author: PETTINE, Senior District Judge.

text:
    Michael J. FEROLA v. John MORAN, et al.
    Civ. A. No. 81-0041P.
    United States District Court, D. Rhode Island.
    Nov. 22, 1985.

      Ernest Barone, North Providence, R.I., for plaintiff.
    Stephen Robinson, Dept, of Corrections, State of R.I., Cranston, R.I., for defendants.
   OPINION AND ORDER

PETTINE, Senior District Judge.

The plaintiff, Michael J. Ferola, has brought this civil rights action, 42 U.S.C. § 1983 against John J. Moran, Director, Department of Corrections; Matthew Gill, Assistant Director; Stafford Quick, Associate Director; Paul LaRochelle and Captain House, guard officers; and certain medical personnel of the Adult Correctional Institutions, namely, Chuck Dawson, a psychologist; Dr. Bernard Duval, a psychiatrist; Dr. Karoly Kun, a physician; and nurses Audrey Heon, Louise Donnelly and Joanne McNamara. Ferola asserts that while incarcerated as an inmate at the ACI, he was physically abused and denied psychiatric care, in violation of the rights guaranteed to him by the Eighth Amendment to the United States Constitution; he seeks damages and equitable relief. For reasons hereinafter stated, judgment is rendered in part for the defendants and in part for the plaintiff.

This case was tried to the Court and by agreement of the parties, hearsay evidence, letters, documents, and the like were accepted as though properly admitted. The evidence developed the following facts.

I. FACTS

1. Psychiatric care:

The plaintiff is a 25 year old inmate currently serving a ten year term for robbery and rape. The sentence was imposed in October of 1978. From the commencement of his term to at least 1981, his incarceration has involved a bizarre sequence of aberrant behavior. He candidly testified that within a week of his imprisonment he intentionally injured himself, and thereafter, over a period of approximately three years, periodically did so on sixty different occasions. Most of these incidents required the plaintiff to be hospitalized for approximately a week or more; he described these episodes as “cutting myself,” “smashing my hand into the wall,” and “setting cell on fire.” He was placed under the care of Dr. Bernard Duval, the prison psychiatrist, who saw him “at least once a week” from 1978 to November of 1980. When asked to give reasons for his behavior, he replied, “one was places that I didn’t want to be, fear of being same place, refusing to move me. I felt that as my means of getting out. Other times it was depression. I was young I didn’t want to do time. Other times was out of hostility because of the way I was being treated.”

Ferola’s deviant behavior manifested itself prior to his present imprisonment. As a youth, he was examined or treated at four different medical facilities and placed in special schools and group homes. At age 14, he was sent to a special school for severely anti-social youths where he was diagnosed as having a severe character disorder. There is no doubt, as evidenced by the medical records introduced in this case, the plaintiff had a long standing, deeply rooted antisocial personality disorder when he started serving his current sentence.

A general survey of his prison disciplinary record commencing in 1979, reveals approximately eighty-five infractions; thirty-two went before a disciplinary board; as a result he was deprived of parole time. Throughout his imprisonment he has received medical attention from Dr. Duval, the prison psychiatrist. Dr. Bauermeister of the State’s Department of Mental Health, who was called by the defendants as an expert, analyzed Ferola’s condition and the treatment he received. He told the Court that there are no effective methods for treating a person who has an anti-social personality and that Dr. Duval, who is a psychiatrist as well as a physician, utilized both his-medical and psychiatric skills in caring for Ferola. Dr. Bauermeister stated that “[pjsychiatrists with M.D. degrees are a scarce commodity and in general they are used exclusively to prescribe medication. From reading the notes carefully I have had the feeling that Dr. Duval extended himself way beyond [the limited] definition of his task and did attempt counselling with Mr. Ferola;” he pointed out that in 1979, Dr. Duval saw Ferola 20 times and in 1980, 39 times. In addition to providing counselling, Dr. Duval, from time to time, placed Ferola in a “lock-up-feed-in” status, and prescribed drugs to control his behavior.

In short, Dr. Duval exhausted every available means of helping Ferola but was frustrated at every turn. He finally concluded that further treatment was of no avail; as he states in his notes, “I tried to treat Mr. Ferola though there is no known treatment for anti-social personality; it led to nothing so I will stop.” Dr. Bauermeister felt that Dr. Duval was completely correct in his diagnosis and supported Dr. Duval’s conclusion of the futility of further treatment, as demonstrated by the course of Ferola’s behavior. He referred to the record, which shows that increased treatments did not lessen the number of infractions committed by Ferola; indeed, in the years in which there was no treatment, Ferola’s infractions dropped.

A further elaboration of Ferola’s psychiatric condition is not necessary. It is clear and uncontradicted that he is a manipulative individual who uses self-injurious behavior to improve his condition at the prison; there is no question he is the victim of an anti-social personality disorder for which there is no cure; however, in this case, Dr. Duval administered treatment to Ferola above and beyond the reasonable requirements and duties of a prison doctor.

The plaintiffs own evidence, a report from Dr. T.J. Chamberlain, a psychiatrist, is compatible with Dr. Duval’s diagnosis, treatment and care. The plaintiff relies heavily on Dr. Chamberlain; however, I fail to see how his testimony gives any support to plaintiff’s position. The language quoted to the Court is as follows:

His psychiatric history is not compatible with a psychotic process (e.g. schizophrenia or manic depressive illness), a psycho-neurotic process (dysthymic disorder, compulsive disorder, etc.) or as an organic syndrome, (e.g. mental retardation, seizure disorder, etc.). His history is compatible with a personality disorder, i.e., anti-social personality disorder as defined in DMS III of the American Psychiatric Association. Although there are well defined treatment modalities for the psychotic, psychoneurotic and organic disorders, the treatment for personality disorders, and particularly the anti-social disorders is not well defined, and is controversial. He has been treated with some of the proposed therapeutic interventions, e.g., a group home with group and individual therapy without any detectable improvement. It should be noted that the anti-social personality is at best, very difficult to treat, and has a very poor prognosis. Optimal therapy within a confinement system would consist of a combination of group therapy and medication, if indicated. Lithium was utilized without any significant improvement even though the blood levels were well within therapeutic range. Lithium is not indicated for anti-social personalities, and Dr. Duval apparently ordered it on an empirical basis, and on the patient’s request. Group therapy, if available may have proved beneficial, although his earlier inability to respond would indicate that his outcome with group therapy would not be significantly different.
Anti-social personalities, under the best of circumstances are very difficult to treat. The only aspect of his care that could be addressed is the global one of the prison having vocational rehabilitation facilities, and group psychotherapy. In terms of his psychiatric condition being exacerbated by the alleged lack of treatment, it should be noted that anti-social personalities are remarkably stable over time, that any change is usually short lived, and in reaction to environmental changes.

The foregoing statement is supportive of, and consistent with Dr. Duval’s diagnosis. The only ingredient missing from Dr. Du-val’s prescribed treatment of Ferola is the group therapy. Even here, however, Dr. Chamberlain states that Ferola’s “outcome” with group therapy would not have been significantly different. The plaintiff argues that even though an anti-social personality is difficult to treat, it should not be ignored. Ferola was not ignored however; in fact, there was almost solicitous concern for him.

2. Physical Abuse

On November 5, 1980, Mr. Ferola severely cut himself. As a result of this self-inflicted injury he was taken to the Rhode Island Hospital, a community based medical facility, where the wound was treated and sutured. At 5 p.m. of the same day he was returned to the prison in the charge of Lt. LaRoehelle who testified that Ferola was very upset and stated that regardless of what was done for him he was going to injure himself again because he wanted to be confined in the prison hospital.

Dr. Duval was contacted. He gave instructions to the nurse, which were passed on to Lt. LaRoehelle, that Ferola’s cell was to be stripped bare and that he was to be shackled and handcuffed to prevent any further self inflicted injuries. At 5 P.M. these orders were executed; Ferola was shackled in a supine position. Each arm was extended over his head and handcuffed to the bed — his legs were spread and likewise shackled. The defendants claim each arm could be moved up or down by one to one and a half feet; the plaintiff disputes this claim and alleges that he was only able to move his arms 6 inches and his left arm not at all once the left cuff had slipped down the cot leg. The evidence supports the conclusion that for approximately 20 hours (5 P.M. Nov. 5 to 1 P.M. Nov. 6) he was shackled to his bed and that for approximately fourteen consecutive hours (5-5:30 P.M. to 7-7:30 A.M.) of the 20 hours he was restrained in spread eagle fashion as described.

Throughout the night Ferola yelled, screamed, strained at the shackles and continually moved them back and forth to create noise — hoping that the other inmates would join in general noise making; he further claims he was in pain, experienced numbness in his arm, was denied toilet facilities and was forced to lie in his own urine. There is no evidence, other than Ferola’s testimony, supporting the claim that he was forced to lie in his own urine. The log book for that day, which would note whether or not the sheets had to be changed, was destroyed in a fire. Lt. LaRochelle testified, however, that the sheets had not been soiled. Lt. LaRochelle, while admitting that Ferola was never taken to the toilet between 5 P.M. Nov. 5 and 7:30 A.M. Nov. 6, also testified that Ferola never asked to be released to use the toilet during those 14 hours. Because it is reasonable to assume that one would be required to use the toilet during a 14-hour time span, I accept as credible Ferola’s testimony that he was denied access to a toilet during this period.

Nurse Audrey Heon testified, through interrogatories, that she saw Ferola while he was shackled to his bed, that he was agitated, and that he requested that the cuffs be loosened. She stated “apparently, the cuffs had slipped down the legs of the bed and I pulled them up to the top of the bed in an attempt to make him as comfortable as possible ... I recall speaking to one of the officers regarding the plaintiff’s request that his cuffs be loosened. I do not recall to whom I spoke to, but his request was not granted ... yes, I spoke to the superior officer on duty regarding his complaint.” Plaintiff’s exhibit 8. At a subsequent evidentiary hearing Ms. Heon testified that she received no instructions to monitor medically Ferola and that she only saw him once on the night in question, in response to a complaint from him as to the dressing on his self-inflicted wound. She also stated that a check was made of the cuffs — these were loose — and that she did not believe he had soiled the bedding because if he had she would have remembered.

Sometime after his release from restraints, Ferola was again sent to the Rhode Island Hospital as directed by the prison doctors. He was diagnosed as having brachial plexus apraxia — that is, neural damage to the arm and shoulder. Dr. Chamberlain gave his opinion that the condition was caused by the November 5-6 incident. On the other hand Dr. Karoly Kun, the defendants’ medical expert, who unlike Dr. Chamberlain, examined the plaintiff after the incident, testified that he thought the injury was caused by Ferola’s constant straining against his shackles.

On November 6 Dr. Duval made an entry in the record; this entry shows that Ferola must have been a continuing problem and further reveals Dr. Duval’s attitude toward shackling. It reads as follows:

Lt. Erikson, BCU, called and asked what I was going to do about my “kid” referred to Ferola. Since return to BCU, inmates have been attempting to be returned to Dispensary. In fact, early this morning, he told Mr. Guerin that he would get back here somehow.
He has been superficially slashing his wrists and beating his head against wall. So far, his self-inflicted injuries have not been such that he has had to be placed in the Dispensary for medical or surgical reasons. He may very well harm himself sufficiently to receive such placement.
Can this be prevented?
1. Were I to place him in observation he still could harm himself and would if his placement were not satisfactory to him. Therefore, to place him in the rear room now would be to consent to being manipulated with no reasonable end in sight.
2. Should I load him up with Thorazine, whether in BCU (Behavioral Correctional Unit) or in Dispensary? This kind of pharmaceutical behavior control is acceptable to totalitarians but is repugnant to our culture and ethical values. There is no psychiatric ground present at this time for an invasive pharmaceutical intervention.
3. Should he be restrained physically in order to reduce the likelihood of serious self-injury? This non-invasive procedure impinges less immediately on his integrity and exposes him less to personal degradation, although it appears more brutal. Physical restraint would seem to be the response of choice, however short of ideal it may be.
4. Must he be placed in the Dispensary to be restrained? No! Physical restraint, whether short lived or more prolonged, is a proper custodial activity. Custodial authorities, for a variety of reasons, do not like to be involved in more prolonged physical restraint. While I can sympathize with them, I can not agree that dislike for an acceptable procedure is a sufficient reason to shift the burden to the medical staff under the arbitrary and false rubric that the inmate is “crazy and belongs in the rear room”. Consequently, in response to Erickson’s call, I advised him to follow custodial procedure, assuring him that Ferola is not a psychiatric patient. Psychiatric Contract Notes, November 6, 1981, Pi’s ex. 14.

To understand the motivation for the November 5, 1980, shackling, Ferola’s repetitive self-injurious conduct must be kept in mind. Dr. Wolf Deery, the health care administrator for the Department of Corrections, testified that Ferola was “extremely manipulative and demanded his own way”; to accomplish his end, he would injure himself and as the doctor stated, the concern was “that while people like Mr. Ferola are not generally suicidal and are also not generally psychotic, that they occasionally do hurt themselves. They accidentally do a better job than they thought they could, and seriously injure themselves.” Dr. Deery therefore indicated that there are times when shackling is necessary to minimize the probability of self-injury.

II. LEGAL STANDARD:

This section 1983 complaint is a two-pronged accusation. It charges that the defendants have subjected the plaintiff to cruel and unusual punishment, in violation of the Eighth Amendment to the Constitution, by denying him needed psychiatric care and by cruelly and abusively shackling him to his bed.

The Eighth Amendment proscribes, not only physical torture and other barbarous methods of punishment, but also other penal measures that are “incompatible with ‘the evolving standards of decency that mark the progress of a maturing society’ ”, Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958), that “involve the unnecessary and wanton infliction of pain,” id. at 102, 97 S.Ct. at 290 (quoting Gregg v. Georgia, 478 U.S. 153 (1976)), and that punish individuals in gross disproportion to the severity of the crime, id. at 103, n. 7, 97 S.Ct. at 290 n. 7 (citations omitted). See generally Nadeau v. Helgemoe, 561 F.2d 411, 413-14 (1st Cir.1977).

It is now established that the Eighth Amendment requires the government to provide medical care for prisoners, Estelle v. Gamble, supra, 429 U.S. at 103-06, 97 S.Ct. at 290-92 and that “deliberate indifference to serious medical needs of prisoners constitutes ‘unnecessary and wanton infliction of pain,’ ” id. at 104, 97 S.Ct. at 291 (quotation omitted), forbidden by the Amendment. In Estelle the court made clear that whether the infliction of unnecessary suffering is caused by a prison doctor’s response or lack thereof to inmate needs, or by a prison guard’s denial of access to medical care, (or interference with prescribed treatment) “deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983.” Id. at 104-05, 97 S.Ct. at 291. The critical factor in any such instance, however, is that the indifference be not merely inadvertent or negligent, but deliberate, for it is only such deliberate indifference “that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. at 106, 97 S.Ct. at 292.

The response to plaintiff’s first complaint, i.e., denial of needed psychiatric care, is simple: he was not denied such care. True, denial of psychiatric care can, under certain circumstances, amount to deliberate indifference as the plaintiff argues citing Woodall v. Foti, 648 F.2d 268 (5th Cir.1981), but that just is not the case here. The record abounds with exhaustive notations of doctor conferences, counseling and use of thorazine. Dr. Duval’s summation is consistent with that of the plaintiff’s own witness (presented through a letter, pi’s ex. 13), Dr. T.J. Chamberlain, as I have already discussed. There is no need to labor this facet of the plaintiff’s complaint. The evidence fails to prove this allegation. It strains logic to a filament to say that the record of care afforded the prisoner reflects, even in the slightest degree, a denial of psychiatric care or deliberate indifference. Factually and for the reasons recited, the plaintiff’s claim that the defendants were deliberately indifferent to his psychiatric needs, has not been established. On this issue I find for the defendants.

Shackling

This aspect of the case presents the much closer question of whether, by shackling plaintiff to his bed for a 20 hour period, under the circumstances indicated in the record, the defendants ran afoul of the Eighth Amendment guarantee.

This is not the first case to confront the constitutional propriety of utilizing physical restraints to control prison inmates. See, e.g., Stewart v. Rhodes, 473 F.Supp. 1185 (S.D.Ohio 1979), app. dismissed, 661 F.2d 934 (6th Cir.1981); Owens-El v. Robinson, 442 F.Supp. 1368 (N.D.Pa.1978), supp. opin, 457 F.Supp. 984 (W.D.Pa.1978); Inmates of D.C. Jail v. Jackson, 416 F.Supp. 119 (D.D.C.1976); Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972), aff'd, 501 F.2d 1291 (5th Cir.1973); Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971); Tate v. Kassulke, 409 F.Supp. 651 (W.D.Ky.1975). These cases establish that, while there is no per se constitutional prohibition on the use of restraints such as shackles, chains, handcuffs and the like, courts must review with great care the circumstances surrounding their use in a particular instance to determine whether the strictures of the Eighth Amendment have been satisfied. These cases are, of course, only particular applications of the general rule that no measure instituted by prison officials, whether it be denominated “punishment,” “control,” “treatment,” or otherwise, see Trop v. Dulles, supra, 356 U.S. at 93-95, 78 S.Ct. at 594-95, may inflict wanton and unnecessary pain. And in these cases, as is generally true in Eighth Amendment analysis, the individual circumstances surrounding a challenged measure, including its duration and the objective sought to be served, see, e.g., Leon v. Harris, 489 F.Supp. 221, 223 (S.D.N.Y.1980) weigh heavily.

Indeed, in this case the prison officials are themselves aware that there are certain boundaries within which their use of physical restraint must be confined. The institution’s regulations read in pertinent part:

Mechanical restraints may be used only when reasonably necessary and only in the following instances:____ Under medical advice to prevent an inmate from attempting suicide and inflicting serious injury upon himself and others; mechanical restraints shall never be used____ In a way that causes undue physical discomfort, inflicts physical pain, or in any way restricts the blood circulation or breathing of an inmate. Pi’s ex. 7 at p. 4.

Here, there can be no serious question, and I find, that the mechanical restraints were used on Ferola “under medical advice” and to prevent him from inflicting “serious injury” upon himself. The decision to physically restrain Ferola comports with accepted medical standards as of November, 1980; Dr. Chamberlain so stated in his opinion letter of February 18, 1985. Thus, this is not a case like others in this area, where the restraints were used plainly to punish — a circumstance recognized to be repugnant to the mores embodied in our Constitution. See, e.g., Gates v. Collier, supra; Owens-El v. Robinson, supra; cf. Wheeler v. Glass, 473 F.2d 983 (7th Cir.1973) (restraints used for 77 hour period to punish mentally retarded juveniles).

The more difficult question here is whether plaintiff was shackled in such a manner as to violate the institution’s own regulation forbidding restraint that causes undue physical discomfort or pain, and to violate the Eighth Amendment. In a sense, this regulation embodies the protections of the Eighth Amendment and the question whether the regulation was violated here merely re-asks the question whether the constitutional standard was satisfied.

Looking to the facts surrounding this incident, I find several circumstances deeply troubling. First, although the shackling was ordered in the first instance by Dr. Duval, there was no medical monitoring, control or supervision of plaintiff while he was restrained. Not only was there a failure to give medical instructions, but no doctor or nurse paid periodic visits to plaintiff during the 20 hours — including the 14 consecutive hours of being shackled spread eagled — of his confinement. Nurse Heon did see Ferola, but she apparently lacked control over him, for it was the correctional officers who decided whether to comply with plaintiff’s complaint that his shackles be adjusted and wound treated.

One point that courts examining the use of restraints have emphasized is that physical restraint of an inmate should be carried out only under the close supervision of medical officials. See Stewart v. Rhodes, supra, 473 F.Supp. at 1193 (where restraints are necessary, “the inmate should receive immediate medical attention and care” and “be under the control of medical personnel”); Inmates of D.C. Jail v. Jackson, 416 F.Supp. 119, 124 (ordering that restraints be authorized by medical personnel and be used in hospital setting only); Owens-El v. Robinson, 442 F.Supp. 1368, 1380-81 (finding deficient lack of prison policy requiring medical personnel to monitor and check inmate’s condition more frequently than on regularly scheduled rounds and asserting that restraints, where necessary, should be used only under “close medical supervision”), supp. opin., supra, 457 F.Supp. at 990 (ordering that restraints be authorized by medical personnel and be used in hospital setting only); Landman v. Royster, supra, 333 F.Supp. at 648 (restraint should not be used without medical authorization); cf. Wyatt v. Stickney, 344 F.Supp. 387, 401 (M.D.Ala.1972) (ordering that use of restraints on institutionalized mentally retarded persons be medically monitored on half-hourly basis). Here, there was surely warrant for medical monitoring. Given plaintiff’s professed determination to injure himself, and defendants’ own evidence to the effect that plaintiff tried to injure himself with his shackles (and succeeded, according to defendants’ expert Dr. Kun) and that he had already been treated at Rhode Island Hospital, it was of little avail to shackle him to prevent self-inflicted injury without monitoring his condition and activity while he was restrained. True, to have shackled him in the prison hospital would have required some capitulation to his strong desire to return there — but to chain him without any meaningful medical supervision posed the very risk to his health that defendants were trying to avoid.

Second, the plaintiff was spread-eagled. Sheer common sense tells us that immobility in such a position for a protracted period of time will cause great physical suffering and the likelihood of injury. In addition, unpadded chains were used by the defendants. Further, I find the plaintiff’s testimony credible that he had only six inches of freedom of movement in each arm and leg, and no freedom of movement at all when the cuff slipped down the leg of the bed — although the defendant officers assert that he had one to one and a half feet of movement. The fact that Nurse Heon saw fit not only to lift the slipped cuff, but to relay Ferola’s complaint about the tightness of the shackles, suggests, in spite of her assertions they were loose, that they were applied in a restricted and uncomfortable manner, and it cannot be denied the plaintiff made known his extreme discomfort. In light of defendants’ assertion that plaintiff continually agitated and strained against his shackles while confined, it is difficult to accord much weight to the testimony given by the defendant corrections officers that they were not aware that plaintiff was experiencing discomfort. Like other courts, I am disturbed by the apparently painful means of restraint employed here. See Stewart v. Rhodes, supra, 473 F.Supp. at 1193 (inmates chained, spread eagled, to beds for periods ranging up to 7 days); Landman v. Royster, supra, 333 F.Supp. at 648 (quoting American Correctional Association Manual’s rule that shackling should not be done “so as to enforce cramped position”); cf. Inmates of D.C. Jail v. Jackson, supra, 416 F.Supp. at 124 (ordering that only “medically appropriate” padded and pliable restraints be used). Here again, had control been given to medical personnel, the pain plaintiff claimed to have been suffering could have been mitigated.

Third, although the evidence is again divided, I feel the record supports the finding that plaintiff was denied access to a toilet for at least fourteen consecutive hours. It plainly works great and gratuitous suffering on an individual to deny him, for so many hours, the opportunity to “respond to a call of nature,” Landman v. Royster, supra, 333 F.Supp. at 647; accord Stewart v. Rhodes, supra, 473 F.Supp. at 1103. Once again, I must conclude that if plaintiff had been under the close supervision of medical officials while shackled, this unnecessary pain would not have been inflicted.

Taken together, and considered in the context of prior decisions, the circumstances surrounding plaintiff’s shackling certainly raise a close Eighth Amendment question. True enough, there are countervailing considerations here. No one disputes that plaintiff was an incorrigible, indeed impossible, difficult, individual afflicted with serious behavioral problems. He may well have required very restrictive restraining. Viewed in the context of plaintiff’s repeated attempts to injure himself, I am inclined to believe that he continued to behave obstreperously while chained, and that he may have continued in his attempts to injure himself by agitating and pushing against his restraints. In this regard, the testimony of Dr. Kun, who examined plaintiff after the shackling and believed that his own actions caused the shoulder injury, carries somewhat more weight than that of Dr. Chamberlain, who thought the manner of restraint caused the injury. Dr. Chamberlain never examined plaintiff, nor saw the restraints, and is a psychiatrist by specialty.

Nonetheless, as I have said, the fact that plaintiff was a difficult individual should have given the defendants more, not less reason, to monitor his condition closely. And while the circumstances here were, in certain ways, not as egregious as those presented in some of the cases cited earlier, the fact remains that, where an individual has been chained spread eagled to a bed for a total of 20 hours without meaningful and frequent medical monitoring, and has been denied toilet access for 14 hours, the evolving standards of decency in our society have been compromised and unnecessary pain has been wantonly inflicted.

The plaintiff’s action against the named defendants, Chuck Dawson, Dr. Karoly Kun, and Nurses Joanne McNamara, Audrey Heon, and Louise Donnelly, is easily disposed of; there simply was no evidence to substantiate this complaint against them. Accordingly, judgment is entered in favor of these named defendants.

There is no evidence that Matthew Gill, and Stafford Quick in any way “participated” or had any “affirmative link” between the occurrence and the adoption of any policy showing they authorized or approved of the misconduct set forth herein, Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Accordingly judgment is hereby entered for these defendants.

All policies, practices and administrative procedures are set by and are under the control of the Director John Moran. See R.I.G.L. 42-56-10. It is clear that he set no policies to safeguard inmates against unconstitutional conduct on the part of his subordinates. His administrative policy statement, Ex. 7, is unmistakable evidence of his knowledge of the abuses that can exist as to the shackling of inmates. Yet his disregard for the constitutional rights at stake, in a fact situation as exists here, is an acquiescence or approval of such conduct. He must be held responsible.

Lt. Paul LaRochelle was the officer in charge up to 11 P.M. From 11 P.M. to 7 A.M., Capt. William House was in charge. A Lt. Erickson took over at 7 A.M. November 6, but he is not named as a defendant. There is direct evidence of LaRochelle’s participation in the shackling of Ferola; this, of course, was because of his supervisory position. There is no evidence as to House excepting that he was the captain in charge from 11 P.M. November 5 to 7 A.M. November 6.

It is the combined periods of time that give rise to an Eighth Amendment violation. I hold Lt. LaRochelle responsible because of his participation; and though it is true, that if the shackling of Ferola lasted only for the duration of LaRochelle’s shift, it might not have constituted a constitutional violation; at a minimum he should have taken steps to free Ferola before going off duty, which he did not do, and this permitted the condition to continue. It may be that Capt. House is equally guilty. However, there is not a shred of evidence as to his duties that night and whether in their performance he would have become aware of Ferola’s circumstances. Logic dictates he must have known; unfortunately human conduct is not always logical. Therefore, I cannot find him guilty of a constitutional violation.

Accordingly, judgment is entered against John Moran and Paul LaRochelle. Damages:

The damages are confined to the trauma of the twenty hour “spread eagle” shackling of Ferola; there were no hospital bills or other damages such as permanency of the injury and loss of earning capacity and wages. However, the plaintiff is certainly entitled to recover for the trauma, pain and suffering he endured. The First Circuit Court stated in Maguett v. Pelletier, 488 F.2d 33 (1973), “This is not to say that in a civil rights action a plaintiff who proves only intangible loss of civil rights or purely mental suffering may not be awarded substantial compensatory damages.” Smith v. Sol D. Adler Realty Co., 436 F.2d 344, 350-51 (7th Cir.1970); Donovan v. Rein bold, 433 F.2d 738, 743 (9th Cir.1970). See also Morales v. Benitez de Rexach, 541 F.2d 882 (1st Cir.1976).

The maximum permissible compensatory award here must include the physical and psychological injury suffered, and it must accord with the evidence. Based on the record established in this case, I settle on the sum of one thousand dollars: Judgment is entered for the plaintiff as against the defendant John Moran in the amount of $1000.

Equitable Relief

The facts in this case make it clear that equitable relief is warranted. Using the criteria established by the Federal Prison System as a guide, Program Statement: Number 5566.2, Date: June 18, 1982, Subject: Use of Force and Application of Restraints on Inmates, Effective Date: July 26, 1982, it is hereby ordered:

USE OF RESTRAINTS

a. The correctional supervisor in charge of the shift may authorize and will ordinarily supervise the application of restraints necessary to gain control of an inmate who appears to be dangerous because:

(1) The inmate assaults any person;
(2) The inmate destroys government property;
(3) The inmate attempts suicide;
(4) The inmate inflicts wounds upon self; or
(5) The inmate displays signs that such violence may be imminent.

Restraints should be used only when other effective means of control have failed or are impractical. The use of restraints on such occasions is to be documented (see Paragraph 6). Restraints may not be applied as punishment. Drugs may not be used as a restraint solely for security purposes.

b. Except where the immediate use of restraints is required for control of the inmate, staff may apply restraints to, or continue the use of restraints on, an inmate while in a cell in administrative detention or disciplinary segregation only with approval of the Director of Corrections or designee. Where immediate use of restraints is indicated, staff may temporarily apply such restraints to an inmate to prevent that inmate from hurting self, staff, or others, and/or to prevent the destruction of government property. When the temporary application of restraints is determined necessary, the Director or designee is to be notified immediately for a decision on whether the use of restraints should continue.

c. Staff shall seek the assistance of mental health or medical staff upon gaining physical control of the inmate. Where possible, staff shall seek such assistance at the onset of the violent behavior, (so that there be no misunderstanding this is mandatory)

d. Where mental health or medical staff determine that an inmate requires continuing care, the deciding staff shall assume responsibility for care of the inmate, to include possible admission to the institution hospital.

e. When it is necessary to restrain an inmate for longer than two hours, staff shall apply to the inmate medically acceptable restraints (ordinarily leather). The restraints may be attached to an appropriate bed, approved by medical staff. Staff shall check the inmate at least every 30 minutes and the medical staff shall monitor the inmate every two hours both to ensure that the restraints are not hampering circulation and for the general welfare of the inmate. When an inmate is restrained to a bed, staff shall periodically rotate the inmate’s position to avoid soreness or stiffness.

The 30 minute checks by the staff and the' two hour monitoring by the medical staff are to be documented and are to continue until removal of the restraints.

Soft restraints shall be used when an inmate is restrained to a bed, regardless of duration. Hard restraints may be used only if the use of soft restraints would be or have proved ineffective.

f. Except as stated in paragraph (e) above, staff may not secure an inmate to a fixed object, such as a cell door or grill work.

USE OF FORCE Staff shall use only that force necessary to gain control of the inmate. Staff shall apply restraints (for example handcuffs) to the inmate who continues to resist after staff achieve physical control of that inmate. If, after being controlled or restrained, the inmate refuses to move to another area on his own, staff may physically move that inmate by lifting and carrying the inmate to the appropriate destination.

When it becomes necessary to control an inmate who has become disruptive or threatening to staff, inmates, or others, staff may take the steps necessary to restrain the inmate. Only that force which is necessary to gain control is permitted. In no event is the use of physical force justifiable as punishment. If the inmate continues to resist after physical control is gained, restraints (for example, handcuffs) may be used. In applying such restraints, it is again emphasized that only the force necessary may be used. Where practicable, several staff members should assist in applying restraints to minimize the possibility of injury.

DOCUMENTATION Staff shall document in writing all incidents involving the use of force. Staff shall also document in writing the use of restraints on an inmate who becomes violent or displays signs of imminent violence. A copy of the report shall be placed in the inmate’s central file.

A report is to be prepared on the use of force. The report is to establish the identity of personnel and inmates involved and is to describe the details of the incident. The report is to be submitted to the Director or designee no later than conclusion of the tour of duty.

A report is not necessary for the general use of restraints, for example, in the routine movement or transfer of inmates. A report is necessary when restraints are used for other than general use. This report (to include mental health/medical reports) is to be submitted to the Director or designee no later than conclusion of the tour of duty. A copy of the report is to be placed in the inmate’s central file.

This order is not to supercede the Administrative Policy Statement of the Department of Corrections, number 1.13.03, effective date September 20, 1980, subject Use of Force, Ex. 7; it is supplemental thereto, excepting, where there may be conflict this order shall prevail. The Court reserves the right to the parties hereto to submit to the Court for its consideration a consolidated order with whatever modifications it deems appropriate, provided, however, said consolidated order is received within sixty days of the date of this order. It is suggested the parties confer and attempt a submission by agreement.

So ordered.

      . Defendants’ argument that the circumstances in question, because they “at best” establish "a single isolated incident of mistreatment,” Defendants' Post-Trial Brief, at 9, cannot constitute actionable cruel and unusual punishment lacks any basis in law or logic. Nor surprisingly, no case cited by defendants supports the unlikely proposition that the protections of the Eighth Amendment do not apply where there is no pattern or practice of abusive conduct. Indeed, leading cases in this area frequently involve a challenged past, discrete act of alleged cruelty. See, e.g., Estelle v. Gambel, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). While a pattern may be required to support class-based suits seeking broad, structural relief, no such systematic deficiencies or acts need be adduced to support a single claim of mistreatment. See generally Robert E. v. Lane, 530 F.Supp. 930, 939 (N.D.Ill.1981) (discussing various types of claims under Eighth Amendment). And the distinct question of whether superior officers should be liable for single acts of mistreatment —here, acts claimed by defendants to be permissible under prison policies — must be answered with reference to the general principles of supervisory liability governing § 1983 cases, see, e.g., Kostka v. Hogg, 560 F.2d 37 (1st Cir.1977), not be the substantive standards imposed by the Eighth Amendment.

      . At the conclusion of his case and in a telephone conference with the Court, the plaintiff moved to amend the complaint to include a prayer for declaratory and equitable relief. The defendants strongly objected claiming surprise and prejudice.
      Plaintiff argues that the original complaint did seek equitable relief and was not lost by the subsequent amended complaint which failed to reiterate such claim; he filed a motion to amend only as a precaution.
      I grant the leave to amend the complaint even though both the original complaint and the first amended complaint, in my opinion, include a prayer for declaratory and equitable relief. In the first complaint, plaintiff seeks "to stop defendants from shackling and handcuffing plaintiff or anybody else.” In the first amended complaint, while plaintiff does not specifically mention equitable relief in paragraph V (relief), he does cite and rely upon the statutory provisions providing for equitable and injuctive relief in section IV statement of claim/facts. In view of the fact that plaintiff prepared both complaints pro se, defendants were on notice to read the complaints in their entirety. Defendants may be heard on the relief that has been granted if they so request.

      . Neither side has argued or briefed the issue of immunity. The strong public policy and concern of law enforcement personnel on this subject cause me to raise the question sua sponte.
        This question has been thoroughly covered by the First Circuit Court of Appeals. Judge Bownes, speaking for the court, has analyzed the subject; it would be presumptuous of me to do anything more than quote at length from his opinion in Floyd v. Farrell, 765 F.2d 1 (1st Cir. 1985) at 4-5:
      The general rule of qualified immunity, set out in Harlow v. Fitzgerald, 457 U.S. 800 [102 S.Ct. 2727, 73 L.Ed.2d 396] (1982), 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.” Id. at 818. [102 S.Ct. at 2738] This standard eliminates from consideration allegations about the official’s subjective state of mind, such as bad faith or malicious intention, concentrating the inquiry upon the "objective reasonableness” of the official conduct. Id. Under this standard, the reasonableness of the official conduct is not measured against the official’s actual knowledge of constitutional standards and the probable constitutionality of his or her action, but rather against a relatively uniform level of "presumptive knowledge” of constitutional standards. Id. at 815. [102 S.Ct. at 2736]
      1. An exception is made where the defendant "claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard____” Harlow, 457 U.S. at 819. [102 S.Ct. at 2738] A concurring opinion by Justices Brennan, Marshall and Blackmun suggests that an official who "actually knows that he was violating the law ... (cannot) escape liability for his actions, even if he could not ‘reasonably be expected’ to know what he actually did know.” Id. at 821 [102 S.Ct. at 2739] (Brennan, J. concurring). It may be that the Court did not mean to entirely eliminate from consideration actual "subjective” knowledge of constitutional standards, but this is not an issue in the case before us.
      It certainly meets the level of “presumptive knowledge" that the infliction of physical pain or measures that are "incompatible with the evolving standards of decency that mark the progress of a maturing society” violate clearly established constitutional standards; such was the conduct here.


source: Caselaw Access Project

author: TOM S. LEE, District Judge.

license: Public Domain

text:
    QUALITY INNS INTERNATIONAL, INC., Plaintiff, v. Ron PATEL and Jay Patel dba the Comfort Lodge, Defendants.
    Civ A. No. J85-0930(L).
    United States District Court, S.D. Mississippi, Jackson Division.
    Nov. 22, 1985.
    James C. Mingee, Krogstad, Johnson, Mingee & Wood, Jackson, Miss., (Everett F. Casey, Silver Spring, Md., of counsel), for plaintiff.
    Lanier B. Foote, Jackson, Miss., for defendants.
   MEMORANDUM OPINION

TOM S. LEE, District Judge.

This cause came before the court on the motion of the plaintiff, Quality Inns International, Inc. (Quality Inns), for a preliminary injunction restraining the defendants, Ron Patel and Jay Patel d/b/a The Comfort Lodge, from using the name “Comfort Lodge” and their allegedly deceptive logo utilized in conjunction therewith. This action was initiated under the Trademark Act of 1946 by the plaintiff which is the owner of the tradenames and service marks “Comfort Inn” and “Comfort Inns”. According to the complaint, 187 hotels which are owned or franchised by the plaintiff in the United States, Canada and Mexico use the trade name “Comfort Inn” including six such hotels in the State of Mississippi. Defendants Ron Patel and Jay Patel are the owners of a business known as “The Comfort Lodge and Restaurant” in Jackson, Mississippi.

When the defendants bought the establishment which now bears the name of Comfort Lodge, it was known as and the premises contained a sign identifying it as “Econo-Lodge.” Defendants covered part of the sign so that it read “Lodge,” the name by which the motel came to be known. Jay Patel testified that he consulted an attorney regarding use of the name “Comfort Lodge”, and then sought advice on designing a new sign. Ron Patel approached a local sign company and told its representative that he liked the Comfort Inn sign and wanted a logo that was similar to it. The design which Ron Patel approved was not, according to the testimony of its creator, fashioned after the Comfort Inn sign. When Jay Patel approached another local sign company to have the sign manufactured, its agent discussed with him the similarities between his design and that of Comfort Inn and insisted on making certain changes to lessen the likeness. Before the sign was installed, defendants used both “Comfort Lodge” and “The Lodge” for their name.

Another motel in which Ron Patel had an interest received a request from local promoters of a youth baseball association regarding accomodations for entrants in a tournament. Patel recommended the Comfort Lodge and the reservations were made. The baseball team arrived and left soon thereafter because they were not satisfied with their accommodations. A representative of the team wrote Quality Inns complaining about the treatment received at the “Comfort Inn” on 1-55 South. How the team determined that the motel was a Quality Inn was not established. The sign bearing the name “Comfort Lodge” had not been installed when the team arrived. There was, however, a billboard approximately three to four hundred feet from the motel advertising a Comfort Inn on Highway 80 several miles away. The testimony and evidence showed that business cards and menus at the defendants’ motel included the name “Comfort Lodge”. Following receipt of the complaint of the team, the plaintiff sent to the defendants at the Comfort Lodge address a letter requesting defendants to refrain from using the name “Comfort Lodge”. The new Comfort Lodge sign was installed on September 12, 1985 and plaintiff initiated suit soon thereafter.

15 U.S.C. § 1114 states in part:

(1) Any person who shall, without the consent of the registrant—
(a) Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistakes, or to deceive; ...
shall be liable in a civil action by the registrant for the remedies hereinafter provided.

The Fifth Circuit has identified the factors to be considered in determining the likelihood of confusion:

(a) The type of trademark:
(b) Degree of similarity between the two marks;
(c) Similarity between the two products;
(d) Identity of retail outlets and purchasers;
(e) Identity of advertising media utilized;
(f) Defendants’ intent;
(g) Actual eonfusion.

See Armco, Inc. v. Armco Burglar Alarm, Inc., 693 F.2d 1155, 1159 (5th Cir.1982); Fuji Photo Film Company, Inc. v. Shinohara Shoji Kabushiki Kaisha, 754 F.2d 591, 595 (5th Cir.1985).

The first factor for consideration, the type of mark, that is, the strength of the prior owner’s mark, is significant in that strong marks are entitled to more protection than weak marks. Amstar Corporation v. Domino’s Pizza, Inc., 615 F.2d 252, 259 (5th Cir.1980). Neither party introduced evidence of the strength of plaintiff’s marks although the record reflects that the plaintiff owns or franchises a substantial number of hotels which use the tradenames and service marks.

The next factor for consideration is the degree of similarity between the two marks. That the designs are strikingly similar is obvious at first glance. The logos are both striped orbs, in shades of red, orange and yellow, Comfort Lodge having two and Comfort Inn one. Both are placed on dark backgrounds. The names are in different colors and in different print styles. The names themselves, however, have common first words which could likely cause a hearer or a viewer to be confused. See Grotrian, Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway & Sons, 523 F.2d 1331, 1340 (2nd Cir.1975) (“Trademarks, like small children, are not only seen but heard”). The second words are different — “Inn” and “Lodge” — but connote similar services. Additionally, the similarity is emphasized by the presence of a Comfort Inn billboard located near the Comfort Lodge sign and property. Accordingly, this court is of the opinion that the similarity is strong in both design and in name.

The third factor, the similarity between the two products, merits little discussion; the service offered by both plaintiff and defendants is motel accommodations. The service provided by both plaintiff and defendants is offered to the same consumers, people seeking motel accommodations, thus satisfying the fourth factor of identity of retail outlets and purchasers. As to the fifth element, identity of advertising media used, there is no evidence except that both plaintiff and defendants utilize signs to advertise their services.

Plaintiff attempts to establish the sixth factor, actual confusion, by the complaint submitted by a representative of the baseball team which was dissatisfied with what they apparently thought was a Comfort Inn. The manager of the Jackson Comfort Inn testified to further confusion on the part of suppliers who delivered Comfort Lodge’s orders to Comfort Inn, job applicants and unidentified people who telephoned Comfort Inn but were actually trying to reach Comfort Lodge.

After review of the factors set out by the Fifth Circuit, this court is of the opinion that plaintiff has established that defendants’ use of their name and design for Comfort Lodge was likely to confuse. Therefore, plaintiff has demonstrated a substantial likelihood of success on the merits of its claims.

Plaintiff has also shown that, absent issuance of the preliminary injunction, it will suffer irreparable harm to its reputation. Members of the baseball team who visited the Comfort Lodge found the accommodations to be substandard. They and other visitors who share their opinion will hesitate to stay at a Comfort Inn franchise for fear of the same treatment. Regardless of the quality of service offered by Comfort Lodge, the fact that patrons are likely to confuse the two establishments puts Comfort Inn in the uncomfortable position of relying on the proprietors of Comfort Lodge to protect its reputation. The harm to defendants if the motion is granted will be the expense involved in discontinuing use of the name and design pending a final hearing on the merits. While such harm is certainly substantial, it does not outweigh the potential damage to the plaintiff.

It is, therefore, ordered that plaintiffs motion for preliminary injunction is granted. It is further ordered that within 30 days of this order defendants shall file with the clerk of the court and submit to the court and to plaintiff a report in writing under oath setting forth in detail the manner and form in which defendants have complied with the injunction.

      . The tradenames and service marks are registered with the United States Patent Office and have been used by plaintiff in interstate and intrastate commerce since April 2, 1981.

      . The motel is listed in the telephone book and with directory assistance as The Lodge.

      . The background of the Comfort Lodge sign is green whereas the Comfort Inn sign’s background is black.

      . Defendants urge that members of the team thought they were at a Comfort Inn because of the billboard several hundred feet from the motel.


author: SHADUR, District Judge.

text:
    Randy JONES, Plaintiff, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
    No. 85 C 6827.
    United States District Court, N.D. Illinois, E.D.
    Nov. 22, 1985.
    Chanon Williams, Chicago, 111., for plaintiff.'
    Elizabeth Stein, Asst. U.S. Atty., Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Randy Jones (“Jones”) has sued to challenge his removal from his position as a Records Analysis Clerk at the federal government’s Great Lakes Program Service Center in Chicago. In response the government has moved to dismiss for lack of subject matter jurisdiction, supplementing its supporting memorandum with affidavits and other exhibits. Jones’ responsive memorandum (also including affidavits and exhibits) does not meet the government’s contentions, and the motion is granted.

There is more than one ground for such dismissal, but only the most fundamental need be addressed. Because this is an action against the United States, a government employee claiming discrimination must bring himself strictly within the terms defined by the sovereign in granting the right to sue. Sims v. Heckler, 725 F.2d 1143, 1145 (7th Cir.1984), affirming this Court’s decision to precisely that effect, 547 F.Supp. 752, 755-56 (N.D.Ill.1982). That rule draws upon the long-familiar proposition that “limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2702, 69 L.Ed.2d 548 (1981), quoting Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957).

In this instance the applicable statute, 5 U.S.C. § 7121(d) (emphasis and bracketed inserts added), establishes alternative tracks for an aggrieved employee — but it specifically makes the election chosen by the employee irrevocable:

An aggrieved employee affected by a prohibited personnel practice under section 2302(b)(1) of this title which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties’ negotiated grievance procedure, whichever event occurs first. Selection of the negotiated procedure in no manner prejudices the right of the aggrieved employee to request the Merit Systems Protection Board [“MSPB”] to review the final decision pursuant to section 7702 of this title in the case of any personnel action that could have been appealed to the Board, or, where applicable, to request the Equal Employment Opportunity Commission [“EEOC”] to review a final decision in any other matter involving a complaint of discrimination of the type prohibited by any law administered by the Equal Employment Opportunity Commission.

Indeed the United States did not leave Jones’ knowledge of his rights to chance, for the lengthy and specific February 4, 1985 letter advising Jones of the removal decision (the “Letter,” Appendix 1 to this opinion) clearly identified the alternative appeal procedures and made plain their mutual exclusivity:

If you wish to appeal this action, you have the option of either appealing in writing to the Merit Systems Protection Board (MSPB), or filing a written grievance at Stage 3 of the negotiated procedure. You may not use both procedures. To be considered, an appeal or grievance must be initiated within 20 calendar days after the effective date of this action. Both procedures allow you to raise any issue, including discrimination. You shall be deemed to have exercised your option at such time as you timely initiate an appeal or grievance under one of these procedures. The choice is irrevocable.

Then the Letter went on to detail not only those appeal procedures but also the other possible route of a formal discrimination complaint:

An appeal to the MSPB containing an allegation of discrimination (as defined in MSPB Regulations 1201.151(a)(2)) will not be processed concurrently with a discrimination complaint filed within the Department of Health and Human Services. Accordingly, if you believe that this action is based on such discrimination, you may:
1. Either appeal to the MSPB within 20 calendar days after the effective date of the action taken against you, raising the matter of discrimination in your appeal, (and otherwise complying with MSPB Regulations 1201.153), or
2. File a discrimination complaint within the Department or a grievance under the negotiated procedure; but you must, if you wish to file a discrimination complaint, you may if you wish to file a grievance, first consult an Equal Employment Opportunity (EEO) Counselor within 30 calendar days after you receive the decision. If you decide to file a formal discrimination complaint within the Department or a grievance under the negotiated procedure, you will still have the right to thereafter request the MSPB to review a decision or issue a decision as appropriate:
a. Within 20 calendar days after you receive the Department resolution or final decision on your discrimination complaint or grievance, or
b. Within 1 year after you filed your formal discrimination complaint within the Department when the Department has neither resolved your discrimination complaint nor issued a final decision on your formal discrimination complaint within a period of 120 calendar days.
Should you have any questions concerning your rights or procedures involved, you and/or your representative may contact the Personnel Branch, Employee Relations Section, telephone number 353-1648.

On the very next day after the Letter was written, Jones filed a grievance under the applicable collective bargaining agreement (one of the avenues spelled out by the Letter). His grievance was denied at the prearbitration stage March 8, 1985. No arbitration was then requested by the union. Jones did not file a timely appeal to the MSPB, nor did he bring suit within 30 days after the March 8 grievance denial as 42 U.S.C. § 2000e-16(c) provides (see 5 C.F.R. § 1201.158). Instead he filed a discrimination complaint with HHS, which rejected that complaint on the ground Jones had elected the grievance option. This lawsuit charging discrimination followed.

Jones’ lawyer first essays to get out from under the clear statutory bar by arguing the Letter contained “confusing information” (Mem. 2) and “is not clear” (Mem. 3). That is not a fair characterization of the Letter, which did a reasonable job of spelling out the set of different paths available to the aggrieved employee. In fact the Letter’s concluding sentence (already quoted) invited inquiry if there were any questions, and neither Jones nor his representative took up that offer.

What Jones did do instead was to enlist the aid of a union representative, who communicated with an Equal Employment Opportunity (“EEO”) Counselor on February 5 to set up an appointment for the next day (as the Letter indicated, consultation with such a Counselor was a permissible step in the course of a grievance or a necessary step en route to a complaint of discrimination — hence it was a neutral act in terms of any election of remedies). But on the same day the union representative prepared and filed the grievance that, under the law (and as stated in the Letter), closed off the other roads.

It is unfortunate the union representative apparently failed to understand the consequences of that election (though the Letter gave fair warning) and therefore pursued the unavailable other alternative until it was too late. But given concepts of sovereign immunity, this Court cannot relieve Jones of the jurisdictional requirements simply because of such a misunderstanding. And to the extent Jones’ Memorandum and the representative’s affidavit attempt to portray the EEO Counselor as inadvertently having led them down the garden path, estoppel against the government simply will not lie here. Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984).

In short, the history outlined in this opinion forecloses the present complaint challenging the rejection of the discrimination complaint. And Sims precludes review of the March 8 decision rejecting the grievance, because the 30-day filing period for that remedy has elapsed. Subject matter jurisdiction is therefore lacking, and this action is dismissed.

APPENDIX 1

February 4, 1985

Mr. Randy Jones through

Mr. Levolia Ellens

AFGE Local 1395

Great Lakes Program Service Center

Dear Mr. Jones:

By means of a letter dated December 10, 1984, Ms. Levita Lee, Manager, Process Module 6, proposed your removal from the Federal service. She proposed that action based on your continued hostile, aggressive, and inappropriate behavior towards other Great Lakes Program Service Center employees. In her December 10, 1984 letter, Ms. Lee informed you of your right to representation and your right to reply to me both orally and in writing within 20 calendar days. On January 10, 1985,1 met with you and your representative, Mr. Levolia Ellens, to discuss the proposed removal action. During that meeting, you presented to me two memoranda which served as your written responses. One of these memoranda you prepared personally; the other was composed by Mr. Ellens. Similar arguments were presented in your written and oral replies.

Your January 10, 1985 statement, for example, explains at length your own version of the events of November 28, 1984 as well as your previous relationships with Ms. Hill and Ms. Kupczynski. Although you accuse Ms. Hill of making derogatory and provocative remarks towards you on occasion, you characterize your relationship as a good working relationship. You attribute the disagreement at the CRT machine on November 28, 1984 to Ms. Hill’s having called you a “dumb ass” earlier that day. While you acknowledge that you touched Ms. Hill during that incident, you explain that you were only gesturing to communicate that she should stop making such remarks. With regard to your relationship with Ms. Kupezynski, you describe an incident which occurred outside of GLPSC premises after working hours. A man, who you believed you recognized from a picture on Ms. Kupczynski’s desk, accosted you and began to choke you. You deny, however, that you ever harassed Ms. Kupezynski in any way, touched her inappropriately or asked her for dates.

While you acknowledge that you may have said pow-pow and gestured at these two coworkers, you categorically deny that you threatened their lives. You compare your actions to hearing a person making the statement “I’ll break your neck” without serious intent to do so. You attribute these charges to misunderstandings resulting from your hearing impairment and the communication difficulties which it provokes.

Finally, you claim that you repeatedly requested both an interpreter and a union representative during your interview with Mr. Conroy on November 28, 1984, but that neither was provided.

In conclusion, you deny that you ever exhibited hostile or inappropriate behavior towards your coworkers. You note that you are a good worker, and ask me to consider your reassignment to the Facilities Management Branch or the Mailroom in lieu of removal.

Mr. Ellens’ written memorandum raises many of the same basic issues. Your representative considers management’s alleged failure to provide an interpreter or a union representative to be serious violations of your employee rights which render the evidence taken from your November 28, 1984 interview useless. Mr. Ellens also decries many of the charges as vague, general, and unsupported by facts. He objects to the way in which the investigation was conducted. Finally, Mr. Ellens cites the fact that management did not immediately remove you from the module after the incident to be positive proof that you are not considered “dangerous.”

During the January 10, 1985 oral presentation, Mr. Ellens emphasized the issue of communication difficulties for the hearing impaired person. He pointed out that innocuously intended gestures by a person with one background could be misconstrued by a person' with differing experience. Mr. Ellens concluded by requesting your reassignment in lieu of removal.

I have carefully evaluated the substance of both your oral and written replies. I note that, in many instances your version of events is in direct contradiction to the incidents as described in Ms. Lee’s proposal letter. After carefully evaluating all corroborating evidence, I have reached the following conclusions.

I must conclude that you did, in fact, improperly restrain Ms. Hill and threaten her life during the November 28, 1984 incident, despite your denial. You offer much background information with the intent of discrediting Ms. Hill’s charges. What you fail to effectively explain are the witness statements prepared by other Module 6 employees who were in no way involved in the incident. These statements form the major evidenciary basis for the charges against you. A statement by Ms. Barbara James, for example, notes that “he (you) was hugging her (Ms. Hill) real hard”. Ms. James statement, as well as statements prepared by other modular employees Thelma Jordan and Jadwiga Kupezynski all report that you reportedly told Ms. Hill you would shoot or kill her. Even your Assistant Module Manager, Mr. Conroy overheard you tell Ms. Hill “I’m gonna get you” as he approached your desk on that day. I can see no reason why these disinterested third parties would fabricate such allegations. Furthermore, the similarity with which the incident is described in various statements is further proof of these statements’ veracity*

I am similarly not persuaded by your inference that Ms. Hill somehow “provoked” your behavior on November 28, 1984. Even if I accepted as true all of the prior incidents which you describe, you report nothing which justifies the magnitude of your unacceptable behavior towards her. Repeated threats of bodily harm and hostile and uninvited physical contact are under no circumstances tolerable in the workplace. The fact that you were involved in a similar documented incident involving physical and verbal harassment of a female coworker render your claim of “provocation” even less credible.

In addition, I find compelling evidence to support Ms. Kupczynski’s claims of sexual and verbal harassment at your hands. Although your representative, Mr. Ellens, maintains that these charges are not specific enough to prepare a proper response, you seem to have no difficulty categorically denying each cited incident. You offer no explanation as to why Ms. Kupczynski would be motivated to submit such statements or why Ms. Kupczynski’s “male friend” would attack you without provocation outside the building. Furthermore, I can see no real relationship between the off-duty fighting incident you describe and the current charges against you. After carefully weighing the potential reliability of your statement and Ms. Kupczynski’s, I have concluded that Ms. Kupczynski’s is based in fact.

I have also examined Mr. Conroy’s transcript of your November 28, 1984 meeting and find it difficult to believe that you made repeated unheeded requests for a union representative and an interpreter. I note that despite the lack of an interpreter, it is clear from your responses that you understood exactly what Mr. Conroy was saying. Mr. Ellens has asked that I reject all information from the interview as inadmissable due to your lack of representation. Even if I discount that evidence, I still find clear and convincing proof that you are guilty of hostile, aggressive, and inappropriate behavior towards coworkers. You have asked me to consider several mitigating factors in making my decision. You have alleged, for example, that your hearing impairment causes major difficulties in your relationships with eoworkers. While I can appreciate the special problems faced by handicapped employees in the workplace, I cannot see their relevance to the particular misconduct with which you are charged. No employee is, by virtue of his handicap, excused from adhering to the high standard of behavior mandated for all Federal employees.

Had this been an isolated incident of misconduct, I might have been persuaded that your hearing impairment made it more difficult for you to understand the inappropriateness of your behavior. However, as the record clearly indicates, there have been many such incidents and your managers have devoted an inordinate amount of time to counseling you regarding proper conduct in the workplace. As recently as July 6, 1984, you were suspended for fourteen calendar days for a misconduct related offense. Certainly, your suspension for five workdays on March 11, 1988, for a similar incident involving hostile and inappropriate behavior toward a female coworker should have convinced you that this behavior would not be tolerated by your managers. It is obvious to me that all of our previous efforts did not have the desired effect of encouraging your improvement, since you continue to demonstrate conduct which is unacceptable for a Federal employee.

In your defense, you explain that threats you made were not serious, and that it was never your intention to physically harm other employees. Your representative, Mr. Ellens, maintains that SSA management recognized this fact since your managers did not choose to immediately remove you from the worksite. I believe that both you and Mr. Ellens are overlooking one very important issue in this case. The employees who were subjected to your hostile physical and verbal assaults regarded those threats with utmost seriousness. Those employees have the right to function in the workplace without fear for their physical and emotional well being. It is my responsibility as a manager of this organization to maintain a safe and secure work atmosphere which is conducive to the efficient performance of employees’ assigned duties. Your continued hostile, aggressive and inappropriate behavior disrupts the efficient workings of this Agency. For that reason, I have no alternative but to remove you to promote the efficiency of the Federal service. Your removal will be effective as of close of business on February 4, 1985. If you wish to appeal this action, you have the option of either appealing in writing to the Merit Systems Protection Board (MSPB), or filing a written grievance at Stage 3 of the negotiated procedure. You may not use both procedures. To be considered, an appeal or grievance must be initiated within 20 calendar days after the effective date of this action. Both procedures allow you to raise any issue, including discrimination. You shall be deemed to have exercised your option at such time as you timely initiate an appeal or grievance under one of these procedures. The choice is irrevocable.

If you wish to appeal this decision under the negotiated procedure, you must submit your grievance in writing to Mr. James M. Hovland, Director of Operations, within 20 calendar days after the effective date of this action.

If you choose to file an appeal with MSPB, you must file your appeal no later than 20 calendar days after the effective date of this action. The appeal, if you choose to file one, should be addressed to:

Chief Appeals Officer
Merit Systems Protection Board
Chicago Regional Office
230 S. Dearborn Street, 31st Floor
Chicago, Illinois 60604

A petition for appeal must comply with Federal Personnel Manual, Supplement 990-1, Book III Rules and Regulations, Part 1201, Subpart D, Section 1201.22 through Section 1201.26. A copy of these (MSPB) regulations and an appeal form are enclosed. Your appeal to the MSPB should inform the MSPB that the records of your case may be obtained by writing to:

Carol Rumps
Chief, Employee Relations Section
Personnel Branch
Great Lakes Program Service Center
600 W. Madison Street
Chicago, Illinois 60606

This information will assist the MSPB in processing your appeal.

An appeal to the MSPB containing an allegation of discrimination (as defined in MSPB Regulations 1201.151(a)(2) will not be processed concurrently with a discrimination complaint filed within the Department of Health and Human Services. Accordingly, if you believe that this action is based on such discrimination, you may:

1. Either appeal to the MSPB within 20 calendar days after the effective date of the action taken against you, raising the matter of discrimination in your appeal, (and otherwise complying with MSPB Regulations 1201.153), or
2. File a discrimination complaint within the Department or a grievance under the negotiated procedure; but you must, if you wish to file a discrimination complaint, you may if you wish to file a grievance, first consult an Equal Employment Opportunity (EEO) Counselor within 30 calendar days after you receive the decision. If you decide to file a formal discrimination complaint within the Department or a grievance under the negotiated procedure, you will still have the right to thereafter request the MSPB to review a decision or issue a decision as appropriate:
a. Within 20 calendar days after you receive the Department resolution or final decision on your discrimination complaint or grievance, or
b. Within 1 year after you filed your formal discrimination complaint within the Department when the Department has neither resolved your discrimination complaint nor issued a final decision on your formal discrimination complaint within a period of 120 calendar days.

Should you have any questions concerning your rights or procedures involved, you and/or your representative may contact the Personnel Branch, Employee Relations Section, telephone number 353-1648.

Sincerely yours,

s/ Eleanor Toman

Eleanor Toman

Manager, Process Section 1

Attachments:

—Written Presentation

—MSPB Appeal Form

—MSPB Regulations

—Oral Presentation

      . For example, despite the plain language of 42 U.S.C. § 2000e-16(c) requiring the defendant in a federal employment discrimination lawsuit to be the agency head, Jones’ lawyer named the agency itself — Department of Health and Human Services ("HHS”). That alone would require dismissal of this action. McGuinness v. United States Postal Service, 744 F.2d 1318, 1322 (7th Cir.1984).

      . All further references to the statutes within Title 5 will simply take the form “Section — .”

      . [Footnote by this Court] Another portion of that section (Section 2302(b)(1)) prohibits, among other conduct, discrimination on the basis of race, color, religion, national origin, sex or "handicapping condition.” Jones' grievance asserted discrimination on the basis of sex (male), race and color (black) and handicap (hearing).

      . Section 7121(d) gives the employee pursuing the grievance route the right to seek MSPB review of both personnel and discrimination claims and then seek Equal Employment Opportunity Commission review of MSPB’s final decision on the discrimination allegations. Section 7702 provides for judicial review of any final MSPB decision within 30 days after its receipt.

      . Cornelius v. Nutt, — U.S.-, 105 S.Ct. 2882, 2890 n. 16, 86 L.Ed.2d 515 (1985) confirms Congress made arbitration decisions judicially reviewable in precisely the same way and under the same conditions as if MSPB had decided the matter.

      . That neutrality refutes Jones’ argument, at Jones Mem. 3, that consulting the Counselor was somehow an election of the EEO discrimination complaint route, thereby making the following da/s pursuit of the grievance procedure a nullity. It will be recalled Section 7121(d) speaks in terms of "whichever event occurs first." In the statutory sense the consultation was not an "event,” but filing the grievance was.


author: MUNSON, Chief Judge.

text:
    Lucille M. BOWMAN and Dale A. Bowman, Plaintiffs, v. Edward W. CASLER, as Sheriff of the County of Herkimer; William Burke, as Deputy Sheriff of the County of Herkimer; and County of Herkimer, New York, Defendants.
    No. 83-CV-1140.
    United States District Court, N.D. New York.
    Nov. 22, 1985.

      Kernan & Kernan, P.C. (John E. Hunt, of counsel), Utica, N.Y., for plaintiffs.
    Basloe, Basloe & Gallagher, Evalyn G. Basloe, Herkimer, N.Y., for defendants Burke and Casler.
    Gorman, Waszkiewicz & Gorman, Utica, N.Y., for defendant County of Herkimer.
   MEMORANDUM — DECISION AND ORDER

MUNSON, Chief Judge.

This is an action for injuries and deprivation of civil rights under 42 U.S.C. § 1983. The action arose out of Deputy Sheriff William Burke’s breaking of plaintiff Dale Bowman’s finger while Bowman was under arrest. Both sides have moved for summary judgment.

I. FACTS

The following facts are undisputed. The incident occurred when Bowman was being processed at Herkimer County Correctional Facility after his arrest on state charges. While Bowman was being photographed, Deputy Sheriff Burke was standing a foot away from him and told him to stand still. Bowman told Burke: “I don’t want you near me.” Bowman pointed at Burke, holding his finger a foot away from Burke, and told the two or three other police officers present that he did not want Burke near him. Burke moved closer to Bowman, pulled Bowman’s hand down, and said: “Don’t point at me, or I’ll break your fucking finger.” Bowman put his finger four or five inches from Burke’s face and said: “I just don’t want you near me.” Burke grabbed Bowman’s finger, spraining and fracturing it.

II. LAW

The Second Circuit has held that a person who is subjected to police brutality while under arrest has a cause of action under 42 U.S.C. § 1983. “[Application of undue force by law enforcement officers deprives a suspect of liberty without due process of law.” Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S.Ct. 1033, 38 L.Ed.2d 324 (1973).

As a general standard, the Glick court stated that the conduct of a police officer or prison guard is unconstitutional if it “shocks the conscience.” Id. at 1033 (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952)). The court also set out more specific criteria:

[A] court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Glick, 481 F.2d at 1033.

Finally, the court noted that violent conduct by police officers or prison guards does not always give rise to a cause of action:

Certainly the constitutional protection is nowhere nearly so extensive as that afforded by the common law tort action for battery, which makes actionable any intentional and unpermitted contact with the plaintiff’s person____ The management by a few guards of large numbers of prisoners, not usually the most gentle or tractable of men and women, may require and justify the occasional use of a degree of intentional force. Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights.

Id.

III. APPLICATION OF LAW TO FACTS

A. Amount of Force Necessary

The immediate task of photographing Bowman did not require breaking his finger. If he was disruptive, the three or four police officers present could have handcuffed or otherwise subdued him without intentionally hurting him.

Although Bowman’s conduct can be considered provocative and abusive, discipline also did not require breaking his finger. Such conduct may have called for a show of force if the incident had occurred in the presence of other prisoners who could be encouraged to indulge in similar disruptive behavior. But in the presence of police officers only, Bowman caused no harm other than insult, which does not justify physical retaliation. Therefore, Burke used excessive force.

B. Extent of Injury

Some courts have held that severe injury is necessary to support a constitutional claim for police brutality. See, e.g., Gumz v. Morrissette, 772 F.2d 1395, 1400-02 (7th Cir.1985) (denying § 1983 claim for emotional harm caused by “grossly excessive demonstration of manpower a,nd firepower”); Donahue v. Maynard, 437 F.Supp. 47 (D.Kansas 1977) (mace burns); Sheffey v. Greer, 391 F.Supp. 1044 (E.D.Ill.1975) (punch in face). In Martinez v. Rosado, 614 F.2d 829 (2d Cir.1980), the plaintiff was hospitalized and suffered permanent injuries including kidney pain and seminal dysfunction. The Second Circuit upheld his § 1983 claim, but called the case “a very close one.” Id. at 830. The assaults and injuries in Martinez were much more severe than in the present case. Therefore, under Martinez Dale Bowman would not have a cause of action.

More recently the Second Circuit stated that a police brutality claim is sufficient if it alleges force that is “gratuitous and excessive,” Hodges v. Stanley, 712 F.2d 34, 36 (2d Cir.1983), and the court did not require a showing of severe injury. But the court did not focus on the issue of severity of injury or state explicitly that a § 1983 plaintiff need not show severe injury. Furthermore, the case involved a serious assault, which included choking the prisoner until he was unconscious. Therefore, it is unclear how severe an injury the Second Circuit requires to support a police brutality claim.

The D.C. Circuit has made a thorough analysis of the issue of the severity of injury necessary to support a constitutional claim for police brutality. See Norris v. District of Columbia, 737 F.2d 1148 (D.C.Cir.1984). The court reiterated the Second Circuit’s position that “minor ‘push[es] and shove[s]’ in the prison setting, even if completely unprovoked, are not actionable under the Constitution.” Id. at 1152 (quoting Glick, 481 F.2d at 1033). On the other hand, the court indicated that injuries do not have to be permanent or of any specific degree of severity. See Norris, 737 F.2d at 1150-51. The court held that “the amount of force required to state a constitutional claim for prison officer battery varies with the justification for that force.” Id. at 1152. See also Shillingford v. Holmes, 634 F.2d 263 (5th Cir.1981).

In the view of this court, the D.C. Circuit’s test for the injury element of a § 1983 brutality claim is consistent with Glick. Glick held that malice or sadism is an element of a § 1983 claim. If a plaintiff had to show permanent or severe injury, police and prison officers would be able to routinely inflict minor injuries such as breaking fingers. Officers should be held liable for such practices. This court holds that the injury inflicted in the present case is sufficient to uphold a § 1983 claim if the other elements of the claim are satisfied.

C. State of Mind

It is unclear whether Burke broke Bowman’s finger intentionally. Although he threatened to break it and indeed grabbed it, he denies that he broke it intentionally. Rather, he asserts that he intended to “bluff.” Whether Burke acted with the malice necessary to support Bowman’s § 1983 claim must be determined at trial.

IV. PARTIES

The plaintiffs have offered no evidence that defendant Casler, Herkimer County Sheriff, authorized Burke to injure Bowman or that there was a policy to allow such conduct. Furthermore, the general doctrine of respondeat superior does not suffice to hold Casler liable. See Glick, 481 F.2d at 1034. Therefore, Bowman has not stated a cause of action against Casler.

V. CONCLUSION

The plaintiffs’ motion for summary judgment is denied.

Defendant Burke’s motion for summary judgment is denied.

Defendant Casler’s motion for summary judgment is granted.

IT IS SO ORDERED.


author: FOREMAN, Chief Judge.

text:
    CENTRALIA PLAZA DEVELOPMENT CORP., Plaintiff, v. M.R. TOPEL, Individually and as District Engineer, District 7, Illinois Department of Transportation, Defendant.
    Civ. No. 85-3193.
    United States District Court, S.D. Illinois, East St. Louis Division.
    Nov. 22, 1985.
    Chris F. Pursell, Crain, Cooksey, Veltman & Pursell, Ltd., Centraba, 111., for plaintiff.
    Mike Southworth, Asst. Atty. Gen., Springfield, 111., for defendant.
   MEMORANDUM AND ORDER

FOREMAN, Chief Judge.

This matter is before the Court on the defendant’s Motion to Dismiss (Document No. 6). Plaintiff filed this federal question complaint seeking to enjoin the defendant from proceeding with the relocation of Illinois Highway 161.

The Federal-Aid Highway Act, 23 U.S.C. §§ 101 et seq. establishes a program to aid the states in the construction of safe, efficient, and economical roads. State highway projects funded under this Act are subject to supervision by the Secretary of Transportation (Secretary) who must make certain that the states meet various safety guidelines. The Secretary must also promulgate guidelines designed to assure that possible economic, social, and environmental effects of any project will be fully considered. 23 U.S.C. § 109(h).

A state wishing to obtain federal aid under the Act must first submit a general plan to Secretary. After the Secretary approves of the general plan, funds are allocated and the state then commences to develop specific plans. Before the state commits itself to any specific plan, the Act requires that the state must have hearings to ensure public participation. 23 U.S.C. § 128 provides:

(a) Any State highway department which submits plan for a Federal-aid highway project involving the bypassing of, or going through any city, town, or village, either incorporated or unincorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community. Any State highway department which submits plans for an Interstate System project shall certify to the Secretary that it has had public hearings at a convenient location, or has afforded the opportunity for such hearings, for the purpose of enabling persons in rural areas through or contiguous to whose property the highway will pass to express any objections they may have to the proposed location of such highway. Such certification shall be accompanied by a report which indicates the consideration given to the economic, social, environmental, and other effects of the plan or highway location or design and various alternatives which were raised during the hearing or which were otherwise considered.

Rather than perform the detailed review mentioned above, the Secretary can, pursuant to 23 U.S.C. § 117, discharge his responsibilities under the Act by accepting a certification by the State highway department “of its performance of such responsibilities, if he finds such projects will be carried out in accordance with State laws, regulations, directions, and standards which will accomplish the policies and objectives contained in ... [the Act].”

In the instant case, the plaintiff is the owner of a shopping center development located adjacent to Illinois Highway 161. The plaintiff alleges that in June of 1984, the defendant decided to relocate a portion of the highway adjacent to the plaintiffs property. The plaintiff states that although a public hearing was held, the notices for the hearing were inadequate, that the hearing did not provide an explanation and analysis of the social and economic impacts of the project, and that the hearing did not provide tentative schedules for right-of-way acquisition and construction. Further, the plaintiff alleges that the defendant did not fully consider the adverse economic, social, and environmental effects of the project. The plaintiff contends that all of this is in contravention of 23 U.S.C. §§ 109(h) and 128. The plaintiff seeks to enjoin the defendant from proceeding with the relocation and to compel him to consider compensation to which the plaintiff will be entitled in determining the cost of the project and in making the decision to relocate.

The defendant counters these assertions by arguing that the eleventh amendment bars any action against the defendant since the plaintiff in essence seeks to enjoin the state from proceeding with the location. Further, the defendant contends that since the Secretary has accepted certification from the Illinois Department of Transportation, federal law is inapplicable.

Although this Court cannot compel the defendant to comply with state law, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), it can grant prospective relief against state officials to force compliance with federal regulations. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In the instant case, the plaintiff seeks to compel the defendant to comply with the Act. As such, the eleventh amendment would not bar such relief.

A more troublesome question results from the Secretary’s acceptance of the Illinois Department of Transportation’s certification. The defendant contends that such acceptance destroys federal question jurisdiction because Illinois regulations replace federal law. The plaintiff argues that this acceptance does not relieve the defendant from the obligations set forth in the Act.

Pursuant to the clear language in § 117, the Secretary may discharge his responsibilities under the Act by accepting certification. He can accept certification only if he finds that the state regulations will accomplish the objections of the Act. Once the Secretary makes this determination and accepts certification, state regulations apply. This conclusion is clearly enunciated in the legislative history of § 117.

The intent of the certification acceptance is to give a State the right to use the alternative procedure provided the Secretary finds that it has laws, regulations, directives and standards establishing requirements at least equivalent to those contained in, or issued pursuant to, Title 23, of utilizing its own laws and implementing procedures in carrying out its Federal-aid highway project responsibilities.

H.R.Rep. No. 118, 93rd Cong. 1st Sess. reprinted in 1973 U.S.Code Cong. & Ad. News 1859, 1872. For example:

if a State has laws, regulations, directives and standards establishing requirements at least equivalent to those contained in Title 23, for public hearings, then specific public hearing procedures now utilized will no longer be applicable except to Interstate projects in that State if the Secretary has accepted that State’s certification.

Id. at 1871-72.

By providing the states and the Secretary the options of relying on the states own regulations to achieve federal goals and objectives, Congress hoped that growing federal domination would be halted and the proper balance of power in the federal-state relationship would be reestablished. Id. at 1872. Faced with such clear language and intent, this Court is convinced that state law applies and that this Court lacks federal question jurisdiction. Congress has vested the Secretary with the authority to replace the federal regulations with the state regulations if he finds that the state regulations accomplish the objections of the Act. In such a case, no federal action exists. Cf. District of Columbia v. Schramm, 631 F.2d 854 (D.C.Cir.1980).

This is not to say that the plaintiff cannot challenge in federal court the Secretary’s decision to accept certification via the Administrative Procedure Act 5 U.S.C. § 702, see Center For Auto Safety v. Tiemann, 414 F.Supp. 215 (D.D.C.1976), rev’d on other grounds sub nom., Center For Auto Safety v. Cox, 580 F.2d 689 (D.C.Cir.1978), or challenge the Secretary’s refusal to rescind the acceptance pursuant to 23 U.S.C. § 117(d). Further, the plaintiff can bring an action in Illinois state court to compel the defendant to follow the applicable state regulations.

Accordingly, the Court GRANTS the defendant’s Motion to Dismiss (Document No. 6). The plaintiff’s complaint is hereby DISMISSED without prejudice for lack of federal question jurisdiction.

IT IS SO ORDERED.