author: THEIS, District Judge.

text:
    In re: A.H. ROBINS COMPANY, INC., “Daikon Shield” IUD Products Liability Litigation.
    MDL No. 211.
    United States District Court, D. Kansas.
    Feb. 1, 1985.

      Bradley Post, Post, Syrios & Bradshaw, Wichita, Kan., for plaintiffs.
    Alexander H. Slaughter, McGuire, Woods & Battle, Richmond, Va., for defendant Robins.
   OPINION AND ORDER

THEIS, District Judge.

Defendant A.H. Robins Company, Incorporated (“Robins”) has filed a motion under 28 U.S.C. § 455(a) seeking the recusal of the presiding judge in this case. This motion is based solely upon this Court’s filing of an affidavit before an investigatory panel of the Eighth Circuit Judicial Council concerning Robins’ charges of judicial misconduct by the Honorable Miles W. Lord, Chief Judge of the United States District Court for the District of Minnesota.

Since December 10, 1975, this Court has presided over the instant multidistrict litigation (“MDL”) proceedings, covering over a thousand federal cases and initially several hundred tagalong state cases involving products liability issues concerning the Daikon Shield, a birth control device manufactured by Robins. During 1984, Judge Lord made certain remarks to Robins’ executives during a settlement conference involving seven Daikon Shield lawsuits pending before him. As a result of these remarks, Robins filed a misconduct complaint against Judge Lord in the Eighth Circuit. In addition, Robins appealed the district court’s actions during the settlement negotiations, which appeal was decided on November 2, 1984, in Gardiner v. A.H. Robins Co., Inc., 747 F.2d 1180 (8th Cir.1984). In the disciplinary proceeding before the Eighth Circuit Judicial Council, this Court filed an affidavit which related the discovery process in the multidistrict Daikon litigation and which espoused the right of a judge to comment on the proceedings before him. On January 10, 1985, Robins filed the present motion for recusal.

The Court would first disassociate itself from the contention of plaintiffs’ counsel that the Robins’ disqualification motion is somehow untimely. The Court agrees with Robins that such motion is timely and within the ambit of counsels’ duty to use all possible judicial processes to protect their client.

Initially at issue is the applicable legal standard governing the consideration of the motion for recusal. Under 28 U.S.C. § 455(a), “[a]ny ... judge ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The 1974 amendment to section 455 changed the standard for recusal from a subjective one, which left to the judge “in his opinion” the decision whether it would be improper to sit, 28 U.S.C. § 455 (1970), to the present objective standard, which requires disqualification whenever the judge’s impartiality “might reasonably be questioned.” In its motion for recusal, Robins has placed emphasis on the single term “might.” More properly, the inquiry should be whether “there is a reasonable factual basis for doubting the judge’s impartiality____ Disqualification for lack of impartiality must have a reasonable basis.” H.Rep. No. 1453, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 6351, 6355 (emphasis in original). The test is whether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge’s impartiality, not in the mind of the judge or in the mind of the litigant filing the motion for recusal, but rather in the mind of a reasonable person. United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977).

Prior to the 1974 amendment, the rule was that a judge had a duty to sit on a case if the statutory grounds for his disqualification had not been established. See United States v. Diorio, 451 F.2d 21, 24 (2nd Cir.1971), cert. denied, 405 U.S. 955, 92 S.Ct. 1173, 31 L.Ed.2d 232 (1972); United States v. Anderson, 433 F.2d 856, 860 (8th Cir.1970); Edwards v. United States, 334 F.2d 360, 363 (5th Cir.1964). Courts generally agree that the amended version of section 455 was intended to displace the so-called “duty to sit” decisions. See, e.g., Parrish v. Board of Commissioners of the Alabama State Bar, 524 F.2d 98, 103 (5th Cir.1975). Recent decisions have noted, however, that a “trial judge has as much obligation not to recuse himself when there is no reason to as he does to recuse himself when the converse is true.” United States v. Bray, 546 F.2d 851, 857 (10th Cir.1976). Accord United States v. Baskes, 687 F.2d 165, 170 (7th Cir.1981).

Several additional standards give the Court guidance in its consideration of Robins’ motion for recusal, a motion the Court recognizes Robins did not make lightly. Dk. No. 727, p. 2. It is fundamental that the determination of bias, prejudice or lack of impartiality must be made on the basis of conduct which is extrajudicial in nature. United States v. Grinnell, 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966); United States v. Bray, 546 F.2d 851, 859 (10th Cir.1976); United States v. Patrick, 542 F.2d 381, 390 (7th Cir.1976); United States v. Cook, 400 F.2d 877, 879 (4th Cir.1968), cert. denied, 393 U.S. 1100, 89 S.Ct. 898, 21 L.Ed.2d 792 (1969).

Plaintiffs allude to ulterior motives behind the present motion, such as forum-shopping. To evidence this contention, plaintiffs suggest that Robins’ motion for class action certification, filed in In Re: Dalkon Shield Punitive Damages Litigation, No. 84-0884-R (E.D.Va., filed October 22, 1984), and Robins’ motion for transfer of MDL 211 to the Eastern District of Virginia, filed with the Judicial Panel on Multidistrict Litigation, indicate an intent to shift the focus of the Daikon Shield litigation to Robins’ home district of Virginia. The Court believes that forum-shopping is not an appropriate subject of inquiry for the purposes of the present motion. A single matter is properly before the Court at this time: whether this Court should recuse under section 455.

The Court is mindful of the proposition that “disqualification is not favored where ... a single judge has acquired by experience familiarity with a protracted, involved case which could not easily be passed on to a second judge.” City of Cleveland v. Cleveland Electric Illuminating Co., 503 F.Supp. 368, 370 (N.D.Ohio), mandamus denied sub. nom City of Cleveland v. Krupansky, 619 F.2d 576 (6th Cir.1980). See also National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953 (2nd Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 844, 59 L.Ed.2d 38 (1979). With the above standards in mind, the Court shall proceed to analyze the substance of the parties’ arguments.

The precise issue at hand is somewhat difficult to capsulize. Robins has framed the issue by employing a number of terms, such as “ex parte communication,” “witness in a proceeding,” and “personal opinion.” These characterizations miss the mark. The issue concerns whether this Court’s remarks took place in an extrajudicial context or whether they constituted appropriate judicial action. More particularly, may a judge come to the assistance of a fellow judge in a disciplinary proceeding without risking disqualification himself?

To be disqualifying, the alleged bias or prejudice must arise from an extrajudicial source and must result in an opinion “on some basis other than what the judge learned from his participation in the case.” Davis v. Cities Service Oil Co., 420 F.2d 1278, 1282 (10th Cir.1970) (citing United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). See also Smith v. Halford, 570 F.Supp. 1187, 1189 (D.Kan.1983)). The Fifth Circuit has held that although a judge’s remarks or behavior occur in a judicial context, this does not exclude them from scrutiny if they reflect “such pervasive bias and prejudice as would constitute bias against a party.” Phillips v. Joint Legislative Committee on Performance and Expenditure Review, 637 F.2d 1014, 1020 n. 7 (5th Cir.1981), cert. denied sub. nom Mississippi v. Phillips, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483 (1982); Counsel for Robins, however, carefully noted at oral argument on the recusal motion that he advanced no allegations of actual bias or prejudice, but that he was concerned only about the appearance of partiality.

The Court believes that the appearance of impartiality is as important as the fact of it, but finds that the question of impartiality cannot be analyzed ex nihilo. Thus, the inquiry must be targeted toward whether the Court’s action in filing an affidavit in Judge Lord’s chastisement proceeding occurred in a judicial or extrajudicial context.

Numerous courts have drawn the distinction between bias that is personal in nature and bias that is judicial, see, e.g., United States v. Carmichael, 726 F.2d 158, 160 (4th Cir.1984), but few have delineated the contrast between judicial and extra-judicial activities. It is clear that a motion for disqualification may not be predicated on a judge’s rulings “in the instant case or in related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench.” Phillips, 637 F.2d at 1020. See also Shaw v. Martin, 733 F.2d 304, 308 (4th Cir.1984). Beyond that, the ambit of the judicial context is somewhat murky.

To ascertain the nature of this Court’s action in filing an affidavit in a fellow judge’s disciplinary proceeding, a fairly unique set of circumstances unaddressed directly by the reported cases, the Court looks to cases focusing upon whether a judge’s conduct occurred in a judicial or extrajudicial capacity. During the Watergate prosecutions, the intrepid probing of Judge John Sirica led to the revelations of corruption at the highest levels of government. Judge Sirica presented the testimony of a witness which neither party had called, an action approved in United States v. Liddy, 509 F.2d 428, 438-42 (D.C.Cir.1974). He ordered the production of presidential tape recordings, an order upheld in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). During sentencing, Judge Sirica indicated that cooperation with the prosecution might result in lighter sentences. United States v. McCord, 509 F.2d 334, 347 (D.C.Cir.1974). Judge Sirica commented to the media that the Watergate defendants could receive as fair a trial in the District of Columbia as in any other federal court in the United States. United States v. Haldeman, 559 F.2d 31, 136 (D.C.Cir.1976), cert. denied sub. nom Ehrlichman v. United States, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). In the conspiracy trial of John Mitchell, John Ehrlichman and others, several defendants moved for the recusal of Judge Sirica because of his involvement in so many aspects of the Watergate indictments and prosecutions. Judge Sirica denied recusal on the ground that the allegations showed only prior judicial actions and that no “personal” bias, only “judicial” bias, had been claimed. United States v. Mitchell, 377 F.Supp. 1312, 1320 (D.D.C.1974). The judge’s use of his knowledge derived from judicial proceedings in the administration of other such proceedings withstood repeated attacks. Judge Sirica’s judicial activism was commended in McCord, 509 F.2d at 347:

“A superficial review of these events might support the inference that at least Judge Sirica communicated an appearance of inquisitional attitude inconsistent with notions of a fair trial. However, such a view assumes an exceedingly narrow interpretation of the responsibilities of a trial judge____ The judge, like the prosecutor in this respect, is not a passive bystander in the arena of justice, a spectator at a ‘sporting event’; rather, he or she has the most pressing affirmative responsibility to see that justice is done in every case.”

In United States v. Serrano, 607 F.2d 1145, 1150 (5th Cir.1979), cert. denied, 445 U.S. 965, 100 S.Ct. 1655, 64 L.Ed.2d 241 (1980), the Fifth Circuit upheld Judge Terrell Hodges’ denial of a motion to disqualify premised upon his remarks which indicated an intention to impose stiff penalties to curb large scale drug importation: “Reading Judge Hodges’ remarks in context clearly demonstrates that any predisposition to sentence volume drug offenders severely stemmed from his observations in a strictly judicial capacity as to the volume of such cases in the courts and the lack of deterrent effect of light sentences for such offenders.” The Court acknowledged that acquisition of information in one case could be employed to fashion an opinion in other related cases and held that any impressions formed and acted upon were “judicial rather than personal.” Id.

Finally, in Bradley v. Milliken, 620 F.2d 1143 (6th Cir.1980), cert. denied, 449 U.S. 870, 101 S.Ct. 207, 66 L.Ed.2d 89 (1981), the Sixth Circuit refused to disqualify Judge Robert DeMascio, of the United States District Court for the Eastern District of Michigan, under section 455(a) on the ground that he met ex parte with representatives of a school board in a school desegregation case. The Court held that although Judge DeMascio’s actions were “perhaps a bit unorthodox,” they constituted “judicial activities designed to ensure a community climate receptive to [the] court’s orders.” Id. at 1157.

In sum, the above cases indicate a tendency on the part of courts to define the ambit of “judicial” activity quite broadly. Actions taken by a court in one case which draw upon the court’s experience in prior cases have been held to constitute judicial actions. Furthermore, activities of judges in meeting with the press and with litigants were sanctioned as actions which insured the effective and efficient administration of the courts.

Applying the above precepts, the Court determines that its filing of an affidavit was an action performed in the Court’s judicial capacity, rather than an extrajudicial activity. The Court’s thoughts were voiced in a judicial setting — before the investigatory panel of the Eighth Circuit Judicial Council — and the informational source upon which they drew — the Court’s eight and one-half years of experience in the multidistrict Daikon litigation — was distinctly judicial.

Furthermore, in a broader sense, the Court’s actions went to the heart of the judicial process. The substance of the Court’s affidavit in part concerned possible discovery abuses potentially practiced both in the Daikon cases before Judge Lord and in the instant cases. It is the duty of a trial judge to supervise, manage and control pretrial discovery, “for he is the single individual who, in the exercise of this purely judicial discipline, can do so effectively.” City of Cleveland, 503 F.Supp. at 375 n. 4. In the present matter, it was particularly the province of this Court, in control of over one thousand cases consolidated into multidistrict litigation, to affirmatively exercise this duty and to inquire into and attempt to thwart any perceived abuses of the discovery process.

This Court is charged by Canon 1 of the Code of Judicial Conduct for United States Judges with the obligation to uphold the integrity of the judiciary. It was precisely this critical function that the Court attempted to perform by filing the affidavit: the prevention of any possible fraud from being perpetrated upon the courts. As the United States Supreme Court stated in Wood v. Georgia, 370 U.S. 375, 383, 82 S.Ct. 1364, 1369, 8 L.Ed.2d 569 (1962), “[T]he right of courts to conduct their business in an untrammeled way lies at the foundation of our system of government____” The Court finds completely unpersuasive the intimation that it is a demonstration of bias for a judge who has been working on discovery for over eight years to comment on and uncover possible abuses in the proceedings before him. -Surely section 455(a) never contemplated crippling the courts.

Regarding Robins’ specific concerns, Robins first contends that the appearance of impartiality is threatened by this Court’s having stated in the affidavit a “personal opinion” that Robins might be guilty of discovery misconduct and now being called upon to make just such a determination in the current litigation. As explained above, the opinion expressed in the affidavit was particularly judicial. Furthermore, mere prior involvement with an issue cannot disqualify a judge; “otherwise, a judge could never reach the end of a case without being disqualified through exposure to it in earlier stages.” United States v. Wayne County Department of Health-Air Pollution Control Division, 571 F.Supp. 90, 93 (E.D.Mich.1983).

In addition, whatever partiality is alleged is simply not the type of partiality prohibited by section 455:

“While bias or prejudice may spring from many sources, often extrajudicial in their origin, the negative bias or prejudice of the kind alleged here will disqualify only if it is an attitude or state of mind that belies an aversion or hostility of a kind or degree that a fair-minded person could not entirely set aside when judging certain persons or causes. It is an animus more active and deep-rooted than an attitude of disapproval toward certain persons because of their known conduct, unless the attitude is somehow related also to a suspect or invidious motive such as racial bias or a dangerous link such as financial interest, and only the slightest indication of the appearance or fact or bias or prejudice from these sources would be sufficient to disqualify.”

United States v. Conforte, 624 F.2d 869, 881 (9th Cir.1980). The affidavit does not address the merits of the present litigation nor does it exhibit any predisposition for or against any party or counsel. In fact, the affidavit specifically stated: “I have always had courteous treatment and high regard for the gentlemanly conduct and representations of Alex Slaughter, lead counsel for Robins, and local counsel, Ron Heck.” Affidavit of Frank G. Theis, In Re Complaint of A.H. Robins Co., Inc., JCP 84-001, p. 4 (8th Cir.1984). There is a salient difference between a judge making observations about proceedings and being prejudiced regarding parties or issues in proceedings. The affidavit exhibits experience; that is not tantamount to partiality.

Finally, of primary importance, a judge’s comment is disqualifying “only if .it connotes a fixed opinion.” Haldeman, 559 F.2d at 136. Even the most unfavorable reading of the substance of the affidavit cannot lend any support to the charge of a fixed opinion on the issue of potential discovery abuses. The affidavit spoke only in terms of appearances:

“The reports ... would seem to indicate that my understanding of the status of document production at the close of the second MDL hearing was inconsistent with the facts as they then existed____ [I]t would appear to me that a great volume of material was numbered for production but not produced____ It would appear to me that representations made to me concerning the completeness of discovery during the MDL proceedings are open to serious question.”

Affidavit, pp. 1-2 (emphasis added).

In the affidavit the Court spoke in hedging terms for a specific reason. The Court had not then and has not yet made up its mind regarding potential discovery abuses. Proceedings have been started before this Court to determine whether there exists any semblance of validity to the discovery abuses claimed by plaintiffs. A number of motions are presently on file before this Court concerning allegations of misconduct, such as harboring and the destruction of evidence. The Court has received briefs on these matters and will conduct hearings concerning them: both Robins and plaintiffs will be afforded every opportunity to be heard on these issues. The commands of due process will be fully satisfied before this Court examines the issues and renders a decision on the merits. In litigation of this size, the Court recognizes that a voluminous amount of records are in the fray and that any failure to produce documents may easily be the result of inadvertence. The Court’s conduct during the course of these proceedings indicates an abundance of caution in making decisions. The Court sua sponte held in abeyance any receipt of evidence on the current discovery motions in MDL 211 pending oral argument, receipt of briefs and resolution of the present recusal motion. Far from indicating an appearance of partiality, the Court’s actions exhibit a careful and fair-minded attitude. The affidavit itself suggests the Court’s flexibility regarding the satisfaction of discovery orders:

“Since commencing these proceedings, they have consumed unnumbered days of court time, have lasted over a period of eight and one-half years, and are still ongoing. During this time, thousands of documents had been produced and I was satisfied that appropriate discovery had been made, that only privileged documents had been withheld, and that all available relevant evidence in the possession of A.H. Robins and its attorneys had been made available to the plaintiffs____
In August of 1981, and again in September, 1982, counsel for plaintiffs requested that I reopen these proceedings and represented to me as a reason therefor that certain documentation existed which had not been produced pursuant to my previous discovery orders, and to make video depositions of key Robins officials.
. After an evidentiary hearing, I reopened discovery proceedings. In the course of these proceedings, many additional documents were produced. At the conclusion of these proceedings, I was again satisfied that all relevant and nonprivileged materials had been produced.”

Affidavit, pp. 1-2 (emphasis added). Any tendency to attribute bias to the language contained in the Court’s affidavit is fairly dispelled when the affidavit is read in its entirety and in context.

Next, Robins claims that this Court had ex parte communications with Judge Lord and his counsel. Robins’ reliance on the notion of ex parte communications is misplaced. Communication between two federal judges or between a judge and another judge’s counsel is not ex parte communication. This Court did receive the reports of the Special Masters, officers of the federal court in Minnesota, copies of which reports were provided to both parties. The Court did not conduct any extrajudicial investigation of the facts surrounding the complaint against Judge Lord.

Regarding the timing of this Court’s review of the Special Masters’ reports, plaintiffs contend that since they requested this Court to examine the reports of the Special Masters, which reports plaintiffs submitted to the Court on December 11, 1984, before defendant filed the recusal motion on January 10,1985, that the allegation of ex parte conduct is moot. The Court agrees with Robins that the Court must focus its attention on its actions at the time they were undertaken.

Numerous cases have allowed ex parte communications and receipt of information to protect the integrity of the judicial process. In United States v. Phillips, 664 F.2d 971 at 1003 (5 Cir.1981), the Fifth Circuit Court of Appeals held that the trial court was not improperly involved in collateral investigation of alleged plans to disrupt the trial when strike force attorneys contacted the presiding judge and informed him of the plans of certain defendants to flee from the country if bond was not revoked. The Court held that the communications did not require recusal of the judge and noted that any ex parte revelations were made to enable the judge to perform his duty to conduct an orderly trial.

Similarly, in United States v. Jackson, 430 F.2d 1113 (9th Cir.1970), the Court held that ex parte communication of threats to witnesses was not a basis for disqualification. In Bradley v. Milliken, 620 F.2d at 1157, the Sixth Circuit held that a judge’s ex parte meetings with a school board in developing a desegregation plan did not create an appearance of partiality because the meetings were a judicial activity intended to insure a community climate receptive to the court’s orders.

Finally, in United States v. Mitchell, 377 F.Supp. at 1322, the Court noted that “[j]udges routinely preview evidence or information bearing on a case in other settings, with no thoughts of disqualification arising as a result.” In short, “ ‘[knowledge acquired by a judge while he performs judicial duties does not constitute grounds for disqualification.’ ” Katsaros v. Cody, 744 F.2d 270, 283 (2nd Cir.1984) (quoting United States v. Coven, 662 F.2d 162, 168 (2nd Cir.1981), cert. denied, 456 U.S. 916, 102 S.Ct. 1771, 72 L.Ed.2d 176 (1982)).

As discussed above, the Court’s actions in the instant case involved the performance of judicial duties. The reports of the Special Masters concerned specifically the same area of discovery which this Court has been shepherding for many years. If the claims of Judge Lord and his experienced Masters were true, in whole or in part, then the basis of his comments, if not his precise choice of procedure and words, had important ramifications in similar litigation pending in federal courts throughout the United States and certainly in this court. The Court’s acquaintance with information pertinent to this case has in every instance flowed from judicial sources. To the extent that the receipt of any information could be characterized as ex parte, it takes on no pernicious connotation. The information was brought to this judge’s attention during the performance of his judicial duties.

Robins characterizes the affidavit as conflicting with the principles underlying 28 U.S.C. § 455(b)(5)(iv), which requires disqualification if a judge is “likely to be a material witness in the proceeding.” This judge is unlikely to be called as a witness in the current multidistrict Daikon litigation. Furthermore, the concerns underpinning this provision are inapposite to the present case. As the case cited in part by Robins, In Re Continental Vending Machine Corp., 543 F.2d 986, 995 (2nd Cir.1976), goes on to state:

“The purpose of this provision is to prevent a judge from having to pass on the competence and veracity of his own testimony given with respect to a matter presently in controversy before him. The mere fact that he may have testified with respect to some wholly unrelated matter should not disqualify him (citations omitted), since it does not require him to pass upon the credibility of his own testimony and there is no reason to suppose that his decision might be affected by his unrelated testimony. Were the rule otherwise, a judge in an extended and multisegmented ... case ... who has patiently sat on the case for many years, would be forced, for no sound reason, to disqualify himself as to the entire ease, leading to wasteful duplication, delay and expense.”

The only matter to which the Court affirmatively “testified” was the right of a trial judge to comment on the proceedings before him. Affidavit, p. 5. Furthermore, this Court was a “witness” only in his judicial capacity. See United States v. Long, 88 F.R.D. 701, 702 (W.D.Pa.1981). Finally, the Court will not be required to pass upon the credibility or veracity of its own “testimony” in the instant MDL proceedings, since the affidavit merely said that serious questions concerning discovery abuses were raised in the Daikon litigation. Long prior to the affidavit submitted by the Court in Judge Lord’s disciplinary proceedings, serious questions were raised by plaintiffs in the present litigation regarding possible discovery abuses. Dk. No. 643. The allegation that this Court is “likely to be a witness” in the instant proceedings is without merit.

Robins’ final concern is the effect of the affidavit. Robins notes that plaintiffs in other Daikon cases have cited the affidavit in support of arguments that Robins is guilty of discovery abuses and that the affidavit has been the subject of widespread media publicity. The affidavit should not have been made a matter of public record. Disciplinary proceedings are supposed to be confidential and only at Judge Lord’s request did the matter become public.

Robins intimates that because the affidavit became a matter of public record, it is public comment about a pending proceeding, in violation of Canon 3(A)(6) of the Code of Judicial Conduct for United States Judges. Public records are not equivalent to public comment. Otherwise, all opinions would be construed as public comment. Finally, the Court cannot control the use of his affidavit by partisan plaintiffs, nor can the Court muzzle the media. A judge considering whether to disqualify himself must ignore rumors, innuendos and erroneous information published as fact in the newspapers. In re United States, 666 F.2d 690, 695 (1st Cir.1981). Judicial independence cannot be subservient to public opinion.

Robins’ motion for recusal wholly ignores the primary purpose of the Court’s affidavit. The affidavit states:

“I do not believe a judge should be hobbled or censored for good faith remarks he makes with full knowledge of facts and circumstances which appear to him to inhibit the processes of justice and the inherent right of free speech of a judge to prevent possible fraud upon the court.”

Affidavit, p. 5.

Many decisions have recognized the power of judges to comment on the evidence in a case and to express opinions. See, e.g., United States v. Bray, 546 F.2d at 858; United States v. Womack, 454 F.2d 1337, 1342 (5th Cir.1972), cert. denied, 414 U.S. 1025, 94 S.Ct. 450, 38 L.Ed.2d 316 (1973). A long line of Tenth Circuit cases have upheld even remarks presented in strident terms. United States v. McKay, 491 F.2d 616 (10th Cir.1973), cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974); Whitlock v. United States, 429 F.2d 942 (10th Cir.1970); Cooper v. United States, 403 F.2d 71 (10th Cir.1968). Judge Lord expressed his views on a particular case; this Court commented on Judge Lord’s expression of views.

In addition, this Court was appalled at the procedural treatment of Judge Lord in the filing of a disciplinary proceeding, particularly when the avenue of appeal not only remained open to but was utilized by Robins. Use of such indirect avenues of reproach is antithetical to the proper functioning of the judicial system; its use has a chilling effect on the independence of a federal judge. In Gardiner v. A.H. Robins, 747 F.2d 1180, 1190 (8th Cir.1984), the Eighth Circuit agreed:

“[T]he propriety of the court’s comments is at the heart of a disciplinary proceeding commenced by Robins and its officers against Judge Lord under the Judicial Conduct and Disability Act of 1980, 28 U.S.C. § 372 (1982), now pending before the Judicial Council of this circuit. It is far more desirable for this issue to be addressed in the normal appellate process than in the extraordinary context of a disciplinary proceeding.”

Ultimately, the Eighth Circuit Judicial Council recognized that Robins’ action in filing a disciplinary charge was duplicative of the action taken by appeal. In In Re Complaint of A.H. Robins, JCP 84-001 (8th Cir. December 5, 1984), the Judicial Council dismissed the disciplinary complaint as moot because of the action taken by the Eighth Circuit on appeal.

In Gardiner, the Eighth Circuit commented upon the proper role of a judge in the administration of justice:

“The judicial branch of the government is not and should not become an advocate for private causes. A federal district judge holds one of the most powerful and respected offices in this country. The judge exercises a power over a person’s life, liberty, and property, legally restrained only by the review processes of a court of appeals and the Supreme Court of the United States.”

Gardiner v. A.H. Robins, 747 F.2d at 1194.

This Court fully agrees with the Eighth Circuit’s pronouncements regarding the power and the duties of a federal judge and the obligation incumbent upon all federal judges to maintain impartiality. To the extent that Judge Lord overstepped the bounds of propriety and personally assailed Robins’ officers, this Court respectfully disagrees with his reprimand. This Court, however, continues to espouse the right of a federal judge to comment on matters before him. The day that a judge cannot comment on the evidence in a case before him, or the applicability of precedential law to the case, will be the day that a free and independent judiciary is dead.

In the instant motion for recusal, Robins attempts to use the result of the Gardiner decision to argue that this Court should not have filed an affidavit in support of Judge Lord’s practices. Robins appears to be constructing an oblique argument of guilt by association. Merely because the Eighth Circuit ruled adversely to Judge Lord on appeal in no way compels the conclusion that this judge, in a separate chastisement proceeding, should not have supported a fellow judge’s right to speak freely. A judge should not be disqualified merely because he believes his brethren have rights under the First Amendment within the confines of the canons of judicial ethics.

In sum, the test for recusal is whether “a reasonable [person] ... under all the circumstances” would question the judge’s impartiality. United States v. Gigax, 605 F.2d 507, 511 (10th Cir.1979). Robins has focused on particular circumstances and has viewed them with a partisan eye. Although the facts surrounding the complaint against Judge Lord and this Court’s filing an affidavait in a chastisement proceeding are somewhat unusual, they do not, when examined in their entirety, compel this Court’s recusal in the instant case. If this Court were to disqualify in the present case, the precedent set would place the judiciary between Scylla and Charybdis; a judge would be required to choose between protecting the integrity of the judicial process and risking disqualification himself.

IT IS THEREFORE ORDERED that Robins’ motion for recusal is hereby denied.


source: Caselaw Access Project

author: SANDERS, District Judge.

license: Public Domain

text:
    John Thomas WALL, Plaintiff, v. OWENS-CORNING FIBERGLAS CORPORATION, et al., Defendants.
    Civ. A. No. 3-83-0184-H.
    United States District Court, N.D. Texas, Dallas Division.
    Feb. 4, 1985.

      Brian D. Weinstein, Sarah Griffin, Baron & Associates, Dallas, Tex., for plaintiff.
    Jim E. Cowles, Clayton E. Devin, Charles A. Green, Cowles & Thompson, Dallas, Tex., for Pittsburgh Corning Corp.
    Dan E. Mayfield, Sheehy Lovelace & Mayfield, Waco, Tex., for Fibreboard.
    Don W. Kent, Buchanan, Barnett, Schofield & Kent, Tyler, Tex., for Celotex.
    Joe Michael Russell, Smith, Ralston, Russell & Wright, Corsicana, Tex., for EaglePicher.
    J. Dennis Chambers, Howard Waldrop, Atchley, Russell, Waldrop & Hlavinka, Texarkana, Tex., for Keene.
    Tom Henson, Jack Flock, Ramey, Flock, Hutchins, Jeffus, McClendon & Crawford, Tyler, Tex., for Nicolet.
    Otto A. Ritter, Roberts Harbour Law Firm, Longview, Tex., for Unarco.
    Jeffrey S. Lynch, Vial, Hamilton, Koch, Tubb & Knox, Dallas, Tex., for Raybestos/Raymark.
    Robert B. Thornton, Thornton, Summers, Biechlin, Dunham & Brown, San Antonio, Tex., for Standard.
    James T. Foley, Tyler, Tex., for Crown Cork & Seal.
    Bill E. Bowers, Shannon, Gracey, Ratliff & Miller, Fort Worth, Tex., for Acands.
    Joe Riddles, Joe Riddles & Associates, Dallas, Tex., for Combustion Engineering.
    John H. Hall, Strasburger & Price, Dallas, Tex., for GAF.
    C. Edward Fowler, Jr., Bailey, Williams, Westfall, Lee & Fowler, Dallas, Tex., for Owens Corning.
    G. Duffield Smith, Gardere & Wynne, Dallas, Tex., for Forty Eight.
    Richard L. Josephson, Baker & Botts, Houston, Tex., for Owens-Illinois.
    J. Carlisle DeHay, Jr., Gary D. Elliston, DeHay & Blanchard, Dallas, Tex., for Armstrong.

      John H. Martin, Richard Gray, Thompson & Knight, Dallas, Tex., for Johns Manville.
   MEMORANDUM OPINION AND ORDER

SANDERS, District Judge.

This case is before the Court on Defendant Celotex’s Motion for Partial Summary Judgment, filed December 17, 1984, and Plaintiffs Response, filed January 21, 1985.

This action seeks damages for personal injuries allegedly caused by exposure to products containing asbestos manufactured by the several Defendants and their predecessors-in-interest. Recovery is sought under products liability theories of strict liability, negligence, gross negligence, and breach of implied warranty. In its Motion, Defendant argues that Plaintiff should take nothing on his claims for punitive damages, breach of warranty and negligence.

Discovery Rule in Negligence

Plaintiffs last exposure to any product produced by Defendant or Philip Carey, its predecessor-in-interest, was in 1972. Plaintiff filed this action in 1983. The statute of limitations claim for negligence actions in Texas is two years. Tex.Rev.Civ.Stat.Ann. art. 5526. Defendant thus argues that Plaintiffs negligence claim is time-barred.

The interests served by a statute of limitations are essentially two-fold. A prospective plaintiff must be vigilant in asserting his rights in a prompt manner, thus guaranteeing that the claimed injuries are legitimate and the evidence fresh. A prospective defendant need not live under a sword of unliquidated liability forever; the law recognizes an interest of repose so he can get on with life’s affairs.

During the formative years of the tort system, when negligence causes of action arose from sporadic interactions, prototypically automobile accidents, the operation of a statute of limitations was simple and rational. At the time of the accident, plaintiff knew he was injured and defendant knew he was a cause-in-fact of that injury. Both parties had knowledge of the injury and the interests of vigilance and repose were immediately implicated. The stage was set for adjudication of legal liability. The limitations clock appropriately commenced to tick from the time of the allegedly wrongful conduct, which generally coincided with the injury and its discovery.

In this simpler era of the tort system, the problem of latent injuries arising from wrongful conduct was unknown. These asbestos cases involve an allegedly negligent act, resulting in exposure to a hazardous substance at one point in time, and a manifestation of injury years and frequently decades later. In many cases, the ascertainment of the cause of the manifested injury occurs even later. In such cases, a prospective plaintiff does not sleep on his rights until the nature of the injury is discovered and he fails to act. Similarly, a possible defendant can claim no legitimate entitlement to repose until such time as the wrongdoing is discovered.

In recognition of this conceptual difference, many states have adapted the concept of accrual of causes of action to reflect these interests. The courts of Texas have applied the “discovery rule” to inherently undiscoverable causes of action and have held that a negligence action will not be time-barred if a plaintiff files suit within two years of learning of the cause of the injury. Woodruff v. A.H. Robins Co., Inc., 742 F.2d 228, 230 (5th Cir.1984); Ross v. Owens-Corning Fiberglas Corp., CA-3-83-0181-F (Memorandum Opinion, August 29, 1984). Accordingly, Defendant’s Motion is denied on this point.

Discovery Rule in Breach of Warranty Claims

Section 2.725 of the Texas Business and Commerce Code provides, in relevant part:

(a) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.
(b) A cause of action accrues when the breach occurs regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered.

In light of this clear statutory language, courts have refused to modify the accrual concept here to include a discovery concept. Timberlake v. A.H. Robins Co., 727 F.2d 1363 (5th Cir.1984); Williams v. International Harvester, CA-3-83-1096-H (Memorandum Opinion, September 3, 1984). Accordingly, the accrual of the U.C.C. breach of warranty claim accrued at the time of tender of delivery of the asbestos-containing products and any claims under § 2.725 are time-barred.

Punitive Damages Against Successor Corporation

Defendant argues that punitive damages cannot be awarded against it for the transgressions of its predecessor-in-interest, the Philip Carey Manufacturing Company, which would have produced the materials to which Plaintiff was exposed. Defendant likens such an award to one against the estate of a deceased wrongdoer, as is prohibited by Texas law.

This analogy is not intuitively persuasive. A successor corporation is unlike an estate in that the former has bargained for the. assets of its predecessor. It may be, however, that the assets are encumbered by tort liabilities. The acquiring corporation cannot accept the good without the bad, absent an unlikely agreement with the acquired entity, and jettison inchoate liabilities into a never-never land of trans-corporate limbo. Indeed, the Agreement and Plan of Merger in this matter states that, as a result of the merger, “all debts, liabilities and duties of Panacon, [the legal successor of Philip Carey, attached] to Celotex and may be enforced against it to the same extent as if such debts, liabilities and duties had been incurred or contracted by Celotex.” Exhibit C to Defendant’s Brief at 8.

A purchasing corporation cannot escape liability for the torts of the transfer- or corporation where the transferee corporation expressly or impliedly assumes the liabilities, or where the transaction is tantamount to a merger. Western Resources Life Insurance Co. v. Gerhardt, 553 S.W.2d 783, 786 (Tex.App.—Austin 1977, writ ref’d n.r.e.). Tort claims include those for punitive damages. Id. at 787. Defendant’s argument that the brevity of the Gerhardt court’s analysis indicates that such a result was unintended is unpersuasive. Accord Moran v. Johns-Manville Sales Corp., 691 F.2d 811, 816 (6th Cir.1982), criticizing Drayton v. Jiffee Chemical Corp., 395 F.Supp. 1081 (N.D.Ohio 1975); Ross v. Owens-Corning Fiberglas, supra; Hanlon v. Johns-Manville Corp., 599 F.Supp. 376 (N.D.Iowa 1984) (citing Gerhardt); Neal v. Carey Canadian Mines Ltd., 548 F.Supp. 357 (E.D.Pa.1982) (holding that Celotex is liable for punitive damages “because the successor is essentially identical to that of the predecessor corporation”).

Accordingly, Defendant’s Motion for Summary Judgment is denied on this point.

Policy Against Punitive Damages

In a lengthy portion of its Motion, Defendant urges that the Court find that punitive damages are inappropriate in so-called “mass marketer” cases, where the risk of repeated punitive damage awards against a defendant invites bankruptcy and fails to serve the tort goals of punishment and deterrence. See generally Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir.1967).

It can be argued that the uncertainties of calculating the optional level of deterrence, and the obstacles to all potential plaintiffs seeking relief, make the Roginsky over-deterrence prediction empirically unsound. The Court, however, need not undertake that analysis. The Fifth Circuit has recently determined that such a foray into federal common law on the limitation of punitive damages in asbestos litigation should not be undertaken. Jackson v. Johns-Manville Sales Corp., 750 F.2d at 1314 (5th Cir.1985). The determination of whether punitive damages should be granted in a particular case is solely a question of state law. Texas law permits the award of punitive damages against asbestos manufacturers. Hansen v. Johns-Manville Products Corp., 734 F.2d 1036, 1041, reh. denied, 744 F.2d 94 (5th Cir.1984). Accord Foster v. Pittsburgh Corning Corp., No. H-81-1172 (S.D.Tex.1984), aff'd, 745 F.2d 53 (5th Cir.1984); Ross v. Owens-Corning Fiberglas Corp., supra.

Accordingly, the Court is of the opinion that Defendant Celotex Corporation’s Motion for Summary Judgment should be GRANTED as to Plaintiff’s claims based on U.C.C. breach of warranty, and DENIED in all other respects.

SO ORDERED.


author: ALLEN SHARP, Chief Judge.

text:
    Alfred ZINGMOND, Plaintiff, v. Sheriff Ed HARGER and Tippecanoe County Jail, Defendants.
    No. L 83-114.
    United States District Court, N.D. Indiana, Hammond Division at Lafayette.
    Feb. 5, 1985.

      Alfred Zingmond, pro se.
    J. Frederick Hoffman, Lafayette, Ind., for defendants.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

The complaint here is filed under 42 U.S.C. § 1983.

Defendant’s Motion for Summary Judgment is before the court. It was filed November 13, 1984 and is now ripe.

Alfred Samuel Zingmond has been confined in the Tippecanoe County, Indiana, jail on the following dates:

1. June 14, 1983, at 5:30 o’clock P.M. to August 26, 1983, at 12:50 o’clock P.M.
2. November 9, 1983, at 4:14 o’clock P.M. to November 21, 1983, at 10:30 o’clock P.M.
3. In both instances he was held there pursuant to an arrest warrant pending extradition to the State of Florida.

The complaint appears to involve both periods of confinement.

The claims alleged against these two defendants are stated as follows:

Allegation 1: Lack of a proper diet for a diabetic.
Allegation 2: The stopping of insulin for a diabetic and not the right medical care.
Allegation 3: Cruel and unusual punishment visiting windows. (Complaint, Paragraph D)

The only facts alleged in support of these allegations are set forth in Paragraph E of the complaint as follows:

Allegation 1: Eating the same food as other inmates. Should have diabetic diet.
Allegation 2: When asking about my insulin, I was told it was stopped. I am a diabetic. I was put in jail on June 14, 1983. Insulin was stopped July 26, 1983. After telling the doctor for 3 weeks, the jail started it again.
Allegation 3: The windows for visit were said to have been cruel and unusual punishment by the Supreme Court. .

The prayer of the complaint states:

2. I believe that I am entitled to the following relief. For undue suffering and mental anguish for not getting the right diet for a diabetic and stopping of my insulin and the visiting windows in the amount of 1,000,000.
This is all that is stated in the complaint.

An extensive pretrial was held on June 29, 1984, in Lafayette, Indiana, where plaintiff testified under oath at length.

Plaintiff stated that he was held in Indiana only for extradition to Florida for parole violation. The original charge in Florida was dealing in stolen property. He had a court-appointed attorney from three days after his incarceration until he left for Florida. He never talked or wrote to Sheriff Harger. He said that he wrote twice to Lt. Chase, jail commander, once about food and once for permission for a friend to visit him and permission was granted and the friend visited him. He claims they did refuse him one visit the last time he was there which was denied by Sheriff Harger. He said he was not claiming the right to contact visits, but that the visiting window (18" X 18") was too small pursuant to a ruling by the Supreme Court of the United States.

He said he had been a diabetic since 1979 and took insulin twice daily. He saw the jail physician at least four times. After he was there 45-50 days, they stopped his insulin for three weeks, saying he was not a diabetic, then reinstated it. He went to the hospital twice while in the jail for blood sugar tests, but he didn't know the results of the tests. He claimed he never received a special diet, only what the other prisoners received.

The results of the two blood sugar tests run at Lafayette Home Hospital show a glucose fasting reading of 238 on June 16, 1984, two days after plaintiff was placed in the jail and one of 123 on July 20, 1984, after he had been there 35 days.

At all times involved herein, Harry E. Klepinger, M.D., a licensed physician and an active member of the staff of Lafayette Home Hospital, was jail physician at the Tippecanoe County Jail. He examined plaintiff on four occasions, June 28, August 2, August 9, and August 16, 1983, and Dr. Vermilya, who substituted for him, examined plaintiff on June 21, 1983. Having had the first blood sugar test on June 16, diabinese was prescribed for plaintiff from the time of his admission until the results of the second test were received. When Dr. Klepinger received the results of the July blood test, he stopped the diabinese and special diet because, in his opinion, the test was in the normal range and plaintiff needed no special diet. Although weekly visits were made to the jail, plaintiff only requested to be seen by the physician on the above occasions, and one of these related solely to another problem. Dr. Klepinger states that the medications prescribed to plaintiff during his confinement in the Tippecanoe County Jail were his decisions and not those of Sheriff Harger.

Dee Master son states in her affidavit that she has been a cook at the Tippecanoe County Jail since January 1, 1973, has consulted frequently with the Home Economics Department at Purdue University concerning nutritional problems of inmates there, has had years of experience with the problems and dietetic needs of diabetics because her one son has been diabetic since the age of two, has had her menus reviewed by a registered dietician and follows the guidelines recommended by the dieticians of St. Elizabeth Hospital in planning needs for diabetics. She states that following these guidelines she eliminated sweets from plaintiffs diet, substituted milk for soft drinks, and increased the amounts of fruits and vegetables served him. She was unable to restrict plaintiffs intake of food because he was in a cell block with other prisoners and he received cookies, doughnuts, etc. from fellow prisoners and purchased coca-cola, wild cherry pop, corn chips, and candy from the jail commissary as shown by Commissary Receipts. She stated that even though Dr. Klepinger stated that plaintiff could be on a regular diet after the July blood sugar test, she continued to serve him a low sugar diet.

The physician’s records attached to the affidavit of Sheriff Harger reflect the above statements and show that on June 21, 1983, plaintiff was to receive diabinese twice daily and “possibly substitute something in place of doughnuts in a.m.” On August 2, the blood sugar was “normal” and “try low carbohydrate diet;” on August 9, he was to be “now on same diet as others”, and on August 16, he was to receive “diabinese” again.

Exhibit 7 to Sheriff Harger’s affidavit shows that plaintiff received diabinese daily during the periods it was prescribed for him.

The jail rules which were in force during the time plaintiff was there are attached to Sheriff Harger’s affidavit. They provide that the prisoners shall receive a nutritious and well balanced diet meeting or exceeding the federal daily allowances prescribed by law and adequate and regular medical care and states: “those inmates receiving regular medications will receive the medicine as prescribed”. That these provisions were complied with is shown by the Physician’s Records and the Administrative Record.

Exhibit 4 to Sheriff Harger’s affidavit is a December 6, 1983 report made by the Food Services Department of Lafayette Home Hospital at the Sheriff’s request concerning the food service at the Tippecanoe County Jail.

Exhibit 4 to Dee Master’s affidavit is a report made after talking to two of the visitors to plaintiff, Sonny Haley and Glenda Haley, who visited him on July 9, 1983, indicating that plaintiff might not be diabetic and that he might have consumed large quantities of sugar intentionally prior to the blood sugar test of June 16, 1983. Therefore, he ordered the surprise retesting which gave what Dr. Klepinger reported to be a normal reading. Sheriff Harger shows that he attempted to comply with the dietetic requirements of diabetics and all other prisoners needing special diets for medical, religious or other reasons and has instructed his staff to so do.

II.

In considering the constitutional issues raised in. this case this court must consider the interplay of several decisions of the Supreme Court of the United States: Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (pretrial detainees); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (medical treatment under Eighth Amendment standards); and Block v. Rutherford, _ U.S. _, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984) (visitation). Much of the judicial homework on the interplay between Bell v. Wolfish and Estelle v. Gamble has been done recently by Judge Coffey in Matzker v. Herr, 748 F.2d 1142 (7th Cir.1984).

Conceptionally the medical treatment issue as to pretrial detainees must be rationalized under the Due Process Clause and not directly under the Eighth Amendment. The standards are basically the same and are generally in a similar factual setting. There is one basic difference as to pretrial detainees. A showing deliberate indifference is not required under the Due Process Clause. See Kincaid v. Rusk, 670 F.2d 737, 743 n. 8 (7th Cir.1982). For a pretrial detainee a jailer must promptly and reasonably procure competent medical aid for one who suffers serious illness or injury while confined.

The jail standards as to medical attention here are similar to the ones in Matzker, at 1147, and facially comply with thé due process clause. Given the inferences favoring the plaintiff here under Rule 56 F.R.C.P., he has failed to show any basic denial of competent medical care. In fact, just the contrary is shown.

After the results of the July 20, 1983, blood sugar tests were known to the jail physician, the medication “diabinese” was no longer prescribed for plaintiff. At all times the medicine prescribed by the physician was given him. As shown by the affidavit of Dee Masterson, jail cook, she continued to give him a low sugar diet. The most that he could hope to prove would be negligence on the part of his jailers. Negligence will not support an action under 42 U.S.C. § 1983, or for a violation of the Eighth Amendment, Risner v. Duckworth, 562 F.Supp. 378, 380-382 (N.D.Ind.1983); Penn v. Starks, 575 F.Supp. 1240, 1254 (N.D.Ind.1983).

He has not sued the jail physician who ordered his insulin stopped. The jail staff must obey and follow the orders of the jail physician in dispensing medicines. Even if the jailers failed to get his medicine to him on all occasions as prescribed, this again could be only negligence. See Hahn v. McLey, 737 F.2d 771 (8th Cir.1984) and Burns v. Head Jailor of the LaSalle County Jail, 576 F.Supp. 618 (N.D.Ill.1984) , where Judge Shadur stated as he dismissed a pro se complaint filed by a prisoner (576 F.Supp. 620):

Finally Burns assails defendants’ failure to provide him medicine when needed. He alleges at times defendants either ran out of medicine or were late in delivering his medicine to him. No inadvertent failure to provide adequate medical care shows deliberate indifference. See Gibson v. McEvers, 631 F.2d 95, 98 (C.A. 7th Cir.1980). Moreover, as with Burns’ other claims for medical mistreatment, he fails to allege any harm from defendants’ acts or omissions. In this Circuit resulting harm is an essential element to a claim of constitutionally inadequate medical care. Thomas v. Pate, 493 F.2d 151, 158 [(7th Cir.1974)].

As can be seen from the Commissary Receipts attached as Exhibit 3 to Dee Masterson’s affidavit, plaintiff himself knowingly and intentionally violated his dietary requirements by purchasing soft drinks and candy from the Commissary. Under the Jail Rules plaintiff could not be denied access to the Commissary. According to Dee Masterson, he also got cookies, doughnuts, etc. from his fellow prisoners.

Plaintiff was not harmed or injured in any way by the medical treatment and diet he received at the Tippecanoe County Jail.

Even if Dr. Klepinger were responsible, Sheriff Harger and the Tippecanoe County Jail would not be responsible for the treatment or lack of treatment given plaintiff, Eklund v. Hardiman, 580 F.Supp. 410, 412-414 (N.D.Ill.1984). It is clear from his affidavit that Sheriff Harger has not attempted to influence the jail physician in the administering of medical care to the prisoners. His jail rules provide for such care. The jail rules comply with the standards established by the Indiana Department of Corrections. A recent and most important distinction has been drawn as to the function of independent outside physicians engaged to treat inmates. See Calvert v. Sharp, 748 F.2d 861 (4th Cir.1984).

Similar is McEachern v. Civiletti, 502 F.Supp. 532 (N.D.Ill.1980) where summary judgment was granted in a similar case against prison administrators, Judge Aspen stating (502 F.Supp. 534:

The Court need not decide, however, whether plaintiff’s prescribed treatment was “blatantly appropriate.” Gora and Luther are prison administrators, not licensed medical practitioners. Lacking the requisite expertise, they must necessarily place their confidence in the reports of the prison doctors whenever an inmate disputes a medical opinion as to what treatment is necessary and proper. Defendants here clearly deferred to the professional medical judgment of the doctors attending plaintiff with respect to both the propriety of his treatment and the lack of any medical necessity for making special transportation arrangements to accomplish his transfer to another correctional facility. Defendants’ reliance upon the opinion of their medical staff as to the proper course of treatment for plaintiff is sufficient to insulate them from any liability under the eighth amendment. See McCracken v. Jones, 562 F.2d 22, 24 (10th Cir.1977).

The doctrine of respondeat superior does not apply to 1983 claims, Pearl v. Dobbs, 649 F.2d 608 (8th Cir.1981); Adams v. Pate, 445 F.2d 105, 107 (7th Cir.1971); Boettger v. Moore, 483 F.2d 86, 87 (9th Cir.1973); Arroyo v. Schaefer, 548 F.2d 47, 51 (2d Cir.1977); and Duchesne v. Sugarman, 566 F.2d 817, 830 (2d Cir.1977) where the court stated:

The doctrine of respondeat superior is unavailable as a basis for imposing liability under § 1983, there must be a showing of personal responsibility.

Similar are Johnson v. Glick, 481 F.2d 1028, 1033-1034 (2d Cir.1973), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973); Baskin v. Parker, 602 F.2d 1205 (5th Cir.1979); and Perry v. Elrod, 436 F.Supp. 299, 302 (N.D.Ill.1977). See also: Developments in the Law, Section 1983 and Federalism, 90 Harv.L.Rev. 1133, at 1207 (1977).

There must be a personal involvement of the defendant in the illegal acts before damages can be awarded under § 1983, McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978); Mukmuk v. Commissioner of Department of Corrections, 529 F.2d 272, 275 (2d Cir.1976), cert. denied, 426 U.S. 911, 96 S.Ct. 2238, 48 L.Ed.2d 838 (1976); and Jennings v. Davis, 476 F.2d 1271, 1274-1275 (8th Cir.1973) where the Court stated this principle as follows:

“The doctrine of respondeat superior has been held generally inapplicable to the section 1983 action; and most courts have been unsympathetic to the claim that higher level officers have a general duty to the public to supervise, correct or control the actions of their subordinates. Plaintiffs have thus been required to demonstrate that the supervisory defendant actually encouraged, or directed the illegal conduct of lower level officials. In effect, this has limited the instances where plaintiffs can recover primarily to situations where there has been a history of widespread abuse in the conduct of the governmental operation under the defendant supervisor’s control.”

Judge Fairchild stated the rule as follows in McDonald v. State of Illinois, 557 F.2d 596, 601-602 (7th Cir.1977):

We find the law to be clear that for plaintiff to state a cognizable claim, he must allege more than mere negligence on the part of these defendants ... Indeed, in the case of supervisory officials, he must allege some personal involvement in the deprivation.

Nowhere does plaintiff allege any facts indicating that Edgar B. Harger did anything personally to deny any prescribed medicine or proper diabetic diet to plaintiff. The Sheriff denies any knowledge of his deprivations in his affidavit. Neither he nor the jail participated in the alleged deprivation.

In Duncan v. Duckworth, 644 F.2d 653 (7th Cir.1981) the Court of Appeals affirmed dismissal of a pro se claim alleging denial of medical treatment against the Warden of the Indiana State Prison saying (644 F.2d 656):

As to defendant Duckworth, the warden of the prison, there is equally no specific allegation of personal misconduct on his part.

In Layne v. Vinzant, 657 F.2d 468, 471 (1st Cir.1981) the Court, (including Judge Pell by designation) in a case alleging deliberate indifference to medical needs against the prison superintendents stated:

Because “an inadvertent failure to provide medical care” is not actionable, even if negligent ... and because there is no respondeat superior liability under Section 1983, ... the ultimate question is the state of mind of the defendant.

If we apply these tests here, clearly there are no disputed facts which could indicate any liability on Sheriff Harger.

For the same reason there is no liability on the part of the Tippecanoe County Jail, Eklund v. Hardiman, 580 F.Supp. 410 (N.D.Ill.1984). Prior to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) there was immunity from liability under 42 U.S.C. § 1983 against municipalities. When this immunity was abolished, the Supreme Court specifically ruled that municipal liability could not be based on the improper action of its officials under this doctrine of respondeat superior, Monell v. Department of Social Services, 436 U.S. 658 at 690, 98 S.Ct. 2018 at 2035, 56 L.Ed.2d 611 (1978); Lojuk v. Quandt, 706 F.2d 1456, 1468 (7th Cir.1983); Lenard v. Argento, 699 F.2d 874, 885-886 (7th Cir.1983), cert. denied, _ U.S. _, 104 S.Ct. 69, 78 L.Ed.2d 84 (1983).

Although Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) held that municipalities may not assert a good faith defense of its official or agents as a defense to its liability, such liability still must be formed on the official policy of the governmental unit, 445 U.S. at 657, 100 S.Ct. at 1419. Therefore, there can be no municipal liability and no liability against the Tippecanoe County Jail which is part of Tippecanoe County, unless there is some governmental act, omission or policy that violates the duty of the County Jail directly to plaintiff. Since there is no official government policy which is involved in these alleged constitutional deprivations, there is no liability on the Jail as an entity, Crowder v. Lash, 687 F.2d 996, 1005-1006 (7th Cir.1982).

III.

Nothing is alleged in the complaint about the normal jail diet, which plaintiff was on for a period commencing July 26, 1983 and ending August 16,1983, pursuant to orders of Dr. Klepinger, he did not complain about it at the pretrial. Dee Masterson states in her affidavit that during this period she still gave plaintiff a low sugar diet by substituting fruit for sweets, and milk for soft drinks. Therefore, he was not served the doughnuts he complains of. He apparently received them from his fellow inmates. He does list other items of a typical menu.

In 1979 Mrs. Masterson had Melissa Kollenkark, Registered Dietitian, review her menus. Her report affidavit found the meals nutritionally adequate.

Recently Sheriff Harger requested review of the menus by a registered dietitian of Lafayette Home Hospital. Her report, which is attached as Exhibit 4 to the affidavit of Sheriff Harger found the meals to be adequate, although she suggested changes which have now been made.

The affidavit of Dee Masterson shows that she is experienced in food preparation, has taken additional schooling to improve her ability to provide a proper diet and is striving to serve a balanced diet, within the constraint of the funds available for food.

The jail rules promulgated by Sheriff Harger and approved by the Judge of the Tippecanoe Circuit Court state:

Inmate rights, include, but are not necessarily limited to nutritious and well balanced diet, meeting or exceeding the federal daily allowances as prescribed by law.

The reports of Melissa Kollenkark, R.D., and Wanda Childress-McVeigh, M.S., R.D., show that this standard is being met.

Did the meals served plaintiff during this three week period amount to punishment? Clearly the answer is “no”. The food was nutritious. It varied. There was meat daily. Milk was available at two meals. He was given extra fruit.

Much of the food was plain. The Sheriff had only 85 cents per meal or $2.25 per day to serve three meals to a prisoner. You can’t serve steak, or lamb chops on that money. However, fancy food is not required — only that it be nutritious, well balanced and in adequate quantities.

In Boston v. Stanton, 450 F.Supp. 1049 (W.D.Mo.1978) the Court dismissed a complaint as not stating a claim, which alleged:

that breakfast ... was unpalatable. Hot food was allegedly cold, cold food warm. Jelly packages were submerged in oatmeal and bread was soaked with coffee. Salt was allegedly placed in oatmeal (450 F.Supp. 1054), and
“that jail officials placed plaintiff on a diet of sandwiches and lunch meat and cheese after the food throwing incident.” (450 F.Supp. 1055).
The Court stated (450 F.Supp. 1055).
It is settled that allegations concerning denial of hot meals do not state a cognizable claim, if prisoners are adequately fed. Hoitt v. Vitek, 497 F.(2d) 598 (1st Cir.1974).

Further an occasional incident of a foreign object discovered in prison food raises no constitutional issue, Lunsford v. Reynolds, 376 F.Supp. 526 (W.D.Va.1974), nor does the occasional presence of roaches and hair in the food. Kennibrew v. Russell, 578 F.Supp. 164, 168 (E.D.Tenn.1983).

The food served plaintiff in the Tippecanoe County jail certainly was better than that referred to in Boston v. Stanton, 450 F.Supp. 1049.

The standard for the maintenance of county jails promulgated by the State of Indiana are set forth in full as Exhibit 5 to the affidavit of Edgar B. Harger (Exhibit A to Motion). Section 12 (210 IAC 3-1-12) applies to Diet and Food preparation. It states:

Sec. 12. Diet and Food Preparation, (a) Each sheriff shall establish written policies and procedures concerning the quantity and quality of food served to inmates.
(b) Food shall not be used as a reward or withheld as a disciplinary measure. All meals shall be served under the supervision of the jail administrator or his designee. There shall be no more than fourteen (14) hours between the evening meal and breakfast. Inmates shall be served three (3) meals each day. One meal each day shall be served hot.
(e) Medical diets approved by the responsible physician shall be honored. Religious diets shall be honored to the extent that the required food is readily accessible in the community where the jail is located. Any refusal to grant a medical or religious diet shall be reported in writing to the sheriff or jail administrator.
(f) Each sheriff shall establish in writing a control system to monitor and control food pilferage, misuse or spoilage.

The jail rules established by Sheriff Harger and the food served by Dee Masterson certainly meet all requirements of these standards.

IV.

The third allegation of plaintiff’s complaint is that the windows for visitation constituted cruel and unusual punishment under decisions of the Supreme Court. He repeated these charges at his pretrial. He admitted that he had a number of visitors, both friends and relatives. This is shown by the Visitor’s Records of the Jail. Although he says one prospective visitor told his attorney he was not allowed to visit during his November incarceration, which the Sheriff denies (Paragraph 24 of Ex. A) he states he had two others during that period. Obviously, if such occurred, it was without the knowledge of these defendants and contrary to the jail rules. Therefore, there would be no liability on them for such isolated denial if it in fact occurred. Greene v. United States, 589 F.Supp. 834, 836 (N.D.Ga.1984).

Block v. Rutherford, _ U.S. _, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984) is the most recent relevant authority here.

It is clear that the Bell v. Wolfish test of whether the conditions constitute punishment applies, Ramos v. Lamm, 639 F.2d 559, 579 (10th Cir.1980). The standard set forth in Duran v. Elrod, 542 F.2d 998, 1000 (7th Cir.1976) is no longer the law in this circuit. In Ramos v. Lamm, 639 F.2d 559, 581 (10th Cir.1980), the Court of Appeals for the Tenth Circuit upheld a complete ban on visitation by non-relatives where the prisoner had relatives who visited him. Here Lt. Chase permitted non-relatives to visit plaintiff although he had relatives who could and did visit him.

In Jackson v. Illinois Department of Corrections, 576 F.Supp. 1368 (N.D.Ill.1983) Judge Shadur granted summary judgment in a case where plaintiff had his visiting rights terminated as to a particular visitor because of rule violations connected with the prior visit. In Safley v. Turner, 586 F.Supp. 589 (W.D.Mo.1984) a rule prohibiting visits from former fellow inmates for a period of six months after they left prison was upheld. In Block v. Rutherford, _ U.S. _, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984) the Supreme Court again upheld the test established in Bell v. Wolfish of whether the jail condition, practice or policy constitutes punishment of the pretrial detainee (104 S.Ct. 3231). It went on to hold that it was proper to deny contact visits with pretrial detainees at the Los Angeles County Jail, 104 S.Ct. 3232-3234, for security reasons. The same rationale applies in this case. Where you have a jail containing 50 prisoners, you must have a secure method for visitation where the prisoners are secure, the jail employees are secure, the visitors are secure and contraband cannot be passed from visitor to prisoner. One way to do this is to have a wall separating the prisoner with a window and grid through which the prisoner and visitor can communicate while viewing each other. This is the way the Tippecanoe County Jail is constructed. Plaintiff says the windows are only a foot and half by a foot and a half. Certainly that is large enough for prisoner and visitor to view each other. He does not deny that he had a number of visitors, on at least five separate dates, and often two on each date. Apparently the visits were satisfactory as the only complaint is the size of the visiting window. The strong language of Chief Justice Burger that “we have emphasized that we are unwilling to substitute our judgment on these difficult and sensitive matters of institutional administration and security for that of the persons who are actually charged with and trained in the running of such facilities” (104 S.Ct. 3233) are clearly relevant here.

There has been full compliance with Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). The defendants are entitled to summary judgment on all issues here presented. SO ORDERED.