author: TURRENTINE, Senior District Judge.

text:
    Darlene TEMPLETON and Superior Court of the State of California, County of Imperial Juvenile Court, Plaintiffs, v. Ronald WITHAM and Vicki Witham, Jointly and severally, Defendants.
    Civ. No. 84-1099-T(M).
    United States District Court, S.D. California.
    Oct. 5, 1984.

      John F. Weis, Cardenas & Fifield, El Centro, Cal., for plaintiff Darlene Temple-ton.
    Thomas M. Fries, County Counsel, Steven M. Basha, Asst. County Counsel, El Centro, Cal., for plaintiff Imperial County Juvenile Court.
    J.P. Harris, II, Salem, Or., George E. Fleming, Mclnnis, Fitzgerald, Rees, Sharkey & McIntyre, San Diego, Cal., for defendants.
   DECLARATORY JUDGMENT

TURRENTINE, Senior District Judge.

Plaintiffs Darlene Templeton and the Imperial County Juvenile Court (“the California court”) brought this action under 28 U.S.C. § 1738A, which is part of the Parental Kidnapping Prevention Act of 1980 (“PKPA”), P.L. 96-611, 94 Stat. 3569, for a declaratory judgment that the California court has jurisdiction to decide the placement of a minor, Debra Kay Templeton, the natural daughter of the plaintiff.

Debra was born in Imperial County on August 23, 1979. Because of the state of her mental health, Darlene felt herself unable to care for the infant, and went to the Imperial County Probation Department. She asked them to take care of the child, and suggested that little Debra be placed with her sister-in-law, Vicki Witham, the defendant, who resides with her husband in Salem, Oregon.

A petition to have Debra declared a dependent child of the state was filed in the California court on October 2, 1979, and a proceeding commenced the following day. The court placed Debra in the custody of Vicki Witham pending the outcome of the proceeding, and the infant went to Oregon with her aunt. After several continuances, Debra was declared a dependent child of the state and placed in the custody of the Withams.

On March 17, 1982, the California court ordered Vicki Witham to return the child to Imperial County, where she was to be placed in a foster home and eventually reunited with her mother. The Withams refused to comply with the order and on September 7,1982, filed a petition for adoption in the Circuit Court of Oregon, Marion County Juvenile Department (“the Oregon court”). On October 6, 1982, the Withams moved the Oregon court to take jurisdiction over Debra and her placement.

The Withams also contested the jurisdiction of the California court, but their motion to dismiss was denied by the Imperial County Juvenile Court on February 25, 1983. Plaintiffs here moved to have the Oregon court dismiss the Witham’s petition. The California court issued a bench warrant for Debra’s arrest on March 8, 1983. On April 13, the Oregon court signed an order abating that warrant and directing Oregon authorities to disregard it. On July 26, the Oregon court declared that jurisdiction over Debra lay with it, and that California’s jurisdiction had lapsed because of its failure to comply with pertinent state laws. On September 7, 1983, the Oregon court incorporated its opinion of July 26 in an order denying Darlene Templeton’s motion to dismiss the Wit-ham’s petitions and reasserted its jurisdiction to decide the placement of Debra.

Since the state courts had maneuvered themselves into a state of jurisdictional gridlock, the plaintiffs brought this federal action for a declaration as to which state court has jurisdiction pursuant to 28 U.S.C. § 1738A. The parties have stipulated to a stay of state court proceedings pending the outcome of this case.

Section 1738A is an addition to the Full Faith and Credit Statute, 28 U.S.C. § 1738, added in 1980 as part of the PKPA to specifically address the problem of interstate child custody battles. This court has jurisdiction under that law to determine whether Oregon or California has power over the custody of Debra Kay Templeton. 28 U.S.C. § 1331; See Flood v. Braaten, 727 F.2d 303, 311-13 (3d Cir.1984). Resolution of this issue requires consideration of three subsidiary questions. First, did California initially have jurisdiction to decide the placement of Debra? Second, did such jurisdiction continue until the date California ordered the return of the child in March of 1982? Third, if California does not have jurisdiction over Debra, does Oregon? We will address these questions in turn.

I. CALIFORNIA’S INITIAL JURISDICTION.

Unlike the principal state legislation on the subject, the Uniform Child Custody Jurisdiction Act (“UCCJA”), Cal.Civ.Code § 5150 et seq., the PKPA does not allow more than one state to exercise jurisdiction over the placement of a child at any given time. See Flood v. Braaten, supra, 727 F.2d at 311-12. Section 1738A(c) of Title 28 provides that a state court has jurisdiction to decide the placement of a child if: (1) such court has jurisdiction under that state’s own laws; and (2) another of a specified list of conditions is met, for example that the state be the home state of the child on the date the proceeding commences. 28 U.S.C. § 1738A(c)(1) & (c)(2)(A)(i).

Thus the PKPA does not present a case of clear-cut federal preemption, since it expressly incorporates state law. In deciding whether California has exercised jurisdiction over Debra Kay Templeton we are initially referred back to the state’s own laws, specifically its version of the UCCJA and Cal.Welfare & Institutions Code § 300 et seq.

Section 5152(1)(a)(i) of the Cal.Civil Code requires that California be the home state of the child at the time the proceeding commences, and § 5151(5) defines the “home state” of a new-born infant as the state in which the child lived from birth with those acting as her parents. Debra was born in Imperial County on August 23, 1979 and lived there with her mother, plaintiff Darlene Templeton, until the California court began its consideration of her case in October of that year and handed the child over to her parental aunt, Vicki Witham. On October 2, 1979, the Imperial County authorities filed a petition to have Debra declared a dependent child of the state pursuant to Cal.Welf. & Inst.Code § 300(a). Defendants concede that the California court had jurisdiction on that date to decide the placement of Debra. Defendants’ Brief at 5.

However, defendants argue that this jurisdiction had lapsed by April 25, 1980, the date on which the California court concluded the dependency proceeding and formally declared Debra a dependent child of the state. In support of this contention, defendants point out that as of April 3, 1980, Debra had lived in Oregon with the Withams for six months, and that under the law Oregon was her new “home state.” This argument ignores the plain language of the statute. The UCCJA requires that California be the home state of the child on the date the proceeding commences, not the date the court renders a decision. Cal. Civ.Code § 5152(1)(a)(i). As The Supreme Court of California has written of this provision:

“Exclusive continuing jurisdiction is not affected by the child’s residence in another state of six months or more. Although the new state becomes the child’s home state, significant connection jurisdiction continues in the state of the prior decree where the court record and other evidence exists and where one parent or another contestant continues to reside. Only when the child and all parties have moved away is deference to another state’s continuing jurisdiction no longer required.”

Kumar v. Superior Court, 32 Cal.3d 689, 696, 186 Cal.Rptr. 772, 652 P.2d 1003 (1982) (emphasis in original; citation omitted). (The Kumar court did not address the additional requirements for interstate placements set out in Cal.Civ.Code § 265, discussed below.)

Defendants concede that the California court had jurisdiction when it began hearing Debra’s case in October of 1979. The fact that the proceeding was continued a number of times and that a formal declaration of dependency was not issued until April 25, 1980 is irrelevant.

The second requirement of the PKPA has also been met, since it is merely that California be the “home state” of the minor “on the date of the commencement of the proceeding,” 28 U.S.C. § 1738A(c)(2)(A)(i), and the federal law, conveniently, defines that term in the same manner as California’s UCCJA. 28 U.S.C. § 1738A(b)(4). It is beyond cavil that California initially had jurisdiction to determine the custody of Debra Kay Templeton.

II. CALIFORNIA’S CONTINUING JURISDICTION.

The next question is whether California took the necessary steps to maintain its jurisdiction over Debra until the March 17, 1982 hearing at which the Imperial County Juvenile Court ordered that she be returned to California and placed in a foster home pending reunification with her mother. The PKPA states that California’s jurisdiction continues so long as (1) California remains the state of residence of any contestant for the child’s custody and (2) the California court retains jurisdiction pursuant to state law. 28 U.S.C. § 1738A(d).

The first requirement is easily met in this case, since Debra’s mother, Darlene, continues to reside in Imperial County.

The second requirement is not so easily satisfied, and it once again directs us back to consideration of a California law: the Interstate Compact on the Placement of Children (“ICPC” or “the Compact”), Cal. Civ.Code § 264 et seq. This statute, which is effective between California and any other state which has enacted the Compact, sets forth the circumstances under which California’s juvenile courts have the power to place children out of state.

The ICPC requires that no child may be sent to another state for foster care until California has furnished the appropriate public authorities in the receiving state with written notice of the planned placement and the reasons therefor. Cal.Civ. Code § 265 Art. III(b). The Compact further requires that no child be sent to a foreign state until California has received approval from the receiving state’s authorities in the form of a written notice that the placement does not appear to be contrary to the best interests of the child. Art. III(d).

In addition to these requirements, the Compact explicitly declares that no child be sent out of state “unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein.” Art. 111(a). To further underscore the seriousness and importance of this policy of prior notice, consultation and approval, Article IV of the Compact provides for penalties. Sending a child to another state in violation of the Compact not only constitutes a violation of the laws of both California and — in this case — Oregon, but it also imposes liability on the sending agency for any punishment or penalty either state’s law might impose. Furthermore, such an out-of-state placement which does not comply with the terms of the ICPC constitutes “full and sufficient grounds for the suspension or revocation of ... [the] legal authorization held by the sending agency which empowers or allows it to place or care for children.” Cal.Civ.Code § 265 (Art. IV).

The California court and the Imperial County Probation Department did not comply with the requirements of the ICPC. No notice was given to Oregon authorities that Debra was placed in the Witham home in Salem in October of 1979 nor was any notice sent when that placement was formally approved on April 25, 1980. In fact, California did not send the papers required by the Compact until almost two years after Debra arrived in Oregon. The request that Oregon approve placement of the child in the Witham home was not signed by Imperial County authorities until January 20, 1982. Exs. H, 33. That form was received by Oregon on February 22, 1982 and signed March 31, 1982. Exs. H, 33.

The Imperial County Probation Department and Juvenile Court only attempted tardy compliance with the Compact after being chastised on May 18, 1981 by the California state office of the ICPC. That office wrote to Imperial County authorities stating:

It appears that the Interstate Compact was circumvented when this placement was made. ICPC is a law in California and Oregon. Please bring this case into compliance immediately.

Ex. 21 (emphasis in original). The state office again criticized Imperial County authorities on January 28, 1982. Ex. 34.

The significance of the California court’s failure to comply with its own laws with respect to Debra’s placement in Oregon increases when one examines the chronology of events in 1982. On January 20, Imperial County finally initiated procedures under the ICPC. Exs. H, 33. On March 17, the California court ordered that Debra be returned to California and placed in a foster home. On March 22, Oregon mailed to Imperial County the report on Debra and her progress in the Witham’s care which the California authorities had requested. On March 31, Oregon formally approved the placement of Debra in Oregon with the Withams. The California court thus ordered that Debra be removed from Oregon and returned to California before it received the approval necessary to place Debra in Oregon in the first place!

During the period from when Debra was placed in Oregon in 1979 until her return was ordered in 1982, the California court operated in a vacuum. It had little if any knowledge about Debra or the Withams. In this period there was some correspondence between Oregon and California, but no information on the child or her foster parents was forthcoming because California had not complied with the ICPC. Imperial County was informed of its failure to follow the law as early as April 8, 1981. Ex. A to Defendants’ Reply Brief. When Mrs. Witham tried to contact the juvenile authorities in Salem about Debra, they had no choice but to refer her back to Imperial County since the latter had never complied with the Compact. Ex. I — 1, 2 (October 10, 1979); Ex. L-2 (May 22, 1981).

Imperial County’s own records reveal that when the decision to order Debra’s return was being considered in December of 1981, California had “had no contact with the child since Mrs. Witham took the child to live with her in Oregon,” had “no knowledge of Debra’s development and her relationship with others in the home,” and had “very little information on Mr. and Mrs. Witham and their own children.” Ex. 31. Prior to making the decision to order Debra’s return, the California authorities sought this information from Oregon. Oregon hastened to reply even before it had completed the paperwork for approving Debra’s placement in Oregon, and sent its report on the child on March 22, 1982. The California court declined to wait until this information was available, and ordered a change in Debra’s custody on March 17.

The ICPC does not expressly state that failure to follow its procedures for interstate placement will result in a loss of jurisdiction over the child, but this conclusion nonetheless follows for several reasons. First, the Compact makes it perfectly clear that the requirements of prior notice to the receiving state and approval therefrom are mandatory. Second, the statute declares that circumvention of those requirements constitutes a violation of both California and Oregon law, and is a sufficient reason to revoke the legal authority of the sending agency, in this case the Imperial County juvenile authorities.

Third, a conclusion that a failure to comply with the ICPC results in a failure of jurisdiction makes sense in light of the policies underlying the statute. The Compact allows a state to place children beyond its boundaries and continue to assert jurisdiction over them so long as the state cooperates in an orderly fashion with the foreign state. Its procedures are necessary to ensure that the receiving state assumes supervision of the child and those caring for her and that the sending state remains apprised of the child’s progress and condition so as to ensure that any decisions regarding the child operate in her best interests. In the case at hand, California’s failure to abide by the Compact eventually led to a decision by a court which had had no contact with or information about the child for two years to remove the girl from the only home and family she has ever known and place her with strangers in a foster home nearly a thousand miles away. Although the merits of any placement decision made in this case are not before this court for review, and although this court sits to decide an issue of jurisdiction, and not to determine the best interests of the child, the way in which the California court reached its decision to order Debra’s return provides both a good example of how a child should not be supervised and strong evidence that the Compact’s rules must be followed if the interests of dependent children are to be served.

Finally, the California Attorney General has reviewed the inconsistencies between Welf. & Instit.Code § 368 and Article III of the ICPC and concluded that the authority to make an out-of-state placement is conditioned on compliance by the California authorities with Article III of the Compact. 61 Op.Atty.Gen.Cal. 535, 543 (1978). If the California court fails to give the proper notice and to await receipt of the receiving state’s evaluation that the placement is not contrary to the child’s best interests, then the court has no authority to send the child to another state. Although the California court’s jurisdiction over Debra may not have evaporated the moment she crossed the state border on or about October 3, 1979, it certainly lapsed before the court tried to retrieve the child on March 17, 1982.

Plaintiffs argue that compliance with the ICPC is not necessary to retain jurisdiction over Debra, and claim that “only the home state requirement of the PKPA is necessary.” Plaintiffs’ Reply Brief at 12. A quick glance at the PKPA defeats this argument, for § 1738A(d) clearly states that a state court’s jurisdiction “continues as long as the requirement of subsection (c)(1) continues to be met,” and that provision requires that a state court “[have] jurisdiction under the law of such state.”

The plaintiffs go on essentially to admit that the ICPC’s requirements were not met. Plaintiffs’ Reply Brief at 13, 14, 15, 16. They argue that this does not matter, because Oregon waived any right to object and conceded that California had retained jurisdiction when it approved the placement of Debra in Oregon in March of 1982. The interesting part of this argument is that it overlooks the fact that Debra was sent to Oregon in October of 1979, and that approval of a placement was not given until more than two years later. The piece of paper by which Oregon is supposed to have waived the right to object to California’s circumvention of both California and Oregon law is a one-page standard form, bearing the name of the child, the parents, the Withams and the signatures of relevant authorities in each state. There is no indication on the form that the child had been in Oregon for more than two years. The form’s language is all in the future tense and does not contemplate that a sending agency would fail to fill out the form and mail it before sending the child. There is no language on the form or in the statute on which it is based which even remotely suggests that a receiving state waives its right to demand compliance with the Compact by courteously expediting the processing of a request for interstate placement which is several years late. In fact, there is nothing in the Compact which says that states are free to disregard its terms when it is convenient to do so. As previously discussed, the Compact’s requirements are mandatory.

Moreover, the California court did not rely on the March 31, 1982 approval of Debra’s placement in Oregon as any sort of waiver because it did not even wait to get the form. The California court ordered that Debra be removed from the Withams’ care and placed in an Imperial County foster home on March 17, before the Oregon authorities had provided the requested information on the child or approved the ICPC request. Oregon did not receive notice of that March 17 order until after it had sent its documents to California.

The failure of the Imperial County juvenile authorities to follow California’s own laws means that the requirement of 28 U.S.C. § 1738A(c)(1) has not been fulfilled, and under subsection (d) of that statute jurisdiction therefore lapses. Since California failed to exercise jurisdiction consistent with federal law, Oregon had no obligation under the PKPA to decline jurisdiction over Debra. § 1738A(g).

III. OREGON’S JURISDICTION.

Oregon may assert jurisdiction to decide the placement of the child and modify California’s custody decision if it has jurisdiction under its own and federal laws to make child custody decisions and if California has failed to properly maintain its jurisdiction. 1738A(f). This once again refers us back to subsection (c) of the PKPA.

The first step is again the determination whether Oregon has jurisdiction under its own laws to decide the matter. This need not detain us long, for Oregon’s prerequisites to jurisdiction parallel those of California and the PKPA. Moreover, plaintiffs have not contested the assertion of jurisdiction of Oregon except insofar as it is barred by California’s jurisdiction over the child, and we have already dealt with that matter. The Court finds that the Circuit Court of Oregon, Marion County Juvenile Department, has jurisdiction under Oregon Revised Statutes § 109.730 et seq.

We now turn to whether Oregon has fulfilled the federal requirements for asserting jurisdiction over Debra. Once again, we have the 28 U.S.C. § 1738A(c)(2)(A)(i) home state requirement. Since she had resided in the state since October 3, 1979, there is no doubt that Debra’s home state was Oregon on April 13, 1983 when Oregon Judge Norblad vacated California Judge Lehnhardt’s bench warrant for Debra’s arrest. The same answer obviously applies with respect to July 26, 1983, when the Oregon court further ruled that it had jurisdiction over the child. This fulfills the requirements of the PKPA. The court notes, however, that Oregon would also have jurisdiction under § 1738A(c)(2)(B) and (c)(2)(D) because no other state would have jurisdiction under the PKPA and it would be in the best interests of the child for Oregon to assume jurisdiction.

CONCLUSION

As Judge Norblad of the Oregon court noted in his memorandum addressing a more limited version of the issue before this court, had California acted in accord with its own laws there would be no doubt that it had continuing jurisdiction over Debra Kay Templeton to which the Oregon authorities would have been bound to defer. Ex. 52c. Yet the juvenile authorities in Imperial County flouted both the Interstate Compact and their own state office of ICPC compliance for more than two years. The Court is sympathetic to the demands which the national child custody situation imposes on the limited resources of state and county agencies. However, the terms of the law are clear and they must be obeyed. The haphazard manner in which Debra was “supervised” by Imperial County authorities after she was sent out of California is cogent testimony to both the need for such laws as the ICPC, the UCCJA and the federal PKPA, and to the importance of following them.

It is worth noting that the errors discussed above were not the only ways in which the Imperial County authorities failed to live up to the law. The social workers should have prepared plans for reunifying Debra with her mother before the child was ever turned over to the Wit-hams, and such a plan should have been presented at each and every disposition hearing. Cal.Rules of Court 1376(b). Plaintiffs effectively concede that no such plan was prepared until 1981 — two years after Debra was removed from her mother and sent out of state. Plaintiffs’ Reply Brief at 12. The social studies of the child, her parents and her custodians which were also required before every disposition hearing, Cal.Welf. & Instit.Code § 280, were hardly adequate since they were prepared by social workers whose own files admit that they had had no contact with the child since her departure from California. Exs. 30b, 31, 32, B-93, B-103.

Perhaps the most egregious error of the Imperial County authorities was the persistent lack of notice to the Withams. The formal notice routinely used in such proceedings was consistently sent to the child’s parents, but rarely to the people who had custody of her. Such notice is required both by California, Civ.Code § 5153, and federal law. 28 U.S.C. § 1738A(e).

The response of plaintiffs to this argument is wholly inadequate. They first argue that the PKPA imposes no notice requirement except when there exists an interstate dispute over jurisdiction. A quick reading of the statute dispells this contention. Section 1738A(e) specifically requires that notice and opportunity to be heard be given to those who have custody of the child before any custody determination is made.

Plaintiffs next argue that under California law the Withams were not entitled to notice of the proceedings. For this point they rely on a novel reading of Cal.Civ. Code § 5154(4). That provision states that notice to out-of-state contestants is not required if such persons submit to the jurisdiction of the court. Plaintiffs correctly point out that Vicki Witham submitted to the jurisdiction of the Imperial County Juvenile Court in October of 1979 when she came to California to pick up the infant. It goes without saying, however, that by so submitting in 1979 the Withams merely waived notice for that particular proceeding, and did not waive notice for every one of the dozens of hearings held in the case over the next several years. If plaintiffs’ reading of the statute were correct, a litigant would be free to serve an opponent with a pleading and then refuse to notify him of any future proceedings or motions or even the trial. No citation of authority is necessary to conclude that such a scheme would not comport with what is known as due process of law.

Both the state and federal statutes require that the Withams be given notice and a chance to be heard before any custody determination is made. The plaintiffs contend that such notice was in fact provided, but the subsequent discussion in their papers reveals a pattern of alleged telephone contacts and occasional letters about a small minority of the hearings held in Imperial County from 1979-1982. Critically, no notice was given of the March 17, 1982 hearing in which the California court ordered that Debra be returned to Imperial County for placement in a foster home. An informal letter stating that a semi-annual review hearing was scheduled for February 22, 1982, was sent to the Withams, Ex. B-95, even though formal notice — giving the place and time — was sent to the parents. Exs. B-96-99. It appears from the record that either no hearing was conducted on that date, or that at least no decision was rendered and the matter was continued. No notice of such continuance was sent to the Withams, nor any other kind of notice of the March 17 hearing at which their custody of Debra was terminated. The attitude of the Imperial County authorities toward the Withams on this matter is revealed by the court minutes for that March 17 hearing. The court recorded that “all parties were present, except the father and the minors,” without any mention of the fact that two people legally entitled to notice under both state and federal law, the couple who had custody, were in fact not present. This sort of sloppiness does not portend decisions which are informed and in the best interests of the child.

THEREFORE, the Court DECLARES that the Circuit Court of Oregon, Marion County Juvenile Department, has jurisdiction over the minor Debra Kay Templeton in accord with 28 U.S.C. § 1738A.

JUDGMENT shall enter accordingly.

SO ORDERED.


source: Caselaw Access Project

author: LAFFITTE, District Judge.

license: Public Domain

text:
    Herminio MARTINEZ, Plaintiff, v. Ronald T. SMITH, Regional Director of the Federal Labor Relations Authority, et al., Defendants.
    Civ. No. 82-0957.
    United States District Court, D. Puerto Rico.
    Oct. 5, 1984.
    Pedro J. Varela, Hato Rey, P.R., plaintiff.
    William R. Tobey, Washington, D.C., for defendants.
   OPINION AND ORDER

LAFFITTE, District Judge.

Plaintiff, an assistant for administrative law judges in the Office of Hearings and Appeals (OHA), Region 2, of the Social Security Administration, brought an action for declaratory injunctive relief and mandamus against the Regional Director of Region 2, the Assistant General Counsel of the Federal Labor Relations Authority, and the Federal Labor Relations Authority (FLRA). In essence, plaintiff seeks to invoke the jurisdiction of this Court to review a decision of the General Counsel of the FLRA, affirming the decision of the Regional Director for Region 2, refusing to issue a complaint upon unfair labor practice charges filed by plaintiff.

Defendants moved to dismiss this action on the grounds that the Court lacks jurisdiction over the subject matter, and 'that the complaint fails to state a claim upon which relief can be granted. Because the Court lacks subject matter jurisdiction, for the reasons stated below, the complaint is dismissed.

FACTS.

In October, 1980, plaintiff was denied a promotion to GS-11 Staff Attorney by the Regional Chief Administrative Law Judge, on the grounds that production requirements had not been met, notwithstanding the recommendation submitted by the Administrative Law Judge in charge of the San Juan Office of Hearings and Appeals.

On January 13, 1981, American Federation of Government Employees, Local 3534, AFL-CIO, filed unfair labor practice charges against OHA for the denial of promotion to plaintiff and another staff attorney, and for OHA’s refusal to negotiate on the “imposed” production goals set for staff attorneys, in violation of 5 U.S.C. Sections 7116(a)(1), (2), and (5). On January 21, 1981, plaintiff also filed an unfair labor practice charge, case No. 2-CA-763, charging OHA with violating Sections 7116(a)(1), (5), (7), and (8) of the statute. In essence, plaintiff claimed that OHA had unilaterally changed its criteria for promotion by incorporating a production requirement without consulting with the union which was his bargaining representative, and that he was thereby denied a promotion for which he had been recommended.

The Regional Director refused to issue a complaint on the unfair labor practice charges and informed plaintiff of his right to request review by the General Counsel of the Regional Director’s decision. Plaintiff pursued the review route. The General Counsel denied the appeal upon a determination that further proceedings would not effectuate the purposes of the Act. The instant petition before this Court followed.

THE JURISDICTION OF THE COURT TO REVIEW A REFUSAL OF THE GENERAL COUNSEL TO ISSUE COMPLAINT.

The legislative scheme of the statute creating the Federal Labor Relations Authority establishes that the investigation of unfair labor practice charges, and the issuance of unfair labor practice complaints, lie within the sole discretion of the Authority’s General Counsel. In this connection, it mirrors the functions of the General Counsel of the National Labor Relations Board. In discussing the role and functions of the General Counsel in the handling of unfair labor practices, the House Report stated:

“Under subsection (a)(1) the sole responsibility for investigating a charge rests with the General Counsel of the Authority. If, after investigation, the General Counsel determines that a complaint should issue, he is required to cause the complaint to be served upon the charged agency or labor organization. The General Counsel’s decision as to whether a complaint should issue shall not be subject to review.” H.R. Rep. No. 95-1403.

The Senate Report shared the same view. See, S.Rep. No. 95-969, 95th Cong., 2nd Session 102, reprinted in 1978 U.S.Code Cong. & Adm.News, 2723, 2824. The statute’s only requirement is that upon declining to issue complaint, the General Counsel must give a written statement of reasons why a complaint has not issued. 5 U.S.C. § 7118(a)(1).

Like the National Labor Relations Act, the statute provides for Court review only of “final orders of the Authority.” 5 U.S.C. § 7123(a). The General Counsel’s decision refusing to issue complaint is not a final order of the Authority, subject to Court review. Turgeon v. FLRA, 677 F.2d 937 (D.C.Cir.1982); Columbia Power Trades Council v. U.S. Department of Energy, 671 F.2d 325 (9th Cir.1982); Saez v. Goslee, 463 F.2d 214 (1st Cir.1972); cert. den. 409 U.S. 1024, 93 S.Ct. 466, 34 L.Ed.2d 316 (1972).

Consistent with the legislative scheme, this Court concludes that it has no jurisdiction to review the General Counsel’s decision to refuse to issue complaint. In Columbia Power Trades Council v. U.S. Dept, of Energy, supra, the Court stated unequivocally:

“The only provision made for judicial jurisdiction appears in 5 USC Section 7123. An aggrieved party may appeal the Authority’s action to a court of appeals, the Authority may petition a court of appeals for enforcement of its orders, and the Authority may seek an injunction in a district court after it has issued a complaint. At no point does the Act entitle a party to petition a district court for relief.” Id. at 327.

It follows then that the Authority, like the NLRB in the private sector, has exclusive jurisdiction over federal relations matters.

In line with the foregoing, plaintiff’s reliance upon this Court’s mandamus jurisdiction, 28 U.S.C. § 1361 is unavailing. Section 1361 is addressed to the performance of ministerial acts or duties owed to a plaintiff, but does not permit the courts to influence the exercise of administrative discretion. Wilmot v. Doyle, 403 F.2d 811, 816 (9th Cir.1968). The General Counsel enjoys wide discretion in issuing complaints. In this case, the General Counsel exercised his discretion and determined not to issue a complaint. Accordingly, this Court may not grant a mandatory injunction to compel the General Counsel to issue a complaint. Soez v. Goslee, 463 F.2d 214 (1st Cir.1972); Columbia Power Trades v. U.S. Dept. of Energy, 671 F.2d 325.

Plaintiff further alleges jurisdiction under the statute 5 U.S.C. § 7101 et seq., and 28 U.S.C. § 1331; the Declaratory Judgment Act, 28 U.S.C. § 2201. As to the Authority’s Statute and 28 U.S.C. § 1331, Congress did not intend for review of the General Counsel’s decisions regarding issuance of unfair labor practice complaints. It is also well settled that the Declaratory Judgment Act is not a grant of jurisdiction to federal courts. Schilling v. Rogers, 363 U.S. 666, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960). Similarly, 5 U.S.C. § 5596 does not provide a jurisdictional basis for the instant proceeding. Fields v. Harris, 522 F.Supp. 901, aff’d. 675 F.2d 219 (8th Cir.1982).

"The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. This section, however, does not confer subject matter jurisdiction where otherwise none exists." Akins v. Saxbe, 380 F.Supp. 1210, 1217 (D.Me. 1974).

Finally, plaintiff asserts that his constitutional due process rights have been violated by the General Counsel for his refusal to issue complaint, and secure a remedy for plaintiff's alleged injuries. This claim is without merit. Plaintiff has not met his burden to show that he has a “property” or “liberty” constitutional interest in the issuance of an unfair labor practice complaint. The claim that plaintiff has a constitutionally protected interest is refuted by the provisions of the Statute pertaining to the relatives roles of the General Counsel and the Authority. Since the General Counsel does not prescribe remedies for unfair labor practices, any claims by plaintiff that he has an entitlement to a remedy from the General Counsel are without foundation. Accordingly, plaintiff has made no showing that he was denied due process by the General Counsel’s refusal to issue complaint. Saez v. Goslee, supra.

The Court concludes that it lacks subject matter jurisdiction over this action. Accordingly, defendants’ motion to dismiss is hereby GRANTED. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

      . The inclusion of the Assistant General Counsel in lieu of the General Counsel of the FLRA appears to be predicated on the fact that it was the Assistant General Counsel who signed the letter denying plaintiffs appeal from the Regional Director’s decision not to issue a complaint.

      . Section 7116 (5 U.S.C. § 7116) reads in pertinent part as follows:
      "Unfair labor practices
      (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency—
      (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;
      (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter;
      (7) to enforce any rule or regulation (other than a rule or regulation implementing section 2302 of this title) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed; or
      (8) to otherwise fail or refuse to comply with any provision of this chapter.”

      . The statute was enacted by Congress as part of Title VII of the Civil Service Reform Act of 1978, Pub.Law No. 95-454, 92 Stat. 1111, 5 U.S.C. § 7101 et seq. Labor relations within the federal civil service are governed by the Labor-Management Relations Chapter of this statute. The Federal Labor Relations Authority administers the labor relations section of the Civil Service Reform Act. Its role is analogous to that of the National Labor Relations Board under the National Labor Relations Act. Department of Defense, etc. v. F.L.R.A., 659 F.2d 1140 (D.C.Cir. 1981).

      . For decisions upholding the rule that the courts may not review the discretion of the General Counsel of the NLRB not to issue an unfair labor practice complaint, see: Balanyi v. Local 1031 I.B.E.W., AFL-CIO, 374 F.2d 723 (7th Cir.1967); United Electrical Contractors v. Ordman, 366 F.2d 776 (2nd Cir.1966), cert. den. 385 U.S. 1026, 87 S.Ct. 753, 17 L.Ed.2d 674; NLRB v. Lewis, 310 F.2d 364 (7th Cir.1962); NLRB v. Sears, Roebuck, 421 U.S. 132, 156, 95 S.Ct. 1504, 1519, 44 L.Ed.2d 29 (1975); Mayer v. Ordman, 391 F.2d 889, cert. den. 393 U.S. 925, 89 S.Ct. 257, 21 L.Ed.2d 261; Lincourt v. NLRB, 170 F.2d 306, 307 (1st Cir.1948); Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967).

      . 28 U.S.C. § 1361 provides that:


author: JAMES LAWRENCE KING, Chief Judge.

text:
    Glenn Michael TUPICA, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida and R.L. Dugger, Superintendent, State Prison, Respondents.
    No. 84-6244-CIV-KING.
    United States District Court, S.D. Florida.
    Oct. 8, 1984.
    Philip J. Padovano, Tallahassee, Fla., Richard B. Mateer, Boca Raton, Fla., for petitioner.
    James P. McLane, Asst. Atty. Gen., West Palm Beach, Fla., for respondents.
   FINAL ORDER DENYING THE PETITIONER’S WRIT OF HABEAS CORPUS AND THEREBY REVERSING THE MAGISTRATE’S REPORT AND RECOMMENDATION

JAMES LAWRENCE KING, Chief Judge.

THIS CAUSE, arises before the Court upon the Report and Recommendation of the Chief United States Magistrate Peter R. Palermo concerning whether or not Petitioner has stated a claim for which relief may be granted pursuant to his Petition for Writ of Habeas Corpus. 28 U.S.C. § 2254. Specifically, Petitioner is attacking a sentence consisting of fifteen years imprisonment for one count of trafficking in cocaine.

In seeking relief from this Court, Petitioner alleges that:

1. The deliberate destruction of a tape recording of the alleged offense constitutes a denial of the Petitioner’s right to due process under the Fourteenth Amendment.

This Court cannot agree with Petitioner’s allegation that his due process rights under the Fourteenth Amendment have been violated and is compelled to deny the Petition for Writ of Habeas Corpus. Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982); United States v. Nabors, 707 F.2d 1294 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1271, 79 L.Ed.2d 677 (1984); State v. Sobel, 363 So.2d 324 (Fla.1978); 28 U.S.C. §§ 2254, 2254(d).

FACTS

On March 9, 1982, Detective Steven Luzinski, acting undercover for the Fort Lauderdale Police Department, and Tommy Eugene Yesbick, a confidential informer, met with Petitioner in the parking lot of a restaurant for the purpose of selling Petitioner a pound of cocaine. Petitioner arrived at the restaurant and handed a bag containing approximately $25,000 dollars to Detective Luzinski. Luzinski and Yesbick left with the money and told Petitioner that they would return with the cocaine in one half hour. Upon returning with the cocaine, the three men entered Petitioner’s car. During this time, and throughout this transaction, Detective Luzinski was wired with a body bug and all that occurred in Petitioner’s car was transmitted to a police radio and recorded on tape. Once in the car the parties gave separate accounts as to what actually transpired. The following account is given from each parties’ respective viewpoint.

Petitioner alleges the following: On the morning of trial Petitioner moved to dismiss the Information on the ground that the police officers had destroyed a certain tape recording which contained exculpatory evidence. An evidentiary hearing was conducted on the motion and it was at this time that the Petitioner testified that the deal had in fact been proposed by Yesbick. Petitioner admitted that he originally agreed to purchase the cocaine, but he stated that when Yesbick and Detective Luzinski came back to the restaurant he told them that he did not want to have anything more to do with them. Petitioner further testified that Yesbick jumped into his car and stuck the yellow bag underneath the back seat. Yesbick then said, “Look, just take it and follow me over to my home,” to which Petitioner replied, “I don’t want anything to do with you.”

Respondents allege the following: During the same pretrial hearing Yesbick testified that when he and Detective Luzinski returned with the cocaine, Petitioner wanted to know the percentage of pure cocaine. He testified that Petitioner put the cocaine in his car, in the console, between the two seats. Detective Luzinski testified that he gave the bag of cocaine to Petitioner who then placed the cocaine behind his car seats. He further testified that their conversation centered around the purity of the cocaine in that Petitioner was extremely apprehensive and concerned that he was unable to test the cocaine and that Petitioner expressed no other apprehensions other than this fact. Also, Detective Kellam, a police officer for the City of Fort Lauder-dale, testified that he saw Petitioner place the cocaine in his vehicle behind, it appeared from his vantage point, the front seat on the driver’s side. Detective Stafford, also a police officer for the City of Fort Lauderdale, testified that she saw Petitioner take the cocaine and place it in the car. She further testified that Detective Luzinski got on the radio and advised that Petitioner, who was driving off in the car, was then in possession of the cocaine and to arrest him. As for the tape in question, Detective Luzinski testified that the tape embodying this transaction was indiscernible to the point that it was of no value. As a result of this fact, he placed the tape recording in a box of pool tapes that were utilized by office personnel for reuse in dictating reports and things of that nature and not that he “destroyed” the tape as Petitioner would have it. Luzinski further testified that on the day he did this, March 9, 1982, the date of the transaction in question, the case had not been presented to the state attorney’s office.

These facts now give rise to the issue of whether the eventual erasing of the tape denied the Petitioner his constitutional right to due process and a fair trial under the Fourteenth Amendment? We think not.

PROCEDURAL HISTORY

On March 9, 1982, Petitioner was charged by Information with one count of trafficking in cocaine in violation of Florida Statute 893.135(1)(b)(3). On October 26, 1982, Petitioner moved to dismiss the Information due to the erasing of the tape as outlined above. Prior to Petitioner’s trial on November 2, 1982, he was accorded a full evidentiary hearing on the motion to dismiss and said motion was denied. Following two days of trial, and at the conclusion of the State’s case, the Petitioner rested without presenting any testimony or evidence. Following the arguments of counsel, the jury found the Petitioner guilty of attempted trafficking in cocaine. The Circuit Court of Broward County Florida adjudicated the Petitioner guilty of the offense and thereafter, on December 2, 1982, sentenced him to a term of fifteen years. An appeal was filed in the Fourth District Court of Appeal. The argument raised in the Petition before this Court was rejected by the Fourth District Court of Appeal on February 1, 1984, wherein the court said, “We find no merit in any of the arguments presented to us and affirm.” Tupica v. State, 444 So.2d 572 (Fla. 4th DCA 1984). On March 20, 1984, Petitioner filed this instant petition for Writ of Habeas Corpus. On April 12, 1984, this Court referred the above styled case to Peter R. Palermo, Chief United States Magistrate for the Southern District of Florida. Pursuant to the Magistrate’s Order of June 11, 1984, Petitioner chose to delete certain grounds in order to avoid dismissal of his Petition as an unexhausted mixed petition. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The Magistrate also forewarned the Petitioner that, if he chose to delete the unexhausted claims in his Petition, there was a risk of forfeiting consideration of those unexhausted claims in federal court. Id. On August 2, 1984, the Magistrate filed his Report and Recommendation. On August 14, 1984, this Court received Respondents’ Objections to the Report and Recommendation.

The Magistrate, finding Petitioner’s constitutional rights had been violated, recommended that his Petition for Writ of Habeas Corpus be GRANTED, and specifically that:

1. The Petitioner be released and discharged from any and all restraints which may have been imposed upon him by reason of his conviction; and
2. This writ shall be absolute; the State shall be precluded from retrying Petitioner on the charge as stated in Case No. 82-2638 CF, in the Seventeenth Judicial Circuit in and for Bro-ward County, Florida.

The Magistrate has set forth a number of reasons in support of his Recommendation. In order to avoid circuity of discussion, this Court has summarized the Magistrate’s Report as follows:

The Magistrate held that the tape was material in a constitutional sense because it would have supported Petitioner’s defense of withdrawal which, in turn, would have placed a doubt in the juries’ mind as to whether or not Petitioner was guilty.
Since the tape was material to his defense, he suffered severe prejudice from the State’s deliberate destruction of the tape. As a result of the forgoing, Petitioner was denied his right to due process under the Fourteenth Amendment. Accordingly, the appropriate sanctions against the State would be to grant the Petitioner’s Petition for Writ of Habeas Corpus and bar the State from retrying him.

THIS COURT’S ANALYSIS

In Sumner v. Mata, supra, the United States Supreme Court held that 28 U.S.C. § 2254(d) requires federal courts in habeas proceedings to accord a presumption of correctness to state court findings of fact. The statute explicitly provides that “a determination after a hearing on the merits of a factual issue, made by a state court of competent jurisdiction ... shall be presumed to be correct.” Id. Only when one of the seven specified factors is present or the federal court determines that the state court finding of fact “is not fairly supported by the record” may the presumption properly be viewed as inapplicable or rebutted. Id. However, mixed questions of law and fact do not fall within the scope of state court findings to which the federal court, on habeas corpus, is required to give deference. Sumner v. Mata, supra.

This Court finds that Petitioner’s constitutional claim is a mixed question of law and fact which must be addressed in terms of our own federal standard. Accordingly, a two part analysis has been set forth: First, the Court considers a Florida Supreme Court case cited by Respondents in support of their Objections to the Magistrate’s Recommendation and, secondly, the Court considers two United States Supreme Court cases in reaching the constitutional significance, if any, of the tape.

Respondents maintain that the present controversy is directly on point with State v. Sobel, supra. We agree. In Sobel, the principal issue was whether the charges against the defendant should have been dismissed because the state failed to preserve a tape recording made by police officers during the alleged criminal drug transaction. The Supreme Court of Florida held that defendant was not denied due process because the police officer had destroyed a tape recording of the alleged drug transaction since the state met its burden by showing that there was no prejudice to defendant given the officer’s testimony that the tape was unintelligible.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that “... the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” The Supreme Court, in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), described the requirements of Brady and defined what was meant by “materiality.” There the Court said: “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense ... since the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt, whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” Id.

The question this Court must ask itself is twofold: First, whether the production of the tape would have enabled the Petitioner to raise a doubt in the juries’ mind as to his guilt which would, in turn, have made the tape material in a constitutional sense under the Brady-Agurs rationale; and, secondly, what, if any, sanctions should be imposed against the State for its alleged mishandling of the tape?

After careful consideration of the record and the law as it applies to the facts of this case, this Court finds that: (1) the tape was not material in a constitutional sense under the Brady-Agurs rationale since the State’s witnesses found the tape to be almost entirely unintelligible and therefore not material to either their own case or that of Petitioner’s; and (2) in light of the overwhelming evidence of Petitioner’s guilt as adduced at trial, and after giving careful consideration to the circumstances surrounding the nonproduction of the tape, this Court finds sanctions unwarranted under the facts of this case. United States v. Nabors, supra. The Court, therefore being fully advised, herein does:

ORDER and ADJUDGE that the Petitioner’s Petition for Writ of Habeas Corpus be, and it is, DENIED with prejudice. The Magistrate’s Report and Recommendation is therefore REVERSED.


text:
    Terry Lee ROBBINS, Plaintiff, v. Carroll SOUTH, Director, Montana Department of Institutions; and Henry Risley, Warden, Montana State Penitentiary, Defendants.
    No. CV-84-8-BU.
    United States District Court, D. Montana, Butte Division.
    Oct. 9, 1984.

      Terry Lee Robbins, pro se.
    Nick A. Rotering, Sp. Asst. Atty. Gen., Dept, of Institutions, Helena, Mont., for defendants.
   MEMORANDUM and ORDER

WILLIAM D. MURRAY, Senior District Judge.

I.

Plaintiff Terry Lee Robbins, an inmate of the Montana State Prison, brought this civil rights action against prison officials pursuant to 42 U.S.C. § 1983. Robbins contends his Eighth and Fourteenth Amendment rights have been violated by various policies and practices of the prison administration. Specific conditions of Robbins’ confinement alleged to be violative of minimum constitutional standards include: (1) indifference to the inmate’s dental needs; (2) maintenance of an inadequate law library; (3) imposition of time restrictions on the inmate’s use of the law library; (4) failure to provide adequate legal supplies; (5) failure to furnish full-time notary service; (6) failure to provide free photocopying service; (7) imposition of restrictions on telephone communication between the inmate and counsel; (8) failure to allow the inmate sufficient time to consume meals; (9) invasion of the inmate’s privacy by a female staff nurse; (10) maintenance of a punitive prisoner classification system; (11) confinement of the inmate and another prisoner in a cell designed for single occupancy; (12) maintenance of inaccurate records regarding the inmate; (13) denial of meaningful work, educational and self-improvement opportunities; (14) confiscation of the inmate’s personal property without due process of law. Plaintiff seeks declaratory relief; compensatory damages and punitive damages.

Defendant Carroll South is the director of the Montana Department of Institutions. Defendant Henry Risley is the warden of the state prison.

Plaintiff, representing himself, filed this § 1983 complaint in January 1984. Before defendants could respond, the prisoner filed a supplementary complaint. Defendants then moved the court to dismiss the action, to strike the redundant material in the supplementary pleading, or to require the plaintiff to provide a more definite statement of his claims. The matter was submitted to the U.S. Magistrate, who denied the motions to dismiss and to strike but granted the motion for a more definite statement. Plaintiff took advantage of this third opportunity to make his case by filing the required statement on July 20, 1984.

The matter is before the court on defendants’ renewed motion to dismiss. Defendants assert the prisoner has not alleged any facts that would support his claims of constitutional deprivation. The Magistrate has considered the defendants’ motion and recommends the court dismiss this action in its entirety.

II.

The court is persuaded that plaintiff has failed to state any claims of constitutional dimension. For the reasons outlined below, the court dismisses plaintiffs § 1983 action.

A. Medical Care

Plaintiff complains that defendants subjected him to cruel and unusual punishment by delaying dental treatments. The inmate alleges that he arrived at the prison suffering from lower gum infections and a missing upper dental plate. Plaintiff states that prison officials ignored several written requests for dental care during the inmate’s first 90 days at the institution. Plaintiff admits that he received a series of dental treatments, including fillings and replacement of the missing plate, during the next three months of his incarceration.

The standard regarding medical care of state prisoners was enunciated by the United States Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Denial of medical care by the state to those persons it is punishing by incarceration may result in pain and suffering inconsistent with contemporary standards of decency. Thus, the court in Estelle held that deliberate indifference to serious medical needs of prisoners constitutes “unnecessary and wanton infliction of pain,” and is proscribed by the Eighth Amendment. 429 U.S. at 104, 97 S.Ct. at 291. Not every complaint by an inmate of medical inattention is of constitutional dimension. The “deliberate indifference” standard does not encompass negligent care, the inadvertent failure to provide care or differences in medical judgment between the inmate and prison officials. In order to state a cognizable claim under § 1983, the plaintiff must allege actions amounting to deliberate indifference to medical needs. Robbins has failed to allege that the defendants intentionally delayed treatment. The court is well aware of the demands placed on the prison’s medical staff. The court finds the 90-day delay in commencing dental treatments of the plaintiff does not rise to the level of a constitutional violation.

B. Inadequate Law Library

Plaintiff contends that the state prison law library is inadequate because pages are missing from some volumes, other volumes are not in hard cover and the area in which the books are stored is open to the general inmate population. Robbins also complains that there is no way to update the law, i.e., that the library does not contain the most recent Shepard’s Citations or case law reporters and digests.

It is well established that state prisoners have a fundamental right of access to the courts. That right requires prison authorities to take steps to allow or assist inmates to research legal topics, file actions and respond to suits. Prison officials must provide inmates with either an adequate law library or adequate assistance from persons trained in the law. See Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977). The court in Bounds did not prescribe what materials must be contained in a prison law library. Plaintiff’s list of volumes in need of updating includes the United States Reports, Federal Reporter Series, Federal Supplement Series, Pacific Reporter Series, Montana Code Annotated, American Jurisprudence Series, American Law Review Series, Shepard’s Citations and the United States Code Service. Plaintiff’s list indicates the law library contains case law and statutory compilations relevant to prisoners’ claims. Provision of these materials satisfies the requirements of Bounds. Plaintiff further complains that in the absence of the most recent volumes of these legal publications he cannot update the law. It is not to be expected that the prisons provide law libraries comparable to those found in law schools and large law firms. This is reflected in the rule that a pro se prisoner’s pleadings are viewed under less stringent standards than those filed by members of the legal profession. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972).

Provision of an adequate legal library is but one constitutionally acceptable method of providing prisoners with access to the courts. Under the rule set forth in Bounds, an adequate law library need not be maintained where other methods of legal assistance assure meaningful access to the legal system. 430 U.S. at 830, 97 S.Ct. at 1499. The Magistrate correctly observes that the prison law library is supplemented by the services of the Montana Defender Project. The Defender Project provides able assistance to inmates seeking to pursue sentence review, post-conviction relief and civil rights matters. The Defender Project also is able to update the law for its inmate clients.

The test of the adequacy of the prison law library is whether inmates are afforded meaningful access to the courts. The court finds the library itself contains sufficient case law and statutory materials to provide such access. The court notes that inmate access to the courts is further aided by the Montana Defender Project.

C. Related Access Claims

Plaintiff next complains that his access to the courts is unconstitutionally burdened by various policies and practices of the prison administration. He alleges that the provision of four envelopes and eight sheets of paper a month denies him access to the courts. He states that the failure of prison officials to provide full-time notary services imposes a similar burden. He also argues that the failure to provide inmates with free photocopying service for legal work is unconstitutional. He also claims that restrictions imposed on the time he spends in the law library and the number of telephone calls he is allowed to his attorney deny him access to the courts.

It is settled that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them and with postage to mail them. Bounds, supra. The high court offered no guidance as to the amount of legal supplies to which inmates are entitled. With regard to the Montana prison’s provision of four envelopes and eight sheets of paper a month, the court finds the amounts reasonable and within the discretion of the facility’s administration. Plaintiff also fails to show how the provision of notary services two days a week abridges or denies his right of access to the courts. The requirement that an inmate wait a few days on occasion to have a document notarized does not rise to the level of a constitutional violation. Likewise, the concept of a prisoner’s fundamental right of legal access does not require prison officials to furnish free photocopying services.

With regard to the plaintiff’s claim that his time in the law library is limited to a maximum of 17 hours a month, the court finds the inmate’s due process right of access to the courts has not been denied. The record reveals Robbins has had sufficient time in the law library to research and draft three separate statements of his case and several motions in this action alone. The evidence fails to demonstrate any constitutional deprivation. Plaintiff also contends that his right of legal access is unduly restricted by the following prison policies: the requirement of prior written authorization to telephone counsel; the limitation of telephone calls to weekdays; and the limitation of outside calls to one per week. The court is persuaded that these policies regarding telephone communications do not abridge the inmate’s meaningful access to counsel and the courts. These limitations are reasonable measures required to manage the telephone communications of the general inmate population as a whole. In addition to placing one outside call a week, the plaintiff may also contact his counsel through the mail or during prison visitations.

In asserting his constitutional right of access to the courts has been violated, the plaintiff relies heavily on the Bounds decision. But unlimited envelopes, pads, notary service, photocoping, library time and telephone calls are neither the “adequate law libraries” nor the “alternative sources of legal knowledge” required by the Bounds rule. Plaintiff fails to demonstrate how the reasonable limitation of these items actually denied him access to the courts. The prison administration is not required to provide every jailhouse lawyer with a private law office.

D. Insufficient Time to Eat

Plaintiff next alleges that he is allowed only 12 to 15 minutes to consume his meals. He contends this practice constitutes cruel and unusual punishment. Robbins fails to state an Eighth Amendment violation. He does not allege that he has become ill or is malnourished because of this time limitation. The dehumanizing aspect of being required to eat in 15 minutes, noted in plaintiffs complaint, is not of sufficient intensity to be considered punishment, much less cruel and unusual punishment.

E. Right to Privacy

Plaintiff complains that the practice of allowing a female staff nurse to dispense medications in the unit in which he is confined infringes upon his right to privacy. Specifically, the prisoner alleges that he might be observed naked, partially clad or using the toilet facilities in his cell. Plaintiff further alleges that prison officials refuse to allow him to partially obstruct the view into his cell.

A prisoner does not enjoy the same right of privacy as do ordinary citizens in their homes and offices. United States v. Dawson, 516 F.2d 796, 805 (9th Cir.1975). There cannot be complete harmony between an inmate’s interest in privacy and the prison administration’s need for efficient operation of the institution. The state prisoner must relinquish some portion of the right to privacy. This court also recognizes that the prisoner’s reduced privacy right must be balanced with the female staff member’s right of equal job opportunity regardless of sex, as set forth by Congress in the Civil Rights Act of 1964.

Plaintiff maintains that the fact a female staff member occasionally passes by his cell while dispensing medications deprives him of his privacy. Plaintiff does not allege that he is under constant, or even frequent, surveillance by female staff members. The court finds this intrusion is minor, and consistent with the limited privacy rights retained by a state prisoner.

F. Punitive Classification System

Plaintiff also alleges that the prisoner classification system, based on an inmate’s prison conduct, constitutes cruel and unusual punishment. His specific complaint is that the high security housing unit to which he is assigned offers harsher living conditions and allows less personal freedom than do its lower security counterparts.

Decisions concerning the housing of inmates fall within the discretion of prison authorities. See Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Absent a showing that prison officials have abused this discretion, the court will not interfere in such decisions. Plaintiff fails to allege any facts showing that he is entitled to a less restrictive housing classification. Thus, the prisoner has not been deprived of any federally-secured rights by his assignment to a high security area.

G. Double-Celling

The next allegation of the plaintiff is that defendants have confined him with another inmate in a cell designed for single occupancy. He complains that overcrowding at the prison constitutes cruel and unusual punishment. The Supreme Court addressed the practice of double-celling in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Double-celling, by itself, does not violate the Eighth Amendment. The court is aware of the pressures put upon prison housing by the unanticipated increase in inmate population in recent years. The plaintiff does not allege that he has been deprived of food, medical care or sanitation as the result of double-celling. His complaint reveals that he is allowed a reasonable amount of time outside the cell, to exercise or go to the law library, for example. In the absence of a showing that double-celling has subjected the plaintiff to the unnecessary or wanton infliction of pain, the court finds no constitutional deprivation, Long hours in a two-person cell may be unpleasant or uncomfortable. But this condition of confinement does not violate the Eighth Amendment.

H. Inaccurate Records

Plaintiff claims the defendants maintain inaccurate information regarding himself in the prison records. He contends that inaccuracies concerning his alleged escapes from the Park and Missoula County jails have worked to his detriment inside the prison. Plaintiff fails to identify any particular decision by the prison staff, based on these records, that has injured him in any way or deprived him of his constitutional rights. Vague allegations that defendants have violated plaintiff’s constitutional rights are insufficient to support a § 1983 action.

I. Lack of Work, Educational and Self-Improvement Opportunities

Plaintiff also complains that prison officials have denied him work, educational and self-improvement opportunities. Additionally, the prisoner alleges defendants refuse to allow him to conduct his own work or hobby ventures for profit, thereby denying him the opportunity to earn enough money to pursue activities such as correspondence courses.

This court has stated repeatedly that an inmate has no constitutional entitlement to any particular prison employment. See, for example, McFadden v. Mickelson and South, CV-84-31-BU (D.Mont.1984). That reasoning can be extended to educational and self-improvement programs inside the prison. Decisions regarding employment and education of state inmates are well within the terms of confinement contemplated by prison sentences. The weight of authority also provides that a prisoner has no recognized right to conduct a business while incarcerated. See, for example, French v. Butterworth, 614 F.2d 23 (1st Cir.1980), cert. den., 446 U.S. 942, 100 S.Ct. 2167, 64 L.Ed.2d 797. The court finds that the prison administration’s failure to provide plaintiff with vocational and educational training does not violate the constitution in the absence of a demonstration of seriously debilitating prison conditions.

J. Confiscation of Personal Property

The plaintiff complains, finally, that prison officials’ confiscation of his personal property was accomplished without due process of law. Plaintiff alleges that he purchased a television set from a fellow inmate. He contends that prison staff members confiscated the set because the other inmate’s name was engraved on it. Robbins alleges that prison officials refuse to return the television set.

Federal jurisdiction is lacking for claims involving lost property where an adequate state remedy exists. Parratt v. Taylor, 451 U.S. 527 (1981). Plaintiff’s claim of deprivation of personal property is cognizable under the Montana Tort Claims Act, Mont.Code Ann. § 2-9-101 et seq. Thus, Robbins’ allegation that defendants wrongfully confiscated his television set does not rise to a constitutional dimension and is not within the scope of a § 1983 action.

III.

In conclusion, the court finds plaintiff has failed to allege the deprivation of any federally-secured right. He has failed to state any § 1983 claim upon which relief can be granted.

THEREFORE IT IS ORDERED and this does order that defendants’ motion to dismiss this action be and the same is hereby granted.


author: CHARLES R. RICHEY, District Judge.

text:
    Thelma JONES, Plaintiff, v. LOCAL 4B, GRAPHIC ARTS INTERNATIONAL UNION, AFL-CIO, et al., Defendants.
    Civ. A. No. 81-3098.
    United States District Court, District of Columbia.
    Oct. 9, 1984.
    David M. Dorsen, of Sachs, Greenebaum & Tayler, and Roderic V.O. Boggs, of Washington Lawyers Committee for Civil Rights Under Law, Washington, D.C., for plaintiff.

      Elihu I. Leifer, and Victoria L. Bor, of Sherman, Dunn, Cohen, Leifer & Counts, P.C., Washington, D.C., for defendants.
   CHARLES R. RICHEY, District Judge.

The origin of this case before the court, involving attorney’s fees, was a sex discrimination case involving Thelma E. Jones and the Local 4-B Graphic Arts International Union, AFL-CIO, based under Title VII and 42 U.S.C. § 1988. That suit resulted first in a temporary restraining order and finally in a Consent Judgment to which the union agreed as follows: to stop the discriminatory activity, grant Thelma Jones a position as Recording Secretary of the Local 4B, and pay her the sum of $15,000.00 in compensatory damages. However, the court retained jurisdiction to determine the amount of attorneys’ fees and costs, if any, that would be awarded to the plaintiff for the services of her attorneys.

This immediate action began with a motion filed by the plaintiff on March 26, 1982. After appropriate responses were received, this Court issued an order of March 31, 1983 directing both sides to confer on this matter in an effort to settle. Obviously, no successful settlement has been reached in over one year since that date. The Court finds the plaintiff, Thelma E. Jones, to be the “prevailing party” and, as such, entitled to reasonable attorneys’ fees. In relationship to these fees, the arguments of the defendants do not persuade this Court to downwardly adjust the lodestar figure. The Court also finds no merit in the allegations that these funds are in trust, involve contractual obligations, or fall under the purview of ERISA. For the reasons set forth below in the opinion, the Court, by order of even date herewith has decided to award the plaintiff attorneys’ fees with costs in the amount of $33,095.99.

PLAINTIFF THELMA E. JONES WAS THE “PREVAILING PARTY” SINCE SHE RECEIVED DAMAGES, AND, A POSITION AS WELL AS A BROAD INJUNCTION.

The defendants first contend that the plaintiff was not a “prevailing party” because a settlement had been obtained. This argument is not consistent with the clear holding of the Supreme Court, as stated in Maher v. Gagne, 448 U.S. 122, at p. 130, 100 S.Ct. 2570, at p. 2575, 65 L.Ed.2d 653 (1980):

... the fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees ... Moreover, the Senate Report expressly stated that for the purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief. U.S.Rep. No. 94-1011 p. 5 (1976). U.S.Code Cong. & Admin. News 1976 pp. 5908, 5912.

Using the test in Maher, the issue of the plaintiff being a prevailing party rests on whether her rights have been “vindicated.” As stated before, this consent judgment, outside of granting a broad injunction against discrimination, gave the plaintiff, Thelma E. Jones $15,000 in damages and a position as recording secretary. The Union only received a pledge not to sue. It is clear that Ms. Jones prevailed, and that she has had her rights substantially “vindicated.” This Court, therefore, finds no merit in defendants’ claim that Ms. Jones was not the prevailing party because of the Consent Judgment.

THERE WERE NO PERSUASIVE ARGUMENTS LEADING TO A DOWNWARD ADJUSTMENT OF THE LODESTAR FIGURE. THEREFORE, THE LODESTAR REQUESTED IS THE REASONABLE FEE.

The United States Court of Appeals held in Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980), that the calculation of attorneys’ fees begins with an establishment of a “lodestar,” arrived at simply by multiplying “the number of hours reasonably expended by a reasonable hourly rate.” (Supra p. 892). Further, this figure can be adjusted up or down depending on the particular circumstances of the case. The burden of such an adjustment, however, rests on the party proposing the deviation. See, also: Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); National Ass’n of Concerned, Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C. Cir.1982); Environmental Defense Fund v. Environmental Protection Agency, 672 F.2d 42 (D.C.Cir.1982). This has been the law because of the presumption in favor of attorney’s fees in civil rights cases, Northcross v. Board of Education, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973).

In this case the plaintiff claims attorneys’ fees at the regular rates and hours as follows:

Hours Rate Lodestar

Mr. Dorsen (194.75 x 120) = 23,370.00

( 45.00 x 135) = 6,075.00

Mr. Weinman ( .25 x 100) = 25.00

Ms. Gibbons ( 24.75 x 50) = 1,237.50

( 12.75 X 55) = 701.25

Mr. Boggs ( 2.75 x 100) = 275.00

$31,683.75

The present controversy rests not with the lodestar figure but with the second part of this appraisal, allowing for the adjustment of the lodestar figure. In an effort to convince this Court that a downward adjustment is necessary, the defendants raised several points, two of which are discussed here, another in the next section.

To begin, the defendants state that the original case was settled far short of any determination on the merits. The Supreme Court has already answered this, settlements do not weaken the claim for attorney’s fees, Maher v. Gagne, supra. The second position of the defendants is that the relief ($15,000) was far short of the amount requested ($200,000) in the complaint; surely it is not the contention of the defendants that a smaller settlement reflects negatively on the competency of, or the efforts expended by, an attorney. Further, the defendants claim comes as no surprise to this Court. After all, it is commonplace for settlements to be substantially lower than the relief requested. In fact, under the defendants’ argument, no case that is settled could ever result in an award of attorneys’ fees. We, therefore, find no merit in the allegation that attorneys’ fees should be reduced simply because there could have been a larger settlement.

In a relationship to the above two claims, the Court finds that the defendants have not met their burden to require a downward adjustment of the lodestar and without such adjustments, the present lodestar figures become the reasonable fee.

THE DEFENDANTS’ MEAGER FINANCIAL SITUATION IS NO REASON TO DENY THEIR LIABILITY UNDER THE CIVIL RIGHTS LAWS.

This Court is sympathetic to the defendants’ statement that there are limited resources to pay these attorneys’ fees. (Plaintiff’s memorandum p. 4.) However, it must be emphasized that the remedial purpose and policy of 42 U.S.C. § 1988 is to eradicate discrimination wherever found, and, there is no provision for denying liability based on defendants’ finances. This is shown in a number of cases:

Local 192 also argues that it would be inequitable to assess it for back pay because it is a non-profit organization with meager assets____ This argument rests on the faulty premise that back pay awards are only compensatory. Though punitive damages are not allowed, the award serves a dual purpose. In addition to compensatory employees who have been wronged, the “reasonably certain prospect” of a back pay award is designed to induce unions, as well as employees, to voluntarily eliminate unfair labor practice. Russell v. American Tobacco Co., 528 F.2d 357, 366 (4th Cir. 1975), cert. denied. 425 U.S. 935, 96 S.Ct. 1666, 48 L.Ed.2d 176 (1976).

In a case directly dealing with questions of attorney’s fees against a critically financially depressed defendant:

... [as to the cjritical financial difficulties of a defendant, “there is no provision in any of the statutes for denying liability on the inability of defendants to pay.” McPherson v. School District # 186, 465 F.Supp. 749, 755 (S.D.Ill.1978).

This Court realizes that limited resources could cause the Union to take the payment of attorneys’ fees out of death benefits and gift funds. However, while Union officers are fiduciaries and have a duty to their beneficiaries, they have a greater responsibility to obey the law. Union officers are the same as private employers, and, are presumed to know the law. They may well have breached a fiduciary duty but this is not before the court here. The case history is clear, and, accordingly, this Court will continue to assess attorney’s fees regardless of the financial standing of the defendants, so long as violations continue, and entitlement to attorneys’ fees is proper under the law as it is here. This finding applies equally to costs. White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). Costs are undisputed at $1,412.24.

THERE IS NO MERIT IN THE ALLEGATION THAT THESE FUNDS ARE IN TRUST, INVOLVE CONTRACTUAL OBLIGATIONS OR FALL UNDER THE PURVIEW OF ERISA.

The plaintiff states that there are only three funds from which the judgment can be satisfied: a general fund for operating expenses, mortuary fund, and, a retirement gift fund. Both parties agree that the operating 'fund has little or no resources. The issue is the availability of the other two funds. This Court finds unpersuasive, the claims, of defendants, that these funds are either: trusts, contractual obligations or protected by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (ERISA). The mortuary fund is financed by a specified portion of each member’s monthly dues payment, and, is used solely for the payment of death benefits to the beneficiaries of deceased members. The retirement gift fund is similarly funded, solely for the payment of a retirement gift to a member once they have retired. (Defendants’ brief, page 8.)

To begin, there is no basis for the claim that these funds are held in trust. The plaintiff concedes that there is no formal trust, and, this Court finds no justification for imposing a constructive or implied trust. The Constitution of Local 4B Article XVI itself describes the type of arrangement involved with these funds:

All benefits paid by the former Local 4B Mortuary Fund and the Local 4B and 75B Gift Benefit Fund shall continue to be paid to the members of each respective Local until such time as the Local, pursuant to a study, determines the level of funding for each fund.

Assuming, arguendo, that the elements of a trust are present, the Union’s constitution allows changes to be made in the constitution by majority vote. No “trust,” constructive or implied, can exist under such illusory guidelines as are here present. Moreover, the defendants’ choice of case law is equally not persuasive. The defendants cite only cases which relate to trustees who, on their own volition, attempted to enrich themselves. This is not the issue here. The payment of funds in the case at bar are court ordered.

These funds are also not protected by ERISA nor are they a contractual obligation. The Constitution of Local 4B shows no plan, nor any reporting or filing required by the statute. 29 U.S.C. §§ 1102, 1021-25. Further, it is interesting to note that the defendants’ attempt to bring their moneys under ERISA is anomalous. If these allegations are true, the absence of filing and reporting indicates, to the members and the Union, that such funds are not protected by ERISA. Further, the defendants’ officer, Reece, among others, may well be subject to criminal prosecution for failure to comply with the statutory disclosure and reporting requirements of ERISA which they have not done.

Finally, as to the alleged contractual obligations, the unions’ constitution, as set forth in Article XVI, is not contractually binding. It lacks essential elements of a contract necessary to make it binding on the parties.

All of the above funds are available to satisfy the judgment. As to a final contention of the defendants that Mr. Reece is not an appropriate party to this suit, this Court finds this to be erroneous. The plaintiff, in her Brief, looks to the Union 4B as the appropriate party. Moreover, Union officers who disobey the civil rights laws may be personally liable along with the Union itself.

PLAINTIFF DID NOT PREVAIL ON THE MOTION TO COMPEL COMPLIANCE WITH THE PERMANENT INJUNCTION. THEREFORE, THE PLAINTIFF IS NOT A PREVAILING PARTY, AND THIS COURT MUST DENY THE APPLICATION FOR SUPPLEMENTAL REQUESTS.

This Court finds no basis for the plaintiff’s contention that attorneys’ fees are due her for recent legal expenditures. The mere fact that the plaintiff prevailed in the previous litigation does not grant her a license to charge the defendants with any or all fees in the future employment of her attorney. The previous standard is the same for the defendants. No compensation will be awarded, for time spent on litigating claims on which a party has not prevailed. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). On June 21, 1982 the motion to compel compliance with the permanent injunction was denied. Ms. Jones, therefore, did not prevail and hence is not entitled to these supplemental attorneys’ fees.

CONCLUSION

This Court finds that the fees expended by Mr. Dorsen and his staff, excluding the Supplemental Request, were fair and reasonable under the circumstances of this case. Further, since the plaintiff does not seek an upward adjustment of the lodestar, and the defendants have failed to overcome their burden for decreasing the lodestar, this Court holds the lodestar as a reasonable fee and awards said fee in the sum of $31,683.75, plus court costs of $1,412.24, or a total of $33,095.99. The Court finds no merit in the exclusion of the funds named here, and, directs payment from such funds. It is this Court’s belief that the awarding of fair and reasonable attorneys’ fees to the prevailing party in these and similar discrimination actions maintains the integrity of the civil rights statutes, and promotes remedial policies as previously stated. Accordingly, the Court orders the defendants to make payment of the aforesaid fees and court costs forthwith within ten days from the date of the Order of even date herewith.

ORDER

Upon consideration of plaintiff’s motion for attorneys’ fees, defendants’ response thereto, the entire record in this case, the Court finding that Mr. Dorsen’s hourly rate was $120 up to and including January 31, 1982, and $135 thereafter, that Mr. Weinman’s hourly rate has been $100 throughout this case, that Ms. Gibbons hourly rate was $50 up to and including January 31, 1982, and $55 thereafter, and that Mr. Boggs hourly rate has been $100 throughout this case, that the hours expended by counsel were reasonable under the circumstances of the case, that plaintiff does not seek any upward adjustment from the lodestar, that defendants have failed to provide a basis for reducing the lodestar, it is by the Court, this 5th day of October, 1984,

ORDERED, that plaintiff be awarded attorneys’ fees and costs as follows:

Hours Rate Lodestar

Mr. Dorsen (194.75 x 120) = 23,370.00

( 45.00 x 135) = 6,075.00

Mr. Weinman ( .25 x 100) = 25.00

Ms. Gibbons ( 24.75 x 50) = 1,237.50

( 12.75 X 55) = 701.25

Mr. Boggs ( 2.75 X 100) = 275.00

Sub-Total $31,683.75

Costs 1,412.24

Total Award $33,095.99

      . This Court is aware of the recent decision of the Court of Appeals in Laffey v. Northwest Airlines, 746 F.2d 4, C.A. No. 83-1839 (D.C. Cir.1984). The Laffey case did discuss the nature of attorney fees in Copeland and that some change is needed. However, for all its broad ranging discussion, the holding of the Court of Appeals was rather narrow. The Appeals Court held that in cases where an attorney had a common in-house rate, that this in-house rate should be used in determining fees, not a higher average market rate. (Supra.)

      In the case at bar the rate changed by the plaintiffs attorneys was his in-house rate, which was the same for other such cases such as the one fixed by the court in Minority Employees at NASA (MEAN) v. Frosch, 555 F.Supp. 1 (D.C.D.C. 1981). Therefore the present decision is consistent with the recent holding of Laffey, Id.

        . In more detail, see also plaintiff's summary of expenses (pp. 1-9) in accord with National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C.Cir.1982), "which requests sufficiently detailed information about the hours logged and the work done.” (p. 1327).


author: LASKER, District Judge.

text:
    Walter KIRKLAND (Commissioner of Police), Plaintiff, v. Former Mayor F. BIANCO, City of Peekskill, and his predecessors, individually and in their official capacities, et al., Defendants.
    No. 83 Civ. 6754(MEL).
    United States District Court, S.D. New York.
    Oct. 9, 1984.
    Joseph Scott, Peekskill, N.Y., for plaintiff.
    Rains & Pogrebin, Mineóla, N.Y., for defendants; Bruce R. Millman, Joel H. Golovensky, Joann M. Calderone, Mineóla, N.Y., of counsel.
   LASKER, District Judge.

Walter Kirkland, Commissioner of Police for the City of Peekskill, has brought this civil rights suit pursuant to 42 U.S.C. §§ 1983 and 2000e (1982), claiming racial discrimination against him by the City of Peekskill and present and former city officials. Defendants move to dismiss, inter alia, (1) under Fed.R.Civ.P. 9(c) for failure to meet conditions precedent to suit under 42 U.S.C. § 2000e (1982) and (2) under Fed. R.Civ.Pr. 12(b)(6) for failure to state a cause of action under 42 U.S.C. §§ 1983 and 2000e (1982). The motion is granted.

I.

In November 1976, Kirkland, a black man, was hired by the defendant City of Peekskill as Deputy Police Administrator for Crime Prevention and Community Relations. The amended complaint alleges the following acts by defendants: (1) at the time Kirkland was hired the City allegedly promised him an annual starting salary of $20,000, but only paid him $18,100 after he accepted the position; (2) he was required to live within the city limits before being employed, although he contends that no other city officials had been required to do so, (3) that at no time was he offered financial assistance with his moving expenses, (4) since being appointed Commissioner of Police in September of 1978 the City has failed to increase his salary as required under General Municipal Law § 207-m (McKinney Supp.1983), and finally, (5) the amended complaint summarily alleges that defendants have discriminated against him throughout his tenure as Commissioner.

In September 1983 Kirkland commenced this action, claiming numerous violations of his civil rights. Defendants then moved to dismiss. In response to defendants’ motion, Kirkland withdrew all but two of his civil rights claims: (1) that the defendants discriminated against him in the consideration and terms of his employment in violation of Title VII, 42 U.S.C. § 2000e et seq. (1982), and, (2) that the defendants, acting under color of state law as city officials, also violated his civil rights under 42 U.S.C. § 1983 (1982).

II.

Defendants move to dismiss Kirkland’s Title VII claim on the ground that he has failed to exhaust his administrative remedies. Before bringing a Title VII suit a complainant must file a charge with the Equal Employment Opportunity Commission (EEOC) and a designated state deferral agency and must receive the Commission’s statutory notice of the right to sue. See 42 U.S.C. §§ 2000e-5(b), (c), (e), and (f) (1982). Sheehan v. Purolator Courier Corp., 676 F.2d 877, 881 (2d Cir.1981). In addition, Federal Rule of Civil Procedure 9(c) requires that all conditions precedent to suit which have been performed or have occurred be averred in the complaint, or alternatively, that a denial of performance or occurrence of conditions precedent be made specifically and with particularity. Kirkland’s amended complaint contains no allegations of performance or non-performance of the conditions precedent to a Title VII suit.

Section 2000e-5(c) provides that where State or local law prohibits the unlawful employment practice and creates an agency having authority to grant relief from such practice, a discrimination charge cannot be filed with the EEOC until sixty days after proceedings have been commenced under the State or local law. 42 U.S.C. § 2000e-5(c) (1982). Section 2000e-5(f)(1) prohibits a private person from litigating a discrimination charge until the EEOC either has dismissed the charge or has had at least 180 days to obtain voluntary compliance. 42 U.S.C. §§ 2000e-5(f) (1982). Under New York law, Kirkland was obliged to file a charge first with the State Division of Human Rights and then with the EEOC before bringing this suit. In fact, Kirkland did not file a charge of discrimination with the EEOC until January 1984, more than three months after initiating this lawsuit. Such late filing does not meet the requirements of law.

Since Kirkland has not met the statutory exhaustion prerequisites under 42 U.S.C. § 2000e (1982), nor complied with the pleading requirements for conditions precedent of Federal Rule of Civil Procedure 9(c), defendants’ motion to dismiss plaintiff’s Title YII claim is granted.

III.

Defendants also move to dismiss Kirkland’s section' 1983 claim on the ground that it fails to state claims upon which relief can be granted against them. Kirkland answers that he has adequately pleaded a claim under 42 U.S.C. § 1983 (1982) based on the factual allegations in his amended complaint and the reasonable inferences to be drawn therefrom.

Defendants argue that the allegations of the amended complaint are insufficient to state claims for relief against them because they merely allege certain non-discriminatory acts performed by the various defendants. They point out that former Mayor Bianco is not named once in the body of the amended complaint; defendant Walsh is named only once in paragraph 23 as merely having been questioned by Kirkland about his salary; defendants Creem and Miller are named in paragraph 57 for simply having been present at an employee disciplinary hearing, and again in paragraph 58 concerning statements they allegedly made about their future conduct if elected to the Common Council; defendants Torpy and Florence, the former and present Corporation Counsels, are named once in paragraph 34 for merely having professed ignorance about a state law.

Defendants contend that Kirkland’s amended complaint lacks the specificity necessary to hold any particular defendant liable for any claimed violation. In Morabito v. Blum, 528 F.Supp. 252 (S.D.N.Y. 1981), the defendant Krauskopf was specifically named only in the caption and in paragraph 82 of the 43 page complaint where he was identified as the Commissioner of the New York Department of Social Services. The plaintiffs in Morabito made no allegations whatsoever that defendant Krauskopf had either acted or omitted to act in any particular fashion. Id. at 262. The Morabito court dismissed the complaint stating, “... the complaint provides no basis for anyone to ascertain why plaintiffs think that Krauskopf has violated the law in some manner or acted in some fashion so as to injure plaintiff ... where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss should be granted.” See id. at 262, citing Gutierrez v. Vergari, 499 F.Supp. 1040, 1052 (S.D.N.Y.1980); Holloway v. Carey, 482 F.Supp. 551, 553 (S.D.N.Y.1979); Child v. Beame, 417 F.Supp. 1023, 1025 (S.D.N.Y.1976). In this case, as in Morabito, the defendants are named in the caption, but the amended complaint provides no basis to ascertain how defendants have violated the law in some manner or acted in some fashion so as to injure Kirkland.

Moreover, Kirkland’s claim is insubstantial on its face because it does not allege how his civil rights were violated. Complaints relying on the civil rights statutes are plainly insufficient unless they contain some specific allegations of fact indicating a deprivation of civil rights. Conclusory pleading is insufficient. Koch v. Yunich, 533 F.2d 80, 85 (2d Cir.1976). Kirkland argues that the defendants ridiculed, humiliated and embarrassed him, and that they continue to maintain a policy, custom and practice of discriminating against him. Nowhere, however, does the amended complaint show that he received discriminatory treatment on account of his race. Since Kirkland’s amended complaint does not allege with sufficient specifity that his civil rights were violated by the defendants, the defendants’ motion to dismiss is granted without prejudice.

The defendants’ motion to dismiss is granted.

The amended complaint is dismissed without prejudice.

It is so ordered.

      . The only relief available prior to exhaustion is an injunction pending state administrative proceedings. Sheehan v. Purolator Courier Corp., 676 F.2d 877, 881 (2d Cir.1981). While Kirkland does mention injunctive relief in the first paragraph of his amended complaint, he does not state what act or acts he seeks to restrain. On the basis of the facts shown in his amended complaint, Kirkland does not make the requisite showing of any immediate or irreparable injury or damage that would warrant a preliminary injunction. See Holt v. Continental Group, Inc., 708 F.2d 87, 90 (2d Cir.1983).

      . Kirkland contends that the doctrine of equitable estoppel should apply to the Title VII filing requirements in this case. He relies on Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), a class action suit in which some of the plaintiffs failed to file charges with the EEOC within 90 days of the alleged unlawful employment practice. The Supreme Court in Zipes held, “that filing a timely charge of discrimination with the EEOC is not a ‘jurisdictional prerequisite’ to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Id. at 393, 102 S.Ct. at 1132. Although equitable estoppel may be appropriate in cases such as Zipes, it does not apply here because Kirkland failed completely either to file a charge of discrimination with the EEOC and State Division of Human Rights before filing suit, or to allege with specificity and particularity in his amended complaint his reasons for not doing so.