author: HUYETT, District Judge.

text:
    Aylna Marie RAMIREZ, et al. v. RICHARDSON-MERRELL, INC., et al.
    Civ. A. No. 85-1504.
    United States District Court, E.D. Pennsylvania.
    Jan. 29, 1986.

      Barry J. Nace, Paulson, Nace & Nor-wind, Washington, D.C., Soren P. West, Lancaster, Pa., for plaintiff.
    Edward W. Madeira, Jr., Nina M. Gus-sack, Pepper Hamilton & Scheetz, Philadelphia, Pa., for defendant.
   MEMORANDUM OPINION

HUYETT, District Judge.

Plaintiffs filed this products liability action alleging that minor plaintiff, Alyna Marie Ramirez, was born on July 4, 1980 with certain deformities as the result of her mother’s ingestion during her pregnancy of Bendectin, a prescription drug. Bendectin had been prescribed by Rosa Ramirez’s physician for the treatment of nausea and vomiting in the early stages of her pregnancy with the minor plaintiff. In addition to the counts against Merrell Dow Pharmaceuticals, Inc. (referred to by plaintiffs as Richardson-Merrell, Inc.), plaintiffs have included two counts against Queen Pharmacy, the pharmacy which allegedly filled the Bendectin prescription. Defendant Queen Pharmacy has filed a motion for summary judgment which for the reasons outlined below I have granted by order dated December 18, 1985.

The first cause of action against Queen Pharmacy, set forth in count VIII, is one in negligence. Plaintiffs allege that • Queen Pharmacy was negligent in failing to advise or warn plaintiff Rosa Ramirez of the potential hazards associated with the ingestion of Bendectin and specifically in failing to warn plaintiff that antihistamines and pharmaceuticals wherein active ingredients included antihistamines had been scientifically shown to be teratogens in animals and humans, thus causing birth defects in children. The second cause of action, count IX is one in strict liability and is also based on a failure to warn theory.

In its motion for summary judgment, defendant Queen Pharmacy contends that it had no duty to warn plaintiff Rosa Rameriz and that, therefore, it cannot be held liable as a matter of law under either negligence or a strict liability theory. In response, plaintiffs contend that the standard of care of reasonably prudent pharmacists in the United States requires the pharmacist to advise the client fully of potential adverse consequences associated with the medication, and if the pharmacist knows or has reason to know that an ingredient in a drug is contraindicted or carries a warning for use in pregnancy in its over-the-counter composition, the pharmacist’s duty is absolute to advise the patient of the potential ill effects.

I note as a preliminary matter that the drug was purchased in Pennsylvania and presumably used by plaintiff Rosa Ramirez in Pennsylvania. It would appear therefore that the cause of action arose in Pennsylvania and Pennsylvania law shall govern the strict liability and negligence claims.

Federal Rule of Civil Procedure' 56(c) states that summary judgement is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Small v. Seldows Stationary, 617 F.2d 992 (3d Cir.1980). The court does not decide any issues of fact but simply determines if there is an issue of fact to be tried. Ettinger v. Johnson, 556 F.2d 692 (3d Cir.1977). The facts must be viewed in the light most favorable to the opposing party, and any reasonable doubt as to the existence of a genuine issue of fact is to be resolved against the moving party. Continental Insurance Co. v. Bodie, 682 F.2d 436 (3d Cir.1982).

Because of the great benefit to society of new and effective drugs, courts have held that sellers of drugs are not to be held strictly liable for the unfortunate consequences of their use so long as the drugs are properly prepared and marketed and appropriate warnings are given. Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971), citing, Restatement (Second) of Torts, § 492A, comment K. Under Pennsylvania law, where the drug in issue is available only by prescription, “the warning required is not to the general public or to the patient, but to the prescribing physician.” Incollingo, 282 A.2d at 220. Therefore, the manufacturer of the drug satisfies any duty it has by providing proper warnings to the prescribing physicians. In an action against the manufacturer, the appropriate question is whether the warning that was given to the prescribing doctors, if any, was proper and adequate. Id. at 220.

Plaintiffs contend that because no warning was given by Queen Pharmacy to plaintiff Rosa Ramirez as to the potential hazards associated with the ingestion of Bendectin, plaintiffs are entitled to judgment as a matter of law as to the Pharmacy’s liability. There are no Pennsylvania cases directly addressing the issue of the pharmacist’s duty to warn the consumer when filling a prescription or the issue of whether a drug without a warning supplied by the pharmacist becomes unreasonably dangerous. It would be illogical and unreasonable, however, to impose a greater duty on the pharmacist or druggist who properly fills the prescription than is imposed on the manufacturer. Holding that the pharmacist has a duty to warn the patients directly of the potential hazards when the manufacturer does not have that duty would be to impose that greater duty. Similarly, although a prescription drug may be considered defective if the manufacturer fails to warn the prescribing physician adequately, thereby subjecting the manufacturer to strict liability, this warning need not accompany the product to the patient. Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807, 810 (1984); Incollingo v. Ewing, 444 Pa. .263, 287-88, 282 A.2d 206, 219-20 (1970). It follows therefore that the product dispensed by the pharmacist is not defective because of the absence of a warning.

Retailers as well as manufacturers and suppliers have been held liable under the theory of strict liability. However, as the court in Bichler v. Willing, 58 A.D.2d 331, 397 N.Y.S.2d 57 (1977) noted, there is a convincing argument to be made that retail pharmacists should not be held strictly liable for injuries sustained as the result of the ingestion of certain drugs. To hold a druggist strictly liable would be to make the druggist an insurer of the safety of the manufactured drug and would impose on the retail druggist the obligation to test, at its own expense, new drugs. The costs to society which needs and values the pharmaceutical products sold by druggists, would be unduly high. Therefore, a druggist should not be an absolute insurer. 79 A.L.R.2d 301, 315.

Although the Pennsylvania courts have not directly addressed this issue, other courts have consistently rejected the application of strict liability to pharmacists. In Johnson v. Richardson-Merrell, Inc., slip op., No. B-83-3814 (D.Md. June 1, 1984), a Bendictin case, the court, ruling from the bench, held that the pharmacy which filled the prescription for Bendectin was not strictly liable to the plaintiffs. The court found Comment K to the Restatement (Second) of Torts, § 402A to be persuasive. The Johnson court also relied upon two earlier cases the first of which was McCleod v. W.S. Merrell Co., Div. of Richardson-Merrell, 174 So.2d 736 (Fla.1965) in which the court held that the concept of strict liability without fault should not be applied to the prescription druggist. In Batiste v. American Home Products Corp., 32 N.C.App. 1, 231 S.E.2d 269 (1977), the court held that the lower court properly dismissed plaintiff’s claim against the pharmacist based on strict liability. Similarly, in Bichler v. Willing, 58 A.D.2d 331, 397 N.Y.S.2d 57, 59 (1977), relying on Comment K of the Restatement (Second) of Torts § 402A, the court rejected the argument that retail pharmacists should be under an obligation to independently test the drug’s chemical structure for side effects or other possible risks and held that retail pharmacists are not to be held strictly liable for a failure to warn plaintiff of the potential hazards associated with the ingestion of DES. Finally, in Jones v. Irvin, 602 F.Supp. 399, 400 (S.D.Ill.1985), the court noted that a pharmacist is not strictly liable under a products liability theory because he is not a retailer. Following the lead of these courts, I conclude that defendant Queen Pharmacy is entitled to judgment as a matter of law as to plaintiffs’ strict liability claim.

Plaintiffs’ second claim against defendant is grounded in negligence. Plaintiffs have not alleged that defendant was negligent in the filling of the prescription, i.e. that the pharmacist substituted another compound or a generic drug for that prescribed or that the pharmacist failed to include a warning that the physician had directed should be used. Rather, plaintiffs allege that defendant had a duty to warn plaintiff Rosa Ramirez of the potential hazards associated with the ingestion of Bendectin and that, in failing to give such warnings, was negligent. In support of their contention that pharmacists have a duty to warn patients of the potential hazards associated with the drugs, plaintiffs rely on the affidavit of Stanley Charles Glauser, Chief of the Division of Clinical Pharmacology at the graduate Hospital and excerpts from the Standards of Practice for the Profession of Pharmacy, American Pharmacy, volume 19, no. 3 (March, 1979). Both Dr. Glauser and the Standards of Practice suggest that a pharmacist has an obligation to fully advise and inform his clients of the potential adverse effects.

To impose a duty to warn on the pharmacist, however, would be to place the pharmacist between the physician who, having prescribed the drug presumably knows the patient’s present condition as well as his or her complete medical history, and the patient. Such interference in the patient-physician relationship can only do more harm than good. As the court in Batiste v. American Home Products Corp., 32 N.C.App. 1, 231 S.E.2d 269, 274 (1977) emphasized, when holding that a pharmacy could not be held liable in negligence for its failure to warn the plaintiff of the potential side effects associated with an oral contraceptive drug, defendant is not a physician and is not qualified or licensed to advise plaintiff with respect to the best medication for her use. See also Ingram v. Hook’s Drugs, Inc., Ind.App., 476 N.E.2d 881 (1985).

Plaintiffs contend that because over-the-counter products containing antihistamines similar to those used in Bendectin are required by federal regulation to carry a warning regarding use of the product during pregnancy, defendant pharmacy was under an obligation to provide such a warning to plaintiff at the time it filled the prescription. As previously noted, however, the duty of the manufacturer in the case of prescription drugs runs to the physician and not the patient under Pennsylvania law. To impose a greater duty on the pharmacist would be anomalous and would create an unduly high burden on the pharmacists. The point that must be emphasized is that the drug sold by defendant Queen Pharmacy was a prescription drug. The weighing of benefits of medication against potential dangers that are associated with it, which is the basis of the prescription drug system, requires an individualized medical judgment which only the physician can provide.

Adopting the standard' set forth in McLeod v. W.S. Merrell Co., Div. of Richardson-Merrell, 174 So.2d 736, 739 (Fla.1965), I conclude that a druggist has the duty to compound the drug prescribed, to use due and proper care in filling the prescription, to use proper methods in the compounding process, and to ensure that the drug is not adulterated with a foreign substance. Plaintiffs have not alleged a breach of any of these duties, and defendant QUEEN PHARMACY is therefore entitled to judgment as a matter of law as to the negligence claim.


source: Caselaw Access Project

author: PEREZ-GIMENEZ, Chief Judge.

license: Public Domain

text:
    Juanita Garcia GARRIGA, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. No. 82-2636(PG).
    United States District Court, D. Puerto Rico.
    Jan. 29, 1986.
    Rafael Lizardi Piñeiro, Caguas, Puerto Rico, for plaintiff.
    Wanda Rubianes Collazo, Asst. U.S. Atty., Hato Rey, Puerto Rico, for defendant.
   OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

On May 17, 1983, this Court remanded the case to the Secretary of Health and Human Services (the Secretary) for further administrative action. On September 16, 1983, the administrative law judge (AU) rendered his decision denying plaintiffs claim on the ground that she was not disabled under 42 U.S.C. § 423(d)(2)(B). The decision was adopted by the Appeals Council on December 3, 1983 (Tr. 4).

Section 202(e) of the Social Security Act (the Act), 42 U.S.C. § 402(e) provides for insurance benefits to be awarded to widows who qualify. The statute, in its relevant part, reads as follows:

(1) The widow (as defined in section 416(c) of this title) and every surviving divorced wife (as defined in section 416(d) of this title) of an individual who died a fully insured individual, if such widow or surviving divorced wife—
******
(B)(i) has attained age 60, or (ii) has attained age 50 but has not attained age 60 and is under a disability (as defined in section 423(d) of this title) which began before the end of the period specified in paragraph (4) ... shall be entitled to a widow’s insurance benefit____

Plaintiff was born on February 27, 1922 (Tr. 10, 122). Under section 402(e)(1)(B)(i) she would qualify for widow’s insurance benefits from February 27, 1982, on, regardless of whether or not she is disabled. Plaintiff’s degree of disability is an issue only for the period between October 31, 1979, and February 26, 1982. The scope of this decision is limited accordingly.

The sole question to be addressed by this Court is whether the judgment of the AU is supported by substantial evidence. 42 U.S.C. § 405(g); Solis v. Secretary of Health, Education and Welfare, 372 F.Supp. 1223, 1224 (D.P.R.1973).

The requirements for a widow to qualify for disability benefits are very stringent, more so than those for wage-earners. 42 U.S.C. § 423(d)(2); Rodriguez, supra, at 220; Muniz v. Secretary of Health and Human Services, 587 F.Supp. 1000, 1001 (D.P.R.1984). In order to qualify for disability benefits, a widow must show she suffers from mental and/or physical impairment severe enough to prevent her from engaging in “any gainful activity.” 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. § 404.-1577. Moreover, in evaluating a widow’s claim only the medical evidence may be considered; factors such as age, education and work experience will not be taken into account. 20 C.F.R. §§ 404.1577, 404.1578; Muñiz, supra, at 1001. This evaluation is made by comparing the medical impairments of the defendant with a list of impairments in Appendix 1 to 20 C.F.R. §§ 404.1501 to 404.1599. If the claimant suffers from any impairments listed in Appendix 1, or their equivalent, she is qualified for benefits.

The main purpose of the medical listings on Appendix 1 is to enable officers evaluating a claim to base their decision solely on the medical evidence before them. Even if none of the claimant’s impairments by itself equals any of the impairments listed, the claimant may qualify for benefits if the combination of those impairments prevents her from engaging in “any gainful activity.” 20 C.F.R. § 404.1526; Smith v. Schweiker, 671 F.2d 789, 791 (3rd Cir.1982). The term “gainful activity” is defined in 20 C.F.R. § 404.1572(b) as follows:

Substantial gainful activity is work activity which is both substantial and gainful____
b) Gainful Work Activity. Gainful work activity is work activity that you do for pay or profit. Work activity is gainful if it is the kind of work usually done for pay, a profit whether or not a profit is realized.

In the administrative record there are reports from various medical sources. There is also the opinion of Dr. Beltrán, a cardiologist who evaluated all the reports from the other doctors and hospital at the request of the agency and who testified at the de novo hearing.

Dr. Diez Rivas examined plaintiff on May 22,1981, having begun treating her on May 19, 1980. He diagnosed hypertension, left ventricular hypertrophy, obesity, varicose veins, anxiety state and stasis dermatitis on both ankles (Tr. 109-110). Dr. Diez further certified that plaintiff could not work due to her hypertension (Tr. 115,116).

Dr. Vizcarrondo evaluated the tests performed on plaintiff on May 19, 1981, at the request of Dr. Diez. He concluded that the EKG test revealed normal tracings, and the chest X-rays revealed mild cardiomegaly. He also stated that the stasis dermatitis of the lower legs was caused by varicose veins and that plaintiff’s cardiovascular condition was not significant (Tr. 117). Dr. Vizcarrondo did not examine plaintiff.

Dr. Casado issued three medical certificates. The first one, dated June 29, 1981, stated that plaintiff suffered from varicose veins, congestive heart failure, lumbo-sacral arthritis, hypertension and obesity (Tr. 118). On September 5, 1981, Dr. Casado issued a second certificate in which he made a more extensive diagnosis. He further recommended that plaintiff abstain from work because she was disabled (Tr. 130). Dr. Casado issued a third certificate on September 15, 1981, stating that plaintiff suffered from left congestive heart failure with hypertension. The chest X-ray conducted on May 15, 1981, indicated right and left ventricular enlargement with cardiomegaly. The physical examination conducted by Dr. Casado revealed edema on both legs and congestion of the jugular veins (Tr. 146). Her high blood pressure was 220/110.

Dr. Jiménez, a psychiatrist, examined plaintiff on September 1, 1981. He diagnosed a depressive disorder and anxiety disorder with hysterical manifestations of a moderate severe type. He found plaintiff unable to perform any type of substantial activity (Tr. 139, 140). Dr. Calzada, an ophtalmologist who treated plaintiff from July 25, 1980, to September 1, 1981, diagnosed hypermetrophy, senile cataracts incipient in her right eye, and nasal pterygium, small, on both eyes. Her eyesight was 20/400 on her right eye, 20/200 on her left, corrected by eyeglasses to 20/90 and 20/40, respectively.

The plaintiff was treated between August 20-24, 1982, in the Saint Mary of Nazareth Hospital Center at Chicago. The final diagnosis was mild essential hypertension and sick sinus rhythm with cardiac arrhytmia and bradycardia (Tr. 166). A stress test showed a moderate exercise intolerance for a 60-year old female. A cardiologist suggested that plaintiff should undergo a cardiac catheterization, but plaintiff requested not to have this done due to an emergency at home. Id. The hospital recommended that plaintiffs activities be restricted. Id.

Dr. Beltrán, a well-qualified cardiologist, made an evaluation of all the medical evidence during the hearing. He had never examined the plaintiff. He stated that after studying all the medical reports and tests, neither any of plaintiffs impairments nor the combination of them equals or surpasses any of the impairments listed in Appendix 1 (Tr. 10, 67).

It is apparent from the AU’s opinion that in making his decision to deny plaintiffs claim he relied mostly on Dr. Beltrán’s evaluation, Dr. Vizcarrondo’s analysis and the results of the tests performed at the Saint Mary of Nazareth Hospital Center in Chicago. We hold that in light of all the evidence present in the administrative record the judgment by the AU was not supported by substantial evidence.

Neither Dr. Beltrán nor Dr. Vizcarrondo examined plaintiff. They based their opinion solely on the medical reports that were before them at the time. On the other hand, doctors Diez, Casado and Jiménez personally treated plaintiff and stated their opinion that plaintiff was unable to work. Ordinarily the opinion of a treating physician is entitled to more weight than that of a non-treating physician. Bowman v. Heckler, 706 F.2d 564, 568 (5th Cir.1983).

We have held that the expert opinion of a treating physician as to the existence of a disability is binding on the fact finder unless contradicted by substantial evidence to the contrary. Lopez v. Secretary of Health and Human Services, 581 F.Supp. 698, 700 (D.P.R.1984). Neither Dr. Beltran nor Dr. Vizcarrondo contradict the opinion stated by plaintiffs treating doctors that she cannot work. Furthermore, the results of the tests performed on plaintiff at the hospital did not prevent the doctors from recommending restricted activity of plaintiff and a cardiac catheterization.

Second, the medical evidence clearly shows that plaintiff is unable to engage in any gainful activity. As we have stated before, gainful activity is that which is usually done for pay or profit. Though the Secretary is not required to demonstrate the existence of jobs which plaintiff may perform, she is still required to rest her decision on some evidence that plaintiffs impairment does not prevent her from engaging in any gainful activity. Helms v. Heckler, 572 F.Supp. 259, 262 (W.D.N.C.1983).

On Dr. Casado’s evaluation of plaintiff, dated June 29, 1981, it is stated that plaintiff can stand for only 1-2 hours and cannot bend, squat or ambulate. Plaintiff has stated that she is usually unable to perform housework chores, which her daughter-in-law does for her (Tr. 49-49). Based upon all of the foregoing, we hold that the judgment of the AU denying plaintiffs claim for widow’s disability benefits is not supported by substantial evidence.

Accordingly, we reverse. The Secretary shall determine plaintiff’s period of eligibility for benefits and the amount thereof for the period between October 31, 1979, and February 26, 1982. The Secretary shall further determine whether plaintiff is receiving the benefits she is entitled to under 42 U.S.C. § 402(e)(1)(B)(i).

IT IS SO ORDERED.

       42 U.S.C. § 423(d)(2)(B) reads as follows:
      (2) For purposes of paragraph (1)(A)— ******
      (B) A widow, surviving divorced wife, widower, or surviving divorced husband shall not be determined to be under a disability (for purposes of section 402(e) or (f) of this title) unless his or her physical or mental impairment or impairments are of a level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity.


author: FUSTE, District Judge.

text:
    SOUTHERN INDUSTRIAL REALTY, INC., Plaintiff, v. William J. NOE; Jorge Lucas P. Valdivieso; and Federal Deposit Insurance Corporation, Defendants.
    Civ. No. 81-1572 (JAF).
    United States District Court, D. Puerto Rico.
    Jan. 29, 1986.
    Francisco M. Troncoso, Fiddler, Gonzalez & Rodriguez, San Juan, Puerto Rico, for Southern Indus. Realty, Inc.
    Frank L. Skillern, Jr., Myers N. Fisher, Michael B. Burgee, Wayne D. Bailer, Federal Deposit Ins. Corp., Washington, D.C., Felstein, Gelpi, Hernandez & Castillo, San Juan, Puerto Rico, for Federal Deposit Ins. Corp.
    Charles A. Cuprill-Hernandez, Ponce, Puerto Rico, for Jorge Lucas Valdivieso.
    David Carrion Fuentes, Bufete Carrion Fuentes, San Juan, Puerto Rico, for William J. Noe.
   MEMORANDUM OPINION AND ORDER OF JUDGMENT

FUSTE, District Judge.

Plaintiff, Southern Industrial Realty, Inc. (SIR) brought this action seeking cancellation of a mortgage on real property which secures payment of a certain promissory note executed and delivered by plaintiff to the former Banco Crédito y Ahorro Ponceño (Bank). Defendant Federal Deposit Insurance Corporation (FDIC) is now the holder of the note having acquired same pursuant to 12 U.S.C. former § 1823(e). The basic contention espoused by SIR in the Amended Complaint is that the loan evidenced by the note had been obtained for the exclusive and personal benefit of defendants William J. Noe (Noe) and Jorge Lucas P. Valdivieso (Valdivieso), both of whom were shareholders, directors and officers of this closed corporation. The Amended Complaint also alleges that the loan and subsequent guarantees were made without the knowledge or consent of Rafael R. Vizcarrondo (Vizcarrondo), the only other shareholder, director and officer of SIR. The relief requested consists principally of the cancellation of the mortgage and assignment of lease securing payment of the note now held by the FDIC, and the return of all amounts collected by the FDIC. This relief, according to the Amended Complaint, is justified since the acts of defendants Noe and Valdivieso constituted a breach of their fiduciary duty as directors and the transactions were ultra vires.

The FDIC counterclaimed for judgment in the amount due and owing on the note, and seeking foreclosure of the mortgage securing payment thereof. In its answer to this counterclaim, SIR again alleged as affirmative defenses that the execution of the mortgage and assignment of lease was illegal and ultra vires.

A motion for partial summary judgment was filed by SIR on February 16, 1981. The summary judgment requested was apparently deemed partial because it would grant the relief requested as to cancellation of the mortgage and the assignment, but would not include any monetary award. The FDIC responded to this motion and on March 8, 1982, the motion was denied by order of the Hon. Carmen Consuelo Cerezo, Judge of this Court.

On February 25, 1983, SIR filed an amended motion requesting summary judgment against the FDIC. A cross-motion requesting summary judgment on the counterclaim was filed by the FDIC on June 1, 1983. As part of its response to the cross-motion and in compliance with local rules, SIR filed a statement of issues of material facts dated August 2, 1983. Among the issues so presented by SIR are the following:

6. Whether the Federal Deposit Insurance Corporation had actual knowledge of the fraud perpetrated by the bank and others before it acquired the assets in question.
7. Whether Mr. José F. Blasini and Attorney José M. González Romanace knew or should have known that the loan documents were fraudulent because the Certificate of Corporate Resolution was subscribed by a person other than Rafael R. Vizcarrondo, who was the secretary and was the person appearing in the documents which they prepared.
8. Whether Mr. William J. Noe and Jorge L.P. Valdivieso were directly pressured by the bank and indirectly pressured by the FDIC and were thereby forced to restructure the loan they had made for Auto Sur and Auto Rey, Inc. for their personal benefit and in order to improve the position of the bank.

By order dated June 13, 1983, the Court denied SIR’s motion on grounds that there were present genuine issues of material fact which precluded entry of judgment for SIR. The Court also denied at that time the cross-motion filed by the FDIC in view of the fact that trial was scheduled for the end of that month. The trial having been subsequently continued, by order entered on June 29, 1983 the Court reinstated the cross-motion for summary judgment filed by the FDIC, which motion was timely opposed by SIR.

On August 31, 1983, the Court issued an opinion and order holding that the FDIC is protected from ordinary fraud claims in connection with assets acquired in a purchase and assumption transaction unless claimant could establish that the FDIC had knowledge of the fraud at the time it purchased the note. SIR having made an offer of proof to the effect that it could establish actual knowledge by the FDIC of the alleged fraud through the testimony of various witnesses from whom it had been unable to obtain affidavits, the Court held in abeyance its decision on the FDIC’s cross-motion for summary judgment pending an evidentiary hearing on the limited issue of actual knowledge of fraud.

After much delay caused in part by requests for continuances, the filing of a petition in bankruptcy by SIR, and the disqualification of the judge to whom the case was assigned, an evidentiary hearing was finally commenced on November 20, 1985. The same was concluded before the undersigned on January 16, 1986, after the assigned Magistrate recused himself.

The evidence presented during the evidentiary hearing does not show that the FDIC had actual knowledge of any fraud, nor even the existence of the alleged fraud. The Court is fully convinced, after reviewing the evidence in the light most favorable to the plaintiff, that there is absolutely no basis for a finding of fraud.

In his Opinion and Order of August 31, 1983, the Hon. Raymond L. Acosta came to the following conclusion:

We do not agree with plaintiff’s position. Regardless of the internal problems existing between the shareholders of SIR, the necessary documents for the loan and liens at issue in this case were executed by officers of SIR vested with apparent legal authority to bind the corporation. They executed the documents as officers of SIR and provided a corporate resolution, which on the face of it sanctioned the transaction.

The documentary and testimonial evidence subsequently adduced in the evidentiary hearing fortifies that conclusion. The documents presented by plaintiff itself show a loan, evidenced by a promissory note, secured by a mortgage, with a certificate of corporate resolution executed before a notary public authorizing the transaction. The documents relating to the disbursement of the proceeds of the loan show that of the total of $304,520.00, the prior indebtedness of another corporation, Auto Sur, Inc., in the amount of $233,404.29 was satisfied. The three principals of plaintiff, Noe, Valdivieso, and Vizcarrondo, were also shareholders, directors and officers of Auto Sur, Inc. Plaintiff contends that the classification of the loan to Auto Sur, Inc. in the reports of examinations rendered by the FDIC should have alerted the FDIC to the fact that the loan to plaintiff was being used for the benefit of Auto Sur, Inc. and Noe and Valdivieso as personal guarantors of the classified indebtedness. The FDIC, on the other hand, invites reliance on cases holding that the knowledge acquired by bank examiners in the open-bank division is not attributed to FDIC’s closed-bank division when undertaking a purchase and assumption transaction. Gilman v. FDIC, 660 F.2d 688, 694-95 (6th Cir.1981); FDIC v. Merchants Nat. Bank of Mobile, 725 F.2d 634, 640 (11th Cir.1984); FDIC v. Leach, 772 F.2d 1262, 1268 (6th Cir.1985) (concurring opinion). Neither position need be adopted here. The mere fact that a substantial part of the proceeds were utilized to repay loans to another corporation does not constitute fraud. The remainder of the proceeds was utilized to pay fees and expenses relating to the loan transaction, indebtedness of the plaintiff to the Bank, satisfaction of a mortgage note payable to the father of Vizcarrondo, and to provide funds for improvements to plaintiff’s property.

Plaintiff also presented in evidence drafts of documents relating to the loan transaction in which the names and titles of the officers of SIR who were to execute documents were changed by handwritten notes, admittedly made by Valdivieso. The note and mortgage were signed by Noe as President of SIR, and the Certificate of corporate resolution authorizing the execution thereof by Noe was signed by Valdivieso as Assistant Secretary of SIR, and was signed before a notary public. Plaintiff apparently contends that the fact that Vizcarrondo’s name appears as secretary of SIR in the drafts of the documents somehow required that he execute the documents at the closing. Even were we to accept this premise, which we do not, the closing was effected in the office of the attorney for the Bank. The evidence does not show any knowledge by the FDIC of any purported fraud.

The testimony of Valdivieso, offered by plaintiff, establishes that the meetings of directors of SIR were held on an informal basis and no minutes of said meetings were kept. The transaction in question had been discussed among the directors on several occasions prior to its execution and although Vizcarrondo expressed his opposition to the transaction, the other two directors, Noe and Valdivieso, had given their consent and had actually negotiated and closed the loan. The Bank’s attorney testified that he relied on the authority of Noe as reflected by the certificate of corporate resolution signed by Valdivieso. Both Valdivieso and Vizcarrondo are lawyers. Valdivieso denied that he had committed any fraud or that he had apprised the Bank of any irregularity that could have affected the validity of the transaction. Independently of this denial by Valdivieso, this Court finds insufficient evidence of fraud or of any knowledge of fraud by the FDIC.

Plaintiff’s other contention that it was coerced somehow into accepting the transaction is also bereft of support. Two letters written to Valdivieso by Eugenio H. Fontanes, Senior Vice-President of the Bank, were introduced into evidence by plaintiff. These letters refer to indebtedness of Dorado Auto Sales, another entity in which the three principals of SIR were interested. The letters are collection efforts, but do not give any indications of any improper coercion. Mr. Fontanes, also called on behalf of plaintiff, testified that these endeavors at collection were no different from those used with respect to other debtors and that such collection efforts were part of his duties at the Bank.

One further aspect of the testimony merits comment. Valdivieso testified that he expressed the opinion at the closing that Vizcarrondo would not sign the documents. The implication was that this statement was made to a Bank officer or to the Bank’s attorney and was the reason for the handwritten changes in the drafts of documents. The Bank’s attorney denied that any such statement was made in his presence. Two of the Bank’s officers testified on behalf of plaintiff, but neither was questioned about this. This testimony, even if credible, would not be sufficient to delay the granting of summary judgment here. The testimony does not even remotely show knowledge of the purported statement by the FDIC.

SIR has failed to meet its burden in bringing sufficient evidence supporting the claimed factual dispute to require a jury or judge to resolve the parties’ differing versions of the truth at trial. General Office Products Corp. v. A.M. Capen’s Sons, Inc., 780 F.2d 1077, 1078 (1st Cir.1986). Plaintiff has had an opportunity since Judge Acosta’s order on August 31, 1983, to obtain and present evidence of the alleged fraud and knowledge thereof by the FDIC. The evidence it has presented does not show the “existence of an issue of fact which is both ‘genuine’ and ‘material’.” Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976), quoted in John M. Taylor v. Hercules, Inc., 780 F.2d 171, 173-74 (1st Cir.1986). Such factual disputes as appear from the evidence could not affect the outcome of this litigation. Id.

On the basis of the above, the Court now finds that there is no genuine issue as to any material fact and that the FDIC is entitled to a judgment as a matter of law. There being no just reason for delaying entry of judgment on the counterclaim and dismissing the complaint against the FDIC, judgment will be entered

(a) dismissing the complaint against the FDIC, with prejudice;

(b) decreeing that the FDIC have and recover of SIR all amounts payable to the FDIC on the counterclaim;

(c) decreeing and ordering the foreclosure of the mortgage securing the payment of the note in question, according to law; and

(d) execution of said judgment shall be stayed until the stay afforded by Section 362 of the Bankruptcy Code, 11 U.S.C. § 362, shall be terminated or modified to permit such action.

In view of the time that has elapsed, the FDIC is granted a term of five (5) days from the date of this order to submit an affidavit of the amounts presently payable on the note, in substitution for the affidavit in support of the cross-motion for summary judgment which was dated May 26, 1983.

IT IS SO ORDERED.

      . On June 12, 1984, the United States Bankruptcy Court for the District of Puerto Rico entered an order modifying the stay in case number B-83-01521(A) to permit the instant case to be prosecuted to final judgment with respect to the claims of the plaintiff and the FDIC.

      . Allegations of fraud are afforded special treatment. A party alleging fraud has specific duties on pleading drafting. Fed.R.Civ.P. 9(b). The duty of those asserting fraud does not end with the particular statement of the circumstances constituting fraud. The Rule 9 duty has to be seen in light of Fed.R.Civ.P. 7, 11. These rules are clear about the fact that pleadings signed by counsel carry a warranty of quality and content. Fraud cases are, by virtue of Rule 9, in a higher warranty classification. The rules have a built-in stop-and-think obligation on the good quality of the matters asserted. As to the alleged fraud in this particular case, we find that the plaintiffs pleaded positions deserve its examination of conscience.

      . Some of the exhibits indicate that Vizcarrondo also was a personal guarantor of the indebtedness of Auto Sur, Inc.


author: PHILIP PRATT, District Judge.

text:
    Richard A. KALTNER, Plaintiff, v. Don PEBBLES, et al., Defendants.
    Civ. No. 82-74061.
    United States District Court, E.D. Michigan, S.D.
    Jan. 29, 1986.
    Robert F. Wick, Rochester, Mich., for. plaintiff.
    Parvin C. Lee, Jr., Booth, Patterson, Lee, Karlstrom & Steckling, Pontiac, Mich., for defendants.
   MEMORANDUM OPINION. AND ORDER

PHILIP PRATT, District Judge.

This is a 42 U.S.C. § 1983 action in which the plaintiff alleges the violation of his due process and fourth amendment rights as guaranteed by the United States Constitution. The defendants’ motion for summary judgment is now before the Court.

This action arose out of an arson investigation which resulted in the arrest of the plaintiff. On March 24,1980, at 12:42 p.m., a serious fire occurred at the plaintiff’s residence. The Oakland County Sheriff's Department began an arson investigation at the site of the fire, conducted by the defendant, Pebbles.

The investigation revealed that the plaintiff had returned home for five or ten minutes, approximately one-half hour before the fire started. Earlier that day, plaintiff had used a chemical insecticide to spray the house for fleas. The defendant removed the furnace air filter from the house and took it to a police laboratory for chemical analysis. He was advised by a chemist that the filter contained a residue of fuel oil. On April 29, 1980, the defendant sought and obtained a warrant for plaintiff’s arrest, the charge being arson in violation of M.C.L. § 750.72.

On July 22, 1980, the examining magistrate found that the testimony heard at the preliminary examination was sufficient to show that the plaintiff had a motive and opportunity and that probable cause existed that he did set fire to the house and bound the plaintiff over for trial. On December 15, 1980, the trial court determined that the magistrate had abused his discretion and dismissed the charge against the plaintiff. The Michigan Court of Appeals affirmed the trial court’s dismissal. People v. Kaltner, Slip Opinion No. 56331 (November 25, 1981). The Court of Appeals said that in order to bind the plaintiff over for trial, the prosecution must produce evidence to establish each element of the offense charged or evidence from which the elements can be inferred. In arson cases, the prosecution must overcome the presumption that a fire is the result of an accident or some other providential cause. People v. Lee, 231 Mich. 607, 204 N.W. 742 (1925); People v. Dorrikas, 354 Mich. 303, 92 N.W.2d 305 (1958). The prosecution must make out a prima facie case that the fire was willfully or intentionally set. Lee, 231 Mich, at 612, 204 N.W. 742.

During the preliminary examination, the defendant testified that the fire appeared to have been caused by flammable liquids or chemicals, based primarily on the chemist’s finding of fuel oil traces in the furnace oil filter, as he believed the presence of such substances in a natural gas system to be suspicious. Basically, he believed that it was a case of arson because he could not find an explanation for the fire arising out of natural causes. The Court of Appeals, after noting that the prosecution must do more than prove the absence of natural causes, held that the testimony did not establish the elements of arson. The defendant never was able to connect the fire with the furnace area, nor did he conduct tests to see if the chemicals used to spray the house for fleas may have caused the fire. Further, he found no evidence of flammable substances at the point of origin of the fire. The Court of Appeals concluded: “Thus, the prosecution not only failed to negate the presumption that the fire was the result of accident or some other providential means, but the evidence it did present was insufficient to justify a reasonable man in concluding that all of the elements of the crime were established beyond a reasonable doubt.” Kaltner, slip opinion at page 4 (cites omitted).

Before the court addresses substantive issues of § 1983 law, it must first decide whether the defendant may benefit from the doctrine of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Supreme Court has held that the trial court must make this decision as soon as possible. “Until this threshold immunity question is resolved, discovery should not be allowed.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. This is purely a legal question to be decided by the court. Harlow; Donta v. Hooper, 774 F.2d 716, (6th Cir.1985). In deciding the issue of qualified immunity, the Supreme Court has emphasized that the trial court should be alert to the possibility of frivolous lawsuits which should be dismissed without hesitation.

Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading. Unless the complaint states a compensable claim for relief ..., it should not survive a motion to dismiss. Moreover, the Court recognized in Scheuer that damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based on the defense of immunity____ In responding to such a motion, plaintiffs may not play dog in the manger, and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits. Butz v. Economou, 438 U.S. 478, 507-508 [98 S.Ct. 2894, 2911-2912, 57 L.Ed.2d 895] (1978).

Harlow, 457 U.S. at 809, 102 S.Ct. at 2733. The court went on to admonish that “insubstantial suits” against public officials should not be allowed to proceed to trial. Id. 457 at 819, n. 35, 102 S.Ct. at 2739, n. 35.

The rule of qualified immunity is that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. This is an objective standard, eliminating from consideration inquiry about the officer’s subjective state of mind, such as bad faith or malice. Id. 457 U.S. at 816-818, 102 S.Ct. at 2737-2738; Floyd v. Farrell, 765 F.2d 1 (1st Cir.1985). The decisive issue in applying Harlow is whether at the time of the arrest it was clearly established as a matter of law that the defendant did not have probable cause to arrest the plaintiff, that is, whether it was objectively reasonable for the defendant to believe probable cause existed.

As the plaintiff was arrested pursuant to an arrest warrant, the issue is the extent to which an officer who makes an arrest pursuant to a warrant is immunized from liability in a subsequent § 1983 action. Several courts have held that the issuance of a warrant does not create an absolute bar to liability in § 1983 actions. Briggs v. Malley, 748 F.2d 715 (1st Cir.1984), cert. granted, — U.S. —, 105 S.Ct. 2654, 86 L.Ed.2d 271 (1985); Floyd v. Farrell, 765 F.2d 1 (1st Cir.1985); Olson v. Tyler, 771 F.2d 277 (7th Cir.1984). These courts have relied upon the Supreme Court’s reasoning in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), wherein the court announced the “good faith” exception to the exclusionary rule that shields against suppression if the officer’s reliance on the magistrate’s determination of probable cause was objectively reasonable. The court held that while a warrant would generally not be subjected to close scrutiny, suppression would be appropriate if the underlying affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 104 S.Ct. at 3423.

In perhaps the leading case on the effect of warrants on § 1983 liability, the First Circuit held:

We now rule that judicial approval of a warrant cannot serve as an absolute bar to the § 1983 liability of the officer who obtained the warrant. We emphasize that liability does not attach simply because there is a later determination of no probable cause. Applying the standard of official immunity enunciated in Harlow, we hold that only where an officer is “constitutionally negligent,” that is, where the officer should have known that the facts recited in the affidavit did not constitute probable cause, will liability attach. Where the sufficiency of the facts fall into the grey area appropriate for judicial interpretation, submission of the affidavit to a magistrate will insulate the officer from liability.

Briggs v. Malley, 748 F.2d 715, 721 (1st Cir.1984), cert. granted, — U.S. —, 105 S.Ct. 2654, 86 L.Ed.2d 271 (1985). In a later case applying Briggs, the First Circuit held that seeking an arrest warrant is objectively reasonable so long as the presence or probable cause is “at least arguable” and that “[a]n officer will be held liable for seeking an arrest warrant later found to be without probable cause only if there clearly was no probable cause at the time the warrant was requested.” Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir.1985).

The task in the case at bar is to determine whether there was “clearly” no probable cause to arrest the plaintiff, or whether it was at least arguable. Probable cause to arrest exists where the facts warrant a person of reasonable caution and prudence in the belief that the arrestee has committed a crime. While this requires more than a mere suspicion of criminal activity, United States v. Calandrella, 605 F.2d 236 (6th Cir.1979), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420, it does not require certainty or convincing evidence of guilt. Easton v. City of Boulder, 776 F.2d 1441, (10th Cir.1985). It is at least arguable that the defendant in this case had probable cause to seek an arrest warrant for the plaintiff. The plaintiff entered and left the home for a few minutes shortly before the fire, traces of a petroleum product were found in the filter of the natural gas furnace, and he was unable to find evidence of natural causes of the fire. The comments of the Supreme Court in Leon are appropriate in this case:

It is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate’s probable cause determination or his judgment that the form of the warrant is technically sufficient. ‘[0]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.’ [Citation omitted.]

Leon, 104 S.Ct. at 3420. The plaintiff not having shown that the defendant clearly had no probable cause to seek an arrest warrant against him, this court finds that it was at least arguable that probable cause existed. Thus the defendant’s conduct was objectively reasonable, and he is shielded from § 1983 liability by the doctrine of qualified immunity.

Accordingly, this Court GRANTS the defendant’s motion for summary judgment.

IT IS SO ORDERED.

      . These facts are drawn from the transcript of the preliminary examination that was held in state court.

      . Neither party has been able to produce a transcript of the hearings before the state magistrate who issued the arrest warrant. The parties have informed the court that the testimony of the defendant at the preliminary examination was basically the same as that given when the warrant was issued. Accordingly, the court will rely upon that testimony in its immunity analysis.

      . This standard is less demanding than that which must be met under Michigan law before a suspect can be bound over for trial, where the prosecution must establish the existence of all elements of the crime beyond a reasonable doubt and that probable cause exists that the defendant committed the crime. Kaltner, supra. The dismissal of the criminal action underlying this case by the Michigan Court of Appeals does not establish that the defendant clearly had no probable cause to seek an arrest warrant for the plaintiff.


author: LAFFITTE, District Judge.

text:
    UNION DE TRABAJADORES PETROQUIMICOS, Plaintiff, v. UNION CARBIDE CARIBE, INC., Defendant.
    Civ. No. 84-0488 HL.
    United States District Court, D. Puerto Rico.
    Jan. 30, 1986.

      Leticia Rodríguez García, San Juan, Puerto Rico, Ramón Baez, President of Union, Ponce, Puerto Rico, José Carreras, Hato Rey, Puerto Rico, for plaintiff.
    Rossell Barrios Amy, McConnell Valdes Kelley Sifre Griggs & Ruiz-Suria, San Juan, Puerto Rico, for defendant.
   OPINION AND ORDER

LAFFITTE, District Judge.

Plaintiff, Unión de Trabajadores Petroquimicos, petitions this Court to enforce an arbitration award or, in the alternative, to resubmit the award to the arbitrator for clarification. The Court has jurisdiction pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. sect. 185. The matter is before this Court on cross motions for summary judgment.

At the arbitration hearing, where both plaintiff union and defendant employer were represented by their respective counsel, the parties executed a submission agreement for the arbitrator’s decision, crystallizing the controversy in the following terms:

Determine if the Company violated or not Articles XII, XI and/or VI of the collective bargaining agreement in effect when it determined that the seniority of the following employees is the one that appears in enclosure 1 of the Stipulation attached. If it is determined that it was not the correct seniority, the arbiter must determine which is the correct seniority, the arbiter must determine which is the correct seniority for those employees and what remedies, if any, must be implemented: Israel Velez Ferrer, Anibal Cruz, Jose A. Cruz, Raul Martinez, José A. Hernández & Juan Torres Hermida.

After an extensive analysis the arbitrator ruled that the employees listed in the submission agreement, who had held positions outside the bargaining unit, may not have the time served outside the bargaining unit credited for the purpose of seniority. The arbitrator sustained the union’s claim that seniority is only accrued for time served in the bargaining unit.

Neither of the parties nor this Court disagree with the arbitrator’s ruling. Consequently, the merits of the award are not in dispute. In line with the foregoing, defendant moves for dismissal of plaintiff's petition to enforce the award claiming it has complied with the award. In support of this allegation defendant has filed an uncontroverted affidavit by Víctor Osuna Ortiz, Employee Relations Associate, establishing that pursuant to the award it has ceased to include the time served by unionized employees in the non-exempt category for seniority purposes under Article XII of the collective bargaining agreement.

Plaintiff, however, claims that the award is incomplete because the arbitrator failed to order reinstatement of six laid off employees with more seniority rights than those mentioned in the submission agreement, notwithstanding the reiterated demands by the union that the company comply with the award.

The issue confronted by this Court is whether the remedy provided by the arbitrator is incomplete, requiring the Court to remand for clarification. The answer to this question turns, however, upon the nature of the controversy submitted to the arbitrator’s decision, vis a vis the award.

It is beyond dispute that federal courts may, in the context of a Section 301 proceeding, resubmit an award to the presiding arbitrator for interpretation or amplification. Local 2222, I.B.E.W. v. New England Telephone & Telegraph Co., 628 F.2d 644, 647 (1st Cir.1980); Courier-Citizen & Co. v. Boston Eletrotypers Union No. 11, 702 F.2d 273, 279 (1st Cir.1983).

Plaintiff claims that this case calls for resubmission of the reinstatement rights of six laid off employees. Defendant asserts that whatever rights the award conferred upon the laid off employees is not a matter for clarification of the award because the award is self executory, prospective in nature; that the issue of the six laid off employees was not included in the submission agreement; and finally, that the arbitrator could have ordered reinstatement but chose not to order it.

The record shows that the parties did not include in the submission agreement for adjudication the cases of the six laid off employees. The arbitrator was asked to specifically determine which method for computation of seniority was in accordance with Article XII of the collective bargaining agreement; the employer’s or the union’s. The arbitrator ruled that the method utilized by the employer violated Article XII of the labor contract and sided with the union. As to this ruling, predicated upon the very exact issue presented for the arbitrator’s decision, the award is a direct response thereto. The parties do not raise any issue in this respect. The submission agreement further stated:

[I]f it is determined that it was not the correct seniority, the arbiter must determine which is the correct seniority, the arbiter must determine which is the correct seniority for those employees and what remedies, if any, must be- implemented: (emphasis supplied)
Israel Velez Ferrer,
Aníbal Cruz,
Jose A. Cruz,
Raul Martinez,
José A. Hernández,
Juan Torres Hermida.

The arbitrator’s response was that as

[T]o these employees, the Company must recognize as the competitive seniority date the date recognized by the Union pursuant to Annex I of this Award. The Company must cease and desist from including the time served by the unioned [sic] employees in the non-exempt category for the purpose of determining their seniority in relation to transactions and/or personnel movements included in Article XII of the collective bargaining agreement ...

The Court, after careful examination of the issues presented, dismisses' the petition on three grounds. First, a cursory reading of the controversy presented for decision, as defined in the submission agreement, leaves no doubt that the parties were expressly referring to the seniority of the employees listed in the submission agreement, and included in the table attached to the award. The laid off employees were not included in the submission agreement. They were mentioned in the stipulation of facts entered into by the parties. See stipulated fact No. 6 of the Award. But as to those laid off employees the arbitrator, contrary to the six employees included in the submission agreement, was not furnished with their alleged seniority or employment dates. Hence, the arbitrator, on the record before him could not possibly have fashioned a remedy for them. In sum, the issue-of the reinstatement rights of the six laid off employees was neither included in the submission nor considered by the arbitrator. The only issue submitted to arbitration was whether defendant employer was violating the labor contract seniority clause by crediting time for work performed outside the bargaining unit by the six employees mentioned in the submission agreement. The arbitrator answered in the affirmative and ordered the employer, as a remedy, to cease and desist. No other issue remained unresolved.

Second. The submission agreement authorized the arbitrator expressly to provide “what remedies, if any, must be implemented.” A submission agreement confers authority on the arbitrator and defines with precision the contours of the controversy submitted for the arbitrator’s decision. Hilton International Co. v. Union de Trabajadores, 600 F.Supp. 1446, 1449 (D.C.P.R.1985). Given the nature of the submission agreement, the arbitrator was empowered to formulate a remedy or no remedy at all. He chose to issue a cease and desist order. The Court finds no trace of incompleteness in this regard. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960), teaches that:

When an arbitrator is commissioned to interpret and. apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. (Emphasis added.)

Third. In post-award controversies, like the instant case, it is crucial to distinguish between disputes arising from the application or implementation of the award, and those which concern the interpretation of an award. Those pertaining to the interpretation of the award fall within the kind of cases that may be remanded to allow for clarification. Such is not this ease. As to the former, wherein this case falls, they are viewed as raising new grievances under the collective bargaining agreement upon which the arbitrator has not ruled, and must be submitted to arbitration through the grievance mechanism of the collective bargaining agreement. Local 2222 I.B.E.W. v. New England Telephone, supra; Derwin v. General Dynamics, 719 F.2d 484 (1st Cir.1983); United Paper Workers v. Westvaco Corp., 461 F.Supp. 1022 (W.D.Va.1978). Having failed to include the controversy of the laid off employees in the submission agreement, plaintiff may not demand clarification.

WHEREFORE, upon consideration of the award issued by arbitrator Edgardo Cruz Fortier, and briefs of counsel, plaintiff’s petition to enforce the award and/or to remand for clarification is hereby DENIED, and defendant’s motion for summary judgment is hereby GRANTED.

The Clerk shall enter judgment dismissing the petition.

IT IS SO ORDERED.

      . Defendant employer opposes the Union president's affidavit on the ground that it seeks to modify or add facts not found by the arbitrator nor encompassed in the parties’ stipulation submitted to the arbitrator.

      . On October 9, 1981, the employer laid off 206 employees. The employees mentioned in the submission agreement were not laid off. The six laid off employees, whose seniority remained uncontested by the parties, were the following: Daniel González, Héctor Aponte, Pa-bio Borrero, José Bracero, Rafael Colón, and Jaime Rentas.

      . Annex I is a list containing the comparative seniority dates for said employees as proposed by the Union and the Employer.


author: JOHN GARRETT PENN, District Judge.

text:
    Vivian LIVERMAN-MELTON, Plaintiff, v. BRITISH AEROSPACE, INC., Defendant.
    Civ. A. No. 83-2820.
    United States District Court, District of Columbia.
    Jan. 30, 1986.

      Carol N. Park, Washington, D.C., for plaintiff.
    Benjamin Achenbach, Washington, D.C., for defendant.
   MEMORANDUM ORDER

JOHN GARRETT PENN, District Judge.

The plaintiff filed this action, in which she alleges discrimination based on race (plaintiff is black), pursuant to 42 U.S.C. §§ 1981, 1988 and 2000e-2. She was hired by the defendant on October 29, 1979, as a receptionist. She alleges that she was discriminated against in the area of promotions, wages and other practices in the office.

I

In September 1982 the plaintiff filed a discrimination complaint against the defendant with the United States Equal Employment Opportunity Commission (EEOC). A fact finding conference was held in January 1983 and thereafter, an EEOC Equal Opportunity Specialist suggested that the defendant offer a cash settlement. In response to this suggestion, the defendant offered $500 to settle the case. This offer was almost immediately rejected by the plaintiff, who at that time was not represented by counsel. In February 1983, EEOC informed defendant that the agency intended to continue its investigation and EEOC did so by requesting additional information from the defendant including such items as defendant’s personnel handbook, a job opening announcement pertaining to the office where the plaintiff was employed, data on defendant’s employment evaluation policies, and specific information on defendant’s job evaluations of the plaintiff. Later, a second conference was held at which time the plaintiff was accompanied by an attorney for the first time. Defendant opened the conference by offering to settle the matter for $1,000. Plaintiff rejected the offer, did not make a counter proposal, terminated the EEOC investigation and requested a right to sue letter.

Plaintiff filed her complaint in this case on September 23, 1983. In her complaint she asked the Court to permanently enjoin the defendant from discriminating on the basis of race, to require the defendant to reimburse her for loss of promotional opportunities and loss of other benefits, to grant her compensatory and punitive damages, and to award her attorney’s fees and costs. Plaintiff had left her employment with the defendant in November 1982 and was not seeking reemployment.

The parties engaged in discovery and then in October 1984 entered into a Stipulation of Settlement and Order under which defendant paid the plaintiff $12,000 in full settlement of all claims except that the parties reserved the right of the plaintiff to claim attorney’s fees and costs as the “prevailing party” in this litigation. Defendant contended throughout, and in the written settlement, reserved its right to argue that the plaintiff was not the “prevailing party” under applicable law.

The case is now before the Court on plaintiff’s application for the payment of attorney’s fees and costs. After giving careful consideration to the motion and the opposition thereto, together with the record in this case, the Court concludes that plaintiff is the “prevailing party” and that the fee application should be granted.

II

It is now well established that a plaintiff-who settles a discrimination action prior to final judgment and prior to a determination that the defendant is guilty of discriminatory employment practices may nevertheless be the “prevailing party” and thereby entitled to attorney’s fees and costs. See Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980); Miller v. Staats, 227 U.S.App.D.C. 299, 706 F.2d 336 (1983); Comm’rs Court of Medina County, Texas v. United States, 221 U.S.App.D.C. 116, 683 F.2d 435 (1982).

Defendant opposes any award to the plaintiff as the “prevailing party” and in doing so notes that during the settlement discussions the defendant was under the impression that the monetary settlement included attorney’s fees and costs, and further that the plaintiff and her attorney had entered into a contingency fee arrangement and thus her attorneys should now be required to recover their fees out of the $12,000 paid to the plaintiff under the terms of the settlement. The defendant also contends that the plaintiff has not advanced a public interest under Title VII, that there was no need for the plaintiff to maintain this action since it was pending before the EEOC, and that the plaintiff has not succeeded on the central issue of discrimination. All of these arguments must be rejected.

In Miller, supra, our Court of Appeals addressed the issue of when a plaintiff is a “prevailing party”. The court noted that “[t]he statutory reference to the court’s ‘discretion’ does not authorize a refusal to award any fees to a prevailing plaintiff unless special circumstances would render such an award unjust.” Miller, supra, 227 U.S.App.D.C. at 303, 706 F.2d at 340 (citation omitted). The court observed that “for purposes of the attorney fees provisions, they [the plaintiffs in Miller] need only allege a claim that is colorable under the civil rights laws — that has some minimum basis in law____ This is a question of law, not fact.” 227 U.S.App.D.C. at 305, 706 F.2d at 342 (footnote omitted). Plaintiff is not required to prove defendant “ ‘guilty, to some degree of discrimination,’ ... to establish their ‘prevailing party’ status.” Id.

The plaintiff has met her burden. On its face, her complaint sets forth a legal claim of discrimination against the defendant; it is not frivolous on its face. Moreover, in response to interrogatories propounded by the defendant, the plaintiff has cited specific instances of what she claims to be discriminatory practices by the defendant. For example, she alleged that when she applied for a promotion for a posted job she was told that she did not qualify because her shorthand skills were not adequate. Complaint HU 13-6. Yet, a white applicant applied and was given the position even though the white applicant had no shorthand experience. Complaint 1Í17. In response to an interrogatory, plaintiff stated the name of the secretary who received the promotion. Plaintiff’s Response to Interrogatories 34 and 35. Similar examples can be found in her complaint and her response to other interrogatories propounded by the defendant.

The plaintiff’s allegations and responses to interrogatories do not establish her allegations and responses as facts, but they do establish that she has at least “allege[d] a claim that is colorable under the civil rights laws.” Miller, 227 U.S.App.D.C. at 305, 706 F.2d at 342. Thus, the plaintiff is entitled to attorney fees and costs absent a showing by the defendant that such fees and costs should not be awarded due to special circumstances.

Defendant’s contention that it was under the impression that the settlement was to include attorney’s fees and costs would not affect the award of fees since the parties thereafter entered into a written settlement agreement which specifically preserved plaintiff's rights to claim fees and costs as the prevailing party. Moreover, defendant’s argument that the plaintiff had entered into a contingency fee arrangement and should be held to that arrangement is not a complete statement of the fact. While plaintiff and her counsel did enter into a fee arrangement, that arrangement specifically referred to an application for fees to be addressed to the court if the plaintiff was successful and noted that the attorneys would receive “the greater of one-third (Vs) of any recovery you receive, or the attorney’s fees awarded to you by a court.” Application Appendix C.

The remaining argument in opposition to the award of attorney’s fees and costs is answered by Miller. Plaintiff must show that she “substantially received the relief sought” and that ‘the lawsuit was a catalyst motivating defendant^] to provide’ the requested relief.” 227 U.S.App.D.C. at 304, 706 F.2d at 341 (footnotes omitted, emphasis in the original). Here, although the plaintiff did not obtain an order or agreement that the defendant would refrain from engaging in discrimination based on race, indeed, defendant denies it did so, she did obtain the other relief requested in her complaint, including payment of compensatory and possibly punitive damages, and reimbursement for the loss of promotional opportunities. Thus the first prong of the test has been met. And, it seems highly unlikely that she would have received the settlement but for the institution of this lawsuit. The second prong is met. It does not appear that the plaintiff was unreasonable in filing this action when she did so because defendant had a number of months to investigate her claim and had still treated this case as having nothing more than nuisance value. Moreover, there seems little question that by bringing this action, the plaintiff, if the defendant did discriminate, would give the defendant pause for thought in any future employment actions. Therefore, a public interest has been advanced.

The Court finds therefore that the plaintiff is the “prevailing party” and that nothing in the record dictates against an award of fees and costs.

III

In determining the amount of fees and costs to be awarded, this Court is guided by Copeland v. Marshall, 205 U.S.App.D.C. 390, 641 F.2d 880 (1980) and National Association of Concerned Veterans v. Secretary of Defense, 219 U.S.App.D.C. 94, 675 F.2d 1319 (1982). Plaintiff seeks an award of $26,990 for attorney’s fees and $983.09 for costs, or a total award of $27,-973.09. The Court, consistent with its obligation under Copeland, has reviewed the claim including the billing records submitted by the plaintiff and the supporting affidavits and concludes that both the hours billed and the hourly rates are reasonable.

Defendant argues that the claim made by the plaintiff is excessive. But in making that argument, the defendant notes that it has incurred legal fees “well over $50,000”. Defendant’s opposition to the Application at 7. If anything, defendant’s statements support plaintiff’s application as being reasonable, bearing in mind that the plaintiff has the burden of proof in such litigation and that there is little incentive to counsel becoming involved with such litigation.

IV

In sum, the Court concludes that the plaintiff is “the prevailing party”, that her request for attorney's fees and costs is reasonable, and that she is now entitled to an award in the amount of $26,990 for attorney’s fees and $983.09 for costs, or a total award of $27,973.09. The Court finds no basis to add to the amount of that award.

In view of the above, it is hereby

ORDERED that plaintiff’s application for attorney’s fees and costs is granted, and it is further

ORDERED that the defendant shall pay to the plaintiff the sum of $26,990 for attorney’s fees and $983.09 for costs or a total payment of $27,973.09, and it is further

ORDERED that the award is made to counsel for the plaintiff subject to the requirement that counsel reimburse the plaintiff for any sums she has paid them for attorney’s fees and costs.


author: KRAM, District Judge.

text:
    MAGIQUE, A Limited Partnership, Plaintiff, v. CHIPPENDALES, INC., et al., Defendants.
    No. 85 Civ. 5903 (SWK).
    United States District Court, S.D. New York.
    Jan. 31, 1986.

      Simon, Meyrowitz & Meyrowitz, New York City by David H. Meyrowitz, for plaintiff.
    Kornstein, Yeisz & Wexler by Marvin Wexler, Gottlieb, Schiff, Ticktin & Schachter, P.C. by Robert A. Schachter, Jay S. Harris, New York City, for defendants.
   MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

Plaintiff (“Magique”) executed a contract with defendants (“Chippendales”) in which Chippendales promised, inter alia, to produce a male dance act at Magique’s club in Manhattan, New York. Due to the unique nature of the show, Chippendales further agreed not to produce a similar act within one hundred miles of Magique’s club.

Within a month after entering into the contract, Chippendales began producing a similar show in Glen Mills, Pennsylvania. After learning of the Glen Mills production, Magique complained that Chippendales was breaching the contract by operating within the proscribed one hundred mile limit. Chippendales disagreed. Magique has since refused to pay Chippendales for the shows it continues to produce in Manhattan.

Seeking damages and an injunction prohibiting the Glen Mills production, Magique filed an action in New York State Supreme Court. Chippendales counterclaimed for damages alleging that Magique’s nonpayment constitutes a material breach. Chippendales removed the action to this Court and now moves for summary judgment.

In support of summary judgment, Chippendales has submitted affidavits by experts who have calculated the distance between the two clubs. Magique has also submitted experts’ affidavits which contradict Chippendales’ factual assertions.

Federal Courts may dispose of an action when the evidence submitted shows that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). By submitting scientific evidence, Chippendales met its initial burden of showing an absence of issue as to the distance between the two night clubs. Had Magique not submitted opposing affidavits, or merely denied Chippendales’ allegations, Chippendales’ motion would have been granted. See Fed.R.Civ.P. 56(c), (e). However, the affidavits specifically refuting Chippendales’ findings clearly present a genuine issue worthy of trial. See First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980).

Because litigants deserve a jury trial if they have real issues to resolve, summary judgment is not appropriate unless the truth is quite clear. Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962), citing Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967 (1944). In order to avoid “trial by affidavit,” the motion for summary judgment is denied.

SO ORDERED.

      . The Manhattan Club is located at 1110 First Avenue.

      . The Glen Mills club is located southwest of Philadelphia at the intersection of Route 1 and Dougherty Lane.

      . Magique has been depositing into escrow the amount due Chippendales under the contract.

      . Chippendales experts cite the distance as between 100.05 and 100.24 miles.

      . Magique’s experts cite the distance as between 90.88 and 99.60 miles.

      . Sambolin v. Klein Sales Co., 422 F.Supp. 625, 628 (S.D.N.Y.1976).


author: EDWARD C. REED, Jr., District Judge.

text:
    Gerald F. RULEY, Plaintiff, v. NEVADA BOARD OF PRISON COMMISSIONERS, et al., Defendants.
    No. CV-R-85-154-ECR.
    United States District Court, D. Nevada.
    Feb. 4, 1986.

      Gerald F. Ruley, pro se.
    Norman John Crew, Inmate Lay Asst., Carson City, Nev., for plaintiff.
    Brian McKay, Atty. Gen. by Arthur G. Noxon, Deputy Atty. Gen., Carson City, Nev., for defendants.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

Disciplinary charges were filed against Plaintiff, an inmate at the Nevada State Prison, for allegedly assaulting another inmate. A disciplinary committee consisting of three Prison employees found Plaintiff guilty after a hearing. They then assessed him some $3,000 as restitution for the medical expenses incurred by the State as a result of the assault. Plaintiff’s Inmate Trust Fund account subsequently was frozen.

This is a civil rights action, pursuant to 42 U.S.C. § 1983, whereby Plaintiff seeks a declaratory judgment establishing the unconstitutionality of the enabling legislation (NRS § 209.246) and the regulation (Nevada Dept, of Prisons Procedure No. 307) under which the $3,000 restitution was ordered. He also seeks to enjoin enforcement of said statute and regulation, as well as money damages and the unfreezing of his Inmate Trust Fund Account.

The defendants have responded to the complaint with a motion to dismiss for lack of subject matter jurisdiction and failure of the complaint to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1) and (6). That motion is the matter now before the Court.

The defendants’ contention that the Nevada Board of Prison Commissioners is entitled to dismissal because of sovereign immunity is not disputed by Plaintiff. The Board is an agency of the State. An action for any type of relief against a state agency is proscribed by the Eleventh Amendment. Almond Hill School v. U.S. Dept. of Agriculture, 768 F.2d 1030, 1034-35 (9th Cir.1985).

The individual defendants have been sued both individually and in their official capacities. No judgments for damages may be awarded against them in their official capacities, but injunctive and declaratory relief may be granted. Id. at 1034. They do not enjoy sovereign immunity as individuals, therefore damages could be recovered from them.

In Plaintiff’s complaint, he alleges that he was déprived of his property in violation of the due process and equal protection clauses of the U.S. Constitution after a hearing conducted by a Prison disciplinary committee. The defendants argue that the hearing, after due notice, provided Plaintiff with all the due process to which he was entitled. However, Plaintiff has asserted that he did not receive due process because: (1) The Prison regulation under which he was ordered to make restitution goes beyond the enabling legislation pursuant to which it was promulgated; (2) witnesses against him at the hearing were not put under oath before testifying; (3) he was denied his right to a jury trial; (4) the members of the disciplinary committee were not impartial and possessed of sufficient knowledge of legal matters, because they were Prison counselors and officers; and (5) the available appellate procedure was inadequate because the State of Nevada is a real party in interest and any appeal had to be made to an official of the State.

Although a properly conducted prison disciplinary hearing generally satisfies due process, deprivation of property by means of an unlawfully conducted hearing can be violative of due process, for which § 1983 provides a remedy in federal court. Jones v. Clark, 607 F.Supp. 251, 256-57 (E.D.Pa.1984). There is no requirement that state remedies be exhausted before the bringing of suit. Id. at 257. Thus, the complaint must be examined to determine whether it is possible that Plaintiff could prove facts that would entitle him to any of the relief he seeks. Kinney v. Intern. Broth. of Elec. Workers, 669 F.2d 1222, 1230 (9th Cir.1981). If it is possible, then the defendants’ motion to dismiss should be denied.

The regulation pursuant to which the disciplinary committee ordered Plaintiff to make restitution to the State for the medical expenses it had incurred is Nevada Department of Prisons Procedure No. 307. Subsection (1) authorizes a hold being placed upon an inmate’s account with the Inmate Trust Fund for the restoration of damages resulting from the inmate’s actions. Subsection (3) states, in pertinent part: “This procedure refers to restitution resulting from an inmate’s actions for ... medical costs for injuries to others____” Procedure No. 307, as applied against Plaintiff, was promulgated February 24, 1981. At the time, NRS § 209.246, which was the enabling legislation, read in full as follows:

“The board (Board of State Prison Commissioners) shall establish by regulation 'criteria for a reasonable deduction from money credited to the account of an offender who has willfully damaged or destroyed state property during his incarceration, on account of the harm done.”

It is apparent that Procedure No. 307’s provisions for restitution of medical costs went beyond the “damaged or destroyed state property” wording of NRS § 209.246. However, on April 8, 1983, the Nevada Legislature amended the statute to read:

“The board shall establish by regulation criteria for a reasonable deduction from money credited to the account of an offender to repay the cost of:
2. Medical treatment for injuries inflicted by the offender upon himself or others____”

An administrative agency that administers a statute does not have the power to make law; rather, its authority is to adopt regulations to carry into effect the will of the legislature as expressed by the statute. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-14, 96 S.Ct. 1375, 1390-91, 47 L.Ed.2d 668 (1976). It follows that the agency may not make a rule or regulation that is out of harmony with or goes beyond the scope of its statutory grant of authority. Cashman Photo Con. & Labs, Inc. v. Nevada Gam. Com’n, 91 Nev. 424, 538 P.2d 158, 160 (1975); Ruiz v. Morton, 462 F.2d 818, 822 (9th Cir.1972).

Procedure No. 307 went beyond the Board’s authority when it was promulgated on February 24, 1981. However, the Nevada Legislature, in effect, ratified No. 307 by the amendment it made to the enabling statute in 1983. Further, it is important to note that at the time No. 307 was invoked against Plaintiff, that is in February 1984, it was in harmony with and within the scope of NRS § 209.246. In such a case a litigant has not been hurt by the earlier defect and has no standing to complain about it. See Piuma v. United States, 126 F.2d 601, 603-04 (9th Cir.1942). The disciplinary committee was required to apply the law in effect at the time it rendered its decision. See Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974).

Plaintiff asserts that witnesses at a prison disciplinary hearing are not put under oath. He contends that this violates due process. The general rule is that a witness must be sworn to tell the truth before he is allowed to give testimony. 98 C.J.S. Witnesses § 320a. Nevada has codified this requirement in NRS § 50.035. Therefore, if for the purposes of the present motion it is assumed that witnesses against Plaintiff testified without first being placed under oath, the State’s law of evidence was breached. However, such a wrong is not violative of the United States Constitution. 98 G.J.S. Witnesses § 320e; see also Barker v. Morris, 761 F.2d 1396, 1400 (9th Cir.1985). Since 42 U.S.C. § 1983, under which this action has been brought, requires deprivation of a right secured by federal law, the violation of the State law concerning the swearing in of witnesses does not state a claim that will serve as the basis for this Court’s subject matter jurisdiction.

Much the same problem is faced by Plaintiff in connection with his claim that he was wrongfully deprived of his right to a jury trial as to restitution of the medical costs incurred by the State. The right of trial by jury in civil cases is guaranteed by Art. 1, § 3 of the Nevada Constitution. State of Nevada v. McClear, 11 Nev. 39, 64 (1876). However, a federal court may not instruct a state official to conform his conduct to state law. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984).

The Seventh Amendment to the U.S. Constitution also guarantees the right of trial by jury in civil cases. It applies, though, only to proceedings in federal courts; it is not applicable to state proceedings. Minn. & St. Louis R.R. v. Bombolis, 241 U.S. 211, 217, 36 S.Ct. 595, 596, 60 L.Ed. 961 (1916); Woods v. Holy Cross Hospital, 591 F.2d 1164, 1171 n. 12 (5th Cir.1979). Therefore, a refusal of a jury trial in state proceedings is not a denial of either due process or equal protection. Letendre v. Fugate, 701 F.2d 1093, 1094 (4th Cir.1983); see also Olesen v. Trust Co. of Chicago, 245 F.2d 522, 524 (7th Cir.1957). The upshot is that a denial of the right to trial by jury in a state proceeding will not serve as the basis for a § 1983 civil rights action in federal court. The foregoing discussion in no way determines that Plaintiff was entitled to a jury in the State proceedings. In fact, the usual rule is that there is no right to jury trial when restitution is the remedy sought. 5 Moore’s Fed.Pac. § 38.-24[3], at p. 38-196; Securities & Exch. Com’n v. Com. Chemical, etc., 574 F.2d 90, 95 (2nd Cir.1978).

Plaintiff’s contentions that neither the members of the disciplinary committee nor the person to whom any appeal would be directed (the Director of the Nevada Department of Prisons) under Procedure No. 307 are impartial can be considered together. To start, it seems clear that he has a protected property interest in the funds in his Inmate Trust Fund account. Quick v. Jones, 754 F.2d 1521, 1523 (9th Cir.1985); Jones v. Clark, 607 F.Supp. 251, 254 (E.D.Pa.1984). Consequently, he may not be deprived of those funds without due process. Id. at 257; Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974). Nevertheless, Wolff also teaches, at p. 556, 94 S.Ct. at p. 2974-75 that prison disciplinary proceedings are not part of a criminal prosecution, so that the full panoply of rights afforded a criminal defendant need not be provided in a disciplinary proceeding. A judicial style evidentiary hearing is not required; what must be furnished is notice of the case and a meaningful opportunity to meet it. Mathews v. Eldridge, 424 U.S. 319, 348-49, 96 S.Ct. 893, 909-10, 47 L.Ed.2d 18 (1976); Jordan v. City of Lake Oswego, 734 F.2d 1374, 1376 (9th Cir.1984). Where restitution is being sought, due process is afforded by providing a defendant an adequate opportunity to present his objections. United States v. Keith, 754 F.2d 1388, 1392 (9th Cir.1985); see also Jordan v. Robinson, 464 F.Supp. 223, 227 (W.D.Pa.1979). There is no indication in the pleadings before the Court that Plaintiff was not provided a meaningful opportunity to refute the case against him. The fact that the disciplinary committee was not a judicial tribunal does not make it unimpartial. Price v. City of Junction, Tex., 711 F.2d 582, 589 n. 5 (5th Cir.1983). Likewise, in a prison setting it is not required that the decisionmakers come from outside the prison. Vitek v. Jones, 445 U.S. 480, 496, 100 S.Ct. 1254, 1265, 63 L.Ed.2d 552 (1980); Doe v. Gallinot, 657 F.2d 1017, 1024 (9th Cir.1981). “There is no constitutional requirement that the decisionmaker be an uninvolved person when a property interest protected by due process is at stake.” Jordan v. City of Lake Oswego, supra at 734 F.2d 1376 n. 1. A substantial showing of bias must be made to disqualify a hearing officer in an administrative proceeding or to justify a ruling that a hearing was unfair. Converse v. Udall, 262 F.Supp. 583, 590 (D.Ore.1966), aff'd 399 F.2d 616 (9th Cir.1968). The pleadings herein do not raise such an issue.

From the above, the Court concludes that Plaintiffs complaint does not state a claim upon which relief can be granted in this Court. Therefore, the defendants are entitled to have granted their motion to dismiss. Since it is not absolutely clear that the deficiencies of the complaint could not be cured by amendment, however, Plaintiff should be afforded an opportunity to amend.

IT IS, THEREFORE, HEREBY ORDERED that Plaintiff's complaint be, and ■the same hereby is, DISMISSED, but without prejudice to the right of Plaintiff, within 45 days of the date of this Order, to move for leave to amend his complaint.


author: CLARKSON S. FISHER, Chief Judge.

text:
    UNITED STATES v. Paul SANSONE.
    Crim. No. 85-294.
    United States District Court, D. New Jersey.
    Feb. 5, 1986.
    David T. Maguire, Asst. U.S. Atty., Newark, N.J., for the U.S.
    William W. Robertson, Hannoch Weisman, Roseland, N.J., for defendant.
   CLARKSON S. FISHER, Chief Judge.

Defendant has moved to “clarify judgment of sentence” pursuant to 18 U.S.C. § 4205(f). The sentence imposed was a split sentence; the term to be served was six months, to be followed by three years probation.

A section 4205(f) designation with a split sentence is, in my view, inappropriate. With a split sentence, there is no question about the amount of time to be served. Probation is to follow, not parole. There is no need to use section 4205(f) to shorten a term that is precisely fixed in the first place.

In a previous ruling, I explained my reasons for the sentence. They still apply. The Government will submit an order.


author: GARRITY, District Judge.

text:
    BROOKLINE SCHOOL COMMITTEE, Plaintiff, v. Arthur GOLDEN et al., Defendants.
    Civ. A. No. 85-1636-G.
    United States District Court, D. Massachusetts.
    Feb. 6, 1986.

      Sara Holmes Wilson, Cathleen Cavell, David Lee Turner, Brookline, Mass., for Brookline School Committee.
    Anne M. Vohl, Broude & Hochberg, Boston, Mass., for Golden.
    Carolyn V. Wood, Asst. Atty. Gen., Boston, Mass., for Massachusetts Dept, -of Educ.
   MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

GARRITY, District Judge.

Plaintiff filed this action seeking review of a March 1985 decision by the Massachusetts Bureau of Special Education Appeals (“the Bureau”), pursuant to the Education for All Handicapped Children Act (“EAH-CA”), 20 U.S.C. § 1415(e)(2). Plaintiff challenges that part of the Bureau’s decision which found that plaintiff violated the notice requirements of EAHCA by failing to send defendant parents, Marsha and Arthur Golden, prior written notification of a change in the after-school component of their handicapped child, Benjamin’s education program. The case comes before the court on cross-motions for summary judgment. After reviewing the briefs and exhibits submitted by the parties, but without hearing oral argument, the court grants plaintiff’s motion for summary judgment and denies defendants’ motions.

Briefly, the facts are as follows: Pursuant to a 1984 Individualized Education Plan finalized by a consent order entered into by the parents and Brookline on May 21,1984, the after-school component of Benjamin’s education program consisted of two afternoons per week at the BASS program and three afternoons per week at the Driscoll program. Both programs were located at the Driscoll School and were run by parents as unstructured, extended day-care programs for non-handicapped children.

During the spring and summer of 1984, Brookline and the parents discussed the possibility that the Driscoll program would no longer be suitable for Benjamin due to his age. When the Driscoll Program refused to accept Benjamin for the fall of 1984, the parents requested that Benjamin be permitted to attend the BASS program five afternoons per week. The BASS program agreed to accept Benjamin for three days per week beginning in September, 1984. For the remaining two afternoons per week, Benjamin attended an individual program at the Driscoll School. Thus, the change in Benjamin’s after-school program which is the focus of this litigation, consisted of increasing Benjamin’s attendance at the BASS program from two to three afternoons per week, and the substitution of an individualized program at the Driscoll School two days per week for the Driscoll program which Benjamin previously attended three days per week.

34 C.F.R. § 300.504(a), the regulation implementing the statutory notice requirements of the EAHCA, provides in pertinent part that, “[wjritten notice which meets the requirements under § 300.505 must be given to the parents of a handicapped child a reasonable time before the public agency:

(1) proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child....”

The notice required by this section must advise the parents of the agency’s proposed action and reasons therefor, any options rejected by the agency, and all procedural safeguards available to the parents with regard to the proposed action. 34 C.F.R. § 300.505.

In the instant case, the Bureau determined that the change in Benjamin’s after-school program constituted a “change in educational placement” within the meaning of 34 C.F.R. § 300.504(a) and that Brook-line failed to give notice to the parents in conformity with 34 C.F.R. § 300.505 regarding the change. The Bureau further held that not every change in a handicapped child’s IEP triggers the statutory notice requirements of the EAHCA. Rather, notice is required only prior to “significant changes” in the IEP. The change in Benjamin’s after-school program was found by the Bureau to be significant.

The court has serious doubt as to whether the undisputed facts set forth in the record support the Bureau’s conclusion that Brookline “propose[d] to initiate or change ... the educational placement” of Benjamin. In a memorandum dated June 25, 1984, Adrenna Antreasian, an educational consultant/parent trainer, recommended that Benjamin not continue at the Driscoll program. However, there is no evidence that Brookline acted on this independent consultant’s recommendation. The change in Benjamin’s after-school program rather was prompted by the privately-operated Driscoll program’s refusal to accept Benjamin for the fall of 1984. Furthermore, the record strongly suggests that Mr. Golden, not Brookline, proposed the change. On August 2, 1984 Mr. Golden requested that Benjamin’s attendance at the BASS program be increased to five afternoons per week. This change did indeed occur by mid-fall of 1984. Brookline’s placement of Benjamin in an individualized program at the Driscoll School for the period prior to his formal admission to BASS for five afternoons per week does not suggest very persuasively any proposal or initiation of change on the part of Brookline.

However, the court’s decision rests primarily on the conclusion that the modification in Benjamin’s after-school program does not constitute a “change in educational placement” within the meaning of the EAHCA. An examination of the case law construing the statute’s “change in educational placement” language compels the conclusion that the modification which occurred in the instant case does not fall within the statutory definition. See, e.g., Concerned Parents v. New York City Board of Education, 2d Cir.1980, 629 F.2d 751, cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (school closing not a change in educational placement where children are transferred to similar programs in other schools); Lamont X. v. Quisenberry, S.D. Ohio, 1984, 606 F.Supp. 809 (expulsion is a change in educational placement); Stock v. Massachusetts, 1984, 392 Mass. 205, 467 N.E.2d 448 (the decision to graduate a child, thus terminating his eligibility for special education services is a change in educational placement); S-1 v. Turlington, 5th Cir.1981, 635 F.2d 342 (transfer of child from classroom to home-based tutoring is a change in educational placement).

The cases cited herein make clear that for a modification to qualify as a “change in educational placement”, it must affect the child’s learning experience in some significant way. Educational agencies must not modify fundamentally a child’s educational placement without notice. However, they also must be given sufficient latitude in determining how to educate a given child. Lamont X, supra at 814.

In the instant action, the record shows that the adjustments made to Benjamin’s after-school program were more superficial than substantive. The location of the program continued at the Driscoll School, Benjamin’s one-on-one aides were identical, and the duration of his program was identical. Furthermore, even though Benjamin was officially attending an individualized program at the Driscoll School two days per week, he was invited to join the activities of the children in the BASS program prior to his acceptance to that program on a full-time basis. He had contact with the non-handicapped children in the BASS program on all five days and thus, the “mainstreaming” component of his after-school program remained on a similar level after the change. Finally, the BASS program was substantially similar to the Driscoll program that Benjamin had previously attended. Both programs were unstructured, extended day-care programs for nonhandicapped children, operated by parents, and supervised by the same personnel. The transfer of Benjamin from the Driscoll Program to the BASS program clearly would not qualify as a change in educational placement. A different result is not warranted where Benjamin spends two afternoons per week in an individualized program consisting of informal, rather than official participation in the BASS program. Because the court finds that the Bureau’s decision was not based on a preponderance of the evidence (20 U.S.C. § 1415(e)(2)), it grants plaintiff’s motion for summary judgment; and it is ordered that the decision of the Bureau is reversed insofar as it found that the change in Benjamin’s after-school program constituted a change in educational placement, requiring full written notice under 34 C.F.R. §§ 300.504 and 300.-505.

      . The undisputed fact that Mr. Golden had actual prior knowledge of the change raises the issue of whether full written notice is required by the EAHCA in such circumstances. The court does not rely on this fact in reaching its conclusion nor decide the issue raised thereby. However, the fact of actual knowledge casts a shadow over the parents' motives for pressing the issue of Brookline’s noncompliance with statutory notice requirements at the Bureau hearing. The purpose of the notice requirements is to involve parents in important educational decisions involving their children and to inform them in a timely fashion of their right to a hearing. It is doubtful whether this purpose would be well served by requiring full written notice to parents who are not only intimately involved in their child’s education, but also exhaustively familiar with their procedural rights under the EAHCA.