author: TAURO, District Judge.

text:
    ESTATE OF Patricia E. GILMORE, Joseph P. Gilmore, Executor, Plaintiff, v. John J. BUCKLEY, et al., Defendants.
    Civ. A. No. 80-1749-T.
    United States District Court, D. Massachusetts.
    May 10, 1985.

      Robert J. Owens, Robert D. City, Kieran B. Meagher, Robert J. Owens Associates, Boston, Mass., for plaintiff.
    James F. Meehan, James L. Polianites, Parker, Coulter, Daley & White, Boston, Mass., for defendants Buckley and Bens.
    R. Robert Popeo, Kenneth B. Schwartz, Peter A. Biagetti, Thomas R. Murtagh, Mintz, Levin, Cohn, Glovsky & Popeo, Boston, Mass., for defendants Danehy, Middle-sex County, Ralph.
    Joseph J. Walsh, Sloane & Walsh, Boston, Mass., for defendants Fein & Koson.
    Bernard A. Dwork, Barron & Stadfeld, Boston, Mass., for defendant McLaughlin.
    Roberta Thomas Brown, Administrative and Legal Counsel to the Attorney General, Boston, Mass., for defendants Koson, Fein, Gilligan, & Gaughan.
    William J. Davenport, Somerville, Mass., Edward E. Kelly, Boston, Mass., for defendant Ralph.
    Lee Carl Bromberg, Bromberg, Sunstein & McGregor, S. George Bromberg, Boston, Mass., for defendant Bens.
   MEMORANDUM

TAURO, District Judge.

Patricia Gilmore was murdered by Bradford Prendergast on December 20, 1979, while Prendergast was on furlough from the Billerica Jail and House of Correction (“Billerica”). Gilmore’s estate has brought this civil rights action against Middlesex County, the Sheriff of Middlesex County, the Middlesex County Commissioners, and the Superintendent of Billerica (“county defendants”), as well as the medical director and two assistants at Bridgewater State Hospital (“Bridgewater defendants”). The case is before the court on the parties’ cross motions for summary judgment.

I.

THE FACTS

On July 2, 1979, a warrant was issued for the arrest of Bradford Prendergast based on Patricia Gilmore’s complaint that Prendergast had threatened her life. Prendergast was arraigned in Stoughton District Court on July 12, 1979. He was ordered hospitalized at Bridgewater State Hospital for observation and examination to determine his competency to stand trial. Dr. Anneliese A. Pontius, a Bridgewater psychiatrist, conducted the competency evaluation and reported to the court on August 15 that Prendergast was not suffering from any major mental illness and was competent to stand trial.

Two days later, August 17, defendant Dr. Robert A. Fein, a clinical and forensic psychologist at Bridgewater, reported to the court that, based on additional information, he had concluded that Prendergast was mentally ill and that failure to hospitalize him in strict security would constitute a likelihood of serious harm to himself and others. The “additional information” was the medical record from McClean Hospital, where Prendergast had been treated (by Fein, among others) between February and April 1979. Fein concluded that “Prendergast’s recent medical history indicates that he is an individual with high potential for doing serious, if not murderous, harm to at least one potential victim and to himself.” He recommended that Prendergast, if found guilty, be returned to Bridgewater for further hospitalization. Fein concluded that “our opinion at the present time is that Mr. Prendergast should be committed to Bridgewater State Hospital.”

On August 20, 1979, Prendergast was found guilty of making threats in violation of Mass.Gen.Laws ch. 275, § 2 and was returned to Bridgewater to aid the court in sentencing, pursuant to Mass.Gen.Laws ch. 123, § 15(e). In a note to Dr. Park Dietz, head of the forensic unit at Bridgewater, Fein requested that Dietz assign a “senior person” to do the 15(e) evaluation because Prendergast was “paranoid about me enough already.” Dietz assigned defendant Dr. Dennis Koson, a forensic psychiatrist, to do the 15(e) evaluation. Dietz characterized Prendergast as a “Tarasoff case” and suggested that Koson talk to Dr. Fein for further details. Koson met with Fein, attended a conference with Fein and the district attorney, met with Prendergast twice, and reviewed his Bridgewater file which contained an abstract of his McClean record.

Koson reported to the court on September 28, 1979 that, because Prendergast refused to assent to an examination, he was unable to render the opinion requested by the court. Koson, however, went on to volunteer, “I found no evidence either from my observations at the time or from his current institutional record to suggest that he might be depressed or mentally ill.” But Koson added that, based on his review of the psychiatric record, Prendergast needed ongoing psychotherapy. Koson considered the opinions and impressions contained in the McClean record to be in conflict and believed that, without an examination, it would have been unethical and irresponsible to render an opinion as to whether Prendergast was dangerous as a result of mental illness.

Prendergast was discharged from Bridgewater on September 28, 1979 and sentenced to six months incarceration at Billerica. In early November, Prendergast was granted 58 days of jail credit for part of the time he spent at Bridgewater. His institutional discharge date, therefore, was moved up to January 12, 1980.

On November 5, 1979, the Billerica prisoner classification or “contract” board reviewed the intake information on Prendergast (which did not include his Bridgewater or McClean records) and deemed him eligible for furlough. Two days later, November 7, Prendergast’s application for a one-day furlough was approved for November 22. On November 19, his application for a two-day work release furlough was approved to begin December 7. Prendergast completed both furloughs without incident.

Prendergast had also applied for parole to the Middlesex County Commissioners, who sat as the county parole board. The board denied his application on December 7, based on a letter from Thomas Cavanaugh, Chief Probation Officer of the Stoughton District Court, reporting Dr. Fein’s concern about Prendergast’s medical history and likely dangerousness.

The parole file, including the Cavanaugh letter, was sent to Billerica. Albert Donovan, a “crisis-intervention worker” who processed Prendergast’s parole application, received the file on December 17. Donovan read the Cavanaugh letter to a person whom he mistakenly thought was Prendergast’s counselor. The Cavanaugh information was not brought to the attention of anyone else at Billerica.

Prendergast’s institutional discharge date had been moved up to December 22, 1979, based on his receipt of additional jail credits, and his third furlough was approved for December 19-20. Prendergast was released on furlough on December 19. The next day he kidnapped and murdered Patricia Gilmore.

II.

THE § 1983 CLAIM

In determining whether the defendants here may be held liable under 42 U.S.C. § 1983 for Gilmore’s murder, initial inquiry, as in any § 1983 case, must focus on two threshold issues: “(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981).

The first element raises the issue of whether there is a sufficient causal connection between defendants’ acts and Gilmore’s death such that the state fairly may be held responsible for it. This issue is closely related to the question raised by the second element: whether the defendant officials had an affirmative constitutional duty to protect Gilmore from Prendergast. Cf. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928) (analyzing “proximate cause” issues in terms of scope of legal duty).

Plaintiff argues that the Due Process clause of the Fourteenth Amendment imposed a duty upon the defendants that they failed to meet. Specifically, plaintiff maintains that the county defendants failed to prevent Prendergast’s release, or warn Gilmore, despite the fact that they or their subordinates knew or should have known of the danger Prendergast posed to her. These failures, plaintiff argues, deprived Gilmore of her life without due process of law. Plaintiff contends that the Bridgewater defendants also deprived Gilmore of her life without due process by failing to institute civil commitment proceedings against Prendergast when they knew or should have known that, as a result of his mental illness, a failure to hospitalize him was likely to cause serious harm to Gilmore.

In Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), the Supreme Court held that a state parole board could not be held liable under § 1983 for paroling a known sex offender who subsequently tortured and murdered a 15-year-old girl, even if the board knew that such a crime was likely to occur and even if the board owed a duty to the girl under state tort law. The Court stated:

Although the decision to release Thomas from prison was action taken by the State, the action of Thomas five months later cannot be fairly characterized as state action.

444 U.S. at 284-85, 100 S.Ct. at 558-59.

The Court left open the possibility that there might be circumstances under which a parole official could be deemed to have “deprived” someone of life by action taken in connection with the release of a prisoner. But the Court emphasized that in the circumstances of Martinez, “decedent’s death is too remote a consequence of the parole officers’ action to hold them responsible under the federal civil rights law.” Id. at 285, 100 S.Ct. at 559. Those circumstances included the fact that the murder occurred five months after the release, the murderer was not an agent of the state, and the parole board was not aware that the decedent, as distinguished from the public at large, faced any special danger.

Plaintiff attempts to distinguish Martinez on the ground that the defendants knew or should have known that Prendergast posed a special danger to Gilmore. Indeed, courts have held that, while a state has no affirmative constitutional duty to protect the general public from criminal attack, a duty of protection may arise with respect to particular persons who have a “special relationship” with the state. See Fox v. Custis, 712 F.2d 84, 88 (4th Cir.1983); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). Such special relationships typically involve persons within state custody — for example, prisoners, see Withers v. Levine, 615 F.2d 158 (4th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980), institutionalized mentally retarded, see Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), or children placed in foster homes, see Doe v. New York City Department of Social Services, 649 F.2d 134 (2nd Cir.1981). A special relationship may also be based, in part, on the state’s knowledge that a particular person faces a special danger. See, e.g., Jensen v. Conrad, 570 F.Supp. 114 (D.S.C.1983) (social service workers’ failure to investigate and protect reported victims of child abuse actionable under § 1983), aff'd in part and dismissed in part, 747 F.2d 185 (4th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985); Beck v. Kansas University Psychiatry Foundation, 580 F.Supp. 527 (D.Kan.1984) (plaintiffs stated a cause of action under § 1983 against officials who released prisoner known to pose a special risk to decedents).

Notwithstanding the “special relationship” plaintiff’s decedent may have had with the state, the causal connection between defendants’ conduct and Gilmore’s murder is even more remote than the circumstances involved in Martinez and, therefore, is insufficient to support § 1983 liability. In Martinez, the defendant parole board made the decision to release a dangerous parolee. Here, plaintiff has not sued the board that made the decision to furlough Prendergast.

The county defendants were high-level officials who were not personally involved in the furlough decision. Of course, supervisory officials may be held responsible for the constitutional deprivations of subordinates to which they are “deliberately indifferent.” But, as will be explained below, plaintiff has failed to produce evidence suggesting that the county defendants acted with deliberate indifference to Gilmore’s rights.

A.

County Defendants

Assuming, arguendo, that the state has a constitutional duty to protect identifiable individuals from dangerous prisoners, and that such duty was clearly established in 1979 when Gilmore was murdered, see Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), defendant county officials may not be held liable under § 1983 unless they acted with deliberate indifference to that duty. See supra note 4. Defendant Middlesex County may not be held liable unless defendants’ omissions amounted to a “policy” of constitutional deprivations. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978).

Plaintiff maintains that the furlough program at Billerica was so deficient in light of defendants’ statutory responsibilities as to amount to a policy of encouraging or acquiescing to constitutional violations. Specifically, plaintiff complains that the furlough guidelines allowed the contract board to make furlough decisions without reviewing a prisoner’s psychiatric records or details of his offense. According to the plaintiff, state law requires the superintendent to secure this kind of information, and the county commissioners to ensure that the superintendent obeys the law. These contentions are insufficient to support an inference of deliberate indifference or acquiescence to constitutional violations.

The furlough policy at Billerica is not suspect on its face. According to the furlough guidelines, the decision to grant a furlough is based on the following considerations: offense, institutional performance, resident’s ability to conduct himself responsibly while in the community, prior furlough history, past history of escapes, length of sentence, cases pending and/or warrants, judgment whether the resident can be trusted to return at the designated time and not commit any criminal acts while on furlough, the need for community reintegration, and ability to obtain an acceptable furlough sponsor.

The guidelines do not indicate what the board should do if it lacks adequate information with regard to any of these factors. Further, the contract board was arguably negligent in granting a furlough in the absence of such information. But the vagueness of the guidelines alone hardly establishes that a policy existed of releasing dangerous prisoners, or that those who made policy were indifferent to the risks of furlough. This is particularly true in light of the uncontroverted evidence presented by the defendants that the furlough program had a success rate of over 99% prior to the Prendergast incident and that Sheriff Buckley and his staff kept weekly reports on furloughs and periodically reviewed the program. Plaintiff has failed to show a pattern of failures that should have put defendants on notice of a deficiency in the furlough program, or that would suggest their acquiesence in unconstitutional conduct. Cf. Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir.1985) (per curiam) (policy of excessive use of force cannot be inferred absent pattern of striking police violence); Delaney v. Dias, 415 F.Supp. 1351, 1354 (D.Mass.1976) (allegation of participation or acquiescence in constitutional deprivation necessary element of § 1983 liability for personal misfeasance).

Superintendent Bens’ alleged failure to comply with Mass.Gen.Laws ch. 127, § 135, see supra note 7, is similarly insufficient to establish deliberate indifference. This provision refers to information to be gathered for parole purposes, not the furlough program. Moreover, pertinent information — including the Cavanaugh letter containing Dr. Fein’s assessment of Prendergast — was assembled for the parole board. Based on that information, the board denied Prendergast’s parole application.

Finally, deliberate indifference may not be inferred merely from the fact that the county commissioners knew of Prendergast’s danger to Gilmore, based on his parole application, and yet failed to prevent Prendergast’s furlough or warn Gilmore. The commissioners were not involved in individual furlough cases, nor did they know of Prendergast’s furlough application. Pursuant to established practice, the commissioners sent Prendergast’s parole denial and supporting documentation to Billerica by interdepartmental mail. The information was received by a “crisis intervention worker” responsible for processing parole applications. It should have been brought to the attention of the superintendent or furlough administrator. In the absence of any evidence that the commissioners knew or should have known that a breakdown in communication at Billerica was likely to occur, the commissioner’s mode of transmitting the information regarding Prendergast does not suggest a conscious indifference to plaintiff’s constitutional rights.

B.

Bridgewater Defendants

The Bridgewater defendants were more directly involved in the decision to decline to petition for Prendergast’s commitment than were the county defendants in the furlough decision. But the commitment decision was too far removed from the murder for the Bridgewater defendants to be fairly held responsible for it. Cf. Beck v. Kansas University Psychiatry Foundation, 580 F.Supp. at 536 (complaint stated a § 1983 cause of action against officials who released prisoner, but not psychiatrists who treated him).

Whatever constitutional duty prison officials may have to identifiable victims to prevent the release of dangerous prisoners, no similar duty attaches to civil commitment decisions of psychiatrists. At a minimum, no such duty was clearly established at the time of the incidents in this case, and thus the Bridgewater defendants are immune from liability for civil damages. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

Under Massachusetts law, a person may not be committed to a mental health facility unless a court finds that a failure to hospitalize the person would create a likelihood of serious harm by reason of the person’s mental illness. Mass.Gen.Laws Ann. ch. 123, § 8 (West Supp.1985). Section 15(e) of chapter 123, under which Prendergast was returned to Bridgewater in aid of sentencing, authorized the Bridgewater superintendent or medical director to petition the court for Prendergast’s commitment. It is significant that the statute does not require the medical director to petition for commitment of dangerous, mentally ill persons; to do so might threaten their constitutionally protected liberty interests.

The prediction of dangerous behavior is an uncertain, inexact science. See Rogers v. Okin, 478 F.Supp. 1342, 1365 (D.Mass. 1979), aff'd in part and rev’d in part, 634 F.2d 650 (1st Cir.1980), vacated, 457 U.S. 291, 102 S.Ct. 2442, 73 L.Ed.2d 16 (1982). In furlough or parole situations, such uncertainty might reasonably be expected to be resolved in favor of the public, at the expense of the individual who has no constitutional right to early release. In the civil commitment context, however, such uncertainty should generally be resolved in favor of the individual. Imposing a constitutional obligation on state hospital officials to petition for the commitment of persons whom they “know” or “should know” are dangerous and mentally ill might shift the burden of uncertainty so as to threaten the subject of inquiry with deprivation of liberty without due process of law. But see, e.g., Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983) (recognizing tort action for negligent release of mental patient with violent propensities, noting that duty of care “must take into consideration the uncertainty which accompanies psychiatric analysis” [citation omitted]). In the absence of any precedent suggesting such a duty, this court finds that the Bridgewater defendants did not deprive plaintiff’s decedent of any clearly established constitutional right.

III.

CONCLUSION

The defendants have demonstrated that there is no genuine issue as to any material fact, and that they are entitled to summary judgment with respect to the § 1983 claims. The court declines to exercise jurisdiction over the pendent state claims.

An order will issue.

      . Plaintiffs complaint is grounded on alleged violations of state tort law and 42 U.S.C. § 1983, which provides:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or territory, ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress.

      . The “state action" requirement "avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982). In a civil rights action against a state official, the under-color-of-state-law requirement of § 1983 and the “state action” requirement of the Fourteenth Amendment are identical. Id. at 929, 102 S.Ct. at 2750.

      . In Jensen, the Fourth Circuit held that state officials have an affirmative constitutional duty to protect persons who have a special relationship with the state, but declined to decide whether reported victims of child abuse had such a special relationship. 747 F.2d at 194-195. The court found that the defendants were entitled to qualified immunity because the duty of protection was not clearly established at the time of the alleged wrongdoing. Id. The court, however, outlined factors that should be considered in a “special relationship” analysis. These factors include: "1) Whether the victim or the perpetrator was in legal custody at the time of the incident, or had been in legal custody prior to the incident____ 2) Whether the state has expressly stated its desire to provide affirmative protection to a particular class or specific individuals____ 3) Whether the State knew of the claimants’ plight.” Id. at 194 n. 11.

      . Deliberate indifference establishes an “affirmative link” between the conduct of the supervisor and the deprivation of the subordinate. See Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976); Fernandez v. Chardon, 681 F.2d 42, 55-56 (1st Cir.1982), aff'd, 462 U.S. 650, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983). Plaintiff argues that Parratt v. Taylor authorizes § 1983 liability on the basis of simple negligence. But plaintiff's argument overlooks the fact that, in Parratt, the Court assumed it was dealing with supervisory personnel directly involved in the alleged wrongdoing. See 451 U.S. at 537 n. 3, 101 S.Ct. at 1913 n. 3.

      . It is difficult to say that such a duty was clearly established in 1979, since the Supreme Court in Martinez left the question open in 1980. See Jensen v. Conrad, 747 F.2d at 191-92. In any event, it is necessary to go beyond this question because defendant county of Middlesex is not entitled to qualified immunity.

      . In a suit against county policy-makers, deliberate indifference suggests a "policy” of violations, see, e.g., Wellington v. Daniels, 717 F.2d 932, 935-36 (4th Cir.1983), and vice-versa.

      . Mass.Gen.Laws, ch. 127, § 135 provides:
      The ... superintendant ... shall furnish to the parole board all information in his possession relating to any prisoner whose case is under consideration. As each prisoner is received in the ... houses of correction, it shall be the duty of the ... superintendent ..., while the case is still recent, to cause to be obtained and filed information as complete as may be obtainable at that time with regard to such prisoner. Such information shall include a complete statement of the crime for which he is then sentenced, the circumstances of such crime, the nature of his sentence, the court in which he was sentenced, the name of the judge and district attorney, and copies of such probation reports as may have been made, as well as reports as to the prisoner’s social, physical, mental and psychiatric condition and history____ When all such existing available records have been assembled, they shall be made available to the parole board so as to be readily accessible when the parole or pardon of such prisoner is being considered.
      Mass.Gen.Laws ch. 126, § 11 requires the county commissioners to “cause the rules established for the management of the house of correction and for the government of the prisoners therein to be strictly observed.”

      . The furlough program at Billerica was instituted in 1972 pursuant to Mass.Gen.Laws ch. 127, § 90A, which authorizes the Commissioner of Corrections or the superintendent of a county corrections facility to grant temporary releases for specified purposes under prescribed conditions. Corrections department regulations implementing the statute provide that “The facility administrator shall develop a written procedure for reviewing applications for furlough for those inmates eligible for furlough----” 103 C.M.R. § 946.05 (1978).

      . Nor is deliberate indifference suggested by the fact that the guidelines do not require notification of potential victims about a prisoner’s furlough. If a prisoner is believed to be a threat, the guidelines indicate that he should not be furloughed at all.

      . The furlough guidelines provide that: "Any officer or employee of the Sheriffs Department who receives any information which may affect the release of a resident already approved for a furlough shall bring such information immediately to the attention of the Master, and the furlough supervisor, or other person in charge of the House of Correction when the Master in not present at the facility.”

      . Defendant James Gilligan, the medical director at Bridgewater, was not involved in the commitment decision, however. His liability is predicated on delinquent supervision and training.

      . There is no question that civil commitment decisions are discretionary functions to which qualified immunity attaches.

      . The Supreme Judicial Court, in interpreting a prior statute authorizing temporary commitment, stated:
      It is plain that any statute is to be strictly construed which purports to authorize a person or an officer of government to restrain for any length of time a person in the exercise of his personal liberty. So construed, § 79 requires by necessary implication that a physician, as also everyone of the officers named in § 79, shall act in good faith and without negligence whenever, acting under said section, they exercise the power conferred on them by that statute.

        Karjavainen v. Buswell, 289 Mass. 419, 426, 194 N.E. 295 (1935). Plaintiff construes this statement as evidence of defendants’ duty to protect Gilmore. The existence of such a duty under state law, however, would not in itself be sufficient to establish that defendants had a constitutional duty to protect her. See, e.g., Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979).


source: Caselaw Access Project

author: CONTI, District Judge.

license: Public Domain

text:
    HUMBOLDT BAY MUNICIPAL WATER DISTRICT, Plaintiff, v. LOUISIANA-PACIFIC CORP., Simpson Timber Co., Simpson Paper Co., Crown Zellerbach Corp., Humboldt Bay Pulp Co., Defendants.
    No. C-83-5637 SC.
    United States District Court, N.D. California.
    May 10, 1985.

      Khourie & Crew, San Francisco, Cal., for plaintiff.
    Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., for Louisiana Pacific Corp.
    Pillsbury, Madison & Sutro, San Francisco, Cal., for Simpson Timber Co., Simpson Paper Co., Crown Zellerbach Corp., & Humboldt Bay Pulp Co.
   ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DISMISSING PENDENT CLAIMS

CONTI, District Judge.

Plaintiff Humboldt Bay Municipal Water District (“the District”) brings this action against defendant Louisiana-Pacific Corporation (“L-P”) and the other defendants, collectively referred to as “Simpson,” on two federal and three pendent state claims, alleging, inter alia, antitrust violations on the part of L-P and Simpson. The five claims are denominated by plaintiff as follows: 1) “Sherman Act Section 1;” 2) “Sherman Act Section 2;” 3) “Cartwright Act;” 4) “Reformation Due to Economic Impracticability and Frustration of Purpose;” and 5) “Gift of Public Funds.” This matter is currently before the court on defendants’ motion for summary judgment and plaintiff’s motion for partial summary judgment. The court’s thorough survey of the voluminous record of evidentiary exhibits reveals the following factual background to this case.

FACTUAL BACKGROUND

The District was formed in 1956 with the purpose of servicing water to one or more potential pulp mills in Humboldt County. The voters authorized the District to issue $12 million in bonds to be secured by ad valorem property taxes. The District put together a plan to build a dam and diversion project capable of supplying Humboldt County with 75 to 125 million gallons of water a day, the bulk of which would be available for industrial use.

In the spring of 1959, the District began serious negotiations with Georgia-Pacific (“G-P”), the predecessor corporation to L-P, and made a rate proposal for a long-term water supply contract. G-P accepted the rate proposal in writing. Sometime later, Simpson agreed to the same rate proposal that G-P had accepted. Once G-P and Simpson agreed to the rate proposal, the District drafted identical contracts incorporating its proposed rate structure and the 40-year contractual term now complained of by plaintiff, and circulated identical drafts to the negotiators for the mills. G-P and Simpson executed the identical water contracts in September, 1959. Since 1959, the contracts have been identically amended several times.

From the outset, the District insisted that the contracts with each of the mills be identical. It was the District’s position that identical contracts and amendments were mandated under California law. The District has continually attempted to have all negotiations concerning the contracts and amendments conducted jointly with all three parties.

As planned, a few months after signing the 1959 contracts, the District issued 40-year municipal bonds secured by its property taxing power. In calculating the rates charged L-P and Simpson, the District hoped to minimize the tax burden on property owners. The identical 1959 contracts, however, imposed no obligation on either side regarding taxes. The District did not impose taxes from 1966, when defendants’ pulp mills began operation, until 1976, when the District received an adverse IRS ruling.

The 1959 contracts obligated the District to sell and defendants to purchase a minimum quantity of water, subject to availability, at a price set in the contracts. A sliding scale was set for water sold in excess of the minimum quantities. The prices were subject to adjustment to reflect any differences between estimated and actual costs of construction of the District’s facilities and, in fact, the stated prices were increased by 20 percent. In addition, 15 percent of defendants’ payments was subject to further annual adjustments based on changes in the index of wholesale prices. By its terms, the 1959 contracts were to expire on December 31, 1999.

On February 23, 1966, defendants and the District entered into amendments to the contracts for supplemental water volumes. The amendments provided for a sale of additional water, reducible at the District’s discretion to supply other customers. The 1966 amended contracts contemplated that the District would construct additional facilities and they related payments for the additional water to be provided to the District’s actual or estimated costs for the additional facilities. In order to accomplish this, the amendments established a “Contract Price,” to be calculated each year, which was to be the sum of four “Price Factors.”

On January 28, 1975, defendants and the District entered into further amendments to the contracts after it became apparent that existing facilities were incapable of providing the amount of water desired. The 1975 amended contracts provided for modifications in the facilities together with an adjustment of prices for water.

For nearly 18 years all the parties operated under and relied on the contracts and their amendments, and nobody challenged their validity in whole or in part. However, on April 14, 1977, the board of directors of the District passed a resolution directing the general manager to prepare an ordinance embodying a new rate schedule applicable to all the District’s customers. The resolution was based on the opinion of the board that existing contract provisions that established the price of water to customers constituted an invalid limitation on the power of the board to set rates. On this basis, the board declared that it did not consider itself bound by the rate provisions of any of its industrial or municipal contracts. Pursuant to this resolution, Ordinance No. 10 was passed by the board on July 14, 1977. Ordinance No. 10 established a new rate structure which purported to supercede only those portions of preexisting contracts with the District’s industrial and municipal customers which establish rates and charges for water.

Litigation over the validity of Ordinance No. 10 ensued, and on November 2, 1982, the California Court of Appeal rendered a decision which invalidated Ordinance No. 10 and upheld the validity of Simpson’s and L-P’s contracts with the District. See Louisiana-Pacific Corp. v. Humboldt Bay Mun. Water Dist, 137 Cal.App.3d 152, 162, 186 Cal.Rptr. 833 (1982) (The District entered into the contracts “in order to bind [defendants] to a firm obligation to purchase a specified amount of water and thereby obtained for itself the benefit of a long-term guarantee of patronage. [The] District is bound to the obligation to which it agreed in order to obtain that guarantee.”).

In April 1983, on remand to the Superior Court, the District moved to amend its answer and file a cross-complaint to assert for the first time that defendants’ conduct regarding the 1959 contracts and the following amendments resulted from a conspiracy to fix prices and restrain trade in violation of California’s Cartwright Act. The Superior Court granted the motion but the California Court of Appeal issued a writ of mandate and supporting opinion directing that the amended answer and cross-complaint be stricken.

The District now raises similar antitrust allegations in this federal action under the Sherman Act, 15 U.S.C. § 1 & 2, and the Cartwright Act as raised in the state action solely under the Cartwright Act, along with its pendent state claims.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Defendants’ move for summary judgment on various grounds as to the District’s federal antitrust claims and pendent state claims. Because defendants’ motion for summary judgment is meritorious on the District’s federal antitrust claims, as will be discussed immediately below, and because the court will not retain jurisdiction of this case solely on the District’s pendent state claims, as will be discussed shortly, the court will only address defendants’ motion for summary judgment as to the federal antitrust claims. Defendants first argue that they are entitled to summary judgment because the District cannot establish any of the factual elements necessary to maintain claims for violations of Sections 1 and 2 of the Sherman Act. Defendants next raise the following four legal defenses which purportedly bar the District’s antitrust claims: (a) the District’s complete involvement in the activities complained of; (b) the relevant statute of limitations; (c) the Noerr-Pennington doctrine; and (d) res judicata and collateral estoppel. Because defendants’ first argument is accurate that the District cannot establish the factual elements necessary to maintain claims under Sections 1 and 2 of the Sherman Act, as set out immediately below, the court will not address the four defenses raised by defendants.

Generally, summary judgment is appropriate only when the moving party meets its burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see, Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Bank of California, N.A. v. Opie, 663 F.2d 977, 979 (9th Cir.1981); State ex rel. Edwards v. Heimann, 633 F.2d 886, 888 (9th Cir.1980). Summary judgment is equally available in antitrust cases. Ralph C. Wilson Indus. v. American Broadcasting, 598 F.Supp. 694, 699 & n. 5 (N.D.Cal.1984) and cases and authorities cited therein. In fact, “summary judgment is often particularly appropriate in antitrust cases because of the ‘fearful dimensions’ of such cases, and the fact that many suits are motivated by ‘commercial disappointment’ rather than genuine antitrust problems.” Id. at 699. (String citations omitted). Furthermore, “[gjiven the enormous expenditure of time and other resources commonly necessary in antitrust cases, the complexity of the issues and the general inexperience of jurors in this area, as well as the need for uniformity and foreseeability in interpretations of the antitrust law, the court should, rather, be particularly alert to granting summary judgment in appropriate cases.” Id. (String citations omitted).

The posture of this case is appropriate for consideration of summary judgment. The parties have conducted extensive discovery and trial is scheduled a mere few weeks from now. In the context of the fully developed record, “if the court finds that a directed verdict for defendants would be required even if all plaintiff’s proffered evidence were admitted at trial, then the court should not be hesitant to grant summary judgment at this stage of the proceeding.” Id. at 700; see also First National Bank v. Cities Service Co., 391 U.S. 253, 274-90, 88 S.Ct. 1575, 1585-93, 20 L.Ed.2d 569 (1968) (Held: even though plaintiff’s evidence showing conspiracy might present jury question, defendants’ evidence to the contrary was so overwhelming that summary judgment was appropriate). Applying the above legal standards to the facts surrounding the District’s federal antitrust claims, the court will grant defendants’ motion for summary judgment.

First Claim: Sherman Act Section 1

The thrust of the District’s first claim, under Section 1 of the Sherman Act, is summarized by the following allegations in the first amended complaint:

Commencing in approximately 1957 and continuing to the present, defendants have combined and conspired with each other to restrain trade and commerce in the purchase of water in violation of § 1 of the Sherman Act. Pursuant thereto, defendants in September 1959 jointly exacted from the Water District virtually identical exclusive requirements contracts obligating the Water District to supply defendants with the bulk of the Water District’s reserves for defendants’ use in their pulp mill operations. Both contracts provided for identical prices and both contracts were of identical duration, with an expiration date of December 31, 1999. Said requirements contracts were and are unreasonable restraints upon trade____

The District further alleges that, “[a]s a direct result of defendants’ violations, the Water District and all taxpayers within its jurisdiction have suffered and will continue to suffer damages in excess of $10 million unless this court intervenes.”

In Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292, 1295-96 (9th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 279, 78 L.Ed.2d 259 (1983), the Ninth Circuit articulated the following standards to be applied when determining alleged violations of Section 1 of the Sherman Act:

Certain joint conduct by business entities constitutes a per se violation of § 1 of the Sherman Act. This category of conduct includes price-fixing and horizontal territorial division. When this type of behavior is proved, a court is blocked from inquiring into the “reasonableness” of the defendants’ actions.
Absent a showing of a per se violation, a court must apply a rule of reason analysis. Under this test, the elements of a cause of action for an unreasonable restraint of trade in violation of § 1 of the Sherman Act are:
(1) An agreement among two or more persons or distinct business entities;
(2) which is intended to harm or unreasonably restrain competition; and
(3) which actually causes injury to competition.

(Citations omitted).

Upon a review of the record, as discussed below, the court finds that the District has not established any genuine issues of material fact suggesting that defendants have committed either a per se violation of Section 1 of the Sherman Act or rule of reason unreasonable restraint of trade in violation of Section 1.

Alleged Per Se Violation

The first claim of the first amended complaint indirectly alleges that defendants have fixed the price at which they purchase the water from the District by way of their identical long-term contracts, and subsequent contractual amendments, with the District. This allegation fails in light of the earlier summarized evidence which demonstrates that the contractual rate of the water was proposed by the District, and was later accepted by L-P and Simpson separately and independently for inclusion in their separate contracts with the District. Even if defendants negotiated with the District concerning the rates set for the water in the contracts, the law provides that a buyer is not involved in illegal price fixing when it negotiates with a seller to include a price in a commercial contract. See Sausalito Pharmacy v. Blue Shield of California, 544 F.Supp. 230, 237 (N.D.Cal.1981), cert. denied, 459 U.S. 1016, 103 S.Ct. 376, 74 L.Ed.2d 510 (1982).

Rule of Reason Analysis

The District also alleges in the first claim that defendants unreasonably restrained trade in the relevant market for water in Humboldt County. The District alleges that defendants so unreasonably restrained trade by executing identical water contracts at identical rates, taking joint action with respect to proposed terms in later renegotiations of the contracts, initiating litigation in state court over Ordinance No. 10, and by jointly refusing to renegotiate the water contracts subsequent to the litigation over Ordinance No. 10. As set out below, no evidence in the record supports any of the above allegations to the extent that the District can establish a genuine issue of material fact suggesting that L-P and Simpson had an agreement which was intended to harm or unreasonably restrain competition and which actually caused injury to competition.

The evidence instead reveals the following: (1) the District, not defendants, insisted that the water contracts be identical at rates set by the District; (2) the District arranged numerous joint meetings with and sent countless joint letters to defendants, often with instructions to respond to the District with a mutually acceptable proposal, and it was thus the District’s activity which precipitated joint action on the part of defendants and not an intent on the part of defendants to harm or unreasonably restrain competition (cf. Treasure Val. Potato Bar Ass’n v. Ore-Ida Foods, Inc., 497 F.2d 203, 209 (9th Cir.1974), cert. denied, 419 U.S. 999, 95 S.Ct. 314, 42 L.Ed.2d 273 (1974); (3) the District abrogated the rates set in the water contracts by enacting Ordinance No. 10 and instructed its attorney to file suit in Superior Court to have the ordinance declared valid; consequently, defendants’ initiation of litigation was legitimate business behavior to protect the rates under the contracts and was not an unreasonable restraint of trade in light of the fact that the District was proceeding to Superi- or Court anyway and that defendants ultimately prevailed on the point that Ordinance No. 10 was invalid; and (4) even if defendants had refused to renegotiate the water contracts subsequent to the litigation which resulted in Ordinance No. 10 being held invalid, such refusal would merely obligate the District to abide by the rates set by the contracts; nevertheless, ample evidence demonstrates that Simpson, separately and independently from L-P, initiated renegotiation discussions with the District in 1983 which eventually broke off.

Based on the foregoing, the District fails under both per se violation standards and rule of reason analysis to provide any factual support for its Sherman Act Section 1 claim, and consequently, defendants’ motion for summary judgment must be granted on this claim.

Second Claim: Sherman Act Section 2

The District alleges in its second claim that, “defendants have monopolized and conspired and attempted to monopolize the purchase of water in Humboldt County in violation of § 2 of the Sherman Act (15 U.S.C. § 2).”

Monopolization Cause of Action

To prove monopolization under Section 2 of the Sherman Act, the District must show: (1) the possession of monopoly power in the relevant market; (2) the unlawful acquisition or maintenance of that power; and (3) causal antitrust injury. Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292, 1299 (9th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 279, 78 L.Ed.2d 259 (1983). Upon a review of the record, there are no genuine issues of material fact to support the District’s Section 2 monopolization cause of action. The District fails to establish the first of the above three prongs needed to make out a Section 2 monopolization claim. Monopoly power is the power to control prices or exclude competition, id., and defendants simply have not and do not possess monopoly power over the relevant market of water in Humboldt County. California law grants the District the right to set water rates and to enter into long-term water contracts. Cal.Water Code §§ 71592 and 71616. The totality of the evidence referred to at the outset of this order reveals that it was the District, and not defendants, that calculated and proposed the prices and duration of the 1959 contracts. Furthermore, it was the District that determined those industrial and municipal users to whom it would sell its water and what quantities of water it would sell. Defendants merely have held and currently hold the contractual rights to water granted to them in 1959 and in subsequent amendments to the contracts, and certainly have not and do not possess monopoly power to control water prices and exclude competition from the water market in Humboldt County.

Attempt to Monopolize Cause of Action

The District’s second claim also asserts an attempt to monopolize cause of action. In order to establish a cause of action for attempted monopolization under Section 2, the District must show: (1) a specific intent to control prices or destroy competition in the relevant market; (2) predatory or anticompetitive conduct directed to accomplishing this unlawful purpose; and (3) a dangerous probability of success. Cascade Cabinet Co. v. Western Cabinet & Millwork, 710 F.2d 1366, 1373 (9th Cir.1983). The District puts forth no genuine issues of material fact suggesting that defendants had the specific intent to control prices or competition for the water in Humboldt County, or that defendants engaged in predatory or anticompetitive conduct directed to accomplishing such an unlawful purpose. The District merely asserts that defendants receive 80% of the District’s supply of water. However, it was the District, exercising its statutory power to contractually grant that supply of water to defendants, rather than defendants, with alleged intent or conduct to attempt to monopolize the water market, that resulted in defendants’ acquisition of their supply of water. Thus, the District’s attempt to monopolize cause of action fails.

Conspiracy to Monopolize Cause of Action

The District’s second claim also raises a conspiracy to monopolize cause of action. This cause of action, “is similar in its essence to an attempt to monopolize action,” as, “[b]oth focus on specific intent to monopolize and anticompetitive acts designed to effect that intent, although in the conspiracy claim the act may be no more than the agreement itself.” Hunt-Wesson Foods, Inc., v. Ragu Foods, Inc., 627 F.2d 919, 926 (9th Cir.1980), cert denied, 450 U.S. 921, 101 S.Ct. 1869, 67 L.Ed.2d 348 (1981). This cause of action fails for the reasons stated above in regard to the District’s attempt to monopolize cause of action, and because no evidence has been presented which even circumstantially indicates an agreement existed between defendants to monopolize the relevant water market.

Therefore, based on all of the above, the District has not supported with evidence any of its causes of action under its Sherman Act Section 2 claim, and therefore, defendants’ motion for summary judgment must be granted in full on the Section 2 claim.

THE DISTRICT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

The District moves for partial summary judgment on its antitrust claims and its pendent reformation claim. Regarding its antitrust claims, the District merely argues that defendant has committed, “a per se violation of the antitrust laws.” The court has already granted summary judgment in defendants’ favor on the District’s claims under Sections 1 and 2 of the Sherman Act, and has specifically held that defendants have not committed a per se violation under Section 1. Furthermore, as discussed immediately below, the court will not retain jurisdiction of this case based solely on the District’s pendent claims, and thus will not consider the District’s motion for partial summary judgment on its reformation claim. Therefore, the District’s motion for partial summary judgment is denied in full.

THE DISTRICT’S PENDENT CLAIMS

The court concludes that the pendent claims must be dismissed for lack of federal subject matter jurisdiction. Ninth Circuit caselaw provides that, “[t]he doctrine of pendent jurisdiction is one of discretion, not of power, as long as the federal claims are substantial enough to confer subject-matter jurisdiction on the federal court,” and the issue of whether pendent jurisdiction is properly assumed is one which remains open throughout the litigation. Wren v. Sletten Const. Co., 654 F.2d 529, 536 (9th Cir.1981) (per curiam). Furthermore and most importantly, “[w]hen the state issues apparently predominate and all federal claims are dismissed before trial, the proper exercise of discretion requires dismissal of the state claim[s].” Id. Having granted summary judgment for defendants on the District’s federal antitrust claims, all that remains before the court are the District’s pendent claims which involve state issues. Moreover, the court previously held in its order dated September 21, 1984 that diversity jurisdiction does not lie in this case. Accordingly, the court must properly exercise its discretion by dismissing the District’s pendent claims, although at first blush the court finds the District’s reformation claim of some merit. The District should bring the pendent claims which are not precluded by previous litigation in state court, if any of these remain viable.

ORDER

In accordance with the foregoing, it is hereby ordered that:

(1) defendants’ motion for summary judgment is granted in full on the District’s first and second claims under ¡Section 1 and 2 of the Sherman Act; ■

(2) the District’s motion for partial summary judgment is denied in full; and

(3) the District’s pendent claims are dismissed for lack of federal subject matter jurisdiction.


author: ELFVIN, District Judge.

text:
    Creighton POCKALNY and Elinor Pockalny, Plaintiffs, v. ELWELL PARKER ELECTRIC CO., INC.; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; Douglas Fraser, as President of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; Local # 846, United Automobile, Aerospace and Agricultural Implement Workers of America, and S.C. Lutka, as President of Local #846, United Automobile, Aerospace and Agricultural Implement Workers of America, Defendants. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, and Local # 846, United Automobile, Aerospace and Agricultural Implement Workers of America, Defendants and Third-Party Plaintiffs, v. GENERAL MOTORS CORPORATION, Third-Party Defendant.
    No. CIV-81-892E.
    United States District Court, W.D. New York.
    May 10, 1985.

      Michael M. Blinkoff, Buffalo, N.Y., for plaintiffs.
    Stuart M. Pohl, Arnold Weiss, Gerald Bouvier, Buffalo, N.Y., for defendants.
   MEMORANDUM and ORDER

ELFVIN, District Judge.

In this action seeking monetary damages for personal injuries sustained by plaintiff Creighton Pockalny (“Creighton”), defendants International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (“the International Union”) and Local # 846, United Automobile, Aerospace and Agricultural Implement Workers of America (“Local 846”) have moved for summary judgment pursuant to Fed.R.Civ.P. rule 56.

The Complaint alleges that Creighton had been struck by an unmanned moving forklift on or about September 27, 1978 while employed at General Motors Corporation’s plant in the Town of Tonawanda, N.Y. and that as a result of such he had suffered painful and permanent serious injuries. The action had been commenced in New York State Supreme Court and was removed to this Court October 22, 1981.

The forklift which struck Creighton allegedly was not in safe working order. A “deadman switch,” a device which eliminates all power to the machine and sets the brakes after the operator has lifted his weight from the seat, allegedly had been disconnected. Further inspection of the forklift allegedly had demonstrated that directional controls had been improperly connected as well as other improprieties.

At the time of the incident Creighton was a member of Local 846. In certain documents relating to the agreements among General Motors Corporation (“GM”) and the International Union, and the Tonawanda Forge Plant and Local 846, provisions had been made regarding the health and safety of employees at the plant. Plaintiffs have initially referred to specific language in a certain document, which is set forth in a booklet which also contains the collective bargaining agreement (“the cba”), to support their position that the union defendants had assumed an affirmative duty to seek out and secure corrections of hazards to the health and safety of employees at the plant. The document comprises that part of the booklet which is entitled “INTERPRETATIONS, STATEMENTS, LETTERS AND THE MEMORANDUM OF UNDERSTANDING ON HEALTH AND SAFETY.” Its title page, page 209 of the booklet indicates:

“(The following documents connected with the 1976 GM-UAW negotiations are not a part of the National Agreement but have been included in this booklet for informational purposes.)”

The “Memorandum of Understanding Health and Safety” (pages 216-225 of the booklet) states, among other things, that the “Union recognizes its obligation to cooperate in maintaining and improving a safe and healthful working environment” (p. 216), “that the employer will provide unspecified safety clothing, training and equipment” (ibid.), that “a National Joint [management and union] Committee on Health and Safety” would be established (p. 218) and that “Local Joint [management and union] Committees on Health and Safety” would be established for each bargaining unit (pp. 219-222). It was further provided that the Local Committees shall meet at least once each month to review health and safety conditions within the plant and shall make a biweekly health and safety inspection and carry out other health and accident-related duties. Plaintiffs have also invited the Court’s attention to similarly worded portions of a document entitled “UAW-GM National Informational Sub-councils, April 2 — April 5, 1978 * * * Memorandum of Understanding Health and Safety,” an educational booklet, drafted and assembled by members of the International Union for presentation, explanation and discussion at informational subcouncil meetings of local union delegates from GM’s plants. (This booklet [“the 1978 Memorandum”] is attached as an exhibit to the plaintiffs’ September 30,1983 joint affidavit which is part of their response (filed on that date) to defendants’ motion for summary judgment.)

It is alleged by plaintiffs that language in these documents has imposed upon the union’s District Committeemen the duty to search out problems that represent a hazard or hazards to the employees in their respective districts and to secure correction of the same. Furthermore, the Local Committeemen, plaintiffs contend, had the duty to make a bi-weekly health and safety inspection and to investigate and make recommendations concerning conditions involving imminent danger.

The Complaint alleges in its first cause of action that, as a result of Local 846’s and the International Union’s failures to have complied with obligations contained in the contract with Creighton’s employer, he was subjected to an unreasonable risk of harm and was severely injured. The second cause of action maintains that, as a member of Local 846 and in consideration of his payment of dues, Creighton was owed certain duties running to him from Local 846 and the International Union, such duties flowing from an alleged contract between these defendants and him. These obligations included the duty of these defendants to meet their obligations with the employer and, specifically, to protect Creighton from an unreasonable risk of harm while in the regular course of his employment.

The third cause of action alleges negligence on the part of these defendants in failing to make timely inspections and/or that they had made such inspections in a negligent manner, as well as a failure to protect Creighton from an unreasonable risk of harm regarding the forklift truck. Creighton’s wife, Elinor, seeks derivative damages for loss of consortium, services and society allegedly suffered as a result of her husband’s injuries.

The union defendants have contended that no statute, regulation, local ordinance or administrative directive places upon either of them a legal obligation to protect their members from safety or health hazards at GM, or to take corrective action should such a problem be found to exist. These defendants further maintain that the agreements merely allow for random inspections and specific investigation of conditions brought to the Local Committee’s attention through the provided complaint procedures.

In opposing the instant motion plaintiffs have maintained that the union defendants had taken on duties above and beyond the duty of fair representation owed to union members under federal labor law. Plaintiffs also have maintained that the duty owed to Creighton by the International Union and Local 846 extended beyond those which arose from the cba and therefore contend that any consideration of this action with reference to the duty of fair representation would be inappropriate.

Plaintiffs have further asserted that, inasmuch as their claims against the union defendants are premised upon the law of negligence of the State of New York and not under the Labor Management Relations Act, 29 U.S.C. § 141 et seq., this Court should consider remanding this action to the state court because it had been improvidently removed therefrom. See Helton v. Hake, 386 F.Supp. 1027 (W.D.Mo.1974). However the very bases for plaintiffs’ causes of action against the union defendants are documents connected with the 1976 cba negotiations between GM and these defendants. Plaintiffs may not rely on the terms of these documents to impute some form of due care on the parts of the union defendants and then attempt to have the unions’ enforcement vel non of the “agreement” determined pursuant to state law regarding negligence. Inasmuch as plaintiffs’ claims against the union defendants flow from documents connected with the cba negotiations and the parties’ agreement to cooperate to maintain and improve the safety of the working environment, the unions’ obligations undertaken to benefit their members arise from and are governed by federal law. Cf., Condon v. Local 2944, United Steelworkers, Etc., 683 F.2d 590, 594-596 (1st Cir.1982); House v. Mine Safety Appliances Co., 417 F.Supp. 939, 944-947 (D.Id.1976). Plaintiffs’ claims are not of the type which touch so tangentially upon a union’s bargaining duties as to allow an independent state law claim. See, e.g. Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977) (intentional infliction of emotional distress); Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966) (libel action). It is clear that federal law preempts the type of state law claim that plaintiffs have contended exists against these defendants. Cf. Condon v. Local 2944, United Steelworkers, etc., supra; House v. Mine Safety Appliances Co., supra.

Although plaintiffs do not allege a breach of the unions’ duty of fair representation, the policy embodied in the doctrine of fair representation, as well as the evolving federal common law regarding claims by a member against his or her union for negligence, necessitates discussion of this topic.

Section 9(a) of the Labor Management Relations Act, 29 U.S.C. § 159(a), conferred upon unions the privilege to become exclusive bargaining agents. With this privilege came the duty of labor unions to fairly represent their members — see Electrical Workers v. Foust, 442 U.S. 42, 46-47, 99 S.Ct. 2121, 2124-2125, 60 L.Ed.2d 698 (1979) — as well as an obligation to enforce fairly the provision of any collective bargaining agreement. See Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). This duty requires that a union represent fairly the interests of all the members of the bargaining unit and is breached only when the conduct of the union is “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). Because the duty of due care is not encompassed by the duty of fair representation, mere negligence does not generally constitute a breach of this duty. See Dente v. International Org. of Masters, Mates & P., Loc. 90, 492 F.2d 10, 12 (9th Cir.1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974); Brough v. United Steelworkers of America, AFL-CIO, 437 F.2d 748, 750 (1st Cir.1971); Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3d Cir.1970). Indeed, the United States Court of Appeals for the Second Circuit has required a showing of bad faith in order to maintain successfully an action against a union for a breach of the duty of fair representation. See Simberlund v. Long Island Rail Road Company, 421 F.2d 1219 (2d Cir.1970).

Although it is clear that a union owes certain duties to the employees it represents and that these duties are enforceable in an action in federal court, it has been consistently recognized that an action such as one contemplated herein might render a union liable for acts or omissions beyond its control. In Bryant v. International Union, U.M.W. of America, 467 F.2d 1 (6th Cir.1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1370, 35 L.Ed.2d 592 (1973), the representatives of the estates of eight miners who had been killed in an explosion brought an action against their employer and the workers’ union. Those plaintiffs contended that under the applicable collective bargaining agreement, the company was obligated to conform with the standards of the Federal Mine Safety Code and that the union had undertaken to enforce compliance with such. It was further asserted therein that both the company and the union had failed to perform their respective duties, leading to the foreseeable result that plaintiffs’ decedents, as beneficiaries of the contract, had been killed as a consequence of practices which were violations of the code. Summary judgment was found to have been properly granted to the union because neither the collective bargaining agreement nor the “Safety Program” supplement to it had created any affirmative duty, the breach of which could give rise to liability on the part of the union. Although the language of the contract in issue therein was interpreted to have given the union the power to have compelled compliance with the safety program, there was nothing in such language which would have required the union to have exercised this power. The court recognized the potentially deleterious effects to federal labor policy of allowing members to pursue every choice of a union not to exercise a right it had received in a collective bargaining agreement.

“Collective bargaining agreements are literally agreements between unions and employers; the Union negotiators are intent on gaining the maximum power possible from management negotiators. Whether or not they choose to exercise all the power gained depends on a variety of situations relating to the overall employment situation in the industry. It would be a mistake of vast proportion to read every power granted the union by management as creating a corollary contract right in the employee as against the union. Such interpretation of collective bargaining agreements would simply deter unions from engaging in the unfettered give and take negotiation which lies at the heart of the collective bargaining agreement.” 467 F.2d at 5.

Similarly, Condon v. Local 2944, United Steelworkers, etc., supra, held that a union could not be held liable for the negligent performance of a duty that it had assumed, where such duty had arisen from the safety and health provisions of a collective bargaining agreement.

In a case quite similar to the one at bar, House v. Mine Safety Appliances Co., supra, 417 F.Supp. 939, a complaint alleging that a union had committed a common law tort by negligently performing its duties as accident prevention representatives and enforcer of certain safety provisions was ordered dismissed. The court found that this cause of action flowed from the contractual obligations undertaken by the union to benefit its members and their working conditions and that this duty therefore arose from and was governed by federal law. The court noted that, although the collective bargaining agreement had provided that the union “shall inspect” the work areas, such language could not be utilized to impose liability upon the union.

“It has traditionally been the duty of employers to furnish a safe place of employment. * * * To permit a sanction of legal liability to accompany a union’s exercise of responsibility in safety matters, together with either loss shifting or sharing, would weaken the duty of the employer at the expense of the union and its members. * * * Moreover, the result is readily apparent, if unions could be held liable in cases such as this — there would be no negotiation on safety matters. To impose liability on the union in a case such as this is against public policy and would seriously disrupt labor relations policy.” Id. at 946-947.

Plaintiffs have cited Helton v. Hake, supra, to advance the proposition that unions are required to fulfill duties expressly assumed over and above the duty of fair representation. However the court in that case held that the claim of negligent enforcement of the terms of the collective bargaining agreement failed to state a federal claim under 29 U.S.C. § 185(a) and that the removed action should be remanded to state court. Id. at 1032-1033. Inasmuch as, as previously explained, this Court finds that the instant union defendants’ duties, if any, arise from documents collateral to the cba, I decline to follow such holding. See also Curran v. Intern. Union, Oil, Chem. & Atomic, 582 F.Supp. 420, 423-424 (W.D.N.Y.1984) (negligence claim against union premised upon duty arising out of health and safety provisions of cba, preempted by federal law).

In view of the absence of any material disputed fact and the union defendants’ entitlement to judgment as a matter of law because this Court finds that the documents alluded to by plaintiffs cannot form the basis for a claim for breach of contract or negligence against defendants International Union and Local 846, these defendants’ motions for summary judgment are hereby ORDERED granted.

      . The 1978 Memorandum for local joint committees on health and safety and provided in pertinent part:
      "The Local Committees shall * * * make a health and safety inspection once each two weeks. * * *
      ******
      “When either member of the Local Committee has a reasonable basis for concluding that a condition involving imminent danger exists, relevant information shall be immediately communicated to the co-committee member so that joint investigation can be carried out immediately and necessary or desirable recommendations made. Upon joint agreement, the machine or operation may be taken out of service to perform any and all corrective action.
      ******
      “ * * * The District Committeeman’s duties still remain, to search out problems that represent a hazard to the employes [sic] in his district and to secure correction of these problems. * * * ” (Pages 15, 20 & 22 of the 1978 Memorandum.)

      . Plaintiffs therein had also pleaded a claim of breach of the duty of fair representation, a claim absent here and one which would have been dismissed in any event due to defendants’ assertion of the statute of limitations. See Del-Costello v. International Broth. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983).


author: DORSEY, District Judge.

text:
    Harry RAVALESE v. TOWN OF EAST HARTFORD, et al.
    Civ. No. H-84-761 (PCD).
    United States District Court, D. Connecticut.
    May 13, 1985.
    Howard M. Wood, III, Wood & Wood, Glastonbury, Conn., for plaintiff.
    David A. Zipfel, Asst. Corp. Counsel, Town of East Hartford, East Hartford, Conn., for defendant.
   RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DORSEY, District Judge.

Plaintiff, Harry Ravalese, seeks damages under 42 U.S.C. § 1983 against the Town of East Hartford (Town), the Town’s Planning and Zoning Commission (PZC), and four Town officials, based on the enactment of zoning regulations that have the effect of placing a substantial portion of plaintiffs property in a flood plain zone. Defendants have moved to dismiss for failure to state a claim. Rule 12, Fed.R.Civ.P. Since matters outside the pleadings were presented by defendants, the motion must be treated as a motion for summary judgment. Samara v. United States, 129 F.2d 594 (2d Cir.1942), cert. denied, 317 U.S. 686, 63 S.Ct. 258, 87 L.Ed. 549 (1942); Modem Woodcrafts, Inc. v. Hawley, 534 F.Supp. 1000 (D.Conn.1982). For the reasons set forth below, the motion is granted.

I. Background

In 1971, the State of Connecticut established a “stream channel encroachment line” for the Hockanum River which borders plaintiffs property on the south. That line ran through the middle of plaintiffs property. Apparently relying on this line, the PZC in 1972 placed the property in a “Flood Plain Zone.” The state subsequently changed the stream channel encroachment line to follow the banks of the Hockanum River and sent revised maps to the Town Clerk’s Office for recording. In 1977 and 1978, the federal Department of Housing and Urban Development (HUD) conducted a Flood Insurance Study and prepared flood elevation maps in accordance with the National Flood Insurance Act of 1968, as amended. The Town participated in the study and provided HUD with maps, technical data and other information required by the HUD, apparently including the original state maps showing the encroachment line as established in 1971. The Flood Hazard and Boundary Map developed by HUD affected a significant portion of plaintiff’s property. By letter dated May 24, 1979, HUD amended its map to eliminate substantial portions of the subject property from the National Flood Insurance requirement. The letter amendment was never attached to the Flood Hazard and Boundary Map on file in the Town Clerk’s Office. In October of 1979, the PZC adopted the original Flood Hazard Map as part of its new plan of development. The unamended HUD Map was incorporated by reference into the Town’s Flood Hazard Zoning Regulations enacted in July 1981. The PZC thus effectively placed a major portion of plaintiff’s property, unreduced in relation to the HUD letter, in a Flood Hazard Zone where development is restricted.

Claiming that defendants, by refusing to correct maps to reflect changes made by the state and federal governments, deprived him of his property in violation of his right to due process guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, plaintiff seeks relief pursuant to 42 U.S.C. § 1983. In addition to the federal claims presented, plaintiff urges this court to consider two pendent state claims, sounding in fraud and inverse condemnation.

II. Discussion

A.

Plaintiff alleges that he was deprived of his property without due process of law and without compensation and that the actions of defendants, therefore, constituted violations of the fifth and fourteenth amendments redressable under 42 U.S.C. § 1983. See, e.g., Turpin v. Mailet, 591 F.2d 426 (2d Cir.1979) (per curiam), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980) (“there is no place for a cause of action against a municipality directly under the 14th Amendment, because the plaintiff may proceed ... ■ under § 1983”). In light of this court’s determination that plaintiff did not, in fact, possess a constitutionally protected property interest, both claims will be treated together for the purpose of further discussion.

The fifth and fourteenth amendments prohibit the deprivation of property without due process of law. The fifth amendment also guarantees that property will not be taken for public use without just compensation. Section 1983 provides:

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

The parties focus on whether a “taking” or deprivation of plaintiff’s property occurred as a result of the enactment of zoning regulations. The parties fail to address a crucial threshold issue — whether plaintiff’s interest in not having his property included in the flood plain zone is a property interest protected by the Constitution.

Plaintiff alleges a “property” interest in the reasonable use and development of his land. He claims that because development in a flood plain zone is regulated and restricted any placing of his property in such a zone must be scrutinized in relation to the guarantees of procedural and substantive due process contained in the United States Constitution. Plaintiff is correct if his is a protected property interest and if he was deprived of that interest.

“[T]he range of interests protected by procedural due process is not infinite.” Board of Regents v. Roth, 408 U.S. 564, 570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

Id. at 577, 92 S.Ct. at 2709. Property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ... that secure certain benefits and that support claims of entitlement to those benefits.” Id.

Title 8, Chapter 124, Section 8-2 of the Connecticut General Statutes is the enabling statute which grants authority to the zoning commission of each city, town or borough to regulate land use within its territorial limits. The statute states, in pertinent part:

Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land____ Such regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare____

(Emphasis added). The statute also specifies that the regulations “shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land____”

Section 8-2 was amended in 1977, P.A. 77-509 Section 1, to provide: “Zoning regulations may be made with reasonable consideration ... for the protection of existing and potential public surface and ground drinking water supplies and may provide that proper provision be made for ... the control of erosion caused by wind and water.” Although such guidelines are significant in assessing whether a regulation is reasonable, sound and rational in relation to all the facts, such decisions cannot be made in a judicial vacuum.

Clearly, the statute places discretion in municipal authorities to regulate land use to prevent damage to persons and property due to flood. There is no requirement that the municipality follow guidelines established by the state or federal governments in determining whether a particular piece of land is vulnerable to flooding. A party who is aggrieved by the enactment of a regulation has the right to appeal to the superior court. Conn.Gen.Stat. § 8-9. The court, in reviewing the decision of the local zoning authority, determines whether the zoning board acted illegally, arbitrarily or in abuse of the discretion vested in it. Parks v. Planning & Zoning Comm’n, 178 Conn. 657, 425 A.2d 100 (1979); Figarsky v. Historic Disk Comm’n, 171 Conn. 198, 368 A.2d 163 (1976).

Nothing in the statute requires the local zoning authority to adopt the flood plain zone established by the state for the preservation of water resources when the zoning board is developing a comprehensive plan to regulate land use pursuant to § 8-2 of the General Statutes. If the zoning board does adopt the state’s initial determinations, there is no express or implied requirement that every change subsequently made by the state must also be adopted. The failure of the board to comport with the delineations of either the state or federal agencies, as they may be amended, does not constitute a violation of a constitutional right as the board may fulfill its charge by making an independent determination of a boundary which accomplishes the authorized purposes.

Since the actions of the PZC were discretionary, plaintiff had, at most, a unilateral expectation that his property would be excluded from the flood plain zone. Such a unilateral expectation in the unrestricted enjoyment and use of his riverfront property does not constitute an interest protected by the Constitution. Board of Regents, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. Plaintiff’s claim is similar to the unilateral expectation in a certificate of location approval presented in Yale Auto Parts v. Johnson, 758 F.2d 54 (2d Cir.1985). There, the denial of the certificate, a prerequisite to obtaining an automobile junkyard license was claimed to have deprived plaintiffs of property without due process of law and they sought damages pursuant to 42 U.S.C. § 1983. Since the certificate would not necessarily have been granted, the application amounted to a unilateral expectancy and a property right guaranteed protection by the fourteenth amendment did not exist.

Here, plaintiff claims that defendants arbitrarily and erroneously placed his property in a flood plain zone because various amendments to related earlier determinations by state and federal agencies were not adopted by defendant PZC. The PZC function was not ministerial, but was discretionary and thus it was not required to adopt such changes. Therefore, plaintiff was not entitled to have his land excluded from the flood plain zone as a matter of right. Nor does it necessarily follow that, if the revised state maps had been recorded and the HUD Map amended, the PZC would have exempted, or been required to exempt, plaintiff’s property from the flood plain zone. Plaintiff’s unilateral expectancy that the PZC would adopt the revised state and federal maps is not a property interest protectible by the Due Process Clause. Therefore, plaintiff’s claim that defendants deprived him of his property without due process and without just compensation must fail.

B.

Even if plaintiff had a protected property interest in the commercial development of his land, the guarantees of due process are triggered only if a deprivation of that interest occurs or is threatened. Plaintiff alleges that the zoning regulations, which placed his property in a flood hazard zone, effected a “taking” because commercial development within the zone is restricted or prohibited, thereby rendering his property worthless.

While regulation of land use can go so far as to constitute a taking, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); United States v. Central Eureka Mining Co., 357 U.S. 155, 78 S.Ct. 1097, 2 L.Ed.2d 1228 (1958), the Supreme Court has noted that there is no set formula for when regulation becomes a “taking.” Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962).

Traditionally, we have treated the issue as to whether a particular governmental restriction amounted to a constitutional taking as being a question properly turning upon the particular circumstances of each case____ In doing so, we have recognized that action in the form of regulation can so diminish the value of property as to constitute a taking____ However, the mere fact that the regulation deprives the property owner of the most profitable use of his property is not necessarily enough to establish the owner’s right to compensation.

Central Eureka Mining Co., 357 U.S. at 168, 78 S.Ct. at 1104 (citations omitted).

The Goldblatt court, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130, held regulation of dredging and pit excavating not to result in a taking even though it prevented plaintiffs from continuing their business. If a zoning ordinance “is otherwise a valid exercise of the town’s police powers, the fact that it deprives the property of its most beneficial use does not render it unconstitutional.” Id. at 592, 82 S.Ct. at 989. Comparison of values before and after the enactment of the regulation would bear on whether a taking has occurred but would not be conclusive. Id. at 594, 82 S.Ct. at 990; cf. Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915) (reduction in value from $800,000 to $60,000).

Although the fourteenth amendment protects a property owner from government’s direct interference with the use of his property when that interference substantially eliminates the value of his title to it, ... it does not protect the owner from fluctuations in the value of his property resulting from governmental decisions to put neighboring public property to a lawful, albeit unattractive, use.

Ancarrow v. City of Richmond, 600 F.2d 443, 447 (4th Cir.), cert. denied, 444 U.S. 992, 100 S.Ct. 523, 62 L.Ed.2d 421 (1979). “[T]he existence of value alone does not generate interests protected by the Constitution against diminution by the government, however unreasonable its action may be.” Id.

Where the Commissioner of Transportation had condemned all or part of three parcels of land, including the sole means of access to the property, the remaining portion of one of the parcels was held to have been confiscated. Wright v. Shugrue, 178 Conn. 710, 425 A.2d 549 (1979).

This court has observed that when property cannot be utilized for any reasonable and proper purpose, as where the economic utility of the property has, for all practical purposes, been destroyed, a confiscation or taking in the constitutional sense has occurred.

Id. at 713, 425 A.2d 549 (emphasis added).

A regulation that changed the classification of plaintiffs’ property from residence zone to flood plain district was held to be confiscatory. Dooley v. Town Plan & Zoning Comm’n, 151 Conn. 304, 197 A.2d 770 (1964). The regulation permitted only such uses as recreational areas, wildlife sanctuaries, and farming. The permitted uses were found to have placed “such limitations on the area that ... the regulation amounts, in effect, to a practical confiscation of the land.” Id. at 309, 197 A.2d 770. The regulation deprived plaintiffs of “any worthwhile rights or benefits in their land.” Id. at 312, 197 A.2d 770.

The thread running through these cases is that a taking occurs only when a landowner, though left with title, is deprived of all reasonable or practical use of his property. Such is not the predicament of plaintiff herein. Under Article VI — Special Distriet Zoning Regulations of the Town of East Hartford, although land use within a flood hazard zone is regulated, a landowner is not deprived of substantially all worthwhile benefit in or use of his property.

A Development Permit for a flood hazard zone, Section 612.1, may be granted or denied by the Planning and Zoning Commission. Section 612.2. A variance from the ordinance can be requested of the Town’s Zoning Board of Appeals, Section 612.4, subject to consideration of specified factors including any danger that materials from the proposed facility will be swept onto others’ lands; the importance of the proposed facility to the community; the compatibility of the proposed use with existing and anticipated development; and the effect on costs of governmental services during and after a flood. Section 612.4a. Also, flood hazard zone construction standards are set forth. Section 613. Clearly, at least limited use of the land is thereby permitted.

Unlike the ordinance in Dooley, the East Hartford regulations do not so restrict the permitted uses as to freeze the area “into a practically unusable state.” Id. at 309, 197 A.2d 770. The ordinance here simply regulates construction and use so that development in such a zone does not increase the potential for personal and economic harm from a flood. Although the resulting cost of commercial development may be higher, the plaintiff is by no means deprived of all reasonable use of his property. Since plaintiff’s property has not been taken, plaintiff is not entitled to the relief requested.

III. The State Law Claims

In light of the disposition of plaintiff’s federal law claims, the pendent state law claims are dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).

Summary judgment shall, therefore, enter dismissing all claims raised in the complaint.

SO ORDERED.

      . Plaintiff also asserts a claim under 42 U.S.C. § 1981 for racial discrimination. He alleges no facts to support an action under § 1981 and conclusory allegations alone will not sustain such a claim.

      . In Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897), the Court held that the fifth amendment is made applicable to actions of the states by the fourteenth amendment.

      . Plaintiff has two such appeals pending in state court challenging the validity of the enactment of the zoning regulation on the ground that his property was erroneously and arbitrarily placed in a flood plain zone.

      . Defendants claim, and plaintiff does not dispute, that plaintiff has requested and received several permits for development within the flood hazard zone. The court’s view of the ordinance and applicable case law obviates the need to consider the nature of those permits.