author: BUA, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Roosevelt DANIELS, Sandra Campbell, Troy Campbell, and Lawrence Lee, also known as Chinaman, Defendants.
    No. 85 CR 628.
    United States District Court, N.D. Illinois, E.D.
    Nov. 7, 1985.
    Anton R. Valukas, U.S. Atty. by Howard Pearl, Victoria J. Peters, Asst. U.S. Attys., Chicago, 111., for plaintiff.
    Douglas P. Roller, Rooks, Pitts & Poust, Chicago, 111., for defendant Sandra Campbell.
    Marianne Jackson, Chicago, 111., for defendant Troy Campbell.

      Michael B. Cohen, Chicago, 111., for defendant Lawrence Lee.
   ORDER

BUA, District Judge.

Before the Court is the defendants’ motion to review and revoke the Magistrate’s detention order. For the reasons stated herein, the defendants’ motion is denied.

I. FACTS

Deféndants Sandra Campbell, Troy Campbell and Lawrence Lee join in a motion to review and revoke the Magistrate’s detention order entered on October 2, 1985. On April 16, 1985, defendants were charged in complaint 85 CR 232 with conspiring to possess cocaine with intent to distribute. Each defendant appeared before Magistrate James T. Balog on those charges and, without objection by the government, was released on bond.

On July 9, 1985, these defendants were indicted in United States v. Roosevelt Daniels, et al., 85 CR 232, charging each of them with conspiracy to distribute and possess with intent to distribute cocaine. Sandra Campbell was also charged with racketeering, in violation of 18 U.S.C. § 1962(c). Lawrence Lee was also charged with distribution of cocaine. The other defendant, Roosevelt Daniels, was ordered detained by Magistrate Balog after his arrest on April 15, 1985. The detention order was affirmed by the Seventh Circuit Court of Appeals. United States v. Daniels, 772 F.2d 382 (7th Cir.1985). He has been incarcerated in the Metropolitan Correctional Center (MCC) since that date.

In August 1985 the Federal Bureau of Investigation (FBI) instituted court-ordered monitoring of two telephones on the 13th floor of the MCC, the floor on which Daniels was detained. The monitoring of the above-described telephones revealed that Daniels utilized the telephones to conduct his narcotics operation while confined in the MCC. During approximately the first 20 days, Daniels called Sandra Campbell approximately 24 times, and Campbell, using a three-way calling feature, patched Daniels through to his associates and employees in his narcotics business.

Based on these conversations, the government procured a search warrant for the residence of Sandra Campbell. The warrant was executed at 1:20 a.m. on September 6, 1985, and the two Campbells and Lee were arrested. These three defendants appeared before Magistrate Balog on September 6, 1985 in complaint 85 CR 619. The government did not pursue formal charges and these defendants were discharged.

On September 23, 1985, defendant Lawrence Lee was arrested on complaint 85 CR 619 and charged with conspiring to possess with intent to distribute cocaine between August 7, 1985 and September 24, 1985. On September 24, 1985, defendants Sandra Campbell and Troy Campbell were arrested on complaint 85 CR 619. At their arraignment on September 24, the government informed Magistrate Balog that it considered defendants to be dangers to the community and moved for their detention. Magistrate Balog ordered defendants held for ten days, excluding weekends and holidays, under 18 U.S.C. § 3142(d), in order to give this Court the opportunity to rule on revocation of the bond set in complaint 85 CR 232.

Defendants’ counsel and the government appeared before this Court on September 26, 1985. At that time, the Court agreed that, since Magistrate Balog was going to have to hold a preliminary hearing on complaint 85 CR 619 and the evidence offered by the government would be the same as that offered at a detention hearing, it made sense to have a combined preliminary hearing/detention hearing before Magistrate Balog.

On September 27, 1985, the parties appeared before Magistrate Balog and scheduled a detention hearing for the next day. On September 28, 1985, the detention hearing was held at the MCC. At that hearing, the Magistrate found probable cause to support complaint 85 CR 628, which supersedes 85 CR 619, as to the two Campbell defendants and Lee. At the hearing, the various defense counsels were given the opportunity to present testimony and to examine the government’s witnesses. Although defense counsels recognized that there was a rebuttable presumption in favor of continued detention, they declined to present any evidence. Instead, they relied chiefly on the untimeliness of the detention hearing under 18 U.S.C. § 3142(f).

Magistrate Balog rejected the untimeliness argument and, in light of his finding of probable cause, the unrebutted evidence that the defendants constituted a danger to the community, and the unrebutted presumption that no combination of conditions could reasonably assure the appearance of the defendants and the safety of the community, ordered the defendants detained pending trial pursuant to 18 U.S.C. § 3142(e), (f) and (g). See Detention Order, United States v. Daniels, No. 85 CR 628 (N.D.Ill. October 2, 1985) slip op. at 5. The defendants have filed this motion, pursuant to 18 U.S.C. § 3145(b), to revoke the detention order.

II. DISCUSSION

A. Timeliness of Government’s Request for Pretrial Detention

Pretrial detention under 18 U.S.C. § 3142(e) may be ordered only after a hearing pursuant to subsection (f). United States v. Alatishe, 768 F.2d 364, 367 (D.C.Cir.1985). § 3142(f) provides in pertinent part:

The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days. During a continuance, the person shall be detained____

18 U.S.C. § 3142(f).

Defendants argue that this language from § 3142(f), standing alone, authorizes pretrial detention only where the government moves for a hearing under subsection (f) at the time of the accused’s “first appearance.” Defendants further contend that the government failed to move for a § 3142(f) pretrial detention hearing on at least two occasions. First, defendants assert that the appearance before Magistrate Balog on September 6, 1985, at which no formal charges were brought and the defendants were ordered released, constitutes their first appearance in this case. Second, defendants claim that the appearance before Magistrate Balog on September 24, 1985, at which they were arraigned on formal charges in this case, constitutes their first appearance in this case. If either September 6 or 24 is determined to be their first appearance in this case, defendants conclude that the September 28, 1985 detention hearing occurred too late under § 3142(f).

The government counters that the ten-day temporary detention period, provided for by 18 U.S.C. § 3142(d), applies to this case, as the Magistrate properly found. Further, the government argues that the immediate hearing requirement under § 3142(f) is not triggered until the ten-day temporary detention period expires or until the motion to revoke the prior conditional release is ruled upon. In this case, the government argues that § 3142(f) was not triggered until September 27, 1985, when Magistrate Balog received this case back from this Court with instructions to combine the motion to revoke the defendants’ conditional release with their detention hearing. Therefore, the government concludes that the September 28, 1985 detention hearing was timely under § 3142(f).

The Court agrees with the government’s argument and finds United States v. Alatishe, 768 F.2d 364 (D.C.Cir.1985) to be dispositive of the timeliness issue. At the time of his initial appearance, the defendant was on probation in connection with a felony conviction in the District of Columbia. Accordingly, pursuant to § 3142(d), the government requested the court to detain the defendant for ten days to permit revocation of defendant’s probation. The Magistrate granted the government’s request, ordered the defendant temporarily held without bond, and scheduled a combined detention and preliminary hearing for the next business day.

After a hearing, the Magistrate found that probable cause existed on defendant’s new charges and continued the temporary detention in order to await action on the probation revocation. Finally, when it appeared that no action would be taken on the probation revocation within the ten-day temporary detention period, the government announced that it would seek pretrial detention under § 3142(e) and (f). After a further detention hearing under § 3142(e) and (f), the Magistrate made the requisite findings for defendant’s pretrial detention under § 3142(e), (f) and (g). The district court held that the government’s failure to seek detention initially under § 3142(e) and (f) constituted a waiver of its right to so move and therefore the detention hearing under § 3142(f) could not have been timely.

In reversing the district court and affirming the Magistrate, the Court of Appeals for the District of Columbia Circuit held that the government did not waive its right to move for a detention hearing under § 3142(f) merely because it first moved for temporary detention under § 3142(d). Alatishe, 768 F.2d at 368. In support of its holding, the D.C. Circuit found that the plain language of § 3142(d) “contemplates that, in the event that temporary detention does not result in revocation of a prior conditional release, the individual may still be subject to a pretrial detention order pursuant to 3142(e). Id. The D.C. Circuit then followed with its holding disposing of the timeliness issue in the present case:

In light of the clear congressional intent expressed in 3142(d) to allow pretrial detention in these circumstances, we interpret 3142(f) to require that, in such cases, the Government move for a detention hearing immediately upon, or before, the expiration of the ten-day period under subsection (d).

Id. Therefore, if the defendants here were properly detained temporarily under § 3142(d), the detention hearing under § 3142(e) and (f) was timely.

§ 3142(d) provides for temporary detention if:

(1) the person—
(A) is, and was at the time the offense was committed, on—
(i) release pending trial for a felony under Federal, State, or local law;

18 U.S.C. § 3142(d). In this case, Magistrate Balog made it clear at the defendants’ first appearance on September 24, 1985, that he ordered them detained under § 3142(d) for ten days or until such time as this Court could rule on revoking their probation. (Tr. 10). The Magistrate noted that these defendants had appeared before him in April and that he had set bond and conditions for their release at that time. (Tr. 6). In fact, Magistrate Balog noted the possibility that the new charges in complaint 85 CR 628, then 85 CR 619, could provide the basis for a later detention hearing. (Tr. 10).

On September 27, 1985, Magistrate Balog made the exact same ruling on the interplay between § 3142(d) and (f) as did the Alatishe court. The Magistrate held that the requirements for a § 3142(f) detention hearing are tolled until the court which set the defendants’ bond on the old charges either revokes or denies the motion to revoke, thus ending the ten-day temporary detention period under § 3142(d). (Tr. 5). Therefore, the Magistrate concluded that the § 3142(f) detention hearing requirements began to run on September 27, 1985, when he received the motion to revoke for consolidated ruling from this Court. See Transcript of September 28, 1985 Proceeding, p. 12.

In light of the interpretation of § 3142(d) and (f) in Alatishe and in light of Magistrate Balog’s consistent and correct rulings on the issues of temporary detention under § 3142(d) and the detention hearing requirements under § 3142(f), the Court finds that the detention hearing conducted on September 28, 1985, was timely under § 3142(f). The Court agrees with the Magistrate that September 6, 1985, could not be the defendants’ first appearance because no formal charges were brought at that time. (Tr. 11). In addition, the Court notes that Magistrate Balog offered to conduct the detention hearing on the afternoon of September 27, 1985.

B. Adequacy of Detention Hearing and Findings

Having determined that the September 28 detention hearing was timely, the Court now considers whether that hearing satisfies the procedural requirements of § 3142(f) and whether the Magistrate properly ordered the defendants detained on the basis of the evidence presented at that hearing. Pursuant to § 3142(e), in cases in which the judicial officer finds probable cause to believe that the defendant committed a violation of the Controlled Substances Act (CSA), punishable by ten years or more, a rebuttable presumption arises that no conditions of release will be adequate to assure the appearance of the defendant and the safety of the community. 18 U.S.C. § 3142(e). See also Alatishe, 768 F.2d at 370. Finally, upon motion of a detainee to a district court for review of a detention order, the district court should exercise independent consideration of all facts properly before it. United States v. Freitas, 602 F.Supp. 1283, 1293 (N.D.Cal.1985).

After the detention hearing on September 28, 1985, Magistrate Balog issued written findings pursuant to § 3142(i) in a six-page order. United States v. Daniels, No. 85 CR 628 (N.D.Ill. October 2,1985) slip op. The written order based its detention holding on fourteen separate written findings. After reiterating his finding of probable cause, Magistrate Balog followed the rebuttable presumption under § 3142(e) that no condition or combination of conditions will reasonably assure the safety of the community. Id. at 5. The Magistrate further found that the defendants had not rebutted this presumption.

In reviewing Magistrate Balog’s findings, this Court reviewed the written detention order and the tape recordings of the September 28 detention hearing. In those tape recordings, the government presented an FBI special agent as its witness. This witness was subject to direct and cross-examination. Each defense counsel cross-examined the special agent thoroughly in an effort to attack the government’s showing of probable cause. However, none of the defense counsel presented documentary or testimonial evidence in an effort to establish that the defendants are neither dangers to the community nor risks of flight.

On the basis of this record, the Magistrate’s determination that no conditions of release could reasonably assure the appearance of the defendants and the safety of the community was proper. Alatishe, 768 F.2d at 371.

III. CONCLUSION

For the reasons stated above, the Court affirms the Magistrate’s pretrial detention order. Accordingly, the defendants’ motion to revoke the detention order pursuant to 18 U.S.C. § 3145(b) is denied.

IT IS SO ORDERED.


source: Caselaw Access Project

author: PETTINE, Senior District Judge.

license: Public Domain

text:
    Florencio SOUZA v. Margaret M. HECKLER, Secretary of Health & Human Services.
    Civ. A. No. 85-0040 P.
    United States District Court, D. Rhode Island.
    Nov. 8, 1985.

      Michael K. Marran, Providence, R.I., for plaintiff.
    Michael P. Iannotti, Asst. U.S. Atty., Providence, R.I., for defendant.
   OPINION AND ORDER

PETTINE, Senior District Judge.

Plaintiff, Florencio Souza, brings this action under Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health and Human Services denying plaintiff’s application for disability insurance benefits. The matter was initially referred to the Honorable Frederick R. De-Cesaris, United States Magistrate, who found that the Secretary’s decision was not supported by substantial evidence, and recommended that the plaintiff’s motion for disability benefits be granted. The defendant now objects to this recommendation. I concur in the magistrate’s recommendation, but differ somewhat in the reasons for my decision, as discussed below. Accordingly, the Secretary’s decision is reversed and remanded for disposition consistent with this opinion.

Factual Background

The plaintiff filed an application for disability insurance benefits on September 30, 1983, claiming he was disabled as a result of back problems, liver disease, diabetes and ear infection. He is a 52 year old individual of Portuguese origin who has completed the equivalent of a high school education. His employment history consists of jobs as a welder mechanic, plumber, and most recently, as an equipment mechanic. He last worked on July 21, 1978.

At the oral hearing before the Administrative Law Judge (“ALJ”) on April 27, 1984, the plaintiff testified that he was currently bedridden for between 20 to 22 hours a day, that his daughter dresses and shaves him, that he cannot use the bathroom without help, and that he cannot touch the back of his head, bend over, sit for more than one half hour in one place, stand for more than twenty minutes in one place, or lift more than two to three pounds. He testified that these limitations had increased over the years, but had been “real bad” over the last three or four years (Tr. 36-39, 42).

The plaintiff’s daughter also testified at the hearing. She said that her father is in constant pain, when he gets up and walks around or when he sits for too long, that he rarely uses the car because he cannot tolerate the bumps, that he does no work around the house, and that he cannot pull the chair up to the table and sit down. She testified that this inability to move around has plagued her father for the last two and one half to three years, and that his condition has deteriorated throughout that time period. She said that although his walking has worsened since August 1983, well before that time, he could not move quickly, bend down, pick up things, drive, etc. (Tr. 50-54).

The medical evidence in the record comes primarily from the reports and evaluations of two doctors, Drs. Damiani and Pizzarello. There is little in the record to document a disability as it relates to liver disease, diabetes, and ear infection. Apparently the plaintiff was treated for some sort of liver disease in 1968 (Tr. 140). However, in October of 1983, Dr. Damiani indicated that he had no objective evidence to support a diagnosis of cirrhosis and that liver function tests done in the past had been unremarkable (Tr. 178). Dr. Damiani also indicated that while the plaintiff is a latent diabetic, this condition is currently controlled by diet (Tr. 178, 196). However, electromyelogram (“EMG”) studies did document a “stocking distribution neuropathy” which by process of elimination had been attributed to the plaintiff’s diabetes (Tr. 178, 196). As discussed infra, the doctor found this neuropathy to be a cause of the plaintiff’s disability.

There was no evidence in the record about the plaintiff’s ear condition. There was documentary evidence that the plaintiff had also been treated for hypertension (Tr. 178), loss of consciousness (Tr. 128, 196), and some gastrointestinal distress (Tr. 241). All of these conditions either were treated successfully or are currently under control.

The record contains significantly more medical evidence about the plaintiff’s disability as a result of back pain. Apparently, the plaintiff suffered a back injury in 1975 while working (Tr. 114). At that time, Dr. Pache performed an EMG and diagnosed a C7 nerve root irritation, but only minimal on the right side (Tr. 179). Since that time, the plaintiff has complained continually of mid-dorsal back pain, leg pain and neck pain (Tr. 79).

In September of 1978, the plaintiff was admitted into St. Joseph’s Hospital because of a tremendous increase in symptoms over the prior months to the point where all conservative measures including certical steroid injections and traction had not helped. Upon physical examination, Dr. Pizzarello noted that the plaintiff had mild pain and spasm in the low back, marked pain and spasm in the cervical spines, and a restricted range of motion. Dr. Cinquegrana performed EMGs and thought the plaintiff had mild C6 nerve root irritation. Dr. Pizzarello’s discharge diagnosis was chronic cervical strain syndrome (Tr. 114, 179).

In early November of 1979, the plaintiff was again admitted into St. Joseph’s Hospital for traction plus cervical and lumbar myelograms because he had failed to respond to all conservative measures including hospitalization, traction, physiotherapy, and home traction. On physical examination Dr. Pizzarello noted that the plaintiff’s low back was within normal limits except for a mild spasm, that his low back range of motion and cervical range of motion were markedly restricted, that his range of motion at the upper and lower extremities was poor and that his straight leg raising was poor. However, the cervical and lumbar myelograms were entirely within normal limits. Dr. Pizzarello’s impression and discharge diagnoses were that the plaintiff had chronic low back and cervical and lumbar disc disease (Tr. 233-36).

Dr. Pizzarello saw the plaintiff in his office almost every month from the end of 1979 through the beginning of 1982. His office notes indicate that the plaintiff continued to have a lot of low back and neck pain as well as paracervical and low back spasm. Dr. Pizzarello treated the patient with conservative measures — traction, physiotherapy, and hot packs. While the plaintiff’s condition seemed to improve slightly in May and June of 1980 to the point that the plaintiff was walking upwards of an hour a day, his pain returned in September of 1980, and he began finding it more difficult to walk (Tr. 188, 192). On October 21, 1980, Dr. Pizzarello opined that the plaintiff was totally disabled from substantial gainful employment because of low back, cervical, and medial scapular pain and spasm which the doctor had been unable to treat successfully (Tr. 237).

In January of 1981, the plaintiff’s low back began bothering him more, and he had difficulty in standing and a great deal of difficulty in straight-leg raising. Throughout 1981, the plaintiff continued to have the same difficulties with his back and neck. The spasms continued, but the plaintiff’s motor strength was satisfactory though certainly restricted, and his reflexes were intact. Dr. Pizzarello indicated that he did not think the patient’s condition would change appreciably, but he was unable to locate any peripheral neurological signs. The patient remained unresponsive to the prescribed conservative measures (Tr. 192).

In February of 1982, the plaintiff again had increased difficulties with his neck and mid-dorsal area, but his reflexes were intact, his motor strength good, and there was no sensory loss (Tr. 193). On a form filled out after last seeing the plaintiff on November 22,1982, Dr. Pizzarello indicated that based on his previous diagnosis and the clinical evidence, the plaintiff had “mild” limitations in walking, bending, standing, sitting, lifting, climbing, and hand dexterity which could be expected to last indefinitely (Tr. 195).

Dr. Pizzarello did not see the plaintiff for some time after this because the plaintiff went to Portugal. When the plaintiff returned, he had the exact same symptomatology as previously. According to Dr. Pizzarello, the plaintiff’s symptoms had become very incapacitating, and the conservative measures had still proven unsuccessful. Therefore, on April 15,1983, the plaintiff again entered the hospital for conservative measures. Upon physical examination, the doctor noted paracervical and paralumbar spasm, interspinous ligament, rhomboid and medical scapular pain, a restricted range of motion secondary to pain and spasm, weak motor strength, but intact reflexes. The plaintiff was maintained on bed rest and traction and began to show some improvement. The doctor’s discharge diagnosis and impression were chronic cervical strain syndrome and chronic lumbar strain syndrome (Tr. 116-118, 127). In 1984, after the plaintiff suffered additional injuries resulting from a domestic dispute, Dr. Pizzarello noted that the plaintiff’s prognosis was poor and that he had developed, through time, degenerative disc disease of his back (Tr. 198).

On referral from the Department of Health and Human Services, the plaintiff was seen by Dr. Philip R. Lucas on January 5, 1981, for disability evaluation. Upon physical examination, the doctor noted that the plaintiff had tenderness to percussion in the lumbo sacral spine, that forward flexion of the back to 60 degrees gave him pain along the paravertebral muscles, that straight leg raising gave him back pain at 60 degrees bilaterally, and that his range of motion of the cervical spine was somewhat limited in flexion, rotation, and extension. Dr. Lucas also found that the plaintiff’s reflexes and sensations in the lower and upper extremities were intact and that there was no evidence of any sensory, motor, or reflex changes in the upper extremities. X-rays showed some degenerative changes in the cervical and minimal spur formation in the lumbar spine, however (Tr. 238-39). Dr. Lucas’ impression of the patient was that he had

probable degenerative disc disease in both the cervical and lumbar spine. There is no evidence at this point of any neurologic component suggestive of a herniated disc. I think at the present time the only course of treatment for Mr. Souza would be a vigorous physical therapy program in an attempt to have him return to some sort of light work. At the present time, I find this patient to be disabled for all, including sedentary type work.

(Tr. 239)

Dr. Damiani also saw the plaintiff in 1981. Although Dr. Damiani did not examine the plaintiff primarily for back pain, his focus being the problems of diabetes, hypertension, and peripheral diabetic neuropathy, he noted that the plaintiff had difficulty walking secondary to progressive weakness and pain in his lower extremities bilaterally, a decreased range of motion of his cervical spines, loss of position and vibratory sensation, loss of deep tendon reflexes in the patellas bilaterally and ankles, and a positive Romberg sign (Tr. 189, 178). On June 23, 1981, he also opined that Mr. Souza was totally disabled “secondary to trauma suffered in 1975 and because of as yet unexplained peripheral neuropathy.” In a form filled out after last seeing the plaintiff on November 15, 1982, Dr. Damiani indicated that the patient had permanent limitations in walking, bending, standing, sitting, lifting, and climbing, although he did not note the degree of limitation.

A vocational expert was called to testify at the hearing. He said that if he took into account the plaintiff’s testimony about difficulty in standing, sitting, leaning, bending, and reaching, there was no light or sedentary work the plaintiff could do. He had no transferable skills. Indeed, there were no jobs in the general economy that the plaintiff could perform (Tr. 56, 62). He further testified that if the plaintiff was limited to lifting 10 to 20 pounds and would have to change his position hourly from sit to stand, and should refrain from bending and stooping, the plaintiff would not be able to do the light jobs — pipe wrapping machine operator, and thread inspector — to which his skills were transferable. The plaintiff would be able to perform these jobs if he were limited only to the extent that he could sit and stand throughout the day, but had to change his position every hour. But the expert noted that there are no such jobs in this area to any significant degree, and he had no indication of the numbers of such jobs in other regions, being unable to assess that information (Tr. 57-59). As for sedentary jobs, the vocational expert knew of none at the skilled or semi-skilled level to which the plaintiffs skills would be transferable (Tr. 60). But, there would be many unskilled jobs that the plaintiff could perform if he had the capacity to lift 20 pounds, and stand and walk, i.e., if he could perform light work. And seemingly, there would be unskilled benchwork jobs at the sedentary level that the plaintiff could perform as well (Tr. 61). Discussion

To establish his entitlement to benefits, plaintiff must prove that he is disabled within the meaning of the Social Security Act, i.e., that he is unable to perform any substantial gainful work due to a medical condition which can be expected to last for a continuous period of at least 12 months. 42 U.S.C. 416(i)(1), 423(d)(2) and (5). A two-step process is used to determine disability in instances such as the one at bar. First, the plaintiff has the burden of establishing that his physical or mental impairments are of such severity that he is unable to return to his former employment. Gonzalez Perez v. Secretary of HEW, 572 F.2d 886 (1st Cir.1978); Reyes Robles v. Finch, 409 F.2d 84 (1st Cir.1969). Then, the government must prove that, considering the plaintiffs age, education and work experience, he is able to engage in other substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A); see Small v. Califano, 565 F.2d 797 (1st Cir.1977); Hernandez v. Weinberger, 493 F.2d 1120 (1st Cir.1974).

In this case, the AU decided that plaintiff had in fact met his initial burden of proof. He concluded that “[sjince July 1978 the claimant was unable to engage in his past relevant work” (Tr. 18). The issue for this Court is whether the Secretary met her burden of proving that the plaintiff could engage in other substantial gainful activity, as defined in the Social Security Act.

The AU found that notwithstanding some back discomfort, the plaintiff retained the residual functional capacity through March 31,1983 to engage in work of a light exertional level. He found the plaintiffs testimony about his condition not credible. The AU then applied 20 C.F.R. § 404, sub-part P, Appendix 2, Rule 202.10 of the Social Security Regulations (the medical vocational grids) and concluded that the plaintiff was not disabled, even in the absence of transferable skills, since he could engage in other substantial gainful activity (Tr. 18). The AU decided that the plaintiff was capable of light work and that his testimony was not credible because “the assessment that he suffered from mild impairment of various physical activities [was] much more consistent with the minor findings on examination over a period of many years than the claimant’s description of almost total incapacity” (Tr. 16). The AU seemingly believed that the evidence did not show a medically determinable impairment which could reasonably be expected to be the cause of the plaintiff’s symptoms and pain.

The AU’s determination, then, rests on a finding that the plaintiff could do light work. Once this determination was made, the vocational expert and the grids were in agreement; if the plaintiff could lift up to 20 pounds and stand and walk or sit most of the time with some pushing and pulling, then there were jobs in the national economy that he could perform. Thus, the key for this case is whether the Secretary’s determination as to plaintiff’s ability to perform light work is supported by substantial evidence.

The substantial evidence standard is satisfied “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.” Rodriguez v. Secretary of HHS, 647 F.2d 218, 222 (1st Cir.1981). I find, after extensively reviewing the record as a whole, that the Secretary’s determinations that the plaintiff could perform light work and that his testimony as to his condition was not credible were not supported by substantial evidence.

The plaintiff’s subjective testimony as to his pain and limitation of movement was consistent and uncontradicted: he is bedridden most of the day, can perform almost no functions for himself, and is in constant pain. His daughter corroborated this testimony as did Dr. Pizzarello’s office notes about the plaintiff’s complaints of pain.

It is true, as the defendant argues, that claims of pain cannot be accepted blindly and must be evaluated for credibility, motivation and medical impairment, see Gagnon v. Secretary of HHS, 666 F.2d 662, 665 (1st Cir.1981), and that the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, requires medical signs or findings to support claims of pain. But such evidence clearly exists in this instance. Three doctors independently concluded that the plaintiff was totally disabled from performing any substantial gainful employment, including a doctor to whom the plaintiff was sent by the Social Security Administration. Their conclusions and the medical evidence is uncontroverted; they supplied objective evidence to support the plaintiff’s claims of pain.

While in 1979 the doctors did not find any positive evidence of herniated cervical and lumbar disc disease, at various points in time before March 31, 1983, there were medical findings of minimal C7 nerve root irritation, mild C6 nerve root irritation, degenerative changes in the cervical spine, minimal spur formation in the lumbar spine, continual and consistent paracervical and paralumbar spasm, restricted motion in the low back and cervical spine, poor straight leg raising, and a peripheral neuropathy probably attributable to the plaintiffs diabetes. Dr. Pizzarello diagnosed the plaintiff throughout as having chronic low back and cervical strain syndrome. In 1981, Dr. Lucas diagnosed the plaintiff as having probable degenerative disc disease in both the cervical and lumbar spine. And Dr. Pizzarello confirmed this diagnosis in 1984 when he said that through time, the plaintiff had developed degenerative disc disease of his back.

The AU concluded, however, that these objective medical findings were consistent with a finding of a mild impairment only, and the plaintiff was still capable of performing light work, i.e., lifting up to twenty pounds, walking and standing a good deal or alternatively sitting most of the time, but pushing and pulling. He discounted the findings of total disability by the three doctors because (1) Dr. Damiani did not treat the plaintiff for his museoloskeletal pain and did not indicate the degree or cause of the plaintiffs impairment; (2) Dr. Pizzarello’s opinion of total disability did not assess the plaintiffs capabilities and limitations; and (3) Dr. Lucas’ medical findings were too minimal to support a “somewhat puzzling” conclusion of total disability. The AU seemed to focus and rely on the negative findings of the 1979 cervical and lumbar myelograms, Dr. Pizzarello’s inability to locate peripheral neurological signs, and Dr. Pizzarello’s assessment in November of 1982 that the plaintiffs limitations were “mild.”

But the AU’s assessment of the evidence and determination that the plaintiff could perform light work are simply unsupported by the record when viewed as a whole. With respect to Dr. Damiani, while he did indeed treat the plaintiff for conditions other than back pain, his physical examination findings were that the plaintiff had a decreased range of motion, a loss of deep tendon reflexes, a loss of sensation, difficulty walking, and a positive Romberg sign. He also diagnosed a peripheral neuropathy attributable to the plaintiff’s diabetes which he found to be a cause of the plaintiffs disability and which was a condition Dr. Damiani was treating the plaintiff for. With respect to Dr. Lucas, the doctor to whom the plaintiff was sent by the defendant, his finding of total disability was based on x-rays showing degenerative changes in the cervical spine, minimal spur formation in the lumbar spine, limited cervical spine range of motion, and poor straight leg raising. This doctor specifically opined that the plaintiff was incapable of performing even sedentary work. As for Dr. Pizzarello, his diagnosis and observations remained consistent throughout a long history of seeing the plaintiff. He found spasm, poor straight leg raising, limited cervical range of motion, and mild and minimal C6 and C7 nerve root irritation; his diagnosis was chronic lumbar and cervical strain syndrome. The doctor’s opinion in 1980 that the plaintiff was totally disabled was based on the same, though worsening, symptomatology he observed throughout his contact with the plaintiff. Dr. Pizzarello’s one-time indication in November of 1982 that the plaintiff’s limitations were “mild” without any indication of the length of time the plaintiff could sit, stand, or walk, or how far he could bend, reach, push or pull, provide no support for the Secretary’s conclusion that the plaintiff could do light work.

While the determination of whether the plaintiff was totally disabled is finally for the Secretory and not medical doctors, see Rodriguez v. Secretary of HHS, 647 F.2d 218, 223 (1st Cir.1981), here the Secretary has no evidence on which to base her assessment that the plaintiff could perform light or sedentary work. An AU’s observations at a hearing provide insufficient grounds for rejecting uncontroverted medical opinion, though a claimant’s self-serving statements may be disregarded if unsupported by objective evidence. Bellamy v. Secretary of HHS, 755 F.2d 1380 (9th Cir.1985). An AU simply does not possess the competency to substitute his views on the severity of the plaintiffs condition in the absence of medical evidence to support his position. Cf Grimmett v. Heckler, 607 F.Supp. 502 (S.D.W.Va.1985) (psychological impairment).

Further, as the Secretary has argued, in enacting the Disability Reform Act of 1984 with respect to the requirement of objective medical evidence to support claims of pain, the Congress sought to work into law the previous administrative regulations dealing with pain. See Polaski v. Heckler, 751 F.2d 943, 950 (8th Cir.1984), U.S. appeal pending. In the Eighth Circuit, the Secretary acknowledged that the administrative regulations dealing with pain were as follows:

While the claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment, direct medical evidence of the cause and effect relationship between the impairment and the degree of claimant’s subjective complaints need not be produced. The adjudicator may not disregard a claimant’s subjective complaints solely because the objective medical evidence does not fully support them. The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1. the claimant’s daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant’s subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole. [Emphasis in original.]
Polaski, 751 F.2d at 948 (quoting earlier decision, 739 F.2d 1320, 1321-22 (8th Cir.1984)).

Thus, in this case, even if the objective medical findings do not show a direct cause and effect relationship between the impairment and the degree of the plaintiff’s subjective complaints, the Secretary cannot ignore the plaintiff’s symptoms and the objective medical findings which do exist. “Symptoms can sometimes suggest a greater severity of impairment than is demonstrated by objective and medical findings alone.” Polaski, 751 F.2d at 958 (quoting SSR 82-58).

Having now evaluated the evidence relating to the plaintiff’s condition, I can properly evaluate the use to be given the medical-vocational grids and the testimony given by the vocational expert. Based on my assessment of the record, use of the grids in this case is improper because they are only appropriate where the plaintiff’s condition coincides exactly with the criteria of age, education, vocational experience, and residual functional capacity. See Perez v. Schweiker, 653 F.2d 997 (5th Cir.1981). Here, the plaintiff’s residual functional capacity was not the same as in the grids. However, there was testimony by the vocational expert based on an accurate portrayal of the plaintiff’s condition. He testified that there were no jobs in the national economy that the plaintiff could perform. Given this testimony, the Secretary should have concluded that the plaintiff was disabled within the meaning of the Social Security Act as there was no substantial gainful activity which he could perform.

Accordingly, the plaintiff was entitled to disability benefits prior to the expiration of his insured status on March 31, 1983. The evidence in the record also indicates that the plaintiff continued to be disabled subsequent to that date. However, the Secretary made no determination as to continuing disability because of his decision of no disability as of March 31, 1983. On remand the Secretary must make a determination as to the plaintiff’s continuing disability, or alternatively, as to the plaintiff’s eligibility for SSI benefits.

Reversed and remanded.

      . Because of the earnings requirements of the Social Security Act, see 42 U.S.C. § 423(a) and (c), the plaintiffs insured status expired as of March 31, 1983. To be eligible for benefits, therefore, the plaintiff had to show an inability to engage in any substantial gainful activity for at least twelve consecutive months prior to March 31, 1983. Accordingly, the Secretary only considered the evidence of plaintiffs disability prior to March 31, 1983.
      The Secretary indicated that evidence of plaintiffs disability arising subsequent to March 31, 1983, would only be relevant to the issue of continuing disability once the plaintiff had established he was disabled as of March 31, 1983. Because the Secretary found that the plaintiff was not disabled as of March 31, 1983, she did not consider plaintiffs additional injuries suffered as a result of a domestic dispute in August 1983 (Tr. 150-52, 198). I, also, for the purposes of this appeal, will not consider this evidence. Given my decision in this case, however, the Secretary must evaluate continuing disability on remand and so must look to this evidence. I also would note, that it is unclear to me why the Secretary did not address plaintiffs eligibility for Supplemental Security Income (SSI) under Title XVI of the Social Security Act if the plaintiff was indeed ineligible for Title II Social Security benefits after March 31, 1983, because of the earnings requirements. If necessary in evaluating post-March 31, 1983, disability, the Secretary should consider the plaintiffs eligibility for SSI benefits.

      . A neuropathy is "any of various abnormal states of the nervous system or nerves especially when involving degenerative changes." Webster's Third International Dictionary 1521 (1967).

      . See footnote 1 supra.

      . The plaintiff originally filed an application for Disability Insurance Benefits on September 15, 1980. Following unfavorable initial and reconsideration decisions, he filed a Request for Hearing on September 17, 1981, but did not appear for a hearing scheduled on April 12, 1982, nor respond to an Order to Show Cause for Failure to Appear at that hearing. Accordingly, his Request for Hearing was dismissed. At the hearing held on April 27, 1984, with respect to the plaintiffs disability application of September 30, 1983, the plaintiff testified that neither he nor his representative received the April 1982 notice of hearing. The secretary considered the evidence as to this application without regard to the prior dismissal of the Request for Hearing.

      . As discussed above, by process of elimination, Dr. Damiani later attributed the peripheral neuropathy to diabetes. Although Dr. Damiani later said that the plaintiffs diabetes was controlled by medication, the doctor did not indicate any change as to his assessment of disability (Tr. 138).

      . Light work is defined as follows in 20 C.F.R. § 404.1567(b):
      Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long peiods of time.
      Sedentary work is defined in 20 C.F.R. § 404.-1567(a):
      Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

      . Using data from the Dictionary of Occupational Titles about jobs (classified by their exertional and skill requirements), the Medical-Vocational Guidelines or Grids provide rules to determine whether a person can perform other substantial gainful activity, where that person is prevented by medical impairment from doing past work. See 20 C.F.R. § 404.1569; see also Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).

      . Based on the Magistrate's memorandum and recommendation, the parties have argued the issue in this appeal in large part as whether the Secretary should have disregarded the testimony of the vocational expert and instead relied on the medical-vocational grids. I find no conflict between use of the grids and the expert testimony, however, if indeed the plaintiff was capable of performing light work.

      . The case at bar is therefore different from the situation in Winn v. Heckler, 762 F.2d 180 (1st Cir.1985), where the court found that the Secretary need not credit the plaintiffs claims of pain where the doctor found no objective evidence to support the plaintiffs occasional claims of pain.

      . See footnote 1, supra.


author: BARBOUR, District Judge,

text:
    Curtis SMITH and Arthria Smith, Plaintiffs, v. CAPITAL ROOFING COMPANY OF JACKSON, INC., Defendant.
    Civ. A. No. J85-0233(B).
    United States District Court, S.D. Mississippi, Jackson Division.
    Nov. 12, 1985.
    Lynda C. Robinson, Jackson, Miss., for plaintiffs.
    Stephen Shackelford, Jackson, Miss., for defendant.
   MEMORANDUM OPINION

BARBOUR, District Judge,

Pursuant to Rule 52 of the Federal Rules of Civil Procedure, the Court makes the following Findings of Fact and Conclusions of Law.

SUMMARY OF EVIDENCE

On March 5, 1985, Plaintiffs, Curtis and Arthria Smith (“Smith”), sued Defendant, Capital Roofing Company of Jackson, Inc. (“Capital”), for violations of the Truth in Lending Act (“TILA”) seeking rescission of the consumer credit transaction and forfeiture of loan proceeds pursuant to 15 U.S.C. § 1635, actual damages pursuant to 15 U.S.C. § 1640(a), punitive damages and attorney’s fees. The matter was tried before the Court, sitting without a jury, on May 30, 1985. After receiving post-trial briefs of authority, the Court makes its Findings of Facts and Conclusions of Law.

On October 23, 1983, the Smiths entered into a contract with Capital for the sale and installation of aluminum siding on the Smiths’ home for a contract price of $7800.00. To effectuate the transaction, the Smiths testified that they executed an installment sales contract, note and disclosure statement and a notice of right to rescind. According to the Smiths, although these papers were signed by them on October 23, 1983, the Capital representatives who negotiated the contract dated them October 24, 1983.

On October 24, 1983, the Smiths testified that Capital began installing the siding on their home. After Mrs. Smith asked one of the Capital employees whether a verification of their credit had been obtained, the work stopped and the crew left.

Approximately 3 weeks later, on November 14, 1983, the Smiths stated that Capital resumed performance of the contract which was completed November 17, 1983.

On November 16, 1983, Capital notified the Smiths that the lender would not approve a loan to them which was in excess of the equity in their house of $5500.00. Capital agreed to reduce the contract price of $7800.00 to $6800.00, leaving a balance of $1300.00 which the Smiths would have to finance through other means. Mr. Smith was unable to borrow the remaining $1300.00. Consequently, Capital finally agreed to accept $600.00 in cash which Mr. Smith paid on November 18, 1983.

As a result of the negotiations, the Smiths were required to execute a new set of documents and Capital destroyed the October 24, 1983, documents. On November 17, 1983, the Smiths again executed an installment sales contract, note and disclosure statement and a notice of right to rescind.

The Smiths testified that they never executed a deed of trust in favor of Capital on their home as collateral for the transaction although two deeds of trust were recorded by Capital. In fact, they testified that they were unaware of the existence of a deed of trust against their home in favor of Capital until they were notified of foreclosure proceedings which Capital instituted against them on the deed of trust. Mr. Smith also stated that it was not his understanding that Capital was to receive a security interest in their home.

Two deeds of trust, allegedly signed by the Smiths, were introduced into evidence. Capital is the Grantee and the Smiths’ property is the collateral. The Smiths testified that their signatures on the deeds of trust, one recorded December 5, 1983, and another recorded March 9, 1984, were forged. To corroborate their testimony, the Smiths used an overhead projector to compare their authentic signatures with the alleged forgeries appearing on the deeds of trust.

On December 7,1983, the Smiths notified Capital that the contract was rescinded because of irregularities they believed existed in the transaction.

The Smiths claim that they are entitled to rescission of the deeds of trust, forfeiture of the loan proceeds, actual damages, attorneys’ fees and punitive damages because of Capital’s violations of the provisions of the TILA and Regulation Z. Specifically, the Smiths claim Capital violated the TILA by:

(1) failing to disclose the existence of a deed of trust as a security interest in their home;
(2) commencing work under the contract prior to the expiration of the three day rescission period;
(3) failing to obtain the Smiths’ signatures on the deeds of trust prior to recording them and failing to deliver a copy of the deed of trust to them.

Capital, on the other hand, testified that performance of the contract did not begin on the Smiths’ house until after the expiration of the three-day rescission period. In support, Capital introduced into evidence a “load out sheet” dated November 11, 1983, which is completed when Capital’s subcontractor obtains the materials. Capital also introduced a payment voucher dated November 11, 1983, indicating payment to the subcontractor for materials purchased. Jimmy Lovett, President of Capital, also testified that Mr. Smith did sign a deed of trust.

FINDINGS OF FACT

Based upon the evidence adduced at trial, as summarized above, the Court finds the following:

(1) A contract was entered into between the Smiths and Capital on October 23,1983, for the sale and installation of aluminum siding;

(2) On October 23, 1983, the Smiths executed an installment sales contract, note and disclosure statement and notice of right to rescind;

(3) This consumer credit transaction is subject to TILA and Regulation Z;

(4) The disclosure statement signed by the Smiths in no place mentions a deed of trust but stated in pertinent part:

Security: You are giving a security interest in:
X the goods or property being purchased.
X (brief description of other property) 1006 Rondo St. Jackson, Miss. 39213

(5) the notice of right to rescind stated in pertinent part:

If you cancel the transaction, the (mortgage/lien/security interest) is also cancelled.

(6) Work was commenced by Capital on October 24, 1983, prior to the three-day rescission period.

(7) Because of difficulties experienced in financing the contract price, the contract was renegotiated. The contract documents executed October 23, 1983, and dated October 24, 1983, were destroyed and the Smiths executed a new contract, installment sales contract, note, disclosure statement and notice of right to cancel on November 17, 1983, which superseded the October 23, 1983, contract.

(8) The notice of right to cancel dated November 17,1983, noted that the notice of rescission must be mailed “no later than midnight of November 21, 1983____”

(9) Work under the contract was completed November 17, 1983.

(10) Capital recorded two deeds of trust. Both deeds of trust are dated November 17, 1983, and the acknowledgements are dated November 18, 1983. One deed of trust was recorded December 5, 1983; the trustee is David K. McGowan and the grantors are Curtis Smith and Arthria Smith, a/k/a Arthria H. Smith. The other, apparently a copy of the first, was recorded March 9, 1984; the trustee is Tony C. Stepp and the grantors are Curtis Smith and Arthria Smith.

(11) The Smiths’ attorney notified Capital on December 7, 1983, that they were exercising their right to rescind the transaction.

(12) The Smiths failed to prove, by clear and convincing evidence, that their signatures on the two deeds of trust were forged.

CONCLUSIONS OF LAW

The Smiths seek rescission of the consumer credit transaction and forfeiture of the loan proceeds on the basis that Capital’s failure to disclose the existence of a deed of trust as a security interest on their home was a material non-disclosure. The Smiths also seek damages as a result of Capital’s commencement of work under the contract prior to the expiration of the three-day rescission.

With regard to the Smiths’ claim for damages for Capital’s commencement of performance prior to the three-day rescission, the Court finds that Capital’s performance prior to expiration of the three-day rescission constitutes a technical violation of Regulation Z § 226.15(c) which provides:

[u]nless a consumer waives the right to rescind ..., no money shall be disbursed other than in escrow, no services shall be performed, and no materials delivered until after the rescission period has expired, [emphasis added]. "

This technical violation would subject Capital to damages under § 1640 of the TILA. However, § 1640(e) requires that actions for damages be commenced “one year from the date of the occurrence of the violation.” The violation by Capital occurred on October 24, 1983, when it commenced performance prior to the three-day rescission period. The Smiths filed suit on March 5,1985. Accordingly, the Smiths’ claim for damages is barred by the one year statute of limitations. See, e.g., In Re Smith, 737 F.2d 1549, 1552 (11th Cir.1984).

With regard to the Smiths’ claim for rescission, § 226.23(a)(3) provides that the consumer’s right to rescind may be exercised until midnight of the third business day following consummation, delivery of the notice of the right to rescind, or the delivery of all material disclosures, whichever occurs last. Section 226.23(a)(3) further provides that if the required notice or material disclosures are not delivered, the right to rescind expires three years after consummation. See also, 15 U.S.C. § 1635(f). Consequently, if this Court finds that the failure to disclose the existence of a deed of trust as a security interest in the Smiths’ home was a material non-disclosure, then the Smiths’ notice of rescission on December 7,1983, was timely.

Regulation Z, 12 C.F.R. § 226.18(m) requires a creditor to disclose:

,[t]he fact that the creditor has or will acquire a security interest in the property purchased as part of the transaction, or in other property identified by item or type.

The Fifth Circuit has yet to decide whether § 226.18(m) of Regulation Z requires a creditor to disclose the existence of a deed of trust as a security interest. Compare Gerasta v. Hibernia Bank, 411 F.Supp. 176 (E.D.La.1975), aff'd in part, reversed in part, 575 F.2d 580 (5th Cir.1978) (creditor need not disclose statutory liens running in favor of non-creditor contractor or subcontractor).

In Williamson v. Lafferty, 698 F.2d 767 (5th Cir.1983), the Fifth Circuit concluded that the creditor had failed to disclose the extent of the consumer’s property subject to a security interest. The disclosure form indicated that the creditor received “a deed of trust security interest in property where improvements will be located.” In holding that the consumer’s property in which the security was taken was not sufficiently identified, the court stated:

[t]he granting of a deed of trust in one’s home as security is a critical factor in a consumer credit transaction.

698 F.2d at 769. The court reasoned that the inquiry regarding the materiality of the disclosure is not what an individual plaintiff thinks but what a reasonable consumer thinks. To be a material non-disclosure, the court stated that the information must be of some significance to a reasonable consumer under the circumstances in his “comparison shopping” for credit. See also, In Re Smith, 737 F.2d 1549 (11th Cir.1984) (TILA mandates disclosure of nature of security interest on disclosure statement); Lee v. Redstone Federal Credit Union, 615 F.2d 683 (5th Cir.1980) (creditor must disclose more than the fact of its retention of a security interest).

Jones v. Fitch, 665 F.2d 586 (5th Cir.1982) is inopposite. In Jones, the consumer argued that the creditor’s failure to identify the real property being secured in the disclosure statement justified rescission. The disclosure statement did indicate that the loan was secured by a deed of trust on real property. The court determined that the failure to identify the real property secured by a deed of trust was not a material non-disclosure. The court noted that the deed of trust was executed as part of a single transaction and the consumer did not suggest that they did not know of the security interest being taken in their home.

In this case, the disclosure statement did not specify the type security interest being taken in the Smiths’ home. Moreover, they denied that they ever signed a deed of trust although they failed to prove, by clear and convincing evidence, that the deeds were forged. Mr. Smith did state that he was not aware that a security interest was being taken in his home. The Court, after examining the deeds of trust, believes that irregularities existed.

The Court also concludes, in accordance with Williamson v. Lafferty, supra, that Capital’s failure to disclose the existence of a deed of trust as security on the Smiths’ home was a material non-disclosure. If the Smiths did acknowledge execution of the deeds of trust, then this case would be governed by Jones v. Fitch, supra. Since the Smiths do deny signing the deeds of trust and since Capital failed to produce the notary public who acknowledged the deeds of trust to rebut the Smiths’ denial, the Court is of the opinion that the Smiths proved by a preponderance of the evidence that they did not sign, nor were they aware of, the deeds of trust against their property. Accordingly, Capital should have disclosed the existence of the deed of trust in the disclosure statement. Capital’s failure to do so entitled the Smiths to rescind the deed of trust on their property. Further, the Smiths timely exercised their right to rescind.

Now, the Court must determine whether the Smiths are entitled to forfeiture of the loan proceeds as a penalty.

According to § 1635(b), when a consumer exercises his right to rescind,

... he is not liable for any finance or other charge, and any security interest given by the obligor, including any interest arising by operation of law, becomes void upon such a rescission. Within twenty days after receipt of notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, down payment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of a security interest created by the transaction. If the creditor has delivered any property to the obligor, the obligor must return possession of it.

If the creditor performs its obligations under § 1635(b) by returning the down payment or earnest money and by terminating the security interest created by the transaction, the consumer is obligated to return to the creditor the property or its reasonable value. If the creditor does not take possession of the property within twenty days after tender by the consumer, § 1635(b) provides that ownership of the property vests in the consumer with no obligation on his part to pay for it.

In this instance, the Smiths notified Capital of the rescission of the contract. Capital did not fulfill its obligations under § 1635(b) by terminating the security interest although the $600.00 down payment made by Mr. Smith to Capital had been returned to him prior to exercising the right to rescind. Capital’s failure to cancel the deed of trust upon receipt of notice of rescission would expose it to damages under § 1640(a) had the Smiths filed suit within the one year statute of limitations. Yet, they failed to do so. Moreover, the Smiths failed to tender to Capital the reasonable value of the work performed by Capital. In fact, the Smiths admit that they owe Capital and are willing to pay Capital a fair price for the siding for which they have paid nothing. Accordingly, the Court is of the opinion that, although the Smiths are entitled to rescission of the deed of trust, the Smiths are required to pay, in reasonable monthly installments, the principal amount of the loan to Capital. See, e.g., Etta v. Seaboard Enterprises, Inc., 674 F.2d 913 (D.C.Cir.1982); Powers v. Sims & Levin, 542 F.2d 1216 (4th Cir.1976).

Finally, the Smiths request attorneys’ fees and punitive damages. With regard to attorneys’ fees, the Smiths have not supported their claim with an analysis of the Johnson factors. Consequently, the Court, while recognizing the Smiths’ right to recover attorneys’ fees as the prevailing party, McGowan v. King, Inc., 661 F.2d 48 (5th Cir.1981), cannot enter an award without factual support. Id.

With regard to punitive damages, the Court is of the opinion that, although irregularities existed with regard to the transaction, punitive damages will not lie. There was no proof that Capital acted in a wanton, malicious or oppressive manner or in reckless disregard of the requirements of the law. See, e.g., Anderson v. United Finance Company, 666 F.2d 1274 (9th Cir.1982).

In summary, the Smiths are entitled to a rescission of the deeds of trust against their property; the Smiths are not entitled to statutory damages or actual damages; the Smiths are required to pay, in reasonable monthly installments, the principal amount of the loan to Capital; the Smiths are entitled to attorneys’ fees in an amount to be determined; and the Smiths are not entitled to punitive damages. A Final Judgment in accordance with this Opinion will be entered upon resolution of the issue of attorneys’ fees. Plaintiffs’ attorney shall make proper application for attorneys fees within 10 days of the date of this Memorandum Opinion and Defendant’s attorney shall have (10) days from this date in which to respond.


author: PATEL, District Judge.

text:
    Dorothy BYNUM, Sylvester Bynum and Dorothy Bynum as Administrator of the Estate of Bernard Bynum, decedent, Plaintiffs, v. CITY OF PITTSBURG, Leonard Castiglione, individually and in his capacity as Chief of Police for the City of Pittsburg, Ray Giacomelli and William O’Malley, individually and in his capacity as District Attorney for the County of Contra Costa, Defendants.
    No. C-83-5664-MHP.
    United States District Court, N.D. California.
    Nov. 12, 1985.
    Amended Nov. 27, 1985.
    Tito Torres, San Francisco, Cal., for plaintiffs.
    James L. Hazard, Sellar, Engleking, Hazard & Snyder, Walnut Creek, Cal., Eliza-

      beth B. Hearey, Deputy County Counsel, Martinez, Cal., Jerrold M. Ladar, Stephen W. Sommerhalter, San Francisco, Cal., for defendants.
   AMENDED OPINION

PATEL, District Judge.

This case arises out of the shooting death of Bernard Bynum by Ray Giacomelli, a police officer for the City of Pittsburg. The shooting occurred on January 27, 1982. Decedent’s surviving heirs, Dorothy and Sylvester Bynum, filed this action on November 22, 1983 alleging that defendants City of Pittsburg (“Pittsburg”), police officer Ray Giacomelli (“Giacomelli”), police chief Leonard Castiglione (“Castiglione”), and district attorney William O’Malley (“O’Malley”) had violated their civil rights by performing acts which caused their son to be shot to death by officer Giacomelli. Dorothy Bynum also sues in her capacity as administrator of the decedent’s estate.

Plaintiffs’ Second Amended Complaint filed on August 6, 1985 contains five causes of action, all based on 42 U.S.C. § 1983. First, plaintiffs allege that defendant Giacomelli acting under color of state law deprived their son of several constitutionally protected rights, including the right not to be deprived of life without due process of law, the right to be free from excessive force, and the right to be free from battery motivated by racial prejudice. Second, they contend that defendant Castiglione instituted a policy of inadequate police training which caused the death of their son. Third, they claim that defendant Pittsburg encouraged its police department to abuse minorities causing the death of their son. Fourth, they allege that defendants Pittsburg, Castiglione, and O’Malley had a policy of exonerating officers who brutalized or killed minorities and that this policy was a proximate cause of their son’s death. Finally, they allege that defendants Pittsburg and O’Malley caused their son’s death by failing to prosecute law enforcement officers who brutalized or killed minorities.

Defendants Pittsburg, Giacomelli, and Castiglione filed a motion to dismiss the Second Amended Complaint on August 22, 1985 on the grounds that plaintiffs’ claims are barred by a one year statute of limitations and that no constitutional violation is shown in the pleadings. Castiglione also moves to dismiss the second cause of action against him claiming that respondeat superior is an insufficient basis for imposing liability on him. Finally, Pittsburg asks the court to dismiss it from the fifth cause of action since it contains no allegations of wrongdoing on the part of the City. Defendant O'Malley joined in the motion to dismiss on August 23, 1985. In addition to the grounds asserted by the other defendants, O’Malley claims that the plaintiffs have no standing to bring this action, that he is absolutely immune from prosecution, and that plaintiffs are not entitled to the equitable relief that they seek.

The court has considered all of the papers in support of and in opposition to these motions. For the reasons discussed below, the fifth cause of action is dismissed as to defendant City of Pittsburg and the remainder of defendants’ motions to dismiss are denied.

I. O’Malley’s Motion to Dismiss

Defendant O'Malley’s motion to dismiss the Second Amended Complaint is based on several arguments which the court heard and rejected on July 23, 1984. On that date, the court denied O’Malley’s motion to dismiss plaintiffs’ First Amended Complaint based upon prosecutorial immunity, lack of survival and standing, and failure to state a claim cognizable under § 1983. It also refused to strike plaintiffs’ prayer for equitable relief. O’Malley’s arguments here amount to nothing more than a motion for reconsideration. Since he advances no new arguments, the motion is denied.

The only issue raised by O’Malley that the court must consider here is the claim that plaintiffs’ action is barred by a one year statute of limitations. This is discussed below since defendants Pittsburg, Giacomelli, Castiglione also raise this claim.

II. Pittsburg, Giacomelli, and Castiglione's Motion to Dismiss

A. Statute of Limitations

Defendants Pittsburg, Giacomelli, and Castiglione ask the court to dismiss this action on statute of limitations grounds in light of the Supreme Court’s decision in Wilson v. Garcia, — U.S.-, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Defendant O’Malley joins in this motion.

In Wilson, the Supreme Court held that state statutes of limitations for personal injury should be applied in § 1983 actions. Id. at 1949. The shooting of plaintiffs’ son occurred on January 27, 1982; they filed suit on November 22, 1983. Defendants argue that Wilson should be applied retroactively to bar plaintiffs’ causes of action under the one year California statute of limitations for personal injury. See Cal.Civ.Proc.Code § 340.

Defendants cite several cases from other circuits for the proposition that Wilson should be applied retroactively. All of the decisions rely upon the test announced in Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), to analyze the retroactivity question. In Huson, the Supreme Court held that a decision could be applied nonretroactively if three criteria were met:

First, the decision to be applied nonretroactively must establish a new principle of law, ... by overruling clear past precedent on which litigants may have relied ... Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking at the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” ... Finally, we have weighed the inequity imposed by retroactive application____

Id. at 106-07, 92 S.Ct. at 355-56 (citations omitted).

In Smith v. City of Pittsburgh, 764 F.2d 188 (3rd Cir.1985), the court used the Huson test in making its determination to apply Wilson retroactively to the case before it. The court relied heavily on the fact that the Third Circuit did not have a well-established statute of limitations in § 1983 actions prior to Wilson. The first and third prongs of the Huson test were not met since the “application of the [statute of limitations] law had been erratic and inconsistent, without clear precedent on which plaintiff could reasonably rely in waiting to file suit.” Id. at 194-95. With respect to the second prong of the Huson test, the court held that “[although we cannot say that the policies referred to in Wilson v. Garcia militate clearly in favor of retroactive application, neither do they militate against such application.” Id. at 196.

In this circuit, by contrast, the Huson test suggests that Wilson should not be applied retroactively.

1. Wilson announced new law in the Ninth Circuit.

Prior to Wilson, “the three-year limitations period in section 338(1) [had] long governed suits against state officials brought pursuant to section 1983.” Marshall v. Kleppe, 637 F.2d 1217, 1223 (9th Cir.1980). The state of the law regarding the statute of limitations was well-settled in the Ninth Circuit. See Wilson, 105 S.Ct. at 1947 n. 35 (Supreme Court noted that the Ninth Circuit had created uniformity by adopting a uniform characterization of § 1983 actions as claims arising on a statute). Since Wilson announced a new principle of law in the Ninth Circuit, the first prong of the Huson test is met.

2. Retroactive application of Wilson would not further its purposes

The Court in Wilson was attempting to promote “federal interests in uniformity, certainty, and the minimization of unnecessary litigation.” 105 S.Ct. at 1947. Retroactive application would neither retard nor promote these goals. Therefore, the second prong of the Huson test is inconclusive. Jackson v. City of Bloomfield, 731 F.2d 652, 655 (10th Cir.1984) (en banc) (refusing to apply new statute of limitations retroactively); see also Smith, 764 F.2d at 196.

3. Retroactive application of Wilson would be inequitable

As the court noted in Smith, “[wjhere a plaintiff could have reasonably waited to file suit under the established prior rule, it would be inequitable to say he had slept on his rights because of a later and unforeseeable Supreme Court decision.” 764 F.2d at 196. Prior to Wilson the statute of limitations in actions under § 1983 was three years. Since this case has been pending for almost two years based upon plaintiffs’ reasonable reliance on a three year statute of limitations, it would be inequitable to apply Wilson retroactively. Thus, the third prong of the Huson test is met.

Because the Huson test is met, Wilson should not be applied retroactively in this case. Accordingly, defendants’ motions to dismiss on statute of limitations grounds are denied.

B. Failure to Allege a Constitutional Violation

Defendants Pittsburg, Giacomelli, and Castiglione have also moved to dismiss the Second Amended Complaint on the grounds that it fails to allege a constitutional violation. They argue that the availability of adequate state postdeprivation remedies bars this court’s consideration of plaintiffs’ § 1983 claims under the rationale of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

Defendants’ argument fails in several respects. First, in Hudson v. Palmer, — U.S. -, -, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984), the Supreme Court elaborated on its holding in Parratt stating that “postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action.” In this case plaintiffs have alleged that defendants acted pursuant to a policy of exoneration; plaintiffs do not allege merely commission of a random and unauthorized act which defendants could not have predicted. Therefore, the rationale of Parratt is inapplicable.

Moreover, even if the shooting death of plaintiffs’ son were a random and unauthorized act, plaintiffs might still have an action under § 1983 despite the availability of a state remedy. In Haygood v. Younger, 769 F.2d 1350, 1356-57 (9th Cir.1985) (en banc) (citation omitted), the Ninth Circuit noted that

Parratt and Hudson did not decide, and we do not reach the question, whether the availability of some remedial relief in state court might be imposed as a bar to federal relief under § 1983 in the myriad fact situations that might present themselves in other cases against state and local government officials. Parratt and Hudson dealt with relatively minor infractions of prisoners’ interests in their personal property, and did not deal with official assaults, batteries or other invasions of personal liberty.

Finally, to the extent that plaintiffs’ Second Amended Complaint alleges violations of their substantive due process rights the procedural rationale of Parratt is inapplicable. In Parratt the Supreme Court recognized the distinction between procedural and substantive claims when it noted that the case involved only violation of “the Due Process Clause of the Fourteenth Amendment simpliciter,” in contrast to previous § 1983 cases before the Court involving fourth amendment and eighth amendment claims. 451 U.S. at 536, 101 S.Ct. at 1913. Courts in this circuit have also noted this distinction between substantive and procedural due process. See Haygood, at 1354-57 (court applies different analyses to Hay-good’s eighth amendment and due process claims); Garcia v. County of Los Angeles, 588 F.Supp. 700 (C.D.Cal.1984) (Parratt analysis does not apply to substantive due process claims). If plaintiffs succeed in proving the allegations contained in their Second Amended Complaint, “defendants’ conduct may have been sufficiently outrageous to constitute a violation of substantive due process.” Garcia, 588 F.Supp. at 707.

The law of this circuit remains unsettled. In Wakinekona v. Olim, 664 F.2d 708 (9th Cir.1981), rev’d on other grounds, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), the court found a prisoner could assert a protectible liberty interest in certain prison transfer regulations. The prisoner was allowed to assert these under § 1983. However, in another case decided the same year the court applied Parratt and held that a prisoner was not deprived of due process where he not only could pursue state tort claims for injuries suffered at the hands of a guard, but had pursued those remedies. Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir.1981), aff'd on other grounds sub nom Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983).

Nevertheless, this circuit has recently made it clear that claims of excessive force may still be brought under § 1983 where they are based on Fourth Amendment grounds. Robins v. Harum, 773 F.2d 1004 (9th Cir.1985). Plaintiffs’ allegations are grounded on the Fourth as well as the Fourteenth Amendment. The availability of state postdeprivation remedies does not bar Fourth Amendment claims. Id. at 1008-09.

For all of the foregoing reasons, defendants’ motion to dismiss for failure to state a constitutional violation is denied.

C. Respondeat Superior

Defendant Castiglione argues that this court should dismiss plaintiffs’ second cause of action against him because respondeat superior is not a basis for imposing § 1983 liability. He cites the Supreme Court’s decision in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for this proposition. In Monell the Court held that local government entities may be sued under § 1983 only where the alleged deprivation of constitutional rights resulted from the execution or implementation of an official government policy.

The Supreme Court recently elaborated on its decision in Monell in City of Oklahoma v. Tuttle, — U.S. -, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). In Tuttle, the widow of a man shot by a police officer brought a § 1983 action alleging that a policy of inadequate training brought about her husband’s death. The trial court allowed the jury in the case to infer a policy of inadequate training from the mere fact that the victim was shot to death. The Supreme Court reversed, holding that “where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the ‘policy’ and the constitutional deprivation.” 105 S.Ct. at 2436 (footnotes omitted).

In their complaint, plaintiffs allege more than a single incident; they allege an ongoing policy of inadequate training which caused their son’s death and involved the injuries and deaths of other minorities. At this stage of the proceedings the allegations are sufficient to defeat a motion to dismiss. Therefore, Castiglione’s motion to dismiss the second cause of action is denied.

D. No Wrongdoing by City of Pitts-burg

Defendant City of Pittsburg contends that this court should dismiss the fifth cause of action since it contains no allegation of wrongdoing by the City. Plaintiffs conceded this at oral argument. Therefore, the claim is dismissed as to the City of Pittsburg.

III. Conclusion

This court dismisses the fifth cause of action of plaintiffs’ Second Amended Complaint as to defendant City of Pittsburg. The motions to dismiss are otherwise denied for the reasons stated herein.

IT IS SO ORDERED.

      . For the purposes of this order the court refers to plaintiffs jointly, although certain claims are held only by the administrator.

      . Plaintiffs’ Second Amended Complaint does not differ substantively from their First Amended Complaint. The Second Amended Complaint simply adds Dorothy Bynum in her capacity as administrator.

      . Defendants contend that the Supreme Court itself mandated that Wilson be applied retroactively. The Court remanded Springfield Township School District v. Knoll, — U.S.-, 105 S.Ct. 2065, 85 L.Ed.2d 275 (1985), for reconsideration in light of Wilson. It did not, as defendants suggest, tell the court of appeals to apply Wilson retroactively. Moreover, in Wilson, the Court seemed to recognize that there might indeed be cases in which the decision should not be applied retroactively. — U.S. at--, 105 S.Ct. at 1941-42 n. 10 (the Court cites Jackson v. City of Bloomfield, 731 F.2d 652, 655 (10th Cir.1984) (en banc), a case decided the same day as the circuit opinion in Wilson which refuses to apply the new personal injury statute of limitations retroactively).

      . The court is aware that plaintiffs’ former counsel was less than diligent in pursuing this case. However, it was reluctant to penalize plaintiffs for this absent some acquiesence on their part. Plaintiffs obtained new counsel who has been diligent. The equities still balance in plaintiffs’ favor.

      . Another district court judge in this Circuit has also suggested that retroactive application of Wilson is inappropriate in the Ninth Circuit. See Estate of Cartwright v. City of Concord, 618 F.Supp. 722 (N.D.Cal.1985).