author: EDELSTEIN, District Judge:

text:
    John RODRIGUES d/b/a Tony’s Nurseries, Plaintiff, v. The VILLAGE OF LARCHMONT, NEW YORK, Martin S. Quigley, Richard M. McCarthy, Margaret Piccone, Miriam Curnin, Mark Scheffler, Frederick Kellogg, Jr., Lewell Rosenthal, Joseph P. Bohan, Jr., Alan W. Katzenstein, Edward T. Burns, Jane Braus, and Lawrence Lowy, Defendants.
    No. 83 Civ. 7370 (DNE).
    United States District Court, S.D. New York.
    May 7, 1985.

      Lecci, Wolin & Wolin, Hicksville, N.Y. (Alan E. Wolin, Hicksville, N.Y., of counsel), for plaintiff.
    SHEA & GOULD, New York City (Richard L. Spinogatti & Jonathan J. Bart, New York City, of counsel), for defendants.
   OPINION AND ORDER

EDELSTEIN, District Judge:

Plaintiff, John Rodrigues (“Rodrigues”), brought this civil action against the Village of Larchmont (the “Village”) and a number of Village officials. The poorly drafted complaint alleges a number of constitutional deprivations including a violation of “plaintiff’s constitutional and common law right to due process of law and equal protection of the law,” a violation of plaintiff’s fifth and fourteenth amendment rights to due process of law and equal protection, a conspiracy to deny him the rights guaranteed to him under the Constitution and laws of the United States, and a violation of the privileges and immunities clause of the United States Constitution.

Defendants moved for summary judgment contending that plaintiff had failed to state a claim for relief under 42 U.S.C. §§ 1981, 1982, 1983 and 1985(3) and that defenses were applicable should the court find a claim to be present. Plaintiff has specifically abandoned any claim asserted under Sections 1981 and 1982. Plaintiff failed to respond to defendants’ contentions regarding the Section 1985(3) claim and these allegations shall also be considered to have been abandoned. Thus, only the claim under Section 1983 remains.

BACKGROUND

Rodrigues is a Caucasian male of Portuguese ancestry who owns and operates Tony’s Nurseries (“Tony’s”), a tree and plant nursery in Larchmont, New York. Plaintiff’s Section 1983 claim centers around the treatment of his business by the Village and its officials over a twenty year period. These claims will be set forth in the footnote and referred to by number throughout this opinion to facilitate the analysis of defendants’ motion.

DISCUSSION

Defendants contend that plaintiff has failed to state a claim under Section 1983, that defendants are immune from liability for the acts alleged by plaintiff, that relief for a number of plaintiff’s allegations is barred by the statute of limitations, and that the Village is not liable for punitive damages.

A two step analysis will be used to resolve this motion. The first step is to determine whether the facts set forth by plaintiff state a claim under Section 1983; and the second step is to determine whether any of these claims are subject to the defenses asserted by defendants.

I. STANDARD APPLIED TO A MOTION FOR SUMMARY JUDGMENT.

Summary judgment may be granted only where there are no genuine issues of material fact. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962). All evidence submitted to the court must be viewed in the light most favorable to the plaintiff. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The standard is strictly construed in this circuit. United States v. United Scenic Artists Local 829 of the Brotherhood of Painters, Decorators & Paperhangers of America, 27 F.R.D. 499, 501 (S.D.N.Y.1961). The court finds that partial summary judgment is appropriate because accepting the plaintiff’s statements of fact as true, defendants are entitled to judgment as a matter of law on all but one of plaintiff’s claims.

II. THE CLAIMS.

Plaintiff makes a number of allegations regarding the conduct of the Village and its officials. In order to succeed on a Section 1983 claim, “plaintiffs must prove both 1) deprivation of a federal constitutional or legal right ... which 2) resulted from ‘the sort of abuse of government power that is necessary to raise an ordinary tort by a government agent to the stature of a violation of the Constitution.’ ” Williams v. Kelly, 624 F.2d 695, 697 (5th Cir.1980), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981) (quoting Turpin v. Mailet, 579 F.2d 152, 169 (2d Cir.) (en banc) (Oakes, J., concurring), cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662 (1978)).

A. OBVIOUS STATE LAW ACTIONS

Plaintiff claims that defendants have refused to honor bids (claim 1); have mixed glass into top soil (claim 2); have advocated a boycott of plaintiff’s business (claim 8); have refused to do any other business with plaintiff (claim 11). The mere fact that a legally cognizable injury is inflicted by a state official acting under color of state law does not establish a constitutional violation so as to authorize a claim under Section 1983. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). These claims are clearly state law claims in tort and contract and do not rise to the level of a constitutional deprivation actionable under Section 1983.

B. POLICE PROTECTION

Plaintiff claims that the Village Police Department refused to investigate crimes against the plaintiff and did not permit him to file a complaint and that various individual defendants failed to correct this police inaction and to provide protection for the nursery. (Claims 6 and 7). Plaintiff contends that this inaction constitutes a due process violation. There is certainly no constitutional right to be protected from criminal activity. Wright v. City of Ozark, 715 F.2d 1513, 1516 (11th Cir.1983); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982); Reiff v. City of Philadelphia, 471 F.Supp. 1262, 1265 (E.D.Pa. 1979). Therefore, the claim based on the individual defendants’ inaction is not actionable under Section 1983. The claim that plaintiff was not permitted to file complaints in criminal actions is also defective. Plaintiff admits that while police officers were reluctant to press charges in two robberies of the nursery, charges were eventually brought in both cases. Deposition of John Rodrigues at 204-17. Thus, plaintiff’s claim is not supported by his own version of the facts.

C. TRASH COLLECTION AND USE OF VILLAGE DUMP

Plaintiff alleges that defendants restrained trash pick-ups at the nursery on two occasions, Rodrigues Deposition at 228-29, and denied him access to the Village dump. (Claim 9). Rodrigues further claims that defendant Quigley refused to act on these restraints following plaintiff’s complaint. (Claim 10). A restraint on the provision of municipal services may establish a Section 1983 cause of action based on denial of equal protection, e.g., Johnson v. City of Arcadia, Fla., 450 F.Supp. 1363, 1378-79 (M.D.Fla.1978) (Section 1983 action based on discriminatory provision of services based on race); see Beal v. Lindsay, 468 F.2d 287, 288 (2d Cir.1972) (equal protection claim based on discrimination in level of service provided). Rodrigues claims that the services were not provided and that he feels that he “had been discriminated against.” Rodrigues Deposition at 229. To prevail on this claim, Rodrigues must establish not only that he was discriminated against, but also, because he is not a member of a suspect class, that the alleged discrimination was purposeful or intentional. Teleprompter of Erie, Inc. v. City of Erie, 567 F.Supp. 1277, 1293 (W.D.Pa. 1983); see Burt v. City of New York, 156 F.2d 791, 792 (2d Cir.1946) Therefore, plaintiff does state a claim with regard to the restraints on trash pick-up and access to the dump. Plaintiff claims that the restraint on trash pick-up was based on a personal hostility toward the plaintiff, a situation which has been sufficiently articulated to withstand a motion for summary judgment. This is precisely the situation noted by Judge Learned Hand in Burt. 156 F.2d at 791.

D. THREATS REGARDING NURSERY INTERCOM

Plaintiff also claims that defendant Lowy came to the nursery and told the plaintiff to shut off the intercom and that if plaintiff did not shut them off, Lowy would have the police come to shut them off. The intercom was later sabotaged. (Claim 13). The actions attributed to Mr. Lowy are merely statements of future intent. As Rodrigues concedes, the Village received “numerous complaints against the intercom,” Rodrigues Deposition at 275, so that the Village was simply responding to these complaints when it took action against plaintiff. Further, Rodrigues admits that the “sabotage” of the intercom was not done by any of the defendants, but was done by a private citizen. Rodrigues Deposition at 277. This clearly cannot be the basis for a civil rights action.

E. ENACTMENT OF VILLAGE ORDINANCES AIMED AT THE NURSERY

Rodrigues contends that the Village Trustees (Claim 14) and the Zoning Board (Claim 17) have attempted to enact ordinances aimed solely at plaintiff and that the Village enacted special provisions when dealing with the nursery (Claim 19). Plaintiff cannot, however, rely on conclusory allegations to survive a motion for summary judgment. See Taylor v. Mayone, 574 F.Supp. 609, 612 (S.D.N.Y.1983); Saratoga Vichy Spring Co. v. Lehman, 491 F. Supp. 141, 151 (N.D.N.Y.1979), aff'd, 625 F.2d 1037 (2d Cir.1980). With respect to the Trustees, plaintiff has not pointed to a single ordinance, proposed or enacted that supports this claim. Defendants have sworn that no such ordinances have been considered or enacted. McCarthy Affidavit ¶¶ 17-8; Scheffler Affidavit ¶¶ 5, 7; Curnin Affidavit ¶ 4; Quigley Affidavit ¶ 4. Plaintiff has not satisfied his burden with respect to this claim. With respect to the Zoning Board, plaintiff refers to an ordinance prohibiting the use of sound equipment at the nursery. Deposition at 278. Rodrigues stated that he did not know whether the ordinance was passed but that “it was found to be unconstitutional.” Deposition at 278. The ordinance discussed by plaintiff may not have become law and given plaintiffs statements did not infringe on his constitutional rights.

F. SURVEILLANCE OF THE NURSERY

Plaintiff claims that “[djefendant Kellogg has engaged in surveillances of plaintiff.” Plaintiffs Rule 3(g) Statement ¶ 24. (Claim 20). Plaintiff has included an affidavit by Kellogg and a supporting document that were submitted in a state court action brought by the Village against Rodrigues. Exhibit 28 noted in Plaintiff’s Memorandum in Opposition. Unlawful and unjustifiable surveillance that interferes with and obstructs a person’s ability and right to earn a living may establish a claim under Section 1983. See McGee v. Hester, 724 F.2d 89 (8th Cir.1983). In McGee, the surveillance harassed customers and may have cast a chilling effect over the goodwill of the business. There is no claim that the surveillance undertaken by Kellogg in any way intruded on plaintiff’s right to earn a living or that it was unjustifiable or illegal. In fact, the very documents which plaintiff has offered to support the fact of the surveillance demonstrates that the surveillance was conducted to insure compliance with a restraining order issued by the Supreme Court. Under these circumstances, the surveillance does not establish a cause of action under Section 1983.

G. FILING AND INVESTIGATION OF COMPLAINTS AGAINST THE NURSERY

Plaintiff also contends the Village directed a number of complaints and violation notices against the plaintiff (Claim 22), that defendants have encouraged Village residents to complain about the nursery (Claim 18) and that the Village has joined in citizen complaints to state agencies about the plaintiff (Claim 21). With respect to plaintiff’s contention regarding defendants encouraging Village residents to file complaints against the plaintiff, plaintiff has not come forward with any evidence of such action by a defendant. All of the complaints were made by private citizens and plaintiff has failed to set forth any facts which would establish a connection between the actions of the private citizens and defendants. Thus, the filing of the complaints by the private citizens cannot be said to be under color of state law and is not cognizable under Section 1983.

Plaintiff’s contentions regarding the filing of complaints by defendants and joining in citizen complaints present a different situation. These allegations are analogous to a claim of malicious prosecution against the Village. Malicious prosecution, generally does not constitute a deprivation of life, liberty or property without due process of law, and therefore, is not cognizable under 42 U.S.C. § 1983. Cline v. Brusett, 661 F.2d 108, 112 (9th Cir.1981); see Norton v. Liddel, 620 F.2d 1375, 1378 (10th Cir.1980). An exception to the rule exists if the alleged malicious prosecutions are so egregious as to subject plaintiff to a deprivation of constitutional dimension. Dunn v. Tennessee, 697 F.2d 121, 125 (6th Cir.1982), cert. denied, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983); Norton, supra, 620 F.2d at 1378. The complaints in this case merely initiated investigations by the state agencies and did not implicate any constitutional rights or liberties. Compare Cline, supra, 661 F.2d at 112 (prosecution impaired liberty interest); and Dunn, supra, 697 F.2d at 125-26 (implicated right to be free of unreasonable search and seizures). Further, the actions of the defendants were certainly not so egregious as to rise to the level of a civil rights violation. Plaintiffs claims can be adequately addressed in a state court tort action. See Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).

H. ZONING VARIANCES

1. The Denial of the Variance

Plaintiff claims that the Village denied him a sign variance which had been granted to all others who requested it (claim 3) and that the Village Board of Zoning Appeals denied plaintiffs application for a shade structure (claim 4). Plaintiff apparently contends that these actions were intended to drive him out of business and therefore constitute a due process violation. Plaintiff’s Memorandum in Opposition at 17-18 (relying on DiMaggio v. O’Brien, 497 F.Supp. 870 (E.D.Pa.1980)). The circumstances of DiMaggio are quite different from those presented here. The plaintiff in that case was arrested for criminal violations of the zoning laws and the Section 1983 action was based on malicious usé and abuse of process. The court found that the abuse of process was a constitutional tort because it is “by definition a denial of procedural due process.” DiMaggio, supra, 497 F.Supp. at 878. Plaintiff in this action has not alleged any such abuse of process.

If on the other hand, plaintiff is alleging a violation of equal protection, this states a claim under Section 1983. Plaintiff alleges that he was denied a variance that all others who applied for had received. Under the doctrine of Burt v. City of New York, 156 F.2d 791 (2d Cir.1946), an equal protection claim may be raised even though the plaintiff is not a member of a suspect class. It must be noted, however, that plaintiff will have to bring forth substantial facts at trial supporting his allegations of discriminatory treatment. Marty’s Adult World of New Britain, Inc. v. Guida, 453 F.Supp. 810, 818 (D.Conn.1978).

2. Procedural Due Process during Zoning Hearings

Plaintiff contends that the Zoning Board of Appeals refused to receive evidence regarding plaintiff’s application (Claim 5) and that a defendant refused to permit speakers to testify on behalf of the plaintiff before the Zoning Board of Appeals (Claim 12). Both of these claims apparently relate to plaintiff’s application for a set back variance. Plaintiff suggests that these limitations resulted in a denial of procedural due process. Due process claims are subjected to a two-step analysis: first, the court must ascertain whether that which the plaintiff claims he was deprived of amounts to a property interest entitled to due process protection, and second, the court must determine the nature of the process due. Beacon Syracuse Assoc. v. City of Syracuse, 560 F.Supp. 188, 194 (N.D.N.Y.1983). In this case, the claim fails the first part of the analysis, because “under New York law, no right to a nonconforming use is gained when a landowner applies for a permit,” Ellentuck v. Klein, 570 F.2d 414, 429 (2d Cir.1978).

III. DEFENSES.

Plaintiff has alleged facts to support two claims under Section 1983: first, the denial of equal protection by defendant Kellogg in the refusal to pick up trash and permitting plaintiff to use the Village dump; and second the denial of equal protection in the denial of a zoning variance. Defendants have interposed a number of defenses to the plaintiff’s claims which may preclude liability.

A. IMMUNITY

1. Equal Protection Claim for the Denial of Variances

Defendants have asserted that the members of the Village Board of Zoning Appeals are protected by judicial immunity. To refute this argument, the plaintiff relies on Altaire Builders, Inc. v. Village of Horseheads, 551 F.Supp. 1066 (W.D.N.Y. 1982) where the court found that the Village Board of Trustees who reviewed decisions of the zoning board were not performing a legislative function and were not protected by judicial or legislative immunity. The Trustees were deemed to be performing an administrative function and were entitled to only a qualified immunity. 551 F.Supp. at 1074-75. Plaintiff asserts that the Board of Zoning Appeals is similar to the Board of Trustees in Altaire Builders. The court agrees with this comparison and the analysis of the court in Altaire Builders.

Under this analysis, the Village would also be liable for the actions of the Village Board of Zoning Appeals. The decisions of the Board are intended to be binding on the Village. Thus, the Board members are those officers described by Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) whose joint edicts or acts may fairly be said to represent official policy. Altaire Builders, supra, 551 F.Supp. at 1070. For purposes of Section 1983 liability, the Board of Zoning Appeals and the Village are one and the same. Id.

The question then becomes whether the Board’s actions as alleged by plaintiff are protected by their qualified immunity. Plaintiff asserts that summary judgment is inappropriate on the issue of qualified immunity. This is incorrect. In light of the Supreme Court decision in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), which removed the subjective element of the defense, summary judgment may be used to resolve the issue of qualified immunity. Pullnow v. Glennon, 757 F.2d 496, 500 (2d Cir.1985). Thus, summary judgment is appropriate where the conduct itself and the surrounding circumstances are not in question. Id. In this case, the circumstances surrounding the denial of the variance, including the relationship between the Village and the plaintiff are in issue. Therefore, the court cannot grant summary judgment regarding the qualified immunity.

2. Equal Protection Claim for Restraint on Trash Disposal

The claim regarding the restraint on trash collection and use of the dump by defendant Kellogg cannot be placed into any recognized category of immunity. The claims against Kellogg may not be dismissed based on immunity. The Village, however, cannot be held liable for these claims against Kellogg. In order for the Village to be liable, the deprivation of constitutional rights must be caused by an official act, policy or custom of the municipality. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). It is clear that the refusal to collect trash and to use the dump attributed to Kellogg was not the policy of the Village. Official policy cannot ordinarily be inferred from a single incident. Singleton v. City of New York, 632 F.2d 185, 195 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981). Municipal liability may also be found where the alleged unconstitutional acts “have been committed by an official high enough in the government so that his or her acts can be said to represent a governmental decision.” Losch v. Borough of Parkesburg, 566 F.Supp. 282, 285 (E.D.Pa.1983). Kellogg was a man with many hats in Larchmont — Village Engineer, Building Inspector, and Superintendent of the Larchmont-Mamaroneck Joint Garbage Disposal Commission — but certainly he cannot be considered to be an official high enough so that his actions represent a governmental decision.

B. STATUTE OF LIMITATIONS

The appropriate statute of limitations in a Section 1983 action is the statute of limitations for the recovery of damages for personal injuries. Wilson v. Garcia, — U.S. -, -, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985). The personal injury statute of limitations in New York is three years. N.Y.Civ.Prac. Law § 214 (McKinney Supp.1984-85). This action was filed on October 4, 1983, so that any claims accruing prior to October 4, 1980 are time barred.

The incident regarding the restraints on trash collection and use of the dump occurred shortly after plaintiff received a letter from defendant Kellogg dated July 18, 1980. Plaintiffs Response to Interogatory No. 25. Plaintiff claims that the restraints continued for one week. Rodrigues Deposition at 232. The incident therefore occurred prior to October 4, 1980 and is therefore time barred.

The denial of the zoning variances also implicate the statute of limitations. Plaintiff asserts that he was denied a variance on two occasions: the first was prior to 1975, Rodrigues Deposition at 142, and the second in 1982, id. at 141. Any cause of action relating the denial of the first variance application is time barred. Thus, the only basis for this action is the 1982 denial of the zoning variance.

CONCLUSION

Defendant’s motion for summary judgment is granted in part and denied in part. The action against the Village and the members of the Village Board of Zoning Appeals regarding the denial of the 1982 variance application may proceed. All other causes of action are dismissed.

SO ORDERED

      . The individual defendants and their positions are as follows:
      Martin S. Quigley who was the Mayor of the Village from April, 1980 through April, 1984. He was also a member of the Board of Trustees from April, 1977 to April, 1979.
      Richard H. McCarthy, Margaret J. Piccone, Miriam Curnin and Mark Scheffler were members of the Board of Trustees of the Village at various times between April, 1979 and April, 1984. Miriam Curnin has been the Mayor of the Village since April, 1984.
      Lawrence Lowy, Joseph P. Boham, Jr., Allan W. Katzenstein, Edward T. Burns and Jane Braus are or were members of the Zoning Board of Appeals for the Village. Lewell Rosenthal is the former Chairman of the Zoning Board of Appeals.
      Fredrick Kellogg is the Village Engineer and Building Inspector and the Superintendent of the Larchmont-Mamaroneck Joint Garbage Disposal Commission.

      . The papers submitted by the plaintiff are poorly drafted and incomprehensible. The court has attempted to decipher the plaintiffs submissions and has given the plaintiff the benefit of the doubt whenever possible to determine whether a claim has been stated.

      . These claims are gleaned from the plaintiffs pleadings and motion papers, which are convoluted at best, and plaintiffs deposition.
      Plaintiff alleges:
      1) defendant Frederick Kellogg ("Kellogg"), the Village Engineer, has refused to honor plaintiffs bids after they were accepted;
      2) Kellogg intentionally mixed glass into plaintiffs top soil;
      3) the Village denied plaintiff a sign variance which had been awarded to all other establishments which had requested it;
      4) the Village Board denied plaintiffs application for a shade structure;
      5) the Zoning Board of Appeals denied plaintiffs application for a set back variance after refusing to receive relevant evidence, disallowing presentations, taking aggressive anti-plaintiff positions, encouraging opposition and generally acting arbitrary and capricious;
      6) the Village Police Department refused to investigate crimes occurring against plaintiff or to permit plaintiff to file complaints with respect to criminal occurrences;
      7) defendants Martin S. Quigley ("Quigley”), the mayor of the Village from April 1980 through April 1984 and a member of the Village Board of Trustees from April 1977 to April 1979, and Richard H. McCarthy (“McCarthy"), a member of the Village Board of Trustees between 1980 and 1984, refused to correct the alleged police inaction;
      8) defendant Mark Scheffler, a member of the Village Board of Trustees between 1978 and 1982, advocated a boycott of plaintiffs business;
      9) defendant Kellogg placed restraints on the trash collection at plaintiffs business and refused to permit plaintiff to use the Village dump;
      10) defendant Quigley refused to act on these restraints following a complaint made by the plaintiff;
      11) defendant Kellogg, with the approval of the Mayor and Trustees, has refused to do any other business with the plaintiff;
      12) defendant Lewell Rosenthal ("Rosenthal"), the chairman of the Zoning Board of Appeals during 1982, refused to permit speakers to testify on behalf of plaintiff at Zoning Board Meetings;
      13) defendant Lawrence Lowy (“Lowy"), a member of the Zoning Board of Appeals from 1982 to the present and a member of the Village Board of Trustees from 1974 through 1976, in his capacity as Trustee ordered the plaintiff to cease operation of an intercom which thereafter was sabotaged;
      14) the Village, through its Trustees, have attempted to enact ordinances aimed solely at plaintiff;
      15) defendant Lowy has encouraged local newspapers to write derogatory articles about plaintiff;
      16) defendant Lowy has urged the Board of Trustees to take action against the plaintiff;
      17) defendant Allan W. Katzenstein (“Katzenstein”), a member of the Zoning Board of Appeals from 1973 to the present, has urged that conditions at plaintiffs premises be intentionally made subject to zoning ordinances;
      18) defendant Quigley has encouraged Village residents to complain about the plaintiff;
      19) the Village has enacted special provisions when dealing with plaintiff;
      20) defendant Kellogg has engaged in surveillances of plaintiff;
      21) the Village has joined in citizen complaints to State agencies about the plaintiff;
      22) there have been a number of official complaints lodged against the plaintiff;
      23) defendants and their agents have conducted a vendetta against plaintiff in order to destroy his business and to cause him severe emotional and mental distress. The harassment of plaintiff as a part of this vendetta has included causing approximately one hundred official complaints to be lodged against plaintiff’s business most of which have been investigated and found to be without merit and the above noted restraints on trash pick-ups, assaults on plaintiffs employees, ethnic slurs, Zoning Board prejudice, threatening phone calls, and the bringing of numerous State Supreme Court actions against the plaintiff alleging zoning violations.

      . Plaintiff presents an inaccurate discussion of the standard to be applied to a motion for summary judgment. Plaintiff would have the court rely on the pleadings to determine if summary judgment should be granted. This is clearly incorrect. Rule 56 of the Federal Rules of Civil Procedure provides:
      When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials in his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
      The cases relied on by plaintiff to support his interpretation involve motions to dismiss pursuant to Rule 12 and are therefore inapplicable to the present motion.

      . A Section 1983 cause of action involving municipal services is also available for the deprivation of property without due process, e.g., Kostiuk v. Town of Riverhead, 570 F.Supp. 603, 609 (E.D.N.Y.1983) (de minimis deprivation of property when plaintiffs dog was impounded overnight). The plaintiff makes no claim in this regard.

      . Defendants contend that plaintiff has abandoned his equal protection claims by expressly dropping the claims under Sections 1981 and 1982 and impliedly abandoning the claim under Section 1985. While the plaintiff has abandoned equal protection claims relating to race based discrimination, equal protection claims may still be stated when the actions involve intentional or purposeful discrimination against non-suspect classes. See cases cited in text.

      . If the plaintiff is claiming that the investigation of these citizen complaints constitutes an infringement of his civil rights, this claim would likewise fail. An analogous situation would be an action based on the selective enforcement of a regulation. In order to succeed on such a claim, the plaintiff must establish: 1) that the person, compared with others similarly situated, was selectively treated; and 2) that such selective treatment was based on impermissible considerations, such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). The plaintiff has not come forward with any evidence that he was selectively treated or that, if there was selective treatment, that it was based on impermissible considerations.

      . The complaints involved were apparently notices to various state agencies regarding alleged violations by the plaintiff of environmental and health regulations. See Plaintiffs Response to Interrogatory No. 15.

      . Review of Zoning Board decisions in federal court is limited to an examination of whether the action of the municipality invades the constitutional rights of the complaining party. See Sternaman v. County of McHenry, 454 F.Supp. 240, 242-43 (N.D.Ill.1978). The equal protection claim falls into this category. The court cannot substitute its discretion for that of the Zoning Board. While there is no federal claim for the procedural defects alleged, the decision of the Zoning Board may be reviewed through an Article 78 proceeding. The plaintiff has followed this procedure and has been denied relief by the Supreme Court of the State of New York. The decision of the Supreme Court is presently on appeal to the Appellate Division.

      . Punitive damages are not available against the Village. Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981).

      . Plaintiff argues that acts occurring prior to October 4, 1980 are not time barred, based on two theories: a "continuing conspiracy” theory and a "diligence discovery” rule. Both of these theories were presented to the court in Singleton v. City of New York, 632 F.2d 185 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981), and rejected. As stated by the Court of Appeals:
      Characterizing [the alleged] wrongful acts as “a single series of interlocking events” does not postpone accrual of claims based on individual wrongful acts. The crucial time for accrual purposes is when the plaintiff becomes aware that he is suffering a wrong for which damages may be recovered in a civil action.

        Id. at 192. The other basis of plaintiff’s claim was also rejected. The court noted limited instances where the action does not accrue until the wrong becomes apparent but found that the situation presented did not warrant such treatment. Id. at 192-93. In this case, plaintiff was aware of both the restraint on trash collection and use of the dump as well as the denial of the first two variance applications at the time that these events occurred. Further, any injury resulting from these alleged acts was apparent at the time they occurred. The three year statute of limitations measured from October 4, 1980 applies to this action.


source: Caselaw Access Project

author: GENE CARTER, District Judge.

license: Public Domain

text:
    Harry HUDSON, Plaintiff, v. S.D. WARREN CO., et al., Defendant.
    Civ. No. 84-0278-P.
    United States District Court, D. Maine.
    May 7, 1985.

      Stephen P. Sunenblick, Sunenblick, Fontaine & Reben, Portland, Me., for plaintiff.
    William J. Kayatta, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Me., for S.D. Warren, Malia, Maskewitz, Reiche & Roehner.
    Gerald F. Petruccelli, Portland, Me., for Berry, Auger, Snow & Stilphen.
   ORDER ACCEPTING RECOMMENDED DECISION OF THE MAGISTRATE

GENE CARTER, District Judge.

In this case Plaintiff has alleged that he was dismissed from his employment with Defendant company S.D. Warren after Defendant Berry, an undercover agent of the Maine State Police, falsely reported to the company that Plaintiff had both drunk alcohol on the job and offered him a drink. Plaintiff has asserted several federal and pendent state law claims arising from this incident. Defendants moved to dismiss two of the state law claims: Count II, a claim for invasion of privacy, and Count V, a claim for negligent dissemination of confidential police information.

After a hearing, the United States Magistrate recommended that Count V and part of Count II be dismissed. Currently before this Court are Plaintiff’s objections to the Magistrate’s Recommended Decision.

The complaint asserts that Plaintiff has a privacy interest based upon Maine common law, 16 M.R.S.A. § 614 and 25 M.R.S.A. § 1631. The record reflects, however, as the Magistrate states, that Plaintiff does not attempt to state a private cause of action under the statutes but rather views the statutes as delineating the common law torts of negligence (Count V) and invasion of privacy (Count II).

In Count II Plaintiff asserts that the disclosure of Plaintiff’s alleged drinking on the job by Defendant Berry to Defendant S.D. Warren and to Managers Malia, Maskewitz, Reiche and Roehner is contrary to law because the information, having been obtained in the course of a police investigation, is confidential. Complaint 1141. Plaintiff also alleges that the disclosure of the information to the news media placed Plaintiff in a false light in the public eye. The motion to dismiss was not addressed to the second allegation, and the Magistrate left that part of Count II intact.

Under Maine law, to state a privacy claim for public disclosure of private facts Plaintiff must allege that publicity was given to facts about Plaintiff’s private life that would be highly offensive to a reasonable person and that are not of legitimate concern to the public. Nelson v. Maine Times, 373 A.2d 1221, 1225 (Me.1977). Finding that the complaint did not adequately allege that the disclosures were made to the public or that the facts disclosed were of no legitimate concern to the public, the Magistrate dismissed this portion of Count II.

Plaintiff argues that he has not failed to allege the required elements of a common law claim for public disclosure of private facts because the statutes which he has set forth in the complaint modify the traditional elements of that claim. The Court cannot agree. Having elected not to assert a private right of action under the statutes, Plaintiff may not now equate the common law action with one under the statute. He has cited no Maine authority for the proposition that the statutes modify the elements of the common law claim. In essence, then, it appears that Plaintiff is asking the Court to recognize a new tort for Maine that would parallel a private action for violation of the statutes alleged in the complaint.

The Law Court has recently expressed its reluctance to imply private rights of action under Maine statutes without express signs from the legislature that it intended such an action:

Indeed, in the past, when the Legislature deemed it essential that a private party have a right of action, it has expressly created one____ Thus, if our Legislature had intended that a private party have a right of action under 26 M.R.S.A. § 1051(1)(B) or 26 M.R.S.A. § 630, it would have either expressed its intent in the statutory language or legislative history, or more likely, expressly enacted one.

Larrabee v. Penobscot Frozen Foods, 486 A.2d 97, 101 (Me.1984). Since the Law Court is hesitant to imply private rights under statutes, and indeed, there is no assertion that the Maine Legislature intended such a private right under 16 M.R.S.A. § 611 or 25 M.R.S.A. § 1631, this Court should not, and will not, take it upon itself to create for Maine a new tort which would be the equivalent of an action under the statutes. Maine’s tort of invasion of privacy is broad and well-defined. See Nelson v. Maine Times, 373 A.2d 1221. Without any indication from the Law Court that that law will be modified to meet changing statutory norms, this Court cannot predict that the Maine Court will effect the change in the law which Plaintiff suggests. Therefore, the Magistrate’s application of the Nelson criteria to the complaint in this case was appropriate.

The Magistrate found, and this Court agrees, that the complaint did not adequately allege a public disclosure that Plaintiff had been drinking on the job. The disclosure was made by state police officers to Defendant S.D. Warren and to Defendants Malia, Maskewitz, Reiche and Roehner. The Defendants to whom the information was disclosed are Plaintiff’s employers. Although Maine law does not deal specifically with how broad a disclosure must be in order to be public, the Court is confident that this disclosure does not meet that standard. As Dean Prosser has stated:

The disclosure of the private facts must be a public disclosure, and not a private one; there must be, in other words, publicity. It is an invasion of his rights to publish in a newspaper that the plaintiff does not pay his debts, or to post a notice to that effect in a window on the public street, or to cry it aloud in the highway, but not to communicate the fact to the plaintiff’s employer, or to any other individual, or even to a small group____

W. Prosser, The Law of Torts 810 (1971). See Harrison v. Humble Oil & Refining Co., 264 F.Supp. 89 (D.S.C.1967). The disclosure of the alleged information to Plaintiff’s employers was a disclosure not to the public but to a small group of persons. Moreover, as the Magistrate also found, the persons to whom the information was disclosed, as Plaintiff’s employers, had a legitimate interest in it.

The Magistrate also dismissed Count V, in which Plaintiff sets forth a claim for negligent dissemination of confidential police information. Again Plaintiff asserted before the Magistrate, and asserts here, that Count V is a claim based on the common law of negligence rather than on the statute. He states in his memorandum that under Maine law, the police “owe a duty to ordinary private citizens who become the subjects of undercover police surveillance to use reasonable care to maintain the confidentiality of surveillance reports about their noncriminal conduct.” Explaining the duty, he further states that “Maine law in negligence and the presence of the two statutory schemes require a determination that the police in Maine have such a duty and that the CHRIA [16 M.R.S.A. § 611-622] and Section 1631 are important evidence of [its] existence.” This Court disagrees. The Maine Law Court has clearly expressed itself on the issue of deriving a common law tort duty from the existence of a statute. In Jones v. Billings, 289 A.2d 39, 41 (Me.1972), that Court stated:

This is a penal statute which includes no provision for a civil remedy in event of violation. In the absence of a clear indication of legislative intent to enlarge or extend the duty owned at common law, we have consistently declined to treat a statute or ordinance exclusively penal in nature as having such effect. Such was the import and intended meaning of holdings that violation of a penal statute would not constitute “negligence per se.” ... Specifically, this statute in no way enlarges the common law duty owed to trespassers. However, evidence of a violation of the “well” statute, if indeed the condition described in the complaint constitutes a “well” as defined by the statute, might be received as evidence of negligence if it were first shown that the circumstances and the relationship between the defendant and the decedent were such as to impose upon the defendant a duty to exercise care for his safety. That duty is not, however, raised by the statute itself but must be raised independently thereof.

(Citations omitted.) It is apparent, then, that the mere existence of Maine’s statutes concerning dissemination of police information does not require the finding of a duty running from police officers to subjects of their surveillance.

Plaintiff has cited no Maine authority recognizing the existence of such a duty within the common law of negligence. In assessing the negligence claim, the Magistrate correctly looked beyond the literal language of the complaint to ascertain the real cause asserted. See Jimenez-Nieves v. United States, 682 F.2d 1, 6 (1st Cir.1982). He found that the tort alleged was basically a claim for negligent invasion of privacy and, analogizing from Jimenez, that it was no less a claim for invasion of privacy because of the addition of the negligence element. The Magistrate found no indication in Maine law that Maine would recognize a tort of negligent disclosure of confidential police information apart from the tort of invasion of privacy. The Court agrees with this analysis.

Accordingly, the Court accepts the Recommended Decision of the Magistrate. It is hereby ORDERED that Count II be, and is hereby, DISMISSED to the extent that it attempts to state a claim for public disclosure of private facts. It is further ORDERED that Count V be, and is hereby, DISMISSED.

So ORDERED.

      . 25 M.R.S.A. § 1631 provides:
      § 1631. Records confidential
      All criminal and administrative records of the State Police and the Bureau of Identification are declared to be confidential, except:
      1. Operational reports. Operational reports by the bureau;
      2. Activity reports. Activity reports by the bureau;
      3. Names. Names of State Police applicants;
      4. Promotions. Promotions;
      5. Resignations. Resignations;
      6. Discharges. Discharges;
      7. Retirements. Retirements;
      8. Statistical reports. Statistical reports by Bureau of Identification;
      9. Accident reports. Accident reports;
      10. Further statistical reports. Statistical reports by Division of Traffic Records;
      11. Accident information. Accident information on pending cases which would not jeopardize the investigation or prosecution of such cases;
      12. Further statistical reports. Statistical reports by Division of Criminal Investigation;
      13. Open court information. Information made available in open court;

        14. Pending case information. Information on pending cases which would not jeopardize the investigation or prosecution;
      15. Further statistical reports. Statistical reports by Division of Special Services on truck weights, public utility enforcement and beano;
      16. Audits. Annual audits.
      Such records other than the exceptions listed may be subpoenaed by a court of record.
      16 M.R.S.A. § 614 is part of Maine’s Criminal History Record Information Act, [CHRIAj. It provides in pertinent part:
      § 614. Limitation on dissemination of intelligence and investigative information
      1. Limitation on dissemination of intelligence and investigative information. Reports or records in the custody of a local, county or district criminal justice agency or in the custody of the criminal law enforcement units of the Department of Marine Resources or the Department of Inland Fisheries and Wildlife containing intelligence and investigative information shall be confidential and shall not be disseminated, if public release or inspection of the report or record may:
      A. Interfere with law enforcement proceedings;
      B. Result in public dissemination of prejudicial information concerning an accused person or concerning the prosecution’s evidence that will interfere with the ability of a court to impanel an impartial jury;
      C. Result in public dissemination of information about the private life of an individual in which there is no legitimate public interest and which would be offensive to a reasonable person;
      D. Disclose the identity of a confidential source;
      E. Disclose confidential information furnished only by the confidential source;
      F. Disclose investigative techniques and procedures or security plans and procedures not generally known by the general public; or
      G. Endanger the life or physical safety of law enforcement personnel.


author: CAFFREY, Chief Judge.

text:
    Paul L. SHINER, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 84-0703-C.
    United States District Court, D. Massachusetts.
    May 7, 1985.

      Carol Avard, Allen Rodman, P.C., Malden, Mass., for plaintiff.
    Richard E. Welch, III, Asst. U.S. Atty., Boston, Mass., for defendant.
   MEMORANDUM

CAFFREY, Chief Judge.

This is an action brought pursuant to 42 U.S.C. § 405(g) to review a final determination of the Secretary of Health and Human Services denying claimant Paul L. Shiner’s application for Social Security disability benefits.

The claimant, a 54 year old male, has been an insulation worker for thirty years and suffers from a variety of ailments, including diabetes, hypertension, asbestosis, arthritis, and shoulder and back injuries sustained in a fifteen foot fall at work. Subsequent to an administrative hearing on February 2, 1983, the Administrative Law Judge (“AU”) found that the claimant was not entitled to a period of disability under sections 216(i) and 223 of the Social Security Act. 42 U.S.C. § 301 et seq. Claimant’s request for review by the appeals Council was denied on July 20, 1983. Having exhausted his administrative remedies, the claimant initiated this action which is now before the Court on the claimant’s motion for summary judgment and on the Government’s motion for an order affirming the Secretary.

In her opinion, the AU developed the claimant’s medical and job history. The relevant medical and non-medical evidence is recounted in detail, and, for the most part, accurately. Following the sequential evaluation procedure set forth in 20 C.F.R. § 404.1520, the AU reached the following findings:

1. The claimant met the special earnings requirements of the Act on February 10, 1981, the date the claimant stated he became unable to work, and continues to meet them through December 31, 1986.
2. The claimant has not engaged in substantial gainful activity since February 1981.
3. The medical evidence establishes that the claimant has severe persistent lumbar mechanical dysfunction following compression fractures; diabetes controlled by diet; high blood pressure controlled by medication; and some evidence of asbestos-related pleural disease, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. Claimant does experience some pain, but it is not considered to be of disabling severity.
5. The claimant is unable to perform his past relevant work as an asbestos construction worker (20 CFR 404.1565).
6. The claimant has the residual functional capacity to perform sedentary work (20 CFR 404.1567).
7. The claimant is 54 years old, which is defined as closely approaching advanced age (20 CFR 404.156).
8. The claimant has an eleventh grade education (20 CFR 404.1564).
9. The claimant has work skills, such as ability to use hand and motor tools, eye and hand coordination, use independent judgment, inspect work, supervise and coordinate workers and inspect work for compliance to specifications which he demonstrated in past work, and which can be applied to meet the requirements of skilled or semi-skilled work functions of other work (20 CFR 404.1568).
10. Section 404.1569 of Regulations No. 4 and Rule 201.11, Table No. 1 of Appendix 2, Subpart P, Regulations No. 4, direct a conclusion that, considering the claimant’s residual functional capacity, age, education, and work experience, he is not disabled.
11. The claimant was not under a “disability,” as defined in the Social Security Act, at any time through the date of this decision (20 CFR 404.1520(f)).

Findings 1, 2, 3 and 5 are supported by substantial evidence in the record and may stand. Those findings establish that the claimant has met the earnings requirements of the Act, suffers from clinically demonstrable medical impairments, and is unable to perform his former work. His impairments include “severe persistent lumbar mechanical dysfunction following compression fractures; diabetes controlled by diet; high blood pressure controlled by medication; and some evidence of asbestos-related pleural disease.”

Those findings numbered 4, 6, 7, 8 and 9 relate to the medical-vocational tables found in 20 C.F.R. Part 404, Subpart P, Appendix 2, which were promulgated by the Secretary for use in determining whether a claimant’s residual functional capacity enables him to perform substantial gainful activity. To make this determination, the AU made reference to Table No. I, entitled “RESIDUAL FUNCTIONAL CAPACITY: MAXIMUM SUSTAINED WORK CAPABILITY LIMITED TO SEDENTARY WORK AS A RESULT OF SEVERE MEDICALLY DETERMINABLE IMPAIRMENT(S).” The findings numbered 6, 7, 8, and 9, when applied to this table, mandate a determination that the claimant is “not disabled.” Rule 201.11, Table I.

Claimant Shiner contends, inter alia, that the determination that he is “not disabled” is error because the table is inapplicable to him. The thrust of his challenge is that the AU’s finding no. 6, i.e., that the claimant has the residual functional capacity to perform sedentary work, is not supported by substantial evidence.

The evidence relative to the claimants ability to perform sedentary work is as follows. Shortly after he fell in February of 1981, Mr. Shiner sought treatment from Dr. R. Wendell Pierce, an orthopedic surgeon certified by the American Board of Orthopedic Surgery. Shiner complained of symptoms including pain in the lumbar spine with radiation of pain down the left thigh to the knee. After examination and x-rays, Dr. Pierce diagnosed the condition as a probable lumbar compression fracture and was initially of the opinion that Shiner’s disability would be temporary. Claimant continued to be treated by Dr. Pierce through the spring of 1981, when Mr. Shiner developed additional symptoms including abdominal pain radiating from the back. Dr. Pierce referred Shiner to a neurologist and an internist in an attempt to determine the cause of this abdominal pain. Both the neurological and abdominal examinations revealed no abnormalities. Re-examination by Dr. Pierce in mid-April revealed that Mr. Shiner’s back “moved poorly” and was limited to 50% of normal motion. X-rays revealed a healing fracture at L2 and asymmetry of facet joints. Medication and a “TENS” unit were prescribed for pain. In January of 1982 Dr. Pierce reported evidence of an L5 root irritation. On November 28, 1982, Dr. Pierce reported that Shiner still suffered from “pain around the mid and lower lumbar spine and sometimes in the sacroiliar joint regions,” and that he was unable to tolerate a prescribed back brace because of abdominal pain. In Dr. Pierce’s opinion, this pain disabled plaintiff from any type of physical activity. Dr. Pierce also noted that “[h]e has trouble sitting or standing for any length of time____” Dr. Pierce concluded that “he is totally disabled for any type of gainful employment and unfortunately his disability seems to be permanent at this time.” In a Physical Impairment Questionnaire completed January 7, 1983, Dr. Pierce stated that in a consecutive 8-hour period Shiner would be able to sit or stand for a total of xk hour each, and that Shiner did not have the capacity to lift any amount of weight frequently during 6 hours of an 8 hour work shift.

The only other relevant medical evidence consists of an evaluation form executed by Dr. Goulding dated April 4, 1982. This form consists of a one-page questionnaire with several boxes to be checked by the evaluating physician. Only one of the boxes was checked, indicating that the claimant suffered “no significant restriction of basic work-related functions.” The form contains no information regarding the basis for this opinion.

Non-medical evidence of claimant’s capacity to perform sedentary work consists of a vocational evaluation by Estelle R. Hutchinson, M.S., C.R.L., and Shiner’s hearing testimony. Ms. Hutchinson found that Shiner had acquired skills which were transferable to bench work occupations. She noted that Shiner felt he would not perform this type of work because he is in constant pain; he can sit, stand or walk for only ten minutes at a time, and he must lay down periodically to relieve the pain. Accordingly, Ms. Hutchinson added the caveat: “[WJhether he could perform skilled or semi-skilled bench work which allows alternative sitting and standing needs to be clarified by a physician.” Ms. Hutchinson then made reference to a report by a Dr. Hyder, which was not in evidence before the ALJ, which states that Shiner would only work for four hours a day because of “degenerative changes of both knees.” Ms. Hutchinson’s report concludes, “[A]part from bench work occupations, there appear to be no other jobs to which Mr. Shiner could transfer his acquired work skills.”

The substance of the claimant’s testimony at the hearing is as follows. Mr. Shiner is able to stand only one-half hour before he feels pain and discomfort. He is able to sit only for a shorter period, it being his worst position. During questioning by the AU Shiner was asked if he could lift a 20 pound turkey. He responded, “If I had to, I probably could.” Mr. Shiner reported that he often has the television on during the day but is unable to sit through a show without developing stomach pain.

Sedentary work is defined in the Secretary’s own regulations as work “which involves sitting, a certain amount of walking and standing____” 20 C.F.R. § 404.1567(a). Where a person is unable to sit for long periods of time he may not have the capacity to do sedentary work. 20 C.F.R. § 404.1567(b). Similarly, where a claimant has to interrupt work done in a sitting position with periods of prone rest, a finding that he can perform sedentary work is not supported by substantial evidence. Benko at 704. Hence, a determination that a claimant is able to perform sedentary work “must be predicated upon a finding that the claimant can sit most of the day, with occasional interruptions of short duration.” Id.; see also Thomas v. Secretary of Health and Human Services, 659 F.2d 8, 11 (1st Cir.1981).

By this standard, the facts in the record do not constitute substantial evidence in support of the AU’s finding that Shiner is able to perform sedentary work. Aside from the medical consult form checked by Dr. Goulding who appears never to have treated or examined plaintiff, there is not a scintilla of evidence which indicates that Shiner could sit in a chair for more than one-half hour during an eight-hour shift. I note that such a consultative report from a non-examining physician cannot, by itself, constitute substantial evidence. E.g. Browne v. Richardson, 468 F.2d 1003, 1006 (1st Cir.1972).

Mr. Shiner’s complaints of pain and discomfort contribute substantially to his inability to sit for a prolonged period. Generally, it is within the province of the Secretary to evaluate the degree of pain in light of the supporting medical evidence. Gagnon v. Secretary of Health and Human Services, 666 F.2d 662, 665 (1st Cir.1981). I find, however, that Mr. Shiner’s allegations of disabling pain are “demonstrable by medically acceptable clinical and laboratory techniques.” 42 U.S.C. § 423(d)(3), and that there is no current evidence which would tend to negate the existence of disabling pain. See Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 1000 (1st Cir.1975).

Furthermore, sedentary work often involves some lifting. 20 C.F.R. § 404.-1567(a). The pertinant medical evidence is that Shiner has very limited lifting capability and should, in fact, refrain from any lifting at all. Shiner’s statement that he could “probably” lift 20 pounds once, if he “had to” is only marginally probative of his ability to lift and carry throughout the workday.

Thus, the record necessitates a conclusion that the ALJ’s finding of residual functional capacity to perform sedentary work is not supported by substantial evidence. Accordingly, I rule that the Secretary’s decision should be reversed.

Order accordingly.

ORDER

In accordance with memorandum filed this date, it is ORDERED:

1. The plaintiff’s motion for summary judgment is granted.

2. The decision of the Secretary is reversed.

3. The Secretary is ordered to provide plaintiff, Paul L. Shiner, with the disability insurance benefits to which he is entitled as a result of a period of disability commencing February 10, 1981.

4. The defendant’s motion for an order affirming the final decision of the Secretary is denied.


author: GEORGE HOWARD, Jr., District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Paul JACOB, Defendant.
    No. LR-CR-82-119.
    United States District Court, E.D. Arkansas, W.D.
    May 8, 1985.

      George Proctor, U.S. Atty. by Ken Stoll, Asst. U.S. Atty., Little Rock, Ark., for plaintiff.
    John Wesley Hall, Jr., and Larry D. Vaught, Little Rock, Ark., for defendant.
   MEMORANDUM OPINION AND ORDER

GEORGE HOWARD, Jr., District Judge.

The pivotal question before the Court on defendant’s motion for evidentiary hearing and to dismiss is whether defendant is entitled to an evidentiary hearing to determine whether he was indicted for failure to register for the draft because of his exercise of First Amendment rights secured to him under the Federal Constitution.

In essence, Jacob asserts that there are thousands of young males who have not registered for the draft, but only those-who have publicly expressed disagreement with the draft registration law have been prosecuted and, as such, the Government has abridged his right of free speech and the Court should afford him a hearing on his claim of selective prosecution.

On the other hand, the Government contends that there has been no abridgment of Jacob’s First Amendment rights inasmuch as the. Government may legally select for prosecution only those protestors who call attention to themselves by publicly acknowledging that they have not registered and do not intend to do so. In short, the Government asserts strongly that Jacob is not entitled to an evidentiary hearing because his defense of selective prosecution does not state a legitimate defense.

The Court holds that Jacob has not made a threshold showing of his entitlement to an evidentiary hearing by alleging sufficient facts in his motion to take the question beyond the frivolous state and raise a reasonable doubt as to the Government’s purpose in prosecuting him. Therefore, Jacob’s motion is denied.

I.

In United States v. Eklund, 733 F.2d 1287 (8th Cir.1984) the Court of Appeals reemphasized that the following standards are dispositive in determining whether an evidentiary hearing should be granted on a claim of selective prosecution:

“A hearing is necessitated only when the motion alleges sufficient facts to take the question past the frivolous state ... and raises a reasonable doubt as to the prosecutor’s purpose____ Without such a showing the criminal prosecution is presumed to have been undertaken in goodfaith and in a nondiscriminatory manner pursuant to a duty to bring violators to justice.”

It is universally accepted that the Government, through the Justice Department, possesses “broad discretion” as to whom to prosecute, providing there is probable cause to believe that an offense has been committed and the determination to prosecute is not “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classifications including the exercise of basic and fundamental rights secured under the Federal Constitution.” See, Wayte v. United States, — U.S. -, 105 S.Ct. 1524, at 1531, 84 L.Ed.2d 547 (1985).

In Wayte the Supreme Court observed that the broad discretion afforded the Government in deciding whom to prosecute rest, in part, on such matters as “the strength of the case, the prosecution’s general deterrance value, the Government’s enforcement priorities, and the Government’s overall enforcement plan.” While the Supreme Court emphasized that this governmental discretion is not “unfettered and is subject to constitutional constraints,” courts are “hesitant to examine the decision whether to prosecute” because, among other things, of the possibility of frustrating the Government’s law enforcement policies.

II.

RELEVANT FACTS

Defendant, Paul Jacob (Jacob), twenty-five years of age, on January 5, 1981, participated in a demonstration protesting draft registration at the downtown Little Rock post office. Jacob stated to news reporters that he had not registered for the draft and did not intend to. Jacob’s name was supplied to the Selective Service by someone who had witnessed the demonstration.

On September 24, 1981, an Assistant United States Attorney of the Eastern District of Arkansas sent Jacob the following letter:

We have received information that you have failed to register with the Selective Service as required by the Military Selective Service Act.
Unless you register with the Selective Service within 21 days of the receipt of this letter, criminal prosecution will be considered against you.
Enclosed is a special registration form prepared by the Selective Service and a postage paid envelope for your use.

This communication was sent by registered mail and pursuant to the Government’s passive enforcement system — in which prosecution efforts focused upon nonregistrants brought to the attention of the government by the nonregistrants or by others. The letter was returned “unclaimed.”

In November, 1981, Federal Bureau of Investigation agents interviewed Jacob’s mother at her North Little Rock, Arkansas, home. She advised the agents that she did not know the whereabouts of her son.

On August 16, 1982, the following communication was sent to the parents of Jacob by the United States Attorney’s office:

As you are probably aware your son, Paul Jacob, is being investigated for failure to register with the Selective Service. This failure by you son to register appears to be a violation of law for which he could be prosecuted. We have attempted, through the Federal Bureau of Investigation, to contact your son but have been unable to do so. If your son has an explanation for his failure to register he should contact this office immediately, otherwise we will proceed to present this matter to the Grand Jury for this district. I would appreciate your advising your son of this letter if you have contact with him.

There was no reply to this letter.

On September 21, 1982, Jacob was indicted by the grand jury for the Eastern District of Arkansas on one count of violating the Military Selective Service Act, Title 50 Appendix, United States Code, Sections 453 and 462(a). Jacob was arrested at his North Little Rock, Arkansas, residence on December 6, 1984.

Jacob asserts that since the reinstitution of the draft, his indictment represents the thirteenth person indicted for failure to register for the draft, and since his indictment, only four additional indictments have been issued nationwide, thus, only seventeen indictments have been obtained out of a pool between 500,000 and 2,000,000 non-registrants.

Jacob also asserts that it is plain from memoranda proffered that Justice Department and Selective Service officials knew that the Government’s “passive enforcement policy” is directed solely at vocal non-registrants who openly object to the law on either religious, moral or political grounds. Further, the Government has had ample time to institute a reasonable alternative system of enforcement.

Finally, Jacob contends that the Supreme Court’s decision in Wayte v. United States, — U.S. -, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), in rejecting the constitutional challenge to the Government’s “passive enforcement policy” is not dispositive of his claim here because the defendants in Wayte and Eklund were self-reporters while he is not; and that the Supreme Court in Wayte and the Court of Appeals in Eklund erred in finding that the Government was in the process of instituting an “active” procedure in identifying nonregistrants in lieu of the “passive enforcement system.”

First, the Court rejects Jacob’s argument that Wayte is not dispositive of the assertion that the “passive system” discriminates against vocal nonregistrants. It is plain that the Supreme Court determined that the Government’s “passive enforcement system” coupled with the Government’s application of its “beg” policy — policy of prosecuting only those nonregistrants, whether vocal or otherwise, who refused to register after disregarding repeated requests to do so — removed most, if not all, of any burden “passive enforcement” placed on free expression. For example, the Supreme Court stated:

The Government did not prosecute those who reported themselves but later registered. Nor did it prosecute those who protested registration but did not report themselves or were not reported by others____ The Government, on the other hand, did prosecute people who reported themselves or were reported by others but who did not publicly protest. These facts demonstrate that the Government treated all reported nonregistrants similarly. It did not subject vocal nonregistrants to any special burden. Indeed, those prosecuted in effect selected themselves for prosecution by refusing to register after being reported and warned by the Government.

At footnote 12, the Supreme Court observed:

The Government’s “beg” policy removed most, if not all, of any burden passive enforcement placed on free expression. Because of this policy, nonregistrants could protest registration and still avoid any danger of prosecution. By simply registering after they had reported themselves to the Selective Service, nonregistrants satisfied their obligation and could thereafter continue to protest registration. No matter how strong their protest, registration immunized from the prosecution. Strictly speaking, then, the passive enforcement system penalized continued violation of Military Selective Service Act, not speech. The only right it burdened was the asserted “right” not to register, a “right” without foundation either in the Constitution or the history of our country.

Relative to Jacob’s claim that Wayte is inapplicable because he was reported by a third person rather than by himself, the Court deems it sufficient to observe that Wayte makes no distinction between nonregistrants who reported themselves and those who were reported by others. Thus, the Court holds that the fact that Jacob was not self-reported has no relevance to the issue here. It is clear Jacob informed the news media during a demonstration that he had not registered and did not intend to do so. This confession was communicated to the Selective Service by a third person which trigged the investigation by the Government pursuant to its “passive enforcement procedure.”

The Supreme Court in Wayte and the Court of Appeals in Eklund found that the government was in the process of substituting the “passive enforcement system” with an “active” system. Jacob argues that as of this date, the purported “active” system has not been instituted, thus this failure not only “undercuts the holdings and factual underpinnings of Wayte and Eklund”, but demonstrates the lack of good faith on the part of the Government. The Government argues that an “active” system is presently in effect and has already generated a prosecution of one non-registrant in the Middle District of Louisiana and therefore Jacob’s argument is without merit. Significantly, the Government challenges Jacob’s standing to complain about an alleged failure to implement an “active” identification policy since at the time of Jacob’s identification as a nonregistrant on January 5, 1981, the Government’s “passive enforcement system” was properly in effect and has passed constitutional muster under Wayte. The Court is persuaded that the Government’s contention has merit and is dispositive of Jacob’s argument. See, United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2444, 65 L.Ed.2d 468 (1980); Rakas v. Illinois, 439 U.S. 128, 138, 99 S.Ct. 421, 427, 58 L.Ed.2d 387 (1978).

III.

Finally, Jacob filed a pleading on April 15, 1985, entitled “Demand For Discovery And Inspection” which provides, in part:

“PLEASE TAKE NOTICE that defendant Paul Jacob demands of the Government to produce and permit the Defendant to inpect and copy the following which are in the possession, custody, and control of the Government and any of its branches, including but not limited to the Department of Defense, Department of Selective Service, Department of the Army, Federal Bureau of Investigation, Department of Justice, Social Security Administration, or any other branch or sub-division of the United States Government, the existence of which is known, or by the exercise of due diligence may become known to you----”

In this document, Jacob seeks the disclosure of seventy-one categories of evidence ranging from the conduct of electronic surveillance, grand jury materials to rough notes of agents of the Government. The Government argues that all of Jacob’s requests for discovery which spring from Jacob’s selective prosecution claim should be denied.

Inasmuch as the Court has found that Jacob is not entitled to an evidentiary hearing on his discriminatory prosecution and his motion for a hearing should be dismissed, the Court agrees that all requests for discovery which flow from Jacob’s selective prosecution should be denied and the Court, accordingly, so holds. See, United States v. Catlett, 584 F.2d 864 (8th Cir.1978); United States v. Johnson, 577 F.2d 1304 (5th Cir.1978); United States v. Berrios, 501 F.2d 1207 (2nd Cir.1974). The Court notes that the Government has agreed to afford Jacob all discovery which he is entitled to under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Rule 16 under Federal Rules of Criminal Procedure.

IV.

After carefully scrutinizing Jacob’s motion and documents proffered in support, the Court is persuaded that Jacob has not demonstrated sufficient facts to raise a reasonable doubt as to the Government’s purpose in prosecuting him mandating an evidentiary hearing. Stated another way, Jacob has failed to allege sufficient facts in support of his selective prosecution claim to exceed the “frivolous state.”

Accordingly, it is ordered:

1. That Jacob’s motion for an evidentiary hearing and to dismiss the indictment is denied in its entirety;

2. That Jacob’s request for discovery of evidence flowing from his selective prosecution claim is denied;

3. That this case proceed to trial on Monday, July 15, 1985, at 9:30 a.m. o’clock.

      . On July 2, 1980, President Jimmy Carter issued a proclamation requiring male persons residing in the United States between the ages of eighteen and twenty-six to register with the Selective Service.


author: VARNER, District Judge.

text:
    Evelyn McDANIEL, Plaintiff, v. Margaret HECKLER, etc., Defendant.
    Civ. A. No. 84V-815-N.
    United States District Court, M.D. Alabama, N.D.
    May 8, 1985.

      William R. Blanchard, Pappanastos, Samford, Roberts & Blanchard, Montgomery, Ala., for plaintiff.
    Kenneth Vines, Asst. U.S. Atty., Montgomery, Ala., for defendant.
   OPINION

VARNER, District Judge.

This cause is presented for review of the findings of Defendant Secretary that Plaintiff was not disabled permanently from a period allegedly beginning on January 29, 1982. Plaintiff duly filed a claim and processed the same through a hearing before an Administrative Law Judge (AU) who denied benefits and found the Plaintiff not disabled on August 31, 1982, [Tr. 285-293]. Plaintiff did not request review by the Appeals Council or otherwise proceed in regard to that claim, and the finding of the AU on August 31, 1982, is conclusive as to Plaintiffs nondisability from January through August of 1982. This Court has no jurisdiction to review the action of Defendant Secretary not timely presented for review. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Ellis v. Schweiker, 662 F.2d 419 (5th Cir.1981).

Plaintiff filed her current application for disability insurance benefits on March 2, 1983. Plaintiff exhausted her administrative remedies, and this Court will review the decision of the AU and hence Defendant Secretary for the period of alleged disability beginning on August 31, 1982.

Plaintiff is a 54-year-old female with a seventh-grade education [Tr. 296, 308]. Her vocational history shows that she had a successful work record for some 28 years [Tr. 61] and that her principal job has been that of a sewing machine operator in the textile industry. Plaintiff claims a disability due to degenerative osteo-arthritis, residuals of a lumbar laminectomy, congestive heart failure and chronic intractable pain [Tr. 414],

The burden of proof in cases of this sort is on the Plaintiff to prove by a preponderance of the evidence her disability as defined in the Social Security Act as “inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death and which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d). Title 42, U.S.C., § 423(d)(2)(A), provides that one is disabled “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” Section 423(d)(3) states that “for purposes of this section, a ‘physical or mental impairment’ is an impairment that results from anatomical, physiological, psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”

The standard for judicial review of a decision by an AU and Appeals Council of denial of disability is that substantial evidence must support the finding. Jackson v. Richardson, 449 F.2d 1326 (5th Cir.1971). Substantial evidence is “more than a scintilla, less than a preponderance and such relevant evidence as a reasonable mind might accept as being adequate to support the decision.” Fontenot v. Secretary of HEW, 404 F.Supp. 166 (D.C.La.1975).

The Plaintiff complains that the AU and hence the Secretary gave little weight to the treating physician’s expert opinion in violation of the mandates of Oppenheim v. Finch, 495 F.2d 396, 398 (4th Cir.1974); Roberts v. Schweiker, 667 F.2d 1143 (4th Cir.1981); Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir.1982). The problem that the AU had with the treating physician’s (Dr. Thomas) expert opinion was the weakness of any showing of an anatomical, physiological, psychological abnormality which is demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). Plaintiff’s counsel points out that severe disabling pain coupled with medically determinable impairments demand credibility findings not shown in this proceeding. The AU’s problem, again, was a failure of a showing of medically determinable impairments. Plaintiff was able to show a mild scoliosis and mild osteo-arthritic changes of her lumbar sacral spine and residual pantopaque from a previous myelography [Tr. 409, 413]. Unfortunately, Plaintiff’s burden of proof relative to her back problem is complicated by the fact that she is unable to have proper diagnostic myelograms made because of her allergy to the dye which would be inserted in the spinal column for purposes of the myelogram. Such dye apparently would be extremely dangerous to Plaintiff, and, therefore, the diagnostic procedure cannot be used to determine the cause of Plaintiff’s back pains. Her “heart” problem has been demonstrated by medically-acceptable clinical and laboratory diagnostic techniques to be a hiatus hernia which, though frightening, does not compare with heart trouble in seriousness.

Plaintiff complains that the hearing afforded her did not comply with the requirements of Cowart v. Schweiker, 662 F.2d 731 (11th Cir.1981); Clark v. Schweiker, 652 F.2d 399 (5th Cir.1981); and Crider v. Secretary, 624 F.2d 15 (4th Cir.1980). The Plaintiff appeared with her husband and two friends for her hearing on December 13, 1983, with no counsel and with no apparent knowledge of such proceedings. The hearing lasted only 13 minutes, and there is a conflict between the Plaintiff’s and Defendant Secretary’s attorneys as to whether or not the AU solicited evidence of Dr. Thomas’ findings between his last report dated September 12, 1983, and the December, 1983, hearing. This Court finds from the transcript at page 32 that the AU noticed the problem, asked about the reason for no current report and asked whether or not there was any difference. Upon receiving the answer, “No, it’s the same”, the AU, obviously recognizing the unnecessary delay and expense of seeking further reports from Dr. Thomas, proceeded with the hearing based on the evidence including reports from other doctors showing only “mild” abnormalities not one likely to result in death or inability to engage in gainful activity within the meaning of § 423(d).

While this Court is of the opinion that there is substantial evidence to support the findings of the AU, it appears to this Court that the AU failed to develop a full and fair record as required by Cowart v. Schweiker, supra, for pro se plaintiffs. Most judges have a duty to hear the evidence presented to them and consider the issues which have brought the parties into Court, whether or not counsel is present for both parties. The AU, however, in pro se Social Security cases has the duty to “scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts” [Cowart, supra, at 735], be “especially diligent in insuring that favorable [as well as unfavorable] facts are elicited” [Cowart, supra, at 735], “state specifically the weight accorded to each item of evidence and why he reached that decision” [Cowart, supra, at 735], “articulate specific jobs that the claimant is able to perform which have been shown by substantial evidence and not mere intuition or conjecture of the Administrative Law Judge” [Cowart, supra, at 736], “perhaps even produce a vocational expert to testify as to this matter” [Cowart, supra, at 736], sufficiently question such vocational expert [Cowart, supra, at 736], elicit testimony and make findings regarding the effect of prescribed medications on the claimant’s ability to work [Cowart, supra, at 737], and to afford an opportunity to the claimant to subpoena and cross-examine the medical experts who examined her and made reports thereon [Cowart, supra, at 737].

While this Court is gravely concerned about the effects of the requirements of Cowart wherein Plaintiff represents himself [see Appendix], this Court is of the opinion that, faced with the responsibilities set out in Cowart, the AU in this case failed to comply in that he failed to properly represent the Plaintiff in attempting to prove her case. To do this, he apparently would have been required to employ a doctor, a vocational expert, and possibly a lawyer when the law provides no adequate method of providing such experts and when the Plaintiff herself, burdened with the burden of proof, failed to furnish such evidence. Therefore, this Court concludes that the Plaintiff was denied a full and fair hearing before the AU and the ease must be remanded with instructions for further proceedings consistent with this Opinion.

An Order will be entered in accordance with this Opinion.

APPENDIX

This Court reluctantly exercises its well documented authority over the AU. It realizes some of the difficulties these requirements place on the AU and questions citations of authority (statutory and regulatory) for this Court to so regulate the AU.

An AU at the initial hearing, with documentary evidence thrust upon him more than one inch thick, will be hard put to determine what questions to ask of a bewildered plaintiff and other witnesses at the time of the scheduled hearing. Presumably, it is contemplated that the AU will consider the oral evidence along with the documentary evidence submitted at the hearing along with any brief either side may file and, if a pro se plaintiff fails at his first hearing to carry the burden of proof, the AU will secure such doctors and vocational specialists as he may think can review pertinent portions of the file or further examine the plaintiff so as to answer any pertinent questions the record leaves open. Thereafter, those experts will be deposed by the pro se plaintiff with the help of the AU and, after screening such evidence, such part as the AU considers competent will be considered along with the original evidence and all briefs the parties may wish to file in search of the final decision. This conception departs from the idea that one person cannot logically be expected to act effectively as lawyer and judge in the same proceeding. While the cases point out that Social Security cases are not adversary proceedings and that the AU must develop material evidence for either side, this Court, in 14 years on the bench, has heard of no case wherein an AU has been criticized for not seeking out evidence favorable to the Social Security Administration. Reviewing lawyers are always on the claimant’s side. Neither can it be expected that the Government, the Social Security Administration or the plaintiff should reasonably be put to multiple trials limited only by the number of the AU’s speculations as to what facts he may be able to develop from various witnesses, known or unknown. Presumably prudent lawyers would wish to respond in briefs to each issue raised by the parties or by the AU. Nor can it logically be expected that the Government, the already financially distressed Social Security Administration or the probably financially distressed plaintiff would be willing (if able) to fund such extensive proceedings. As in other fields of law, one bite at the apple should be all that the public should be expected to pay for.

Most of the cases requiring litigation by the AU involve a legitimate concern that, had the plaintiff been represented by adequate counsel, the AU would have duties only to adjudicate, not to litigate. The burden of proof in such cases is confusing in view of the following: Some cases [see Ford v. Secretary, 659 F.2d 66 (5th Cir., Unit B, 1981); Thorne v. Califano, 607 F.2d 218 (8th Cir.1979)] apparently attach no significance to whether or not plaintiff was represented by a lawyer before the AU. Cases, including Cowart, require extensive waiver of counsel proceedings otherwise unknown to the civil law although there is no constitutional right to an attorney except in criminal prosecutions. United States Constitution, Amendment VI. The right to an attorney before an AU is said to be statutory. The cases, Cowart, supra, Ford, supra, and Clark, supra, generally seem to agree that the right to counsel is provided by 42 U.S.C. § 406. That section simply prescribes the right of an attorney in good standing “to represent claimants before the Secretary.” The right of the claimant to counsel is not dissimilar to the right of any claimant or plaintiff in any administrative or civil proceeding. No such special duties as required by Cowart, supra, are prescribed by statute.

Regulations usually cited by courts to support the court-ordered duties of an ALJ are 20 C.F.R. § 404.971 [Clark v. Schweiker, 652 F.2d 399 (5th Cir.1981) ] and § 404.-927 (Diabo v. Secretary, 627 F.2d 278, 279 (D.C.Ct.1980) ]. Neither of these sections seems to apply. Section 404.971 refers to dismissals by the Appeals Council, and Section 404.927 refers to expedited appeals. However, 20 C.F.R. § 944 is in the form of a notice to the claimant that the AU “looks fully into the issues”, questions witnesses, accepts material evidence, may allow time for development of missing material evidence, and may reopen the hearing to receive new material evidence. This apparently is the statutory and regulatory authority for the extensive guidelines for AUs promulgated by courts of this nation.

An apparent inconsistency in the law is exemplified by reading two well documented sentences appearing in sequence in Ford v. Secretary, supra, at 69, as follows:

“ * * * [T]he Administrative decision is not supported by substantial evidence if the administrative law judge does not have before him sufficient facts on which to make an informed decision.”

Nonetheless, the next sentence recognizes that:

“Claimants seeking disability benefits under the Social Security Act have the burden of proving that they are under a disability as defined by the Act.”

The latter sentence taken from the statute would appear to conform to usual rules requiring one asserting the affirmative to prove such assertions (as are material). The former sentence, however, supported by a wealth of case law, gives notice that the AU may not find that the claimant has failed to prove his case unless the record shows that he cannot prove his case. It places the burden on the AU or, effectively, on the Secretary, to prove that the claimant is not disabled. Justification for this conclusion, it is said [Ford, supra, at 69], lies in the wording of certain regulations: 20 C.F.R. § 404.927 requires the AU to “inquire fully into the matters at issue” and “afford the parties a reasonable opportunity for a fair hearing;” 20 C.F.R. § 404.927 and § 404.1527 allows the AU to order a consultative examination where warranted. The Ford Court concluded that it was, therefore, decided in Turner v. Califano, 563 F.2d 669 (5th Cir.1977), that such a consultative examination is required if the “record establishes that such an examination is necessary to enable the administrative law judge to render a decision.” Ford, supra, at 69. In short, if the claimant [carrying a statutory burden of proof, 42 U.S.C. §§ 416(i)(1) and 423(d)(2)(A) ] fails to offer evidence sufficient to prove his case, the AU has a duty (based upon construction of regulations) to attempt to prove claimant’s case for him. If that assertion is not preposterous on its face, does it not become so when a regulation is construed to require proof by a judge where the statute authorizing the regulation requires proof by a claimant? This Court can find no statutory or regulatory authority why the claimant is not required to prove every material allegation of his claim or have his claim denied.

Perhaps this is the case wherein the court of final resort will reconsider the natural extremes which follow compliance with the requirements of Cowart, the plight of the AU in seeking to replace a lawyer with intimate knowledge of his case while maintaining the impartial reserve of the judge, the expense involved in providing the multiple discovery and hearings likely to result from a judge’s instilling issues never conceived by the parties before the original trial, and the likelihood that the courts, in striving for perfect justice, will place court proceedings beyond the reach of the potential litigants.

The Social Security fund, once considered a spring which would never run dry, has, by rules dictated by courts with little opportunity to study the cause or effect of judicially imposed regulations, become the subject of an insurance actuary’s nightmare. This Court can think of no better example of the need for the constitutionally-imposed division of powers, leaving legislation and administration to governmental branches other than the judiciary.

      . Evidence of Plaintiff’s use of medications such as cocaine may have contributed to her disability. A properly-instructed doctor possibly could have found evidence of abnormalities demonstrable by medically-acceptable clinical and laboratory diagnostic techniques.

      . A vocational expert was not called to demonstrate jobs which Plaintiff could have performed.

      As pointed out, said subsection .927 does nothing of the kind. Subsection .1527 is in the form of a notice to the claimant that his doctor's finding of "disabled” is not necessarily controlling but is subject to consideration with other evidence.


author: DUPLANTIER, District Judge.

text:
    Charles NELSON v. Ross MAGGIO, Jr., et al.
    Civ. A. No. 84-2750.
    United States District Court, E.D. Louisiana.
    May 8, 1985.
    Charles Nelson, pro se.
    Kathy Lee Torregano, Asst. Dist. Atty., New Orleans, La., for Ross Maggio, Jr.
   ORDER AND REASONS

DUPLANTIER, District Judge.

In seeking habeas corpus relief in this court, petitioner urged six grounds upon which relief should be granted. We concluded that the record was sufficient for the purpose of adjudication of the first four grounds for relief and we dismissed the petition as to those four grounds without an evidentiary hearing. The remaining two grounds for habeas relief, which we now consider, are premised upon petitioner’s allegations that the following two errors occurred at his trial:

1) The trial judge charged the jury that “a man is presumed to intend the natural and probable consequences of his acts,” and
2) The prosecutor, during closing arguments, “made several prejudicial comments about fact [sic] the accused did not testify____”

In a previous order concerning this habeas petition we noted that, if either of petitioner’s allegations were true, he had stated a colorable claim for relief. Nelson v. Maggio, 600 F.Supp. 480, 481 (E.D.La.1984). The state urged dismissal of these claims on the basis that the two alleged errors simply did not occur. However, a transcript of the prosecutor’s closing argument and the trial court’s jury charge was, through no fault of the state, apparently unavailable for post-conviction review by either the state court or this court. The state, nevertheless, argued that pursuant to the mandate of Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), we were bound by the state court’s judgment which dismissed petitioner’s habeas claims without an evidentiary hearing. In the state habeas proceedings the state court judge had concluded, on the basis of his recollection of the trial over which he had presided some seven years earlier, that there was no factual basis for petitioner’s complaints. Based upon a line of recent Fifth Circuit cases, see, e.g., Anderson v. Jones, 743 F.2d 306 (5th Cir.1984), we concluded that petitioner was entitled to an evidentiary hearing on the merits of the disputed factual issues.

In the interest of federalism we stayed the proceedings in this court for 45 days to give the state court the opportunity to “reopen petitioner’s state habeas proceedings and conduct a hearing [to resolve the fact issues] before a judge other than the judge who presided at petitioner’s trial.” Nelson v. Maggio, 600 F.Supp. 480, 483 (E.D.La.1984). We also retained jurisdiction to adjudicate petitioner’s claims, either with or without the benefit of the state court’s resolution of the factual issues. The state court accepted our invitation and reopened the state habeas proceedings. On February 14, 1985, the state court conducted a hearing on the disputed issues, at which all parties were present and afforded the opportunity to adduce evidence to support their version of the facts.

The hearing fully complied with the law of this circuit: it was conducted by a judge other than the judge who presided at petitioner’s trial, and both the trial judge and the prosecutor testified at the hearing under oath and subject to cross-examination by counsel appointed by the state to represent petitioner at that hearing. See Anderson v. Jones, 743 F.2d 306 (5th Cir.1984). By all standards, petitioner received a full, fair and adequate hearing on the merits of the relevant factual disputes.

At the close of the testimony the state court judge recited his findings for the record. He concluded that neither of the alleged errors occurred at the trial: the prosecutor did not make the remark complained of, and the trial judge’s charge did not include the erroneous intent instruction. We received a transcript of the hearing, transmitted a copy of the transcript to the petitioner, notified the parties that we would conduct a hearing on memoranda on the remaining two grounds for relief, and instructed the parties to submit memoranda on the remaining issues within a specified period of time. That period has passed without a submission by either party. For the following reasons, we dismiss petitioner’s remaining two claims for habeas relief.

“[A] determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State ... were parties [and] evidenced by ... reliable and adequate written indicia, should be presumed to be correct,” unless one of seven specified factors is present or the state court finding of fact is “not fairly supported by the record.” 28 U.S.C. § 2254(d). See also Sumner v. Mata, 449 U.S. 539, 544-545, 101 S.Ct. 764, 767-768, 66 L.Ed.2d 722 (1981). Petitioner has the burden of rebutting this presumption of correctness by establishing “by convincing evidence that the factual determination by the State was erroneous.” 28 U.S.C. § 2254(d).

In this instance, the state court habeas judge, after receiving the testimony of the state court judge who presided at petitioner’s trial and of the prosecutor, dictated into the record his findings that neither of the two alleged errors occurred at petitioner's trial. These findings are clearly entitled to the statutorily mandated presumption of correctness. Petitioner failed to introduce any evidence (not even his own testimony) to support his allegations at the state habeas hearing. He has suggested no evidence, convincing or otherwise, that the factual determination by the state court was erroneous. See Walker v. Maggio, 738 F.2d 714 (5th Cir.1984) (petitioner has burden of establishing facts supporting his claim that he is entitled to habeas relief).

We will not disturb the state court’s findings. On the basis of these findings we dismiss the two remaining claims for habeas relief.