author: BUA, District Judge.

text:
    Ivory DAVIS-EL, Plaintiff, v. Michael O'LEARY, et al., Defendants.
    No. 85 C 2396.
    United States District Court, N.D. Illinois, E.D.
    Jan. 17, 1986.

      Ivory Davis-El, pro se.
    Neil P. Hartigan, Atty. Gen. of Illinois by Marita C. Sullivan, Asst. Atty. Gen., General Law Div., Chicago, Ill., for defendants.
   BUA, District Judge.

ORDER

Before the Court is defendants’ motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), plaintiff’s action challenging the procedures of the Illinois Prisoner Review Board. For the reasons stated herein, defendants’ motion is granted in part and denied in part.

I. FACTS

Plaintiff brings this action under 42 U.S.C. § 1983 challenging the parole procedures used by the Illinois Prisoner Review Board. Plaintiff appeared before the Board in January 1984 and was given a continuance to February 1, 1984. Plaintiff was heard and given an en banc continuance. On February 9, 1984, the Board sitting en banc denied the plaintiff parole. Plaintiff appeared before the Board on October 31, 1984 and was given an en banc continuance. Parole was denied November 5, 1984.

Plaintiff’s complaint consists of ten claims alleging that defendants violated: (1) plaintiff’s procedural due process and equal protection rights due to the Board’s failure to keep minutes of their en banc hearings; (2) plaintiff’s procedural due process and equal protection rights due to the refusal of the Stateville records office supervisor to let plaintiff see his master file; (3) plaintiff's right to “procedural due process record access” and equal protection due to the Board granting plaintiff’s request to see his parole board files but not his master file; (4) the ex post facto clause of the United States Constitution due to a change in procedure which requires en banc hearings for all prisoners having twenty or more years left on their sentences; (5) plaintiff’s right to equal protection due to the change in procedure; (6) plaintiff’s and all prisoners with twenty years or more left on their sentence right to equal protection and due process because the change in procedure discriminates against them; (7) plaintiff’s right to due process because the change in procedure is arbitrary and capricious, discriminating against a specific group of prisoners; (8) plaintiff’s right to procedural due process and equal protection due to the prison officials’ discretion concerning when to grant bonus institution credits to model prisoners; (9) plaintiff’s right to equal protection because the parole denial was based on his race; and (10) plaintiff’s right of equal protection due to the fact that prisoners at Stateville Correctional Center are paroled at a slower rate than inmates at other maximum security prisons in Illinois.

II. DISCUSSION

A. Failure to Keep Parole

Hearing Minutes

Plaintiff argues that the failure of the Board to keep minutes of its en banc hearings and rehearings constitutes a due process violation. In support of this argument, plaintiff asserts that the Illinois Open Meetings Act, Ill.Rev.Stat. 1983, ch. 102, Par. 42.06 (the Act), creates a protectible due process liberty interest in recording minutes of the Board’s hearings. The defendants counter that Paragraph 42(b) of the Act specifically exempts the Board’s hearings from the Act’s scope. Defendants also argue that the violation of the Act does not necessarily implicate a constitutional violation.

When state law is a possible source of a liberty interest, the analysis concerning its identification as a constitutionally protected interest “parallels the accepted due process analysis as to property.” Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). However, the parallel between the property and liberty interest analyses is not unwavering, and in some settings it is inappropriate strictly to apply a property interest analysis to the task of determining the existence of constitutionally protected liberty interests. See Jago v. VanCuren, 454 U.S. 14, 17-23, 102 S.Ct. 31, 34-37, 70 L.Ed.2d 13 (1981) (per curiam). Indeed, Jago v. VanCuren, supra, indicates that a less expansive approach to the identification of liberty interests is appropriate in the prison setting than would be the case if the usual property interest inquiry under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) were utilized. Shango v. Jurich, 681 F.2d 1091,1100 n. 17 (7th Cir.), reh. denied, 681 F.2d 1091 (7th Cir.1982).

Although the existence of a liberty interest may be ascertained by reference to state law, once such an interest is identified, the task of defining the procedural protections which attach to that interest is wholly a matter of federal constitutional law and is accomplished through application of the balancing analysis of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Shango v. Jurich, supra, 681 F.2d at 1098. Once it is determined what process is due to the individual before he can be deprived of the specific liberty or property interest by the state, state procedures are scrutinized to see if they comport with the federal procedural due process requirements. Id. However, state procedural protections cannot define what process is due. Id. The Fourteenth Amendment’s limitation on state action would be illusory if state practices were synonymous with due process. Id.

Therefore, the issue here becomes, assuming arguendo the existence of a right to have the minutes of the Board’s hearings recorded, whether this interest is entitled to federal due process protection. In determining this issue, the dispositive inquiry is not the source of the purported liberty interest, but rather “ ‘the nature of the interest at stake.’ ” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979) (quoting Board of Regents v. Roth, supra, 408 U.S. at 571, 92 S.Ct. at 2706 (emphasis in Roth)). The nature of the interest in having minutes of the Board’s hearings recorded relates solely to finding out whether the basis for the Board’s decision is proper. However, as such, this interest overlaps with the test for determining whether a statement of reasons for a decision denying parole is constitutionally adequate. See United States ex rel. Scott v. III. Parole and Pardon Board, 669 F.2d 1185, 1190 (7th Cir.1982) (per curiam).

In Scott, the Seventh Circuit Court of Appeals held that Illinois’ parole release statute creates a constitutional liberty interest under the United States Supreme Court’s analysis in Greenholtz v. Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). The Seventh Circuit went on to state the test for determining whether a statement of reasons for a denial of parole is sufficient to satisfy the requirements of the Due Process Clause of the Fourteenth Amendment. Quoting United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925 (2d Cir.), vacated as moot, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974), the Seventh Circuit set forth the determinative test:

To satisfy minimum due process requirements a statement of reasons should be sufficient to enable a reviewing body to determine whether parole has been denied for an impermissible reason or for no reason at all. For this essential purpose, detailed findings of fact are not required, provided the Board’s decision is based upon consideration of all relevant factors and it furnishes to the inmate both the grounds for the decision ... and the essential facts upon which the Board’s inferences are based.

Scott, supra, 669 F.2d at 1190.

The Seventh Circuit went further to elucidate the Johnson test’s rationale in light of Greenholtz:

Greenholtz makes clear that, even when the Due Process Clause applies to a parole release determination, there is “nothing in the due process concepts as they have thus far evolved that requires the Parole Board to specify the particular ‘evidence’ in the inmate’s file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release.” 442 U.S. at 15, 99 S.Ct. at 2107.

Scott, supra, 669 F.2d at 1190-91.

Therefore, in Scott, the Seventh Circuit concluded that due process does not require detailed findings of fact or specification of particular evidence which forms the basis for a parole denial.

By arguing that a failure to keep minutes of the Board’s hearings constitutes a constitutional violation, plaintiff seeks to require, under the guise of a due process analysis, what the Seventh Circuit has already concluded in Scott is not required by due process. To wit, the only purpose of requiring the Board to keep minutes of its hearings and making the failure to do so a constitutional violation is to prevent parole denials for impermissible reasons. However, this concern has been addressed in the due process analysis in Scott and the Seventh Circuit concluded that due process requires only a limited factual inquiry. Since plaintiff’s proposed interest in the keeping of minutes of the Board’s hearings go beyond the limited factual inquiry set forth in Scott, the Court concludes that due process does not require the keeping of minutes of the Board’s hearings and that failure to do so does not constitute a constitutional violation.

B. Access to Parole Board Files and Plaintiffs Master File

Plaintiff argues that he was denied access to those portions of his Master File and the Board’s files which the Board relied upon in reaching its decision to deny him parole at the October 31,1984 hearing. In support of this argument, plaintiff cites Administrative Regulation # 844 of the Illinois Department of Corrections as requiring that he be given access to any factual information relied upon by the Board. Plaintiff concludes that the failure to provide him such access constitutes a violation of procedural due process. Defendants counter that plaintiff's counselor requested to see his entire Master File. As such, plaintiffs request violated Administrative Regulation #844 and therefore no procedural due process violation occurred.

The Seventh Circuit Court of Appeals has held that denial of access to a prisoner’s parole file violates the command of Rule IV(c) of Illinois’ Rules Governing Parole that “[a] parole candidate shall have access to all documents which the Board considers in denying parole.” Walker v. Prisoner Review Board, 694 F.2d 499, 503 (7th Cir.1982). The Walker court further held that such access was an element of due process. Id.; see also Walker v. Prisoner Review Board, 769 F.2d 396, 397 (7th Cir.1985). Administrative Regulation #844, which is not to the contrary, provides in pertinent part:

C. Persons under commitment shall not be given access to the resident Master Record Files under any circumstances, whether acting for themselves or for others. Factual information relied upon by the Disciplinary Committee, Assignment Committee, Merit Staff or Parole and Pardon Board to make a determination which results in an increase in the length of confinement — such as parole denial or revocation, loss of good time, or institution credits — shall be given to the resident and his attorney of record upon request. Factual information shall not be deemed to include professional opinion reports.

In the present case, the plaintiff made a request through his counselor, Laura Landhuis, to see any portions of his Master File upon which the Board relied during the November 1984 parole hearings. Ms. Landhuis consulted with the Stateville Record Office Supervisor, Michael Krolikiewicz, and informed him of the plaintiffs request. Krolikiewicz allegedly refused this request.

It is unclear whether the plaintiff requested to see his entire Master File or only those portions relied upon by the Board. However, on a motion to dismiss, it is not proper to resolve this factual uncertainty, especially in light of the Seventh Circuit’s clear pronouncement in Walker that a procedural due process right exists for a parole candidate’s access to factual information relied upon by the Board. Accordingly, defendants’ motion to dismiss Counts II and III of plaintiff’s complaint is denied.

C. En Banc Hearing Requirement

In Counts IV-VII, plaintiff attacks the constitutionality of a new law which requires that parole for prisoners convicted of murder or who received a minimum sentence of twenty years or more under the law in effect prior to February 1, 1978 shall be determined by a majority vote of the Prisoner Review Board. Ill.Rev.Stat. Ch. 38, Section 1003-3-2(a)(2) (1984). First, plaintiff argues that this legislative enactment is an ex post facto violation because it decreases plaintiff’s chances for parole. Second, plaintiff argues that the enactment violates due process and equal protection because it is fundamentally unfair and it impacts discriminatorily on him and others similarly situated, e.g. those prisoners convicted of murder or serving a minimum sentence of twenty years.

In order for a law to violate the ex post facto prohibition of the United States Constitution it must be both (1) retrospective and (2) disadvantageous to the offender affected by it. Heirens v. Mizell, 729 F.2d 449, 459 (7th Cir.1984). The Court finds the Seventh Circuit’s analysis in Heirens to be dispositive of the plaintiff’s ex post facto arguments here. In Heirens, the Seventh Circuit found that, prior to the enactment of the law in question, the Illinois Parole Board possessed broad discretion with regard to parole decisions. The court concluded that the new law merely codified prior law and therefore the new law was not disadvantageous to inmates who committed their crimes prior to the new law’s enactment.

In the present case, the Court finds that the en banc hearing requirement codifies prior law and therefore is not disadvantageous to prisoners sentenced prior to its enactment. Prior to the new law, the Prisoner Review Board possessed the power to review a prisoner’s request for parole before the entire Board. The legislature allowed the Board, in its discretion, to conduct parole hearings before “at least three members.” Ill.Rev.Stat. Ch. 38, Section 1003-3-2. In addition, since 1981, the Board established a practice of hearing some cases en banc. In light of the prior law and the Board’s prior policy, the Court concludes that the new en banc requirement for certain cases codifies prior law, is not disadvantageous to prisoners sentenced prior to its enactment, and therefore does not violate the ex post facto prohibition of the Constitution.

In addition, the review before a majority of the Board does not pose additional punishment. The percentage of Board members necessary to successfully vote for parole has decreased from two out of three (the old three-member panel) to six out of ten (the new law). Since it actually may increase prisoners’ chances for parole, the en banc hearing is not disadvantageous to them and, as such, cannot violate the ex post facto prohibition.

Plaintiffs arguments that the en banc hearing requirement violates due process and equal protection also fail. Plaintiff does not allege that he is a member of any protected class recognized under equal protection law. Therefore, to sustain an equal protection challenge to the en banc hearing requirement, the plaintiff must show that the legislature had no rational basis for establishing a discrepancy between en banc and three-member panel hearings. See Inglese v. U.S. Parole Commission, 768 F.2d 932, 940 (7th Cir.1985). However, it is rational for the legislature to require that prisoners who committed more serious offenses have their parole requests reviewed by the entire Prisoner Review Board in order to insure protection against the premature release of these prisoners. Therefore, finding that the en banc hearing requirement has a rational basis, the Court rejects plaintiffs equal protection challenge.

Plaintiffs due process challenge must be based upon an “expectation of release on parole” embodied in the three-member panel hearings. Solomon v. Elsea, 676 F.2d 282, 284 (7th Cir.1982). Neither the three-member panel hearings nor the en banc hearings create an expectation of release on parole. In addition, the statute enacted prior to the plaintiffs sentencing set a minimum, but no maximum, on the number of Board members necessary for a parole hearing. Therefore, the Court finds no violation of due process due to the en banc hearing requirement. Accordingly, Counts IV-YII are dismissed.

D. Institution Credits

Plaintiff argues in Count VIII that he has a liberty interest in being submitted for the maximum amount of institution credits possible. In support of this argument, plaintiff cites Administrative Regulation # 813 and Administration and Rules Section 107.170. Plaintiff concludes that the fact that he was given 60 days in institution credits, instead of 90 days, constitutes a due process and equal protection violation. Defendants counter that the grant or denial of institution credits is within the discretion of prison officials and therefore plaintiff has no liberty interest.

The Court agrees with the defendants’ argument. The applicable regulations provide that institution credits “may be recommended” and set forth various factors to be considered. According to the regulations, the grant or denial of institution credits is clearly within the discretion of prison officials. Therefore, under the analysis in Greenholtz, supra, the mere hope or expectancy of a benefit is not enough to invoke due process protection.

Regarding plaintiff’s equal protection argument, he does not argue that he was treated differently from others. Plaintiff argues only that the policy of the prison officials to grant 90 days in institution credits only in exceptional circumstances violates equal protection. Since he attacks the policy of prison officials and does not argue that he was treated differently from others, his equal protection claim fails. Accordingly, Count VIII is dismissed.

E. Denial of Parole

In Count IX, plaintiff argues that he was denied parole on the basis of race. In support of this argument, he asserts that the Board has a policy of discriminating against prisoners of African ancestry. He further contends that prisoners of European ancestry are paroled at a faster rate disproportionate to prisoners of African ancestry. In Count X, plaintiff asserts that prisoners at Stateville Correctional Center are paroled at a slower rate than prisoners at other state correctional centers.

Equal protection requires that the state not discriminate against prisoners on the basis of race. Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir.1981); see also Harris v. Greer, 750 F.2d 617, 618 (7th Cir. 1984). While the plaintiff alleges no facts to support purposeful discrimination, he does allege statistical evidence to support his claim of racial discrimination in his parole denial. Notwithstanding the paucity of plaintiff’s allegations, the Court believes it inappropriate to dismiss plaintiff’s race discrimination claim in Count IX.

However, plaintiffs claim of discrimination based upon allegations that Stateville prisoners are paroled at a slower rate than prisoners at other state correctional centers fails because it does not implicate a suspect class, e.g., race, recognized under equal protection analysis.

F. Immunity

Defendants argue that the members of the Prisoner Review Board enjoy absolute immunity from a suit for damages under 42 U.S.C. § 1983. In addition, they argue that the prison officials enjoy qualified immunity.

In Walker v. Prisoner Review Board, 769 F.2d 396 (7th Cir.1985), the Seventh Circuit held that Board members have absolute immunity from damages in a § 1983 action for adjudicatory and administrative actions. Id. at 399. In, the present case, the plaintiff may only seek injunctive relief from the Board and its members. Id.

Government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). If the law at the time an action occurred is not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. Id. If the law was clearly established, the immunity defense ordinarily should fail. Id. at 818-19, 102 S.Ct. at 2738.

In the present case, in the remaining counts involving the prison officials, only counts II and III relating to access to parole files remains. The Court finds that the law regarding access to parole files was clearly established, especially in light of the administrative regulation, at the time the alleged refusal to access those files occurred. Therefore, defendants’ argument for qualified immunity for prison officials on Counts II and III fail.

III. CONCLUSION

For the reasons stated above, defendants’ motion to dismiss is granted for Counts I, IV-VIII, and X, and denied for Counts II, III, and IX. Accordingly, Counts I, IV-VIII, and X of plaintiff’s complaint are dismissed. In addition, defendants’ motion to dismiss is granted as to the absolute immunity of members of the Prisoner Review Board and denied as to the qualified immunity of prison officials.

IT IS SO ORDERED.


source: Caselaw Access Project

author: REYNOLDS, Chief Judge.

license: Public Domain

text:
    Herman V. STERN, Plaintiff, v. TEAMSTERS "GENERAL" LOCAL UNION NO. 200, Duane Kraemer, Eugene Sheehan, Schmitz Ready Mix, Inc., and Allen D. Schmitz, Defendants.
    No. 84-C-1517.
    United States District Court, E.D. Wisconsin.
    Jan. 17, 1986.

      Joseph H. Helm, Jr., Menomonee Falls, Wis., for plaintiff.
    Stuart G. Grady and Darcy E. McManus, Grady Law Office, Port Washington, Wis., for defendants Schmitz Ready Mix, Inc., and Alan D. Schmitz.
    Scott Soldon, Milwaukee, Wis., for defendant Teamsters General Local Union No. 200.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

Plaintiff brings this action against his former employer and the recognized union at his former workplace. He alleges that Teamsters General Local Union # 200 convinced Schmitz Ready Mix, Inc. to fire him because, pursuant to his religious beliefs, the plaintiff refused to join the union or pay the equivalent of union dues to one of five nonreligious charities named as alternatives in the collective bargaining agreement. Defendants maintain that plaintiff was fired for an unexcused absence, or in the alternative, that defendants did everything the law requires in the way of accomodating plaintiff’s religious beliefs. Defendants also argue that plaintiff’s state law claims are barred because he failed to exhaust his state remedies. Plaintiff’s complaint includes a federal claim under Title VII of the Civil Rights Act of 1964, a common law claim for wrongful discharge, and a claim under the Wisconsin Fair Employment Act. Wis.Stats. §§ 111.31-111.-395 (1983).

The parties stipulated that defendants Duane Kraemer and Eugene Sheehan were to be dismissed from this action. Currently pending are the other defendants’ motions for summary judgment, plaintiff’s motion for collateral estoppel, and a motion to amend the answer of defendants Schmitz Ready Mix and Allen D. Schmitz. Resolution of the other motions is unnecessary because the court will grant the defendants’ motions for summary judgment. Resolving all disputed issues of fact in plaintiff’s favor the court still finds that the defendants are entitled to judgment as a matter of law.

RELEVANT FACTS

The facts are taken from the submissions of the parties. Plaintiff began full-time work for defendant Schmitz Ready Mix in May of 1983. The Teamsters had a collective bargaining agreement with the company that required full-time employees to become union members. The plaintiff informed the union in August of 1983 that he would not join because of his religious beliefs. On August 25, 1983 the union told the plaintiff that a Congressional Act allowed employees with religious convictions against union membership to pay an amount equivalent to yearly dues to a charitable organization. At that time the union also requested information about plaintiff’s religious affiliation and the basis for his bias against union membership.

On September 2, 1983 the plaintiff wrote the union asking for a copy of the Congressional Act. He also enclosed a check made out to a religious broadcaster. The union wrote back on September 20, 1983 refusing to provide a copy of the Act and rejecting the proffered donation because it was not directed to a nonreligious charity. The union demanded another check within a week and threatened to require the employer to terminate the plaintiff if he did not comply. On September 29,1983 the union wrote the employer (Schmitz) requesting that plaintiff be terminated. Plaintiff again wrote the union on October 1, 1983 confirming that he was sending his dues to the broadcaster and agreeing to provide the union with the requested information if they would give him a copy of the Congressional Act.

The union wrote Schmitz on November 9, 1983 and requested that plaintiff be terminated pursuant to the collective bargaining agreement. Plaintiff met with a union representative on November 11, 1985 and plaintiff showed the union representative a copy of an Equal Employment Opportunity " Commission guideline that appeared to allow him to donate to any charitable organization, regardless of religious affiliation. That same day the union sent Stern a copy of the Congressional Act and told him he could study it but that if he didn’t pay his dues by November 18, 1983 the union would demand that his employer terminate him. That act restricted his alternatives to nonreligious and nonlabor charitable organizations.

On November 28, 1983 the union wrote plaintiff confirming that his own personal religious beliefs, rather than his church’s position, prohibited his involvement in the union. The union offered to allow Stern to pay the equivalent of dues to some nonreligious charity and informed him the union was negotiating with Schmitz over an addendum to the bargaining agreement that would list three nonreligious charities to which someone who had religious objections to union membership could donate.

The union sent Schmitz a copy of the addendum shortly thereafter. The addendum tracked the language of the Congressional Act and allowed employees who were members of bona fide religious organizations with a history of objection to union membership to pay the equivalent of union dues to one of six charitable funds. There is no dispute that the addendum was specifically directed at Stern. The addendum was ratified to on December 20, 1983 and on December 21st the union sent Stern a copy of the new provision and demanded that he choose a charity no later than January 6, 1984.

Meanwhile, a conflict had apparently developed between Stern’s employment with Schmitz and Stern’s part-time snowplowing business. The employer informed plaintiff on or around December 21, 1983 that he would have to give priority to his job with Schmitz. On January 3, 1984 plaintiff called in sick. Later that day a fellow worker saw him plowing snow and his employer terminated him.

The parties dispute whether the snowplowing incident was the true basis for his dismissal. Plaintiff asserts that the decision of a Wisconsin unemployment compensation tribunal which found that plaintiff was not dismissed for “misconduct” as that term is defined in Wis.Stats. 108.04(5) (1983) should serve to collaterally estop the defendants from arguing he was dismissed for misconduct. Plaintiff’s alleged misconduct would nonetheless be an issue at trial because this court is unconvinced that a determination of misconduct for workers compensation purposes is helpful in the context of a wrongful discharge action. Resolution of that factual dispute is not, however, necessary. The court finds that, even if Stern was fired for his failure to join the union, the defendants did everything that was required of them before Stern was terminated.

LEGAL ANALYSIS

The court will assume for the purpose of resolving the summary judgment motions that the reasons given for Stern’s firing were pretextual, that the true reason for his dismissal was that his religious beliefs prevented him from joining the union and that he refused to pay the equivalent of union dues to one of the named charities. The defendants are nonetheless entitled to judgment as a matter of law.

Plaintiff’s federal claim arises under Title VII in that he alleges he was fired because of his religious beliefs. 42 U.S.C. § 2000e-2. At trial plaintiff would need to establish a prima facie case that he was terminated because of his religious beliefs. If Stern did so the defendants would be required to produce some explanation or justification for the termination. Assuming plaintiff’s snowplowing activities were merely used as a pretext, defendants would rely upon the plaintiff’s failure to join the union or make an equivalent payment to a nonreligious, nonlabor charity. At that point there would no longer be a question of pretext in this lawsuit. The sole question would be whether an employer is justified in dismissing an employee pursuant to a collective bargaining agreement if, for religious reasons, that employee refused to join the union or, pursuant to that same labor agreement, refused to donate an amount equal to what he would pay in dues to a nonreligious charity.

In other words, were the defendants attempts to accomodate Stern’s religious beliefs sufficient to protect them from a discrimination suit? The court finds that they were because the alternative they offered him has been approved by Congress. Section 19 of the National Labor Relations Act was amended on December 24, 1980 to read:

Any employee who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body or sect which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition of employment; except that such employee may be required in a contract between such employees’ employer and a labor organization in lieu of periodic dues and initiation fees, to pay sums equal to such dues and initiation fees to a nonreligious, nonlabor organization charitable fund exempt from taxation under section 501(c)(3) of Title 26, chosen by such employee from a list of at least three such funds, designated in such contract or if the contract fails to designate such funds, then to any such fund chosen by the employee.

29 U.S.C. § 169 (1980)

The legislative history of the bill reflects Congressional intent to address the type of claim now before this court.

“Members of the Seventh-day Adventist Church for example cannot, consistent with the traditional and historic teachings of that church, pay dues to unions. Other churches share the same traditional belief of prohibiting cooperation with the union selected by majority vote to represent their interests.
The bill would accommodate the religious beliefs of these persons and thereby reconcile the National Labor Relations Act with section 701(j) of the Equal Employment Opportunity Act. Thus, the bill reflects the legislative determination that the alternative to the payment of union dues provided in the bill ‘reasonably accommodate(s) ... an employee ... religious observance or practice without undue hardship.’ Title VII, section 701(j), 43 U.S.C. section 2000e(j). The option of allowing a qualifying individual the ability to pay the equivalent of dues to a nonreligious charity clearly constitutes a ‘reasonable accommodation’ to the individual’s religious beliefs.

H.R.Rep. No. 496, 96th Cong., 2d Sess. reprinted in 1980 U.S.Cong. & Ad.News 7158, 7159.

The addendum at issue here closely tracked the language in 29 U.S.C. § 169. Both the words'of the statute and the legislative history reveal that Congress has approved the accomodation the defendants offered the plaintiff. Stern may have preferred to give to a religious broadcaster but Congress has seen fit to limit the alternatives to nonreligious and nonlabor charities. Even if Stern was fired because he failed to join the union or donate to an alternative charity the defendants were nonetheless within their rights.

Stern contends that the statute does not apply to his situation for a variety of reasons. Principally he relies upon an Equal Employment Opportunity Commission Guideline which predates the statute quoted above by one month. That guideline reads:

“When an employee’s religious practices to (sic) not permit compliance with such a provision, the labor organization should accommodate the employee by not requiring the employee to join the organization and by permitting him or her to donate a sum equivalent to dues to a charitable organization.”

29. C.F.R. § 1605.2(d)(2) (1985)

Plaintiff contends that this guideline allows him to donate to any charity, religious or nonreligious. In addition he cites the case of Yott v. North American Rockwell Corp., 602 F.2d 904 (9th Cir.1979) where the court held that an offer by an employer and union to allow a plaintiff to make payment to his own church was a reasonable accomodation. The problem with both those arguments is that since that time Congress has by statute approved the accomodation offered in the present case.

Next plaintiff contends that the statute only addresses people who are members of groups who have historically objected to supporting labor unions, such as the Seventh Day Adventists. He points to the broad definition of “ ‘Religious’ nature of a practice or belief” in the EEOC guidelines, 29 C.F.R. 1605.1 (1985), and contends that he falls in that definition, and as a result gets the benefit of the EEOC guideline which allows donation to any charity.

The argument is novel. Stern seeks to take advantage of the government’s understandable hesitancy to define what exactly constitutes a “religion.” In the controlling statute, Congress chose to give long-established faiths special treatment. The EEOC approach reflects a broader definition.

Stern hopes to stay outside the congressional definition as a means to avoid the solution Congress has chosen for this problem. Plaintiff argues that because he is not a member of a recognized group with long-standing convictions, he should be given more alternatives. There is absolutely no reason to believe that Stern is entitled to any more accomodation than those people who are members of the groups defined above. Nor has Stern made any attack on the statute itself.

Finally, Stern attacks the means by which the addendum was adopted and claims that since it was not in effect when he objected to joining the union on religious grounds, that it cannot apply to him. There is no question but that the addendum was directed specifically at the situation Stern presented. Stern, however, was not dismissed until after it was adopted and he has presented the court with no convincing reason why the union could not enact a provision that Congress had approved. His tardy attack relating to the union’s duty of fair representation is similarily without merit.

The court therefore finds that the defendants are entitled to summary judgment as a matter of law because even if plaintiff was discharged because of his religious convictions against union membership, the defendants offered him a reasonable accomodation which he refused to take. The court’s resolution of the Federal question also controls the pending state law claims.

IT IS THEREFORE ORDERED that the defendants’ motions for summary judgment are granted.


author: ALLEN SHARP, Chief Judge.

text:
    Michael WADE, Petitioner, v. Jack R. DUCKWORTH, and Indiana Attorney General, Respondents.
    No. S 84-653.
    United States District Court, N.D. Indiana, South Bend Division.
    Jan. 17, 1986.

      Michael Wade, pro se.
    Kermit R. Hilles, Deputy Atty. Gen., Indianapolis, Ind., for respondents.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by Michael Wade, an inmate incarcerated at the Indiana State Prison, in Michigan City, Indiana. The matter is now before this court on respondents’ motion to dismiss, filed as part of their Return to Order to Show Cause. In accord with the dictates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the complete state court record has been filed with, and carefully examined by, this court.

A careful examination of the underlying state court record and the opinion of the Supreme Court of Indiana, Wade v. State, 270 Ind. 549, 387 N.E.2d 1309 (1979), reveals that petitioner has exhausted his available state court remedies per 28 U.S.C. § 2254(b), (c); Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). Both sides having briefed their respective positions, this petition is now ripe for ruling.

Petitioner was convicted in a state court jury trial of Armed Robbery and of inflicting an injury in perpetration of robbery, for which he received an indeterminate sentence of life imprisonment. These convicr tions were unanimously affirmed on appeal by the Supreme Court of Indiana. Petitioner now brings this petition for a federal writ of habeas corpus.

Petitioner raises the following issues in this application for habeas relief:

1. Petitioner’s Constitutional right to a speedy trial was denied by the actions of the State.
2. Petitioner’s Constitutional right to due process and equal protection was denied when the court allowed into evidence a confession obtained thru (sic) promises of lenienty (sic).

I.

Petitioner’s first issue states that he was denied his Sixth Amendment right to a speedy trial because of the actions of the State. Petitioner claims that the length in the delay of serving him the capias severely prejudiced his defense at trial. He further claims that the State has failed to show good cause in delaying the service of his capias and knew at all times where he was located and therefore could have ' served the capias promptly after the information was filed.

The facts of this case as determined by the Supreme Court of Indiana are as follows:

The information against him was filed on July 8,1976; however, he was not served with the capias until October 1977, as he was incarcerated in the Indiana State Prison in Michigan City.
Rule 4(C) provides:
“Defendant discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later —” (emphasis supplied.)
In the case at bar appellant was arrested on the charge on October 27, 1977, and was tried by jury on May 4, 1978. His incarceration from July, 1976, to October, 1977, was for a separate conviction and had no relationship to the charges in the present information. He was “held on recognizance” for this specific information only from October, 1977, through May 1978. Appellant therefore was not entitled to discharge under CR. 4(C). Cooley v. State, (1977) [172] Ind.App. [199], 360 N.E.2d 29.
Wade v. State, supra 387 N.E.2d at 1310.

The petitioner has not disputed these findings. Findings of fact must be given a presumption of correctness by federal reviewing courts. Sumner v. Mata, 449 U.S. 539, 543-47, 101 S.Ct. 764, 767-69, 66 L.Ed.2d 722 (1981); Rose v. Duckworth, 769 F.2d 402, 405 (7th Cir.1985); 28 U.S.C. § 2254(d).

The record in this case further reveals that petitioner filed a Motion for Discharge on October 21, 1977, in the Marion County Criminal Court, which indicated that as of October 8, 1977, he was aware of the information filed against him. The trial court denied petitioner’s motion for discharge on December 21, 1977. Thereafter, petitioner plead not guilty and requested an early trial. The court set the trial for February 2, 1978.

The petitioner requested a continuance of the trial date on January 30, 1978, stating inclement weather as the reason and he withdrew his previous request for a speedy trial. The court reset the trial for April 3, 1978. Petitioner requested a second continuance on March 9, 1978, stating a conflict in counsel’s schedule. The motion was granted and the case was reset for trial on May 4, 1978. Petitioner’s counsel moved for a third continuance on April 28, 1978, and the motion was denied.

Petitioner filed a notice of alibi with the court on February 13,1978, listing two alibi witnesses. The alibi witnesses named in his notice of alibi were Rosie Scott and Jasper Rucker. Not one of the continuances requested for by the petitioner alleged that either or both of these witnesses were unavailable for any of the three trial dates. Petitioner’s third request for continuance of the trial date, which was denied, alleged that he was seeking to find an additional witness, one Joyce Scott, who would be an alibi witness. At no time did petitioner file a notice of alibi naming Joyce Scott as an alibi witness. Petitioner renewed his motion concerning a continuance in order to locate Joyce Scott at the trial but did not present an argument to support his position.

The two witnesses petitioner named in his notice of alibi, Jasper Rucker and Rosie Scott, did not testify at the trial, for whatever tactical reasons may have existed. But at no time was it alleged that these witnesses were unavailable to testify at any of the three scheduled trial dates.

II.

Petitioner has raised the issue of the violation of his Sixth Amendment right to a speedy trial. In his State appeal, petitioner alleged violations of his Sixth Amendment right and violations of the Indiana law under Rule 4(C). In this petition, he states only the Sixth Amendment claim. Petitioner claims that the undue lengthy delay in bringing him to trial prejudiced his case and denied him his right to a speedy trial. He cites, correctly, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), as the controlling law in the area of speedy trial violations.

In Barker v. Wingo, the Supreme Court of the United States has set forth four factors which the courts should use in determining whether a particular defendant has been deprived of his speedy trial right. Those four factors include: length of delay, the reasons for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Id., 92 S.Ct. at 2192.

The Barker Court held:
The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provide such an inquiry is necessarily dependent upon the peculiar circumstances of the case. Id., 92 S.Ct. at 2192.

Petitioner argues that the facts in his case present such a triggering mechanism which requires further inquiry into the matter. He claims that the fifteen (15) month delay, from the time of the filing of the information against him until the serving of the capias, constituted prejudicial delay.

Once the length of delay has triggered the inquiry, the Court held that the other three factors to be considered are related and must be considered together with such other circumstances as may be relevant. Id., 92 S.Ct. at 2193. The Court said:

Closely related to length of delay is the-reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowed courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
Id., 92 S.Ct. at 2192.

Petitioner asserts that the government has deliberately attempted to delay his trial in order to hamper his defense. He claims that the failure to serve him the capias immediately after the filing of the information against him constituted a deliberate attempt to hamper his defense since the State knew at all times where petitioner could be found. Petitioner further contends that his third request for a continuance based on his attempt to locate a witness was a valid reason and such request justifies further delay and should not be used against him in determining whether or not he was denied*his Sixth Amendment right to a speedy trial.

The Barker Court stated the following with respect to the third factor to be considered:

We have already discussed the third factor, the defendant’s responsibility to assert his right. Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivations, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.
Id., 92 S.Ct. at 2192.

In this case, petitioner requested a speedy trial at the time his Motion for Discharge was denied and he entered his plea of not guilty: However, petitioner also withdrew that request for speedy trial when he moved for a continuance of the original trial date. Petitioner did not thereafter request or assert his right to a speedy trial.

The fourth factor for consideration was set forth by the Barker Court as follows:

A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.
Id., 92 S.Ct. at 2193.

The prejudice which this petitioner claims resulted from the lengthy delay was the inability to produce alibi witnesses and the unnecessary delay in serving the capias. Petitioner claims that the information was held in “secret” from him. There is no evidence in this record which supports that claim. There is nothing which indicates that the information was kept under seal or “secret” from the petitioner. In fact, petitioner somehow learned of this “secret” information pending against him and filed a motion to discharge the information. The record clearly reveals that the information was filed and pending but was not served on petitioner until October, 1977. Petitioner’s argument asserts that the State should have served him in order to expedite the matter securing his Sixth Amendment right to a speedy trial.

Looking to the facts in this case, this court must assess the amount of delay, the reasons for the delay and any resulting prejudice to the petitioner. This court having reviewed all of petitioner’s claims and the record before it has determined that petitioner’s claim of delay constituting fifteen (15) months consists of the time period from July, 1976, the filing of the information, until October, 1977, the serving of the capias, and does not include any of the pretrial incarceration relating to the charges in the information which was subsequently tried in May, 1978. Petitioner is correct in asserting that the period between the arrest and the indictment must be considered in evaluating a Speedy Trial Clause claim. United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982); Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975).

There is nothing in this record to indicate the reason or reasons for the State’s failure to serve petitioner the capias which would show a deliberate attempt to hamper his defense to the charges pending. The record reveals that in the State’s Response in Opposition to Defendant’s Motion for Discharge, the State contends that the petitioner had left the Court’s jurisdiction, even involuntarily to go to prison, constituted the delay in his arrest, and that, pursuant to Indiana law C.R. 4(C), Indiana’s implementation of the State and Federal constitutional right to a speedy trial, his right was not violated. There is nothing in the record which disputes this reason by the State for its delay in serving the capias upon the petitioner other than the petitioner’s allegations.

The amount of time from the filing of the information on July 1976 until trial in May 1978, consists of about twenty-two (22) months. Petitioner asks this court to ignore the circumstances resulting in the subsequent delays in procuring his trial. Rather, he asks that this court consider only the fifteen (15) month delay in serving him the capias as the determining factor which he claims violated his speedy trial right. This court must look to the circumstances and the facts in this case as a whole. The Barker Court reiterated its holding in Beavers v. Haubert, 198 U.S. 77, at 87, 25 S.Ct. 573, at 576, 49 L.Ed. 950 (1905), stating:

The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.
Barker v. Wingo, supra 92 S.Ct. at 2188.

This petitioner would have this court preclude the interests of public justice by ignoring those facts which do not support petitioner’s position.

Furthermore, petitioner’s claim that he was unduly prejudiced by the delay has not been substantiated by the record in this case. He claims that he was precluded from presenting an alibi defense because he was denied a continuance in order to find an alibi witness. This court has already pointed out that petitioner filed a notice of alibi which named two witnesses. Neither of these witnesses were called to testify at the trial and no motion or objection was made asserting that these witnesses were not available to testify at trial. Petitioner’s failure to present an alibi defense was not the result of an act of the State. At no time after the arrest, until petitioner moved for his third continuance to find a witness not before mentioned, did petitioner claim that he was unable to locate witnesses or present an alibi defense. The witness petitioner named in his continuance had not been named in any notice of alibi pursuant to Indiana law at any time.

There is nothing in the record which supports the petitioner’s claim that he was precluded from presenting an alibi defense or that he was in any way harmed in the preparation of his defense. His mere allegations to the same are wholly insufficient to support his claim that his Sixth Amendment right was violated.

The twenty-two (22) month delay in bringing petitioner to trial, largely comprised of the fifteen (15) month delay in serving petitioner with the capias, did not violate petitioner’s Sixth Amendment right. Petitioner did not show that the fifteen (15) month delay was attributable to some deliberate attempt on the part of the State to thwart his efforts to prepare a defense or that it hampered his defense. After his arrest, his arraignment was held, motions were heard, an evidentiary hearing was held, and a trial set for February, 1978. Subsequent delays were attributable to the petitioner’s requests for continuances. For recent Seventh Circuit opinions, applying the Barker four factors, see United States ex rel. Mitchell v. Fairman, 750 F.2d 806 (7th Cir.1984); United States ex rel. Fitzgerald v. Jordan, 747 F.2d 1120 (7th Cir. 1984).

This court hereby concurs with Chief Justice Givan writing for the Supreme Court of Indiana when it found that petitioner has shown absolutely no prejudice by reason of the delay in serving him. Under such circumstances it cannot be said that petitioner’s constitutional right to a speedy trial has been abridged.

III.

In his second issue, petitioner claims that his due process right and his right to equal protection were denied when the court admitted a confession into evidence which had been obtained through promises of leniency. Petitioner claims that the police promised not to charge him with any crimes arising out of the “clean-up” statement, if he made such a statement. He claims that the police further promised that the prosecutor’s office would be notified that he (petitioner) cooperated.

Petitioner asserts that after a few interviews with the police he in fact gave a “clean-up” statement confessing to the “Market Basket Robbery” under the promise that he would not be charged with the crimes arising therefrom. It is the petitioner’s argument that the subsequent filing of criminal charges and use of that particular confession violated his constitutional rights. He claims that he was tricked into confessing and that he did not voluntarily waive his rights.

At petitioner’s trial the State called Detective Robert C. Green who testified that he had taken a confession by the petitioner admitting to the crimes for which petitioner was charged. The trial court admitted the confession over the objection of defense counsel. Prior to the trial in this case, petitioner filed a motion to suppress the confession and the trial court held an evidentiary hearing.

After having heard the evidence concerning the matter, the trial court denied petitioner’s motion to suppress. The Supreme Court of Indiana, on appeal, found that Detective Green orally advised petitioner of his rights, that petitioner read them back to Green from a form, and that Green and petitioner signed the waiver of rights form. Wade v. State, supra 387 N.E.2d at 1311. The Court also noted that the waiver form had been admitted into evidence. Based on the record before it, the Supreme Court of Indiana found that petitioner had voluntarily waived his rights. Findings of fact by State courts must be given a presumption of correctness by federal reviewing court. Sumner v. Mata, supra; Rose v. Duckworth, supra.

During the suppression hearing petitioner testified that Detective Green stated to him during an interview in the fall of 1975 that if petitioner gave a “clean-up” statement petitioner would not be charged for any armed robbery crimes that he “cleaned-up” at that time. He testified that he met with the detective on three separate occasions. He testified that it was on the second and third occasions in which he was questioned concerning the “Market Basket” robbery. Petitioner testified that when he was informed during a third interview that a bullet recovered at the scene of the robbery had been ballistically identified as having been fired from petitioner’s gun and when he was confronted with the fact that Charles Humble was picked up on the charge that he would “cop” to the charges. He testified that he asked the detective if he would be charged for that robbery, and was informed that he would not be charged. He testified that he was not read his rights nor did he sign a waiver of rights form during the interview in which he confessed.

Detective Green also testified at the suppression hearing. The detective testified that he met with petitioner on three occasions, the first time briefly at the jail, at which time he told petitioner that he would like to talk to him further, and that petitioner should consult with his attorney.

He further testified that a second meeting took place at the Indianapolis Police Department (IPD) on January 19, 1976, concerning a “clean-up” statement of other robberies petitioner had committed. Detective Green testified that at that time, he told petitioner that petitioner would not be charged with other armed robberies petitioner admitted to, since he was already faced with an existing charge of armed robbery. The detective said that petitioner admitted to committing several other robberies.

During that interview, the detective asked petitioner about his involvement in the “Market Basket Robbery”. When Detective Green confronted petitioner with the knowledge that a ballistic report evidenced that a bullet recovered from the scene of said robbery was fired from a gun belonging to the petitioner, petitioner denied committing the crime, but offered the name of a possible perpetrator. Detective Green testified that he did not make any promises to petitioner in regard to possible prosecution for the “Market Basket Robbery”. He next testified that he made it clear to petitioner at that point that the promise not to prosecute pertained only to the other crimes, but that the “Market Basket Robbery” involved the inflicting of injury, and that the possible sentence of life, or ten to twenty-five years could be imposed. He further stated that if petitioner had committed the “Market Basket robbery” it would be best for petitioner to talk to him about it and that “the Prosecutor’s Staff would know that he had cooperated.”

Detective Green testified that petitioner denied committing the crime, but stated that another individual (Humble) had borrowed petitioner’s gun the night of the robbery.

Detective Green next testified that on Februry 7, 1976, he arrested Humble and confronted petitioner with the presence of Humble at the police station. He testified that after the confrontation with Humble, petitioner recanted and in the presence of himself and Sergeant Combs admitted committing the “Market Basket robbery”. Detective Green testified that during the last interview on February 7, 1976, and prior to petitioner’s confession that he again stated that petitioner would be charged with the Market Basket robbery. He also testified that prior to the confession he advised both petitioner and Humble of their constitutional rights and that petitioner signed the waiver of rights form after he (Detective Green) had so advised him of his rights.

The issue of whether a defendant waived his Miranda rights “is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived his rights delineated from the Miranda case.” North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Gorham v. Franzen, 760 F.2d 786, 794 (7th Cir.1985). The fact of a knowing and voluntary waiver is to be determined from a review of the totality of the circumstances. Id., at 794. The burden rests with the prosecution to show waiver by a preponderance of the evidence, cf. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972) (the government must prove by a preponderance of the evidence that a confession was voluntary), although the courts must presume that the defendant did not waive his rights. Gorham v. Franzen, supra.

In this case, during the suppression hearing petitioner testified that during one interview he had been given his rights and that he fully understood those rights and that he waived those rights to “clean-up” several other robberies he had committed. Detective Green testified that he advised petitioner of his rights again on February 7, 1976, the date in question, and that petitioner stated that he understood his rights. The detective also testified that he believed petitioner understood his rights. The record reveals a waiver of rights form signed by both Detective Green and petitioner and it is dated February 7, 1976. Petitioner then confessed to committing the “Market Basket robbery.”

This court finds that there is sufficient evidence in the record to find that petitioner knowingly and voluntarily waived his rights.

Petitioner’s argument that he was “tricked” into confessing to the “Market Basket robbery” must also fail. His only evidence that he was promised that he would not be charged for the “Market Basket robbery” is his own testimony. The State’s witness testified that he was not promised that he (petitioner) would not be charged with the crime but rather that the prosecutor’s staff would be told that he (petitioner) cooperated. The State’s witness had testified that petitioner was promised he would not be charged with crimes of armed robbery in a “clean-up” statement, but that the promise was not made as to the “Market Basket robbery” because that robbery involved inflicting an injury which carried a life sentence, or a ten to twenty-five year sentence. Conflicts of evidence are questions for the trier of fact. Fleener v. Duckworth, 559 F.Supp. 1322, 1326 (N.D.Ind.1983). Petitioner’s argument that he was “tricked” or induced to confess through promises of leniency, particularly that he would not be charged with the “Market Basket robbery”, is not supported by the record. Petitioner’s reliance on McLallen v. Wyrick, 498 F.Supp. 137 (W.D.Mo.1980) is misplaced as the facts in that case are significantly different from the facts in the case presently before the court. In the McLallen case the disrict court found that the prosecutor had made statements to the defendant which induced the defendant to confess. Here, the detective told petitioner that he would let the prosecutor’s staff know that petitioner had cooperated.

Upon a careful review of the record and consideration of the totality of the circumstances, it must therefore be concluded that petitioner’s confession was voluntary and its admission' into evidence did not violate any of petitioner’s constitutional rights.

Petitioner alleges in his statement of facts that his confession was obtained when his counsel was not present. He later made a bald assertion in his Traverse, that if they (police) would have qualified their intentions, this defendant would not have waived his right to an attorney at the time of questioning. There is nothing in this record which indicates that petitioner requested his attorney during any of his “clean-up” statements or that he requested his attorney at the time he confessed to the “Market Basket robbery.” The facts in this case are distinguishable from those in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Edwards v. Arizona is not applicable to this case. Fleener v. Duckworth, supra. Also see, White v. Finkbeiner, 753 F.2d 540 (7th Cir.1985) for a discussion of the retroactive application of Edwards.

IV.

Petitioner has requested the appointment of counsel. Petitioner has prosecuted this action with the help of a very capable and experienced lay legal assistant and has presented his issues clearly and intelligently-

There is no constitutinal right to appointed counsel in a civil case. Thomas v. Pate, 493 F.2d 151 (7th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974). Rather, the decision whether to appoint counsel in a case rests within the sound discretion of the court. McBride v. Soos, 594 F.2d 610 (7th Cir. 1979). When considering motions for appointed counsel, this court is guided by the standards set forth in Maclin v. Freake, 650 F.2d 885 (7th Cir. 1981). These standards include, but are not necessarily limited to, such considerations as the legal and factual merits of the claim presented, the degree of complexity of the issues involved, and the movant’s apparent physical and intellectual abilities to prosecute the action. See also Merritt v. Faulkner, 697 F.2d 761 (7th Cir.1983); McKeever v. Israel, 689 F.2d 1315 (7th Cir.1982). This court is also mindful of a point not often made in these matters, and that is that the operative word in 28 U.S.C. § 1915(d) is “request”, not “appoint”, i.e., “[t]he Court may request an attorney to represent any such person unable to employ counsel.” See David Ashley Bagwell, “Procedural Aspects of Prisoner § 1983 and § 2254 Cases in the Fifth and Eleventh Circuits,” 95 F.R.D. 435, 443 (1982). See also, Wolfolk v. Rivera, 729 F.2d 1114 (7th Cir.1984); Williams v. Duckworth, 598 F.Supp. 9 (N.D.Ind.1983), affd, 749 F.2d 34 (7th Cir. 1984).

After reviewing the motion and the record before this court, this court finds that the legal and factual merits, and degree of complexity does not warrant the appointment of counsel. Further plaintiff has not shown any apparent physicial or intellectual impairments which would hamper his prosecution of this case or his investigation of this case. This court also notes with approval the generally good quality of plaintiffs pleadings, and the obvious care with which he has framed and argued the legal issues and interrogatories propounded.

CONCLUSION

Accordingly, it is the order of this court for the foregoing reason that respondents’ motion to dismiss be and is hereby GRANTED; writ is hereby DENIED; petition DISMISSED. SO ORDERED.

      . The clean-up statement was in regard to other armed robberies which petitioner had committed and did not relate to the crime for which he was currently being held on.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Plaintiffs lay advocate is Joseph M. Kalady, a fellow inmate at the Indiana State Prison. It is the understanding of this court that Mr. Kalady holds a Master's degree in philosophy from DePaul University, and worked for two Chicago Loop law firms prior to his incarceration. He has appeared before this court on numerous occasions in his capacity as lay advocate, and has consistently demonstrated a thorough understanding of the law of prisoner petitions in federal courts.


author: PEREZ-GIMENEZ, Chief Judge.

text:
    In re GRAND JURY SUBPOENA.
    Misc. No. 85-147(PG).
    United States District Court, D. Puerto Rico.
    Jan. 17, 1986.

      Judith Berkan, Hato Rey, Puerto Rico, for movant.
    Roberto Moreno, Asst. U.S. Atty., Hato Rey, Puerto Rico, for the United States.
   OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

This matter is before this Court on Hilton Fernández Diamante's motion to intervene and to quash a grand jury subpoena and a motion for injunctive relief.

Hilton Fernández Diamante (hereinafter movant) was arrested on August 30, 1985, along with several other defendants in the case of United States v. Gerena, et al., Cr. Case No. 85-50 (TEC), in the District of Connecticut, pursuant to an indictment returned by a grand jury in the District of Connecticut, on August 26, 1985. In the case of United States v. Gerena, et al., Mr. Fernández Diamante is charged, along with others, of participating in a conspiracy to rob a Wells Fargo truck in West Hartford, Connecticut. The indictment further alleges that Mr. Fernández Diamante is a member of the Macheteros, a pro-independence clandestine organization, which is alleged to have claimed responsibility for the robbery. The indictment further alleges that Mr. Fernández Diamante and others caused the movement of money and/or persons to Mexico and to Cuba in connection with the aforementioned conspiracy. On November 18, 1985, a subpoena was issued to Viajes Antillas, a travel agency located in Rio Piedras, Puerto Rico, ordering the delivery to a grand jury of “any and all records pertaining to Hilton Fernández Diamante. This subpoena was accompanied by a letter signed by Assistant United States Attorney Roberto Moreno, of the Special Prosecutions Unit. The letter stated in part as follows:

You are not to disclose the existence of this subpoena or the fact of your compliance for a period of 90 days from the date of the subpoena. Any such disclosure could seriously impede the investigation being conducted and, thereby, interfere with the enforcement of the federal criminal law.

On December 3, 1985, the movant filed a motion to intervene and to quash the grand jury subpoena and motion for injunctive relief. The latter motion requests this Court to issue an order requiring the office of the United States Attorney to refrain from using the referred letter, to remove any obligation of secrecy with respect to the grand jury witnesses, and to prohibit the alleged misconduct on the part of the United States Attorney. In support thereof, the movant filed amemorandum where he argues that the language used in the above letter is unauthorized, amounts to prosecutorial interference with the rights of the recipients and obstructs the performanee of an adequate defense. The motion to quash is based on several grounds:

(1) Improper use of the grand jury investigation to obtain information and leads with respect to a pending criminal case in which Mr. Fernández Diamante is charged;
(2) Pattern of prosecutorial misconduct in the course of the investigation resulting in an intimidation of witnesses and an interference with the defense of the pending criminal case;
(3) Impingement of the right to travel and free speech and freedom of press rights;
(4) Facial overbreadth.

Memorandum in Support of Motion to Intervene and to Quash Grand Jury Subpoena, p. 1.

On December 16, 1985, the Government filed its opposition to movant’s motion for injunctive relief. The Government argues that the injunction is not issuable because the movant has another adequate remedy at law, the movant lacks standing to request the relief prayed for and the letter accompanying the subpoena is proper. On December 17, 1985, the Government filed its motion in opposition to the motion to intervene and to quash the grand jury subpoena. The Government argues the following: 1) petitioner lacks standing to intervene and quash the grand jury subpoena; 2) the grand jury subpoena was issued under proper authority; and 3) Viajes Antillas is a proper party with standing and willing to comply with the subpoena. On December 27, 1985, the movant filed his reply.

On December 27, 1985, the movant also filed a motion for protective order (I) and memorandum in support thereof asking this Court to prohibit the Government from providing the information obtained from Viajes Antillas to any prosecuting authorities participating in the case of United States v. Gerena, et al. That same day, movant also filed a motion for protective order (II) and memorandum in support thereof, requesting the Court to order the Government to communicate with every person who received the letter and explain to them that he or she has no obligation of secrecy under the federal law.

On December 30, 1985, Elias Castro Ramos also filed a motion to intervene and to quash the grand jury subpoena. He adopted the arguments raised by movant Hilton Fernández Diamante. Elias Castro Ramos is a co-defendant in the case of United States v. Gerena, et al.

This Court held a hearing on January 3, 1986, on Fernández Diamante’s motion to intervene and to quash the grand jury subpoena and his motion for injunctive relief.

This Court is of the opinion that both the subpoena and the language of the letter were proper under law. We explain.

It is a well established rule that “calling a grand jury investigation for the sole or dominating reason of gathering information to be used in the trial of a pending indictment is an abuse.” In re Maury Santiago, 533 F.2d 727 (1st Cir.1976). It is also well established that “once a defendant has been indicted, a prosecutor may not use the grand jury’s investigative powers for the purpose of securing additional evidence against the defendant for use in the upcoming trial.” In Re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1041 (3rd Cir.1980); see, United States v. Woods, 544 F.2d 242, 249 (6th Cir.1976); United States v. Fisher, 455 F.2d 1101, 1104-05 (2nd Cir.1972); United States v. Star, 470 F.2d 1214, 1217 (9th Cir.1972). However, “a good faith inquiry into other charges within the scope of the grand jury’s lawful authority is not prohibited even if it uncovers further evidence against an indicted person.” (emphasis ours) In Re Grand Jury Proceedings (Johanson), 632 F.2d at 1041; see, United States v. (Under Seal), 714 F.2d 347, 350 (4th Cir. 1983); United States v. Gibbons, 607 F.2d 1320, 1328 (10th Cir.1979); United States v. Beasley, 550 F.2d 261 (5th Cir.1977); United States v. Sellaro, 514 F.2d 114, 122 (8th Cir.1973). As stated in United States v. Doe, 455 F.2d 1270, 1273 (1st Cir.1972), citing Professor Moore, “It is improper to use the grand jury for the purpose of preparing an already pending indictment for trial. But the courts have generally held that where another purpose is predominant the fact that the government may derive incidental benefit from a grand jury proceeding does not preclude its use.”

In his motion to quash the subpoena, the movant argues that the real purpose of the grand jury subpoena directed at Viajes Antillas is to prepare the government’s case in Hartford. In support of this, the movant relies on the fact that 1) Assistant U.S. Attorney Moreno participated in the Hartford case; 2) the question of international travel is extensively wooven into the Hartford indictment and the bail hearings, and 3) the possibility that the Government’s investigation is incomplete. As part of its response, the Government filed a sealed affidavit affirming that the grand jury investigation seeks the documents in aid of another investigation. After reading this affidavit this Court finds no evidence of an improper purpose and rejects the need for imaging one. The grand jury seeks the documents in connection with another investigation involving other charges of crimes allegedly committed in this district. This is entirely a proper purpose. See, In Re Grand Jury Proceedings (Johanson), supra. The fact that the Government may derive incidental benefits from a grand jury proceeding does not preclude its use in another trial. United States v. Doe, supra.

Because the grand jury seeks the documents in connection with another investigation involving other charges of crimes allegedly committed in this district, we conclude that Hilton Fernández Diamante’s indictment and Elias Castro Ramos’s indictment are not a bar to enforcement of the subpoena. If an unlawful purpose in seeking enforcement of the subpoena is shown, this Court will not hesitate to fashion an appropriate remedy. However, when the predominant and only purpose is to investigate other charges, the issuance of the indictment against Fernández Diamante and Castro Ramos does not prevent the enforcement of the subpoena issued to Viajes Antillas.

With regard to the letter, no obligation of secrecy may be imposed upon grand jury witnesses under F.R.Cr.P. 6(e). In re Vescovo Special Grand Jury, 473 F.Supp. 1335 (C.D.Cal.1979). However, the Government’s letter requesting that the subpoena not be disclosed was appropriate. The court, in In re Vescovo Special Grand Jury, Id., considered a similar letter served upon a bank which the court summarized as follows:

that the custodian of the records was not to disclose for ninety days the existence of the request for the records in question, because such disclosure would impede the grand jury’s enforcement of the law.

In denying the motion to quash the subpoena duces tecum the court stated:

The government’s letter requesting that the subpoena not be disclosed to the deposition may, however, be interpreted as an informal request that the bank exercise any discretion it may have not to disclose the subpoena. As such, the letter does not require the bank to do or not to do anything. It merely informs the bank that the government believes its investigation would be hindered by disclosure of the subpoena.

In re Vescovo, 473 F.Supp. at 1336-1337.

Accordingly, in the present case we find no impropriety in the use of the letter. The letter does not tell Viajes Antillas to do nor not to do anything. It merely informs Viajes Antillas that the Government believes its investigation will be hindered by disclosure of the subpoena.

Having decided that the indictment in Connecticut is not a bar to the enforcement of the subpoena and that the letter accompanying the subpoena was proper, we find unmeritorious movant’s arguments that the grand jury subpoena and the letter were part of a pattern of prosecutorial misconduct resulting in the interference of the pending criminal case. First, we found that the purpose of the subpoena in this case is to investigate other charges and not to harass and intimidate potential witnesses and supporters of defendants. Second, we found that the letter could be interpreted as an informal request to recipients not to disclose the subpoena.

Movant also argues that the subpoena is overbroad. We agree. The subpoena requires Viajes Antillas to produce for the grand jury “any and all records pertaining to Hilton Fernández Diamante.” As stated by movant, this subpoena is not limited in any way other than by Mr. Fernández Diamante’s identity. It is not limited in time or place and is broad enough to encompass travel by Mr. Fernández Diamante’s friends, attorneys and witnesses.

Such a broad subpoena is unacceptable. The Fourth Amendment places limits on the breadth of a subpoena which requires the production of documents. Such subpoena must not be excessive for the purposes of the relevant inquiry. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946). Therefore, we limit the scope of the subpoena solely to the records pertaining to Hilton Fernández Diamante’s travels, such as copies of the tickets and other supporting documents and not the documents involving Mr. Fernández Diamante’s friends, relatives, attorneys or witnesses.

Furthermore, having decided that the letter can be interpreted as an informal request to its recipient not to disclose the subpoena, we find unnecessary to order the Government to communicate with the possible recipients of this letter and explain to them that he or she has no obligation of secrecy under federal law. Therefore, movant’s motion for protective order (II) is denied.

We also refuse to prohibit the Government from providing the information obtained from Viajes Antillas to any prosecuting authorities participating in the case of United States v. Gerena. The purpose of the grand jury proceedings in the present case is to investigate other charges, and the Government could therefore use these incidental benefits at the pending trial in Connecticut.

WHEREFORE, in light of all the applicable law and jurisprudence the following motions are hereby DENIED:

1) Movant’s motion to quash the subpoena;

2) Movant’s motion for injunctive relief;

3) Movant’s motions for protective order (I) and (II).

However, it is ORDERED that the subpoena be circumscribed as set forth in the Opinion.

The Stay granted on December 4, 1985, is hereby SET ASIDE.

      . Other motions have also been filed. They will also be resolved in this Opinion.

      . As an adequate remedy at law the Government argues that movant could establish that he did not commit the act charged, or that the statute or ordinance on which the prosecution is based is invalid, or by taking an appeal.

      . The Government argues that movant has no standing because 1) the subpoena was directed at a totally different person; 2) movant is not the party in interest; and 3) no privilege exists between movant and Viajes Antillas.

      . Having decided that both the subpoena and the language of the referred letter were proper under the law, we find it unnecessary to pass upon the standing issue.

      . According to movant, the conspiracy alleged in United States v. Gerena, et at, includes the movement of both a person and considerable amounts of money to Mexico and to Cuba and that the Government based almost its entire case for the denial of bail on those alleged travels. However, according to defendant, the only evidence presented in Hartford was one trip to Panamá earlier this year.

      . According to In re Pantojas, 628 F.2d 701, 704 (1st Cir.1980), the government is under no obligation to submit this sealed affidavit. However, in order to prevent the disclosure of its criminal investigation and to demonstrate the minimal relationship of the documents to such investigation the government submitted the affidavit to this Court. See, In re Grand Jury Supboenas Duces Tecum, 391 F.Supp. 991 (D.R.I.1975).

      . Rule 6(e) of the F.R.Cr.P. provides in pertinent part:
      A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided in these rules. No obligation of secrecy máy be imposed on any person except in accordance with this rule. A known violation of Rule 6 may be punished as a contempt of court.
      The advisory committee note to subdivision (e) states:
      The rule does not impose any obligation of secrecy on witnesses. The existing practice on this point varies among the districts. The seal of secrecy on witnesses seems an unnecessary hardship and may lead to injustice if the witness is not permitted to make a disclosure to counsel or to an associate.


author: DIMMICK, District Judge.

text:
    D.G. RUNG INDUSTRIES, INC., a Washington corporation, and Darrell G. Rung, Plaintiffs, v. Ed TINNERMAN and Jane Doe Tinnerman, husband and wife, and their marital community, d/b/a Service Equipment Company, Defendants.
    No. C85-881D.
    United States District Court, W.D. Washington.
    Jan. 17, 1986.
    Bruce M. Brooks, Garvey, Schubert, Adams & Barer, Seattle, Wash., for plaintiffs.
    Bruce Kaser, Seattle, Wash., for defendants.
   MEMORANDUM AND ORDER

DIMMICK, District Judge.

Defendant Ed Tinnerman has moved for dismissal of patent infringement and related state claims brought by D.G. Rung Industries, Inc. and Darrell G. Rung (“Rung”). The Court heard oral argument and has considered the memoranda, affidavits and exhibits filed by counsel. The Court concludes that plaintiff’s claim of infringement is not properly before the Court, and therefore dismisses plaintiffs’ cause of action.

Rung' brings this action under 35 U.S.C. § 271 for patent infringement. In addition, Rung asserts a number of state claims: breach of employee’s duty not to divulge confidential materials; violation of RCW 19.108 (protecting trade secrets); violation of RCW 19.86 (engaging in unfair competition); tortious interference with business interests; and conversion. Rung seeks damages and injunctive relief.

This case was first before this Court on May 22, 1985, on Rung’s motion for a temporary restraining order. The Court on that date enjoined Tinnerman from among other things manufacturing any equipment which infringed Rung’s patents, utilizing any lists or blueprints taken from Rung’s files, or revealing any trade secrets acquired while an employee of Rung. Rung and Tinnerman stipulated and agreed to an order for preliminary injunction issued June 20, 1985.

In general, the facts of significance to the patent claim are undisputed; only Tinnerman’s intent is at issue. Tinnerman was employed by Rung for 7 years. Rung manufactured and repaired machinery, including vulcanizers and belt splitters to which Rung held the patents: United States Patent No. 3969051 for the belt vulcanizer, No. 38303959 for the belt splitter. Shortly after leaving Rung in February 1985, Tinnerman started his own business. He mailed a flyer to Rung’s current customers and suppliers, soliciting business for “MACHINERY REPAIR AND REBUILDING”, “STEEL, ALUMINUM, STAINLESS STEEL FABRICATING”, and “PROTO TYPE MACHINERY AND EQUIPMENT BUILT TO YOUR SPECIFICATIONS.” Tinnerman admits that four of the five pieces of machinery illustrated on the flyer are covered by Rung’s patents. Tinnerman was not licensed to manufacture, sell or reconstruct any of the pieces of patented machinery.

Rung does not contend that Tinnerman has infringed the patents by actually constructing and selling machinery. Rather, Rung contends that Tinnerman has infringed by manifesting an intent to construct patented machinery as indicated by the mailed solicitations. Further, Rung points to Tinnerman’s admitted knowledge of the machines and his ability to duplicate them. In response, Tinnerman does not contest Rung’s patent rights, but argues that his contemplated activities will not infringe them. It is undisputed that some repair work and rebuilding could be done on Rung’s patented devices without infringing on the patents.

The issue then can be framed as follows: Does an allegation of intent to infringe a patent coupled with the ability to infringe state a cause of action under 35 U.S.C. § 271, when there has been no allegation of actual production or sale of an infringing device?

Tinnerman moves for dismissal alternatively under Fed.R.Civ.P. 12(h)(1), 12(b)(6) and 12(c). Dismissal is premised on this Court’s determination that it lacks subject matter jurisdiction. Whether defendant’s motion is considered as falling under Rule 12(b)(1), 12(b)(6) or 12(c) (motion for summary judgment), the Court must consider plaintiff’s factual allegations in the most favorable light. Thus, even if plaintiff could prove intent and immediate capability to infringe, plaintiff does not state a case for patent infringement under 35 U.S.C. § 271, the pertinent part of which reads as follows:

(a) Except as otherwise provided in this title, whoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefore, infringes the patent.

(Emphasis added.)

The language of the statute indicates that there can be no patent infringement where there has been no making, using or selling of an invention. Plaintiff, relies on patent law cases in which courts have issued declaratory judgments, although he does not seek a declaratory ruling. He cites language in Welch v. Grindle, 251 F.2d 671 (9th Cir.1957):

The courts have repeatedly held that actual manufacture, use or sale is not essential and that it is sufficient that the party charged is about to infringe or take some action which is prejudicial to the interests of the patentee.

Id. at 678 (citations omitted). Grindle’s facts, however, distinguish it from the present case. There, plaintiff did not seek relief under section 271, but sought a declaratory judgment that he was the originator of the patent in dispute. He asserted that he was prepared to begin manufacturing and had been threatened by defendant with a patent infringement lawsuit. Thus, the Ninth Circuit upheld the justiciability of the controversy — plaintiff was prejudiced by threatened legal action. The plaintiffs apprehension that he would face a patent infringement lawsuit is thus the “actual controversy” necessary to a declaratory judgment. See also Societe de Conditionnment v. Engineering Co., Inc., 655 F.2d 938, 939 (9th Cir.1981); Super Products Corp. v. DP Way Corp., 546 F.2d 748 (7th Cir.1976).

There is an obvious distinction between the alleged injury of a party threatened with a lawsuit for infringement and the alleged injury of a patent holder. In the typical patent case brought under the Declaratory Judgment Act, 28 U.S.C. § 2201, the plaintiff asserts his intent and ability to produce a product, which defendant contends is a patent infringement. Courts find a justiciable controversy because to do otherwise would leave plaintiff no option but to produce the products and be sued for infringement. The patent holder on the other hand is injured only if actual infringement occurs. His remedy is provided in section 271. This distinction is clear in Pullman, Inc. v. W.R. Grace & Co., 437 F.Supp. 1062 (W.D.Okla.1976). In Grace, plaintiff was the patent holder who sought a declaratory judgment that the process intended for use in defendant’s ammonia plant would infringe its patent. The court held that the controversy was not ripe for adjudication since the plant was not in operation. See also A B Volvo v. EatonKenway, Inc., 582 F.Supp. 579 (N.D.Ohio 1984); Ecodyne Corp. v. Croll-Reynolds Engineering Co., 491 F.Supp. 194 (D.Conn. 1979) (denying a patent holder’s request for a declaratory ruling and its section 271 claim because the device in question was not completed and ready for sale).

Similarly, the distinction between the real injury suffered by an alleged infringer and the anticipatory injury to a patent holder was recognized by the Ninth Circuit in another declaratory judgment case. Swed-low v. Rohm & Haas Co., 455 F.2d 884 (9th Cir.1972).

The conventional role of the Declaratory Judgment Act, 28 U.S.C. § 2201, in the patent field is to protect the alleged infringer from threats by a patent owner who is reluctant to subject its patent to adjudication by suing for infringement. The patent owner has a corollary remedy available, since he may protect his rights by a conventional patent infringement suit.

Id. at 885. In Swedlow, the patent holder contended that defendant’s building of a plant threatened to infringe his patents on a device and process for manufacturing plastic sheets. The court observed that alleged threats of future infringement were “too remote and unduly speculative” where defendant’s plant was only partially completed. Id. at 886.

Plaintiff, however, contends that language in Swedlow supports his claim:

[I]n every cited case in which an action for a declaratory judgment was permitted, an existing controversy had been manifested by specific acts of alleged infringement or an immediate capability and intent to produce an allegedly infringing item.

Id. at 886 (citations omitted). Rung insists that Tinnerman’s flyer indicates an “intent to produce,” and affidavits evidence “an immediate capability” to infringe. This Court, however, reads the language quoted from Swedlow differently. In the context of a declaratory judgment, where plaintiff is generally the party threatened with action for infringement, it is he who expresses the intent and capability of production which generates a genuine controversy. See, e.g., Welch v. Grindle, supra.

Plaintiff also relies on a Ninth Circuit case involving alleged infringement, not an action for declaratory judgment. Anraku v. General Elec. Co., 80 F.2d 958 (9th Cir.1935), cert. denied, 298 U.S. 678, 56 S.Ct. 942, 80 L.Ed. 1399 (1936). In Anraku, defendant had produced samples of an infringing lamp for purposes of “showing them to trade,” but had not sold them. The court held that there was sufficient evidence' to justify an injunction against future sales. Again, Anraku is distinguishable from this case in that the court there had actual lamps to compare for patent infringement purposes.

In the case before this Court, there simply is no federal controversy ripe for adjudication.

Ripeness doctrine is invoked to determine whether a dispute has yet matured to a point that warrants decision. The determination is rested both on Article III concepts and on discretionary reasons of policy. The central concern is whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.

13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3532, at 112 (1984) (footnote omitted).

There is no patent infringement under 35 U.S.C. § 271 when plaintiff alleges only intent and capability. As patent holder, Rung does not allege an injury which would justify a declaratory judgment. His remedy lies in an action under section 271 only if Tinnerman infringes patents by producing and selling machinery.

Whether this Court characterizes plaintiff’s federal question as either unripe or simply not within the contemplated coverage of the statute, jurisdiction does not lie. With dismissal of the federal question, dismissal of pendent state claims is also proper. See Gibbs v. United Mine Workers, 383 U.S. 715, 86 S.Ct: 1130, 16 L.Ed.2d 218 (1966).

Tinnerman also seeks imposition of sanctions against Rung and an award of attorney’s fees and costs pursuant to Rule 11 of the Federal Rules of Civil Procedure. He alleges bad faith on the part of Rung in filing a suit which is without merit. In support, Tinnerman cites Chemical Engineering Corp. v. Mario, Inc., 754 F.2d 331 (Féd.Cir.1984). In Mario, the court concluded that plaintiff had acted in bad faith by offering no factual support for its complaint. This Court, however, does not find similar bad faith on the part of Rung.

THEREFORE, plaintiffs’ entire cause of action is DISMISSED. Defendant’s request for sanctions and award of attorney’s fees is DENIED.

      . Plaintiff objects to defendant's filing of a memorandum in excess of the 24-page limitation imposed by Local Rule 7(c). Defendant’s arguments against federal subject matter jurisdiction, however, were within the limitation, and it was not necessary for the Court to consider arguments against the state claims.

      . Rung contends that an independent basis for jurisdiction exists under 28 U.S.C. § 1338(b):
      The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, plant variety protection or trademark laws. This Court concludes, however, that without the section 271 claim there is no “substantial and related claim." The state claims do not provide a basis for asserting section 1338(b) jurisdiction.