    July 19, 1985.

      James U. Blacksher, Larry T. Menefee, Blacksher, Menefee & Stein, Mobile, Ala., Delores Boyd, Mandell & Boyd, Terry Davis, Montgomery, Ala., Jack Greenberg, Lani Guinier, New York City, for plaintiffs.
    Joseph E. Faulk, Troy, Ala., for Powell and Anderson.
    Charles A. Graddick, Atty. Gen., Susan McKinney, Algert S. Agricola, James Callen Sparrow, Asst. Atty. Gen., Montgomery, Ala., for Stone, Graddick & Wallace.
    Edward Still, Birmingham, Ala., for State Democratic Exec. Committee.
    Edwin A. Strickland, R. Clifford Fulford and Max C. Pope, Fulford, Pope & Natter, Birmingham, Ala., for Jefferson County— Probate Judge, Circuit Clerk & Sheriff.

      . The Conecuh County appointing authority was excluded because it had already entered into a consent decree in another district court regarding the issue raised by this lawsuit. Harris /, 593 F.Supp. at 137 n. 10.

   MYRON H. THOMPSON, District Judge.

ORDER

This statewide class action lawsuit challenging the practices for the appointment of poll officials in the State of Alabama as racially discriminatory is before the court on a May 2, 1985, motion to approve settlement filed by all parties except defendants Charles A. Graddick and George C. Wallace. For reasons that follow, the court concludes that the motion should be granted and the settlement approved.

I.

Plaintiffs Charlie Harris and Mose Batie, black citizens residing in Pike County, Alabama, brought this lawsuit against defendants Attorney General Charles A. Grad-dick, Governor George C. Wallace, the State Democratic Executive Committee, and the appointing authority of Pike County. The complaint alleged that state and county officials throughout Alabama have appointed disproportionately too few black persons as poll officials in violation of, among other things, section 2 of the Voting Rights Act of 1965, as amended, 42 U.S. C.A. § 1973 (West Supp.1985). Harris and Batie sought certification of both plaintiff and defendant classes and preliminary and permanent injunctive relief.

On August 1, 1984, this court issued a preliminary injunction requiring that all but one of Alabama’s sixty-seven county appointing authorities appoint more black persons as poll officials. Harris v. Grad-dick, 593 F.Supp. 128 (M.D.Ala.1984) {Harris I). The court also certified, pursuant to Fed.R.Civ.P. 23(a) & (b)(2), a plaintiff class of all black citizens in Alabama and a defendant class of all county appointing authorities in Alabama except the one ex-eluded from the preliminary injunction. The plaintiff class is represented by Harris and Batie and the defendant class is represented by the Pike County appointing authority. 593 F.Supp. at 136-37. The court later excused another county appointing authority from the preliminary injunction and the defendant class.

In a memorandum opinion accompanying the August 1 order, the court focused on Alabama’s history of widespread discrimination against black persons, enforced by state and local governments. 593 F.Supp. at 130-31, 133. The court noted that this history is not without its modern-day manifestations. As the court found, black persons in Alabama continue to consider voting to be an intimidating experience, especially when the voting officials are all white. Id. Nevertheless, those in authority have grossly failed to appoint black persons as poll officials even though, as the evidence indicated, the presence of black poll officials does much to remedy the intimidation of black voters. Id. The court determined that the “effect” of this practice violated section 2 of the Voting Rights Act of 1965. Id.

After the court’s August 1 order, the appointing authorities for Jefferson County and Dallas County intervened as defendants. On October 30, 1984, the Jefferson County appointing authority moved to dissolve or modify the injunction as applied to it. The court denied this motion on December 13, 1984. Harris v. Graddick, 601 F.Supp. 70 (M.D.Ala. 1984) (Harris II). The court found that the Jefferson County appointing authority had intentionally discriminated on the basis of race in appointing poll officials, in violation of section 2, and the court preliminarily enjoined such further conduct. 601 F.Supp. at 73, 74.

The trial of this cause on the plaintiffs’ request for permanent injunctive relief began on February 4, 1985, but was recessed before its conclusion. Before it resumed, all the parties except Graddick and Wallace informed the court that they had reached a settlement in the form of a consent decree. On May 2, 1985, they filed a joint motion to approve settlement, and on May 16, 1985, the court preliminarily approved the proposed consent decree. As preliminarily approved, the proposed decree provided for notice to members of the plaintiff class and defendant class, an opportunity for such members to present any objections to the settlement and an opportunity for members of the defendant class to opt out of the settlement and participate in the trial along with Graddick and Wallace.

On May 3, 1985, Graddick and Wallace filed objections to the proposed consent decree, and on May 31,1985, the appointing authority for Mobile County filed an objection. No appointing authorities opted out of the settlement. On June 14, 1985, the court held a hearing on the joint motion to approve settlement and the objections to the settlement. At this hearing, the settling parties and the court agreed to an amendment of the decree as suggested by the objection filed by the Mobile County appointing authority.

II.

Courts have often expressed a judicial policy favoring settlement as the means of resolving class action lawsuits. See, e.g., Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984); Holmes v. Continental Can Co., 706 F.2d 1144, 1147 (11th Cir.1983). However, “[bjecause of the potential for a collusive settlement, a sellout of a highly meritorious claim, or a settlement that ignores the interests of minority class members, the district judge has a heavy duty to ensure that any settlement is ‘fair, reasonable and adequate’.... ” Piambino v. Bailey, 151 F.2d 1112, 1139 (11th Cir.1985). The district judge also has a duty to ensure that the settlement is not illegal or against public policy. United States v. City of Alexandria, 614 F.2d 1358, 1362 (5th Cir.1980).

A.

Here, the plaintiffs have obtained agreement to an injunction lasting until December 31, 1988, that sets specific requirements for the increased appointment of black persons as poll officials throughout Alabama. Compliance with the injunction is insured by mandatory, détailed record keeping and the opportunity for renewed judicial scrutiny if necessary. Thus, the members of the plaintiff class will receive the full relief that their representatives sought for them.

Graddick and Wallace have suggested that the settlement ignores members of minority groups other than black persons. However, Graddick and Wallace have failed to identify any such other minority groups whose interests the settlement might implicate, and they have not throughout the course of this litigation sought to join any members or representatives of such groups under Fed.R.Civ.P. 19 or 20.

For their part, the members of the defendant class and their representatives will avoid additional litigation and a finding of liability whose likelihood the court necessarily indicated in ordering the preliminary injunctions. See Harris II, supra; Harris I, 593 F.Supp. at 132-35. Also, there has been no evidence that compliance with the requirements of the preliminary injunction, which the settlement largely extends, has proved in any way onerous to any of the appointing authorities. Harris II, 601 F.Supp. at 72; Harris I, 593 F.Supp. at 135-36. Throughout the course of this litigation, the appointing authorities have had several opportunities to indicate any difficulties with compliance and even to intervene as parties. All but two chose to rely on their class representative, and these two now join in the settlement.

Graddick and Wallace contend that one provision of the proposed consent decree misleads members of the defendant class regarding the opportunity to exercise the “bail-out” provisions of section 4 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973b (West Supp.1985). In light of this objection, the court amended the proposed notice to members of the defendant class to indicate Graddick and Wallace’s objections to certain provisions of the proposed consent decree and to advise any defendant class members to consult them for an explanation of these objections. Having learned of Graddick and Wallace’s contention regarding the “bail-out” provision, any defendant class member could have objected to or opted out of the settlement on this basis. None did so. Furthermore, the court does not find the pertinent provision of the proposed consent decree to be misleading.

Finally, in assessing whether a proposed settlement is fair, reasonable and adequate, “[t]he trial court is entitled to take account of the judgment of experienced counsel for the parties.” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1215 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). Here, counsel for all parties seeking settlement unanimously and emphatically concur that the settlement meets this requirement.

In light of the vigor and skill of their representation in this litigation and based on the court’s own independent assessment of the settlement, the court finds the settlement to be fair, reasonable and adequate for both the plaintiff class and the defendant class. See, e.g., Johnson v. Montgomery County Sheriffs Department, 604 F.Supp. 1346 (M.D.Ala.1985); Lurns v. Russell Corporation, 604 F.Supp. 1335 (M.D.Ala.1984).

B.

Graddick and Wallace contend that the settlement exceeds the requirements and indeed violates the provisions of section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973 (West Supp. 1985). They contend that the proposed consent decree establishes illegal “quotas.” The decree contains several provisions providing, in general, that the failure of a county appointing authority to appoint black persons as poll officials in sufficient numbers to correspond proportionately to the number of black persons in the county population constitutes prima facie proof of violation of the decree.

Race-conscious relief is appropriate in a consent decree if the relief is necessary, reasonable, and otherwise appropriate under the circumstances. United States v. City of Miami, 664 F.2d 435 (5th Cir. Dec. 3, 1981) (Former 5th en banc); United States v. City of Alexandria, 614 F.2d 1358 (5th Cir.1980). See also Palmer v. District Board of Trustees of St. Petersburg Junior College, 748 F.2d 595, 600-601 (11th Cir.1984). Here, the race-conscious requirements in the proposed consent decree are necessary. This court has previously found that the underrepresentation of black persons as poll officials “is substantially impeding and impairing the access of many black persons to the political process,” Harris I, 593 F.Supp. at 133; and that without immediate, affirmative, race-conscious measures this intolerable condition will not end within the near future. 593 F.Supp. at 135.

The requirements are also reasonable. They are specifically tailored to redress the present effects of past discrimination, but they do “not unnecessarily trammel” the interests of white citizens of the state. United Steelworkers of America v. Weber, 443 U.S. 193, 208-09, 99 S.Ct. 2721, 2730, 61 L.Ed.2d 480 (1979). Under the decree, not only will white persons continue to serve as poll officials, they will more than likely continue by a large margin to be a majority of poll officials. Moreover, the requirements are but a temporary measure, designed not to maintain a racial balance, but to eliminate a manifest vestige of Alabama’s regrettable past; the provisions of the decree will remain in force only until December 31, 1988. Finally, as already noted, the requirements, “while significant, will not disrupt or unreasonably burden the state and county political process.” Harris I, 593 F.Supp. at 135.

Graddick and Wallace also contended that the U.S. Department of Justice should preclear the settlement pursuant to section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973c. See McDaniel v. Sanchez, 452 U.S. 130, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981). However, in their letter brief filed on July 8, 1985, they have clarified that they do not contend that preclearance is necessary before the court may approve the proposed consent decree. Rather, they contend that should any member of the defendant class change its voting procedures in order to comply with the consent decree it may be necessary for such change to be precleared pursuant to section 5. The court agrees with Wallace and Graddick’s clarified position that this issue, should it arise, should be left for another day.

III.

Graddick also challenges the authority of the Pike County appointing authority, as representative of the defendant class, to enter into the settlement. Grad-dick is not only a party to this lawsuit, he is also the attorney for the circuit court clerk of Pike County, one of the three members of the Pike County appointing authority. The other two members are represented by private counsel. Each county appointing authority is composed of the county probate judge, the county sheriff, and the clerk of the circuit court of the county. 1975 Ala. Code § 17-6-1.

At least two members of the Pike County authority have decided to settle this lawsuit. Since the members of a county appointing authority act as a body by majority vote, any action taken by these two members acting together would constitute the action of the authority. 1975 Ala.Code § 17-6-1. These two members therefore have the authority to settle this lawsuit on behalf of the Pike County appointing authority and the defendant class represented by the authority.

IV.

Finally, there is the matter of the amendment of the proposed consent decree to meet the objection of the appointing authority of Mobile County. This appointing authority, the only member of the defendant class to object to the settlement, raises a limited objection to one provision of the proposed consent decree: the requirement that appointing authorities record and report the race of registered voters after the primaries scheduled for 1986. The objection suggests that the Mobile County appointing authority be permitted to supply this information by alternative means if necessary. In light of the settling parties’ agreement to amend the proposed consent decree, the issue for the court is whether members of the plaintiff class and defendant class, certified pursuant to Fed.R.Civ.P. 23(a) & (b)(2), must be notified of the amendment. Fed.R.Civ.P. 23(e) generally requires notice to all class members when a class action is compromised or settled. However, “[i]n a Rule 23(b)(2) class action, mechanics of the notice process are left to the discretion of the district court subject only to the broad ‘reasonableness’ standard imposed by due process.” Fowler v. Birmingham News Co., 608 F.2d 1055, 1058 (5th Cir.1979); see also Marcera v. Chinlund, 595 F.2d 1231, 1240 n. 13 (2d Cir.), vacated on other grounds, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979) (same for notice to defendant class). Since the members of the plaintiff class and defendant class have already received notice of the proposed consent decree, the issue for the court is whether declining to require additional notice to members of the plaintiff class and defendant class would be reasonable. The court finds that it would.

The amendment, to the proposed consent decree is extremely narrow. It applies only to the appointing authority of Mobile County and simply permits it to use means other than actual records of the race of registered voters to make the reports required by the proposed consent decree, and this only for a limited period of time if necessary. The court credits plaintiff class counsel’s representation that the interests of the plaintiff class are in no way impaired by the amendment. It also appears that few if any other appointing authorities face the same possible difficulty with record keeping as Mobile County’s which currently is involved in litigation regarding this very matter. Any such other appointing authorities had the same opportunity as Mobile County’s to object to the settlement on such grounds. None did so.

Under these limited circumstances where the amendment is narrow and it is clearly apparent that the interests of the classes are not substantially impaired, the court is of the opinion that the notice already given is adequate and that additional notice is not required pursuant to Rule 23(e).

V.

The court therefore concludes that the proposed consent decree, as amended, offers a settlement that is fair, reasonable and adequate to all participating and is not illegal or against public policy.

Accordingly, it is ORDERED that the May 2, 1985, motion to approve settlement, filed by plaintiffs Charlie Harris and Mose Batie, defendants State Democratic Executive Committee of Alabama and the appointing authority for Pike County, and defendant-intervenors appointing authorities of Jefferson County and Dallas County, be and it is hereby granted to the extent that the proposed consent decree, as amended, and the settlement it contains are approved. The approved consent decree is attached.

The clerk of the court is DIRECTED to mail copies of this order and the consent decree by certified mail, return receipt requested, to the members of the appointing authorities of all counties in the State of Alabama except Conecuh County and Winston County.

CONSENT DECREE

This cause is before the Court on the joint motion of the Plaintiffs and the Defendant appointing authorities of the counties of Pike, Jefferson and Dallas and the State Democratic Executive Committee (hereinafter referred to as “settling Defendants”) to approve their settlement of this action. Plaintiffs Charlie Harris and Mose Batie filed their complaint on April 30, 1984, against Charles A. Graddick, Attorney General of the State of Alabama, George C. Wallace, Governor of Alabama, the State Democratic Executive Committee of Alabama, the Pike County Appointing Board comprised of Ronald L. Powell, William C. Stone, and Harold Anderson to enforce the provisions of Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. sec. 1973, and the thirteenth, fourteenth, and fifteenth amendments to the Constitution of the United States. The complaint alleges that the Defendants have engaged in racial discrimination against black voters at polling places, and that the adoption and maintenance of procedures for the selection of poll officials has resulted in impairing and impeding the voting rights of black citizens in Alabama. Defendants denied these allegations. On July 9, 1984, this Court received submissions from the parties on a Preliminary Injunction concerning the selection of poll officials for the remaining 1984 elections. On August 1,1984, this Court ordered that this action was properly maintainable as a class action with respect to both a Plaintiff and Defendant class. The Court provisionally certified a Plaintiff class of all black citizens of the State of Alabama and a Defendant class of all the appointing authorities in every county in the State of Alabama, except Conecuh and Winston counties, that is, the probate judge, circuit clerk and sheriff of each county. The court further issued the Preliminary Injunction. The appointing boards of Dallas and Jefferson Counties were granted leave to intervene as named Defendants.

On February 4, 1985, this Court began hearing evidence on the trial of this cause. Plaintiffs presented their case and Defendants had begun the presentation of their case. The hearing lasted five days and was then recessed.

At the request of the Court during recess, and desiring to avoid the burden and expense of further contested litigation m this action, the Plaintiffs and the settling Defendants have negotiated a settlement of Plaintiffs’ claims against the settling Defendants.

The Court has jurisdiction over the Plain tiffs and the settling Defendants and l.h« subject matter of this action. This Decree is final and binding between the parties to this settlement and their successors re garding the issues raised in the Complaint and resolved herein. Upon due considera tion, the Court is of the opinion that, the provisions of this Decree are equitable, just, and in accordance with the Constitution and laws of the United States, and that, it ought to be approved.

Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED as follows

A. The preliminary injunctions entered August 1, 1984, and December 13, 198/!. are hereby modified and amended as pro vided in the following paragraphs R through J. and are continued in force and effect until December 31, 1988, and the memorandum opinion of December 13, 1984, is hereby withdrawn as it pertains to the settling Defendants.

B. (1) The settling Defendants and members of the Defendant class, their sue cessors, officers, agents, attorneys, em ployees and those acting in concert with them or at their direction are enjoined from appointing poll officials in any manner which will have the purpose or effect of discriminating against black persons on account of race.

(2) With regard to all appointments of poll officials in countywide elections prior to January 1, 1989, the failure of the set., tling Defendants and Defendant class members to appoint in their respective counties a proportion of black poll officials equal to or greater than the proportion of black persons in the voting age population of the county as shown in the 1980 census shall be deemed prima facie proof of noncompliance with paragraph B(l).

(3) With regard to all appointments of poll officials prior to January 1, 1989, the failure of the settling Defendants and Defendant class members to appoint for any polling place a proportion of black poll officials within five percent of the percentage of black registered voters assigned to that polling place as of a date no more than 30 days in advance of the election or primary, or to appoint at least one black poll official in any polling place where black persons constitute 20% or more of the registered voters assigned to that polling place, shall be deemed prima facie proof of noncompliance with paragraph B(l).

C. (1) The settling Defendants and members of the Defendant class, their successors, officers, agents, attorneys, employees and those acting in concert with them or at their direction are enjoined to appoint a sufficient number of black poll officials to prevent discrimination on the basis of race against voters.

(2) With regard to all appointments of poll officials prior to January 1, 1989, the number of black poll officials necessary to establish prima facie compliance with paragraph (C)(1) will be the number yielding (a) in each county, in countywide elections, a proportion of black poll officials equal to or greater than the proportion of black persons in the voting age population of that county as shown in the 1980 census, and (b) for each polling place, a proportion of black poll officials within five percent of the proportion of black registered voters assigned to that polling place on a date no more than 30 days in advance of the election or primary, and in any event no less than one black poll official in any polling place where black persons constitute 20% or more of the registered voters assigned to that polling place.

(3) If any settling Defendants or members of the Defendant class believe that the number of black poll officials necessary in any particular county to eliminate the discrimination referred to in paragraph C(l) is different than the number in paragraph C(2), they may apply to the Court for an appropriate order.

D. (1) The settling Defendants and members of the Defendant class, their successors, officers, agents, attorneys, employees and those acting in concert with them or at their direction are enjoined from appointing chief inspectors, inspectors, chief clerks, managers, returning officers and officers by other name in any manner which will have the purpose or effect of discriminating against black persons on account of race.

(2) With regard to all appointments of such officers prior to January 1, 1989, the failure of the settling Defendants and Defendant class members to appoint in any county, in a countywide election, a proportion of black officers equal to the proportion of black persons in the voting age population of that county as shown in the 1980 census shall be deemed prima facie proof of noncompliance with paragraph D(l).

(3) It is recommended that persons appointed as chief inspector have experience as a poll official in one prior election. In evaluating prior experience, Defendants may consider previous service as a poll official, previous political campaign experience or other experience in the electoral process. Experience as a poll official in one prior election shall be presumed sufficient for appointment as chief inspector. Provided however, nothing contained herein shall be considered as an excuse for failure to meet the requirements of this Decree.

E. To the extent necessary to meet the above requirements regarding the appointment of black poll officials, county appointing authorities may appoint poll officials from sources other than those authorized by state law.

F. The settling Defendants and the members of the Defendant class of appointing boards shall file a report with the Clerk of this Court 7 days before each election in which the settling Defendants appoint poll officials. For the purposes of this Decree, the Plaintiffs agree that the settling Defendants and Defendant class members shall not be expected to supply to the Plaintiffs or the Court the race designation for registered voters pursuant to sec. 17-4-187, Alabama Code (Supp.1984), until the primaries scheduled for 1986, unless those data are currently available. The Plaintiffs further agree during the term of this Consent Decree that should Mobile County be unable to supply race designations for registered voters pursuant to sec. 17-4-187, Alabama Code (Supp.1984), because the Mobile County Board of Registrars does not have complete or accurate data, then, so long as they are making good faith efforts to identify the race of voters from available sources, Mobile County shall be allowed to supply race designations for registered voters by means of statistical estimates, polling, sampling, and the use of sources other than records maintained by the Board of Registrars, but the incomplete race designations by the Board of Registrars shall also be supplied. Subject to the above, each report shall provide the following information:

G. For each county, the report shall contain: names of all offices (e.g., chief inspector, chief clerk, returning officer, etc.), the total number and percent of blacks and whites appointed to each such office, the number and percent of black and white registered voters countywide as of a date no more than 30 days in advance of the election or primary for which the report is being prepared, the number and percent of white and black total population and voting-age population countywide as shown in the 1980 census.

H. For each polling place within the county, the report shall contain: the name and numerical designation of the polling place, the House and Senate districts, the total number and percent of poll officials by race, the total number and percent of registered voters by race as of a date no more than 30 days in advance of the election or primary for which the report is being prepared. For any polling place where the percentage of black poll officials does not reasonably correspond to the percentage of black registered voters, those Defendants must give a short explanation for the reason.

I. Furthermore, there shall be appended to such report a list by polling place of the name, address, race designation, and office of all polling officials for such election. For the convenience, of the reporting officials, a suggested form for such report is appended hereto as Appendix A. A copy of each report shall also be mailed by the Defendant class member at least 7 days before election upon James U. Blacksher, Esquire and Larry T. Menefee, Esquire, Blacksher, Menefee & Stein, P.A., 405 Van Antwerp Building, P.O. Box 1051, Mobile, Alabama 36633, attorneys for the Plaintiff class.

J. Notwithstanding the foregoing provisions, the State Democratic Executive Committee is enjoined only to give notice to each of its county committees within 20 days of the date hereof by sending a copy of this decree to each committee.

K. This preliminary injunction shall continue in force until December 31, 1988. At that time, all of Plaintiffs’ claims against the settling Defendants shall be dismissed, unless, by motion filed on or before December 31, 1988, Plaintiffs show that particular settling Defendants have not complied substantially with the preliminary injunction. .If such motion is filed, the Court will order said settling Defendants to show cause why Plaintiffs should not be allowed to pursue their claims against said settling Defendants to final judgment. Following a hearing thereon, the Court shall either dismiss the claims against the particular settling Defendants or schedule a trial on the merits with respect to Plaintiffs’ claims against them.

L. From the inception of this lawsuit, Plaintiffs have taken the position that it is the State of Alabama, acting through the Governor and its Attorney General, that ultimately is responsible for seeing that the federal voting rights of the plaintiff class are protected and enforced throughout its political subdivisions. Consequently, Plaintiffs have contended that their attorneys’ fees and expenses for prosecuting this action should be the responsibility of the State Defendants, and that Plaintiffs should not have to bear the burden of litigating the extent to which any of the county Defendants or Defendant class members should contribute to their fees and expenses. Accordingly, the settling Defendants agree that Plaintiffs are the prevailing parties. Plaintiffs agree that they will seek to recover their attorneys’ fees and expenses from the state Defendants and will not request an award of attorneys’ fees and expenses against the Pike County or Dallas County Defendants or against members of the Defendant class or against the State Democratic Executive Committee except to the extent of services rendered seeking enforcement of the preliminary injunction against particular settling Defendants or pursuit of claims against them after the preliminary injunction is dissolved. However, if the Court orders these Defendants or class members to share Plaintiffs’ attorneys’ fees or expenses as a result of any claim by one or both of the state Defendants, Plaintiffs do not waive their right to demand payment of same from these county Defendants or class members.

M. Consistent with the provisions of the preceding paragraph, Plaintiffs agree that they will not request an award of attorneys’ fees and expenses against the Jefferson County Defendants, except to the extent of fees and expenses incurred opposing matters that were raised exclusively by Jefferson County, pursuing enforcement of the preliminary injunction against Jefferson County or pursuing claims against said Defendants after the preliminary injunction has been dissolved. However, if the Court orders the Jefferson County Defendants to pay a greater share of Plaintiffs’ attorneys’ fees and expenses as a result of any claim by the state Defendants, Plaintiffs do not waive their right to demand payment of same from the Jefferson County Defendants.

N. This Consent Decree shall not constitute an adjudication of or admission by any settling Defendants or class members of any violation of Plaintiffs’ federal statutory rights or constitutional rights, nor shall it operate to preclude any members of the Defendant class from utilizing the provisions set forth in Section 4 of the Voting Rights Act of 1965, as amended, 42 U.S.C. sec. 1973b. In this respect, the parties agree that this Consent Decree will not result in any abandonment of a voting practice challenged in this action.

APPENDIX A

      . The Winston County appointing authority was later excused because the evidence showed that, over the years, it had met the requirements set by the preliminary injunction.