author: STANLEY S. HARRIS, District Judge.

text:
    ZANTOP INTERNATIONAL AIRLINES, INC., Plaintiff, v. Donald D. ENGEN, Administrator Federal Aviation Administration, Defendant.
    Civ. A. No. 85-34.
    United States District Court, District of Columbia.
    Jan. 22, 1985.

      Joseph S. Wager, D. Joe Smith, Shawn C. Boyle, Washington, D.C., for plaintiff.
    Deborah A. Robinson, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM OPINION AND ORDER

STANLEY S. HARRIS, District Judge.

This case presents not one but two jurisdictional issues, one involving administrative agencies and the other presenting the question whether this case should remain here or be transferred to the United States Court of Appeals for the District of Columbia Circuit pursuant to 28 U.S.C. § 1631. This Court writes but briefly, for it is not in a position to make soundly based factual findings and it reaches but one legal conclusion: the case must be transferred to the Court of Appeals. No more is stated herein than is necessary for an understanding of what this Court has done and is doing in this case.

The plaintiff, Zantop International Airlines, Inc., is a scheduled all-cargo domestic air carrier. It operates exclusively at night, and it specializes in transporting automotive parts from the manufacturers thereof to various assembly plants. Included among its fleet are four DC-8 subsonic jet aircraft, which are by far its largest planes.

For approximately eight years, the Federal Aviation Administration has moved towards the implementation of noise regulations. Those regulations were scheduled to become effective on January 1, 1985. Plaintiff’s DC-8 aircraft would not be in compliance with the noise regulations. Two of them could be made noise-complaint by the installation of costly “hush kits”; no hush kits are made or planned for the two other and older DC-8 aircraft.

On April 1, 1984, plaintiff applied to the FAA for a temporary exemption from the noise regulations so that it could continue to use its four DC-8 aircraft until they could be modified or replaced to comply with the noise regulations. That request was denied on August 9, 1984. Plaintiff sought reconsideration. On January 4, 1985, the FAA issued a “partial grant of exemption” which precluded plaintiff from using its two older DC-8 aircraft at all after January 5, and which limited the hours of operations of the two which will be modified by hush kits to between 7:00 a.m. and 10:00 p.m.

Plaintiff is the holder of a duly-issued Air Carrier Operating Certificate, and the four DC-8 aircraft are included in its so-called operations specifications. Plaintiff took the position that the partial grant of exemption by the FAA had the effect of “amending, modifying, [or] suspending” its operating certificate under section 609 of the Federal Aviation Act, 49 U.S.C. § 1429, and appealed to the National Transportation Safety Board. That statute, and the related section 611 of the Federal Aviation Act which deals with noise regulations, 49 U.S.C. § 1431, provides for a stay of the Administrator’s order while such an appeal is pending. The FAA, taking the position that plaintiff’s certificate was not amended, modified, or suspended by the partial grant [and partial denial] of the requested exemption, took the position that plaintiff had no right of appeal to the NTSB and, concomitantly, no right to a stay. This is the administrative agency jurisdictional problem; this Court neither expresses nor intimates any opinion as to the merits of that question. The net effect of the situation was that the FAA was prepared to enforce its noise regulations as to plaintiff’s DC-8 aircraft as of January 5.

On January 7, plaintiff filed its verified complaint for declaratory and injunctive relief. In support of its application for a temporary restraining order, plaintiff submitted a memorandum, exhibits, and affidavits. The exigencies of time did not make it feasible for the defendant to make a written response to the application for a TRO prior to the hearing thereon on January 8. At that hearing the Government took the position that exclusive jurisdiction over this case lies in the Court of Appeals, rather than here. The Court, satisfied that the requirements of Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977), were met so as to call for a maintaining of the status quo pending resolution of the jurisdictional question, issued a temporary restraining order shortly after the hearing on January 8. That TRO was to be effective pending further order of the Court.

In contending that exclusive jurisdiction lies in the Court of Appeals, the Government relied upon Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1984) (hereinafter TRAC), and Air Line Pilots Association, International v. CAB, 750 F.2d 81 (D.C.Cir.1984). The Court concludes that the Government is correct. In TRAC, the Court of Appeals expressed its holding as follows:

[Wjhere a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court’s future jurisdiction is subject to the exclusive review of the Court of Appeals. [At 75; footnote omitted.]

The troublesome aspect of that holding (expressed the same way at other places in the slip opinion) is the phrase “that might affect the Circuit Court’s future jurisdiction.” That could mean anything, or, since any final administrative action is subject to plenary review by the Court of Appeals, it could mean nothing. While this Court hopes that the Court of Appeals will clarify the meaning of that phrase in the future, it is not necessary to engage in any careful analysis thereof in this case. TRAC was a mandamus action, and unquestionably the relief which plaintiff seeks herein is in the nature of mandamus. That conclusion is reinforced when one considers the issue of the likelihood of plaintiff’s success on the merits here. Whatever is done finally by the FAA and/or the NTSB ultimately will be reviewable only in the Court of Appeals, so there is no final merits controversy which could be resolved by this Court. For this Court, the case effectively would end with the granting or denial of injunctive relief.

Accordingly, for the foregoing reasons it hereby is

ORDERED, that this case is transferred to the United States Court of Appeals for the District of Columbia Circuit pursuant to 28 U.S.C. § 1631. In the interest of justice, without intending any suggestion as to how the Court of Appeals should rule on the question of interim relief, it hereby further is

ORDERED, that the amended temporary restraining order which was issued by the Court on January 8 shall remain in effect during the transfer process to preserve the status quo until such time as the Court of Appeals is able to rule on a motion for stay.

SO ORDERED.

      . After the completion of this Memorandum Opinion and Order, the Court became aware that the Government filed a Motion To Transfer on the afternoon of January 18, 1985. That motion is denied as moot.


source: Caselaw Access Project

author: CEREZO, District Judge.

license: Public Domain

text:
    Jorge ALCAIDE ([ XXX-XX-XXXX ]), Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. No. 82-3139CC.
    United States District Court, D. Puerto Rico.
    Jan. 23, 1985.

      Angel M. Bonnet-Rosario, Arecibo, P.R., for plaintiff.
    Daniel F. López-Romo, U.S. Atty. by Wanda Rubianes-Collazo, Asst. U.S. Atty., Hato Rey, P.R., for defendant.
   REMAND ORDER

CEREZO, District Judge.

This is an action to review a final determination by the Secretary of Health and Human Services (Secretary) denying plaintiff’s claim for disability benefits which is before us pursuant to section 205(g) of the Social Security Act (Act), 42 U.S.C. Section 405(g). This case was remanded on the Secretary’s own motion for a second administrative hearing in view of technical problems with the recording of the first hearing. The record shows that plaintiff is a thirty-one year old male with fourteen years of education (high school and two years of college) who worked as a general maintenance man in a public housing project and before that as a shipping clerk. He alleges that he became disabled in September 1980 when he was discharged from his employment. His period of disability insurance coverage ended on September 30, 1981. He initially alleged to have been suffering from a disabling mental condition, high blood pressure and tachycardia. Since the last two impairments were not shown by medical evidence to be significant, the claim has been narrowed to the mental impairment.

The mental condition appears to be an anxiety neurosis. There are two reports by two general practitioners who examined plaintiff on two or three occasions from June 1980 to August 1981 and one by an internist. These reports do not reveal any physical abnormalities except for the following observations noted or marked in the form’s section for mental health: “memory defects,” “disorientation,” “shortness of breath,” “sometimes slurred speech,” “excitation,” “anxiety” and “tremor.” In one report plaintiff was diagnosed as suffering from a “psychoneurosis;” in the internist’s report he was diagnosed as suffering from “acute anxiety state.” There are also progress notes from the Arecibo Mental Health Clinic where plaintiff was treated during the period of December 1980 to August 1981 which describe him as “logical,” “coherent,” “calm” and “well oriented.” Aside from these clinical observations, we have claimant’s own complaints to these physicians and to the Secretary in the sense that he could not sleep well, experimented fear of people, depression and auditory hallucinations. There are other psychiatric evaluations on record which describe the mental condition as one of progressive deterioration. (Dr. Sosa Roche’s, examination date: October 26, 1981; Dr. Noguera’s, examination date: November 24, 1981; Dr. Elias Jiménez’, examination dates: April 30,1982 to June 12,1982.) All of these reports were based on examinations made after the period of coverage had expired although two of them are very close to it.

The administrative law judge did not believe plaintiff’s subjective complaints regarding his mental state and relied on the progress notes of. the Arecibo Mental Health Clinic to conclude that he did not suffer from a “severe impairment,” that is, one that significantly restricted his basic work-related activities during the relevant period of time from October 1980 to September 1981. It was found that the fact that the neurosis may have deteriorated after the period of coverage expired did not alter the conclusion that there was no proof of a severe mental impairment during such insured period. The administrative law judge said in his recommended opinion that “though we realize psychiatric conditions usually do not have a sudden etiology, the facts of this case make it fair to find that on or before September 30, 1981 there was no indication of a severe impairment.”

It is important to note that the initial determination was that plaintiff had a “severe impairment, not listed in the appendix,” which although preventing him from performing his past relevant work, did not limit his capacity to engage in other gainful activity. In other words, the initial agency determination went through all the steps while the administrative law judge’s decision stopped at the “severe impairment” level. Although this matter is not specifically mentioned, it appears that the reason for this discrepancy lies in the fact that the initial determination considered the psychiatric report of Dr. Sosa Roche while the administrative law judge did not consider it since it dealt with an examination made after the period of coverage had ended.

The issue then is whether there was substantial evidence in support of the administrative decision for the period of October 1980 through September 1981. The administrative law judge is entitled to resolve conflicts in the evidence if the resolution is based on substantial evidence in the record as a whole. See: Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128-29 (1st Cir.1981); Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222-23 (1st Cir.1981). The resolution of the conflict in this case was based on substantial evidence: the observations of the treating physicians at the mental health clinic who, one can assume, were specialists in the treatment of mental illness and whose observations more so than those of non-specialists can reasonably be considered to be as accurate or if not more, accurate. It is also reasonable to conclude from said observations that plaintiff’s mental condition did not restrict significantly his basic work-related activities. On the other hand, if the reports of the psychiatric examinations conducted after the period of coverage had ended were considered, there may be more grounds to conclude that plaintiff may have suffered from an impairment that significantly restricted his basic work-related activities during the relevant period of coverage. Plaintiff seems to suggest that the administrative law judge erred in discarding or giving little weight to this evidence which could have been useful as an insight into the development of plaintiff’s mental condition.

Whether such evidence can be considered or not to establish an impairment meriting disability benefits is a question which has met varied, and sometimes discordant, approaches. The general position assumed by most courts is that a claimant has the burden of establishing that he/she suffered from a disability which existed at or prior to the time when the special earnings requirements, or insurance coverage, were last met. See: Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir.1979) (per curiam) and cases there cited; and also Koss v. Schweiker, 582 F.Supp. 518, 522 n. 3 (S.D.N.Y.1984); Laboy v. Richardson, 355 F.Supp. 602, 604 (D.C.P.R.1972); Vega v. Secretary of Health, Education and Welfare, 321 F.Supp. 553 (D.C.P.R.1970). These cases stand for the proposition that if a claimant suffers an impairment which existed during the period of coverage but which became disabling within the meaning of the Act after the period had expired, the claimant is not entitled to benefits. Idem. A contrary position was taken by the Colorado District Court which considered that the cases standing for the abovementioned proposition never explained their reasoning and suggested that Congress did not anticipate the question of latent disability. Cassel v. Harris, 493 F.Supp. 1055, 1057 (D.Colo.1980). In Cassel the court drew an analogy with many worker compensation laws which in terms of statute of limitations consider the date of injury when the accumulated effects culminate in a cognizable disability, id. at 1058. Relying on a liberal construction and application of the Act as a remedial statute it said:

Just as a statute of limitations, therefore, would not run on workers’ compensation claim until a disability became evident, it seems sensible that a disability (once it becomes evident) should relate back to the period of disability insurance coverage, if the disability clearly is traceable to a latent condition that existed when the person was insured. Although a disability period runs from “the day the disability began,” ascertainment of that starting point in the case of a latent disability requires identification of when the underlying, but dormantly disabling condition had its inception.

Id. Although we know of no published case where the approach urged by Cassel has been adopted wholeheartedly, see: Valentine v. Schweiker, 559 F.Supp. 644, 649 (D.Mont.1983) and, in fact, it has been expressly rejected by some courts, see: Basinger v. Heckler, 725 F.2d 1166, 1168 (6th Cir.1984) and Koss at n. 3, various courts have considered that post-coverage medical evaluations have some evidentiary value if they contribute to the overall clinical picture of the claimant’s condition during the relevant period of coverage. See: Kerner v. Celebrezze, 340 F.2d 736 (2d Cir.1965) cert. denied 382 U.S. 861, 86 S.Ct. 121, 15 L.Ed.2d 99; Selig v. Richardson, 379 F.Supp. 594 (D.N.Y.1974). In Basinger the Sixth Circuit, while rejecting the applicability of the Cassel view in that circuit, nevertheless recognized that evidence of medical examinations made after the period of coverage had expired may be relevant if it bears “upon the severity of the claimant’s condition before the expiration of his or her insured status.” Basinger at 1169. In that case, the court concluded that even though the post-coverage date evaluations placed the disability within the insured period, they did not serve to establish the severity of the disability during that period. The court, however, decided to remand because the administrative law judge had not made any findings as to credibility of the testimony of claimant and his family — the only evidence from which the severity of plaintiff’s impairment during the relevant period could be gauged.

Our Circuit has followed the general view that the disabling impairment must be proven to have been in existence during the period of coverage, see: Sampson v. Califano, 551 F.2d 881, 882 (1st Cir.1977). However, in Deblois v. Secretary of Health, 686 F.2d 76 (1st Cir.1982), also a mental impairment case, the court considered that in view of the lack of any adequate medical evidence of plaintiffs mental condition during the period of coverage and the fact that the only medical evidence in the record (although of evaluations performed after the critical date) established a serious mental impairment, coupled with the problem that a claimant who may not have been in an adequate mental state appeared before the administrative agency without legal representation, the Secretary, in its duty to develop the facts, should have explored whether the experts who had examined plaintiff after the period of coverage had expired, or who may now be examining plaintiff, could express an opinion as to whether plaintiff suffered from mental illness of disabling severity during the insured period. Id. Deblois, however, does not alter the position that the impairment must be of a disabling severity within the period of coverage. The case only permits a claimant to resort to post-coverage evidence to shed light on his condition during the insured period. We thus examine the evidence in light of the Deblois ruling.

Although in the present case claimant was represented by an attorney who should have made the necessary arrangements to explore the relevance of the post-termination date medical evidence, the record is not clear whether the administrative law judge considered the impact of said evidence as required by Deblois. Social security administrative proceedings are not adversatorial and reasonable efforts should be made to explore gaps in the evidence whenever possible. Id. Since it is uncertain whether these post-termination evaluations were considered for their evidentiary value in relation to plaintiffs condition during the period of coverage (at the early administrative stage they, apparently, were considered, although it was never indicated for what purpose), the case is hereby REMANDED with instructions to the Secretary to inquire whether the psychiatrists and/or psychologists who examined plaintiff after the period of coverage had expired are able to express a reasoned opinion as to his mental state during the relevant period. If such an opinion is expressed, the Secretary must evaluate it together with all the other evidence at hand and conclude whether plaintiff was suffering from an impairment that significantly restricted his basic work-related activities. If so found, he shall determine whether said impairment was listed in the appendix or prevented him from conducting his past relevant work or prevented him from engaging in any type of substantial gainful activity in the economy.

SO ORDERED.

      . Plaintiff said in an interview, see TR p. 146, that he was "laid-off" from work on or about this date but that he had been suffering from his mental impairment before.

      . This period of coverage is determined by a formula outlined in 42 U.S.C. Section 416(i) and the regulations, which in cases such as the instant one, is based on the period of time the individual contributed to the general fund through the deductions to his salary. The date set as the end of the period of insurance coverage has not been disputed.


author: ASPEN, District Judge:

text:
    JOSEPH J. LEGAT ARCHITECTS, P.C., an Illinois Professional Corporation, Plaintiff, v. UNITED STATES DEVELOPMENT CORPORATION, an Illinois Corporation; Esper A. Peterson, an Individual; Seth Pines, an Individual; and Royal Oak Apartments Phase III, an Illinois Limited Partnership, Defendants.
    No. 84 C 8803.
    United States District Court, N.D. Illinois, E.D.
    Jan. 22, 1985.

      Thomas A. Morris, Jr., Nick Anacherio, Brydges, Riseborough, Morris, Franke & Miller, Waukegan, 111., for plaintiff.
    Henry S. Kaplan, Dressier, Goldsmith, Shore, Sutker & Milnamow, Chicago, 111., Thomas W. Gooch, III, Thomas R. Ruth & Assoc., Barrington, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

This is a suit between an architect and a developer, involving federal claims of copyright and trademark infringement and pendent state claims of breach of contract and unfair competition. Defendants have moved to dismiss the case for lack of subject matter jurisdiction. For the reasons stated below, we deny this motion.

The following is a brief summary of the allegations of the complaint, which we assume to be true for the purposes of this motion. Plaintiff (“Legat”) is a professional corporation which provides architectural services. Defendant U.S. Development Corp. (“USDC”) is a real estate developer and contractor. Defendant Royal Oak Apartments (“Royal Oak”) is a limited partnership which was involved in developing the apartment project (“the Project”) at issue in this case. Defendant Seth Pines (“Pines”) is an architect who works for USDC. Defendant Esper Peterson (“Peterson”) is a general partner of Royal Oak and President of USDC.

On September 1, 1981, USDC and Legat signed a form contract under which Legat was to design the Project. Legat allegedly did so and gave the architectural papers to USDC in November 1981. Legat and his employees created these plans exclusively.

Construction was delayed, however, until 1983, apparently because the U.S. Department of Housing and Urban Development (“HUD”) had not approved financing. During this delay, zoning regulations had changed, making Legat’s design obsolete. In Spring 1983, at Peterson’s request, Legat revised the design of the Project.

In August 1983, Peterson and USDC refused to pay Legat for revising the plans for the Project. They allegedly repudiated their contract with Legat, and then Peterson and Pines copied Legat’s plans for the Project, erased Legat’s name and substituted Pines’ name. Following this alleged mischief, USDC and Royal Oak used the plans to obtain HUD financing, secure zoning and building permits and, finally, build the Project.

Legat filed this lawsuit on October 11, 1984. The complaint contains fifteen “counts,” most of which allege state law claims for breach of contract, fraud and unfair competition. Counts VII through X, which allege copyright infringement by each of the defendants, are the focus of the pending motion to dismiss.

Defendants argue that these copyright claims must be dismissed because Legat has not fulfilled a condition precedent to maintaining a copyright suit, that is, obtaining a-valid copyright registration. This condition is imposed by 17 U.S.C. § 411(a), which states:

Subject to the provisions of subsection (b), no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with this title [17 USCS §§ 101 et seq.]. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.

When Legat filed this suit, it had merely applied for copyright registration; the Register of Copyrights had not yet approved the registration. Thus, the precise issue raised in defendants’ motion was whether an application for registration satisfied § 411(a) or whether that section requires final approval or denial of registration. We need not resolve that issue, however, because it is now moot. While the motion was being briefed, Legat’s copyright registration was approved, as defendants concede in their reply brief. Even if we were to grant defendants’ motion, Legat would simply amend the complaint on the basis of the now-valid registration. Because the effective date of the registration is the date of application, see 17 U.S.C. § 410(d), the outcome would be the same as if we had denied defendants’ motion. Instead of resolving this moot issue, then, we grant Legat leave to amend its complaint to allege and attach its valid registration. See, e.g., Frankel v. Stein & Day, Inc., 470 F.Supp. 209, 212 n. 2 (S.D.N.Y.1979) (granting leave to amend complaint in copyright suit where registration requirements of Act had been completed while suit was pending), aff'd, 646 F.2d 560 (2d Cir.1980).

Apparently reacting to this now-valid registration, defendants in their reply brief mounted a second challenge to the Copyright claims. They argue that the Court lacks federal question jurisdiction because the claim does not “arise under” the Copyright Act, as required by 28 U.S.C. § 1338. The gist of defendants’ argument is that the Court must, as a threshold matter, resolve a contract dispute under Illinois law. They claim that the “principal and controlling issue” in this case is a contract dispute over title to the architectural plans, and, thus, we lack jurisdiction. See T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir.1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1534, 14 L.Ed.2d 435 (1965); Peay v. Morton, 571 F.Supp. 108 (M.D.Tenn.1983); Elan Associates, Ltd. v. Quackenbush Music, Ltd., 339 F.Supp. 461 (S.D.N.Y.1972).

At the outset we find it difficult to accept defendants’ assertion that there is a contract dispute as to title in the plans. The contract, which is attached to the complaint, on its face seems to vest title in Legat. Defendants do not say where their contract rights to title arise from. Legat characterizes defendants’ position as this: The relevant contract provisions, see n. 4 above, are a license under which Legat relinquished its copyright to defendants. Although we are for now unsure about the nature of this contract dispute, we will assume for the purposes of this motion that there is some real dispute about title to the plans. Even under this assumption, this Court has jurisdiction.

T.B. Harms is the seminal case for the meaning of “arising under” in § 1338. In Harms, the complaint did not allege “infringement” of the copyright; indeed, the case did not involve use or threatened use of the copyrighted material. 339 F.2d at 824. Rather, the case involved a contract dispute over which party owned the copyright; resolution of this dispute would incidentally affect the value of the copyright. Writing for the court, Judge Friendly held that the case did not “arise under” the Copyright Act and thus the district court lacked jurisdiction. Judge Friendly relied in part on Justice Holmes’, statement that “[a] suit arises under the law that creates the cause of action.” See id. at 826, quoting American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987 (1916). He held that the claim at issue there stated a cause of action in contract and thus did not satisfy the Holmes “creation” test. However, noting that the Holmes test “is more useful for inclusion than for the exclusion for which it was intended,” id. at 827, Judge Friendly wrote that a suit that fails the Holmes test may nevertheless “arise under” the Copyright Act if the complaint discloses a need for determining the meaning or application of the Act. Id. The complaint in Harms failed to satisfy this “pivotal federal question” test as well. Summing up his approach, Judge Friendly ended his opinion with the following test: “an action ‘arises under’ the Copyright Act if and only if the complaint is for a remedy expressly granted by the Act, e.g., a suit for infringement ... or asserts a claim requiring construction of the Act____” Id. at 828.

We think this case satisfied the Harms test. First, regardless of any potential contract issues, this suit principally “is for a remedy expressly granted by the Act,” that is, a suit for infringement. Legat has alleged copying and unauthorized use and seeks damages for the alleged infringement. As noted above, there was no infringement issue in Harms. Indeed, Judge Friendly carefully distinguished Harms from the case, like this one, where a contract dispute is entangled with an alleged infringing use:

[This case did] not even raise what has been the problem presented when a defendant licensed to use a copyright or a patent on certain terms is alleged to have forfeited the grant; in such cases federal jurisdiction is held to exist if the plaintiff has directed his pleading against the offending use, referring to the license only by way of anticipatory replication, but not if he has sued to set the license aside, seeking recovery for unauthorized use only incidentally or not at all____ Here neither Eliscu nor Jungnickel had used or threatened to use the copyrighted material; their various acts, as the district judge noted, sought to establish their ownership of the copyrights by judicial and administrative action, including notice to the parties concerned.

339 F.2d at 825 (citations omitted). Clearly, Harms and its progeny do not hold that federal courts can never decide threshold issues about title in infringement suits. See Peay v. Morton, 571 F.Supp. at 113. Indeed, plaintiffs must allege ownership of a valid copyright to state a claim. Id. Threshold issues of title, then, are necessarily implicated in many copyright suits. See 3 M. Nimmer, Nimmer on Copyright, § 12.01[A] (1984) at 12-7.

For these reasons, Peay and Elan Associates, relied upon by defendants, are also not on point. In both cases, the principal and controlling issue raised by the complaint was ownership of the copyrights. Copyright issues were incidental and prospective. Here there are no express assignments in the contract. While, as we have assumed above, contract issues may become relevant, the copyright claims focus on an alleged, past and current infringement. We therefore conclude that this suit “arises under” the Copyright Act.

In sum, defendants’ motion to dismiss is denied. In accordance with our earlier discussion, Legat shall amend its complaint on or before February 15, 1985. The status hearing is postponed to March 8, 1985, at 10:30 a.m. It is so ordered.

      . In briefing this issue, neither party cited any cases directly on point. We have found one Court of Claims opinion which holds that the plain language of § 411(a) demands that a plaintiff obtain a certificate of registration in order to maintain a suit. International Trade Mgt., Inc. v. United States, 553 F.Supp. 402, 1 Cl.Ct. 39 (1982). A mere application was held to be insufficient in that case. Because Legat’s application has now been approved, we need not decide whether we agree with this Court of Claims case.

        . 17 U.S.C. § 410(d) provides:
      [t]he effective date of a copyright registration is the day on which an application, deposit, and fee, which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration, have all been received in the Copyright office.

      . 28 U.S.C. § 1338 states:
      (a) The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to ... copyrights____ Such jurisdiction shall be exclusive ... in ... copyright cases.

      . Paragraph 7 of the "Owner-Architect Agreement” states that ”[d]rawings ... are the property of the Architect ... and their use for any other project is not authorized.” Similarly, Article 5 of the American Institute of Architects’ "Standard Form of Agreement,” also signed by the parties, provides that the plans remain the property of the architect.

      . Professor Nimmer writes:
      Notwithstanding the existence of a contractual relationship between the parties, if the defendant’s conduct is alleged to be without authority under such a contract and to further constitute an act of statutory copyright infringement, then federal jurisdiction will be invoked. Jurisdiction is exclusively federal in statutory copyright infringement actions even if in trying this issue the court must of necessity pass upon questions of contract law such as the plaintiffs chain of title or the validity or scope of an assignment or license claimed by the defendant. The federal courts have exclusive jurisdiction to determine statutory infringement, have incidental power to hear and decide claims of title which necessarily bear upon the ultimate question of infringement. Moreover, in an ation for statutory infringement a federal court may upon its own motion determine the issue of ownership in a separate trial, even if such issue turns wholly on questions of state contract law for which there would be no federal jurisdiction if it were not raised as part of an infringement action.
      Nimmer, supra, § 12.01[A] at 12-7-12-8.


author: COHILL, District Judge.

text:
    John A. DIULUS and Theresa Diulus, his wife, Plaintiffs, v. CHURCHILL VALLEY COUNTRY CLUB, a corporation; Merle L. DeLuca, President; Joseph F. DiMario, Vice President; Charles V. Hoey, Secretary; Charles R. Denovi, Treasurer of Churchill Valley Country Club, and its Board of Directors comprised of Vincent A. Amore; Victor A. Dinzeo; Joseph G. Palumbo; Frank P. Rezzetano, Jr.; Robert P. Shovel; William L. Wardle, Jr. and Peter C. Dozzi, Ex-Officio, Defendants.
    Civ. A. No. 84-905.
    United States District Court, W.D. Pennsylvania.
    Jan. 23, 1985.

      Allen N. Brunwasser, Pittsburgh, Pa., for plaintiffs.
    Michael J. Manzo, Pittsburgh, Pa., for defendants.
   OPINION

COHILL, District Judge.

The Complaint in this case was filed by Plaintiffs alleging that their constitutional rights were violated by Defendants’ conduct in ongoing state court litigation. The Defendants in this action are Churchill Valley Country Club, its officers and directors (hereinafter “Churchill”). Plaintiffs allege claims pursuant to 42 U.S.C. §§ 1981, 1983 and 1985. Defendants filed a Motion to Dismiss; Plaintiffs responded with a Motion to Amend the Complaint pursuant to Fed.R.Civ.P. 15(a). Since we find the amended complaint fails to state a cause of action, we will deny Plaintiffs’ Motion to Amend and will dismiss the case.

Facts

Plaintiffs filed several actions against Churchill in the Court of Common Pleas of Allegheny County as a result of Plaintiff John Diulus’ expulsion from Churchill Val-, ley Country Club. Plaintiffs’ Complaint in this Court arises out of preliminary objections filed by Churchill in the Court of Common Pleas.

Plaintiffs allege, in the original Complaint filed in this Court, that Churchill, acting through its attorney in the state court proceedings, 1) filed the preliminary objections knowing the identity of the judge who would be scheduled to hear the motion, and knowing that the judge was a member of Churchill Valley Country Club. Complaint, 11115-9. The Complaint further alleges that Defendants refused to consent to having the matter reassigned to another judge. Id. ¶¶ 10-14. Plaintiffs then petitioned the President Judge to excuse the judge in question; that judge agreed to his removal from the case. Id. 111112, 17.

The gravamen of the Complaint is that, in filing the preliminary objections and then refusing to consent to reassignment, Defendants allegedly intended to deprive Plaintiffs of their right to a fair trial. Id. 1115.

The proposed amendments to Plaintiffs’ complaint further allege that, 1) the motions control clerk and the motions judge of the state court were state officers and, as such, acted under color of state law; Amendment to Complaint, II35; 2) the method and procedure by which preliminary objections must be filed and scheduled for argument in state court is controlled by specific local rule, id. ¶¶ 26-27, 36; 3) that the state procedures allowed Defendants to select an allegedly biased judge, id. ¶ 34; and 4) in listing Defendants’ preliminary objections for argument, pursuant to court rule, the motions control clerk acted jointly with Defendants. Id. ¶¶ 37-39.

Discussion

The grant or denial of a motion to amend a Complaint pursuant to Fed.R. Civ.P. 15(a) is a matter within the discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971). The trial court may properly deny leave to amend where the amendment would not withstand a motion to dismiss. Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.1983); cert. denied, — U.S.-, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983).

A. The § 1983 Claim

The elements of a cause of action brought under 42 U.S.C. § 1983 are 1) deprivation of a constitutional right or privilege; and 2) action under color of state law. See Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). The original Complaint wholly fails to allege any action under color of state law, an essential element of Plaintiffs’ action under § 1983. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1732, 56 L.Ed.2d 185 (1978). The proposed amendment to the Complaint attempts to cure the defect by alleging that “Defendants acted together and jointly with the Motions Control Clerk ... to list Defendants’ preliminary objections before Judge Silvestri and deprive Plaintiffs of due process of law and the right to an impartial decisionmaker.” Complaint, ¶ 37. The Complaint further alleges that the Motions Control Clerk acted as a “rubber stamp” by “exercispng] no independent judgment but servpng] as a mere conduit or tool for the Defendants ...” Id., ¶38.

First, inasmuch as Plaintiffs assert that “state action” exists “by implicating state officials or judges in a conspiracy with private defendants, mere conclusory allegations with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreement and concerted action.” Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983) (citing Clulow v. Oklahoma, 700 F.2d 1291, 1303, overruled on other grounds sub nom. Garcia v. Wilson, 731 F.2d 640 (10th Cir.1984), cert. granted, — U.S.-, 105 S.Ct. 79, 83 L.Ed.2d 28 (1984)). No facts have been alleged to show that the Motions Control Clerk agreed with the private conspirators or “acted in concert” with them. See Cruz v. Donnelly, 727 F.2d 79 (3d Cir.1984); Chicarelli v. Plymouth Garden Apts., 551 F.Supp. 532, 539 (E.D.Pa.1982).

Plaintiffs cite Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) and Cruz v. Donnelly, 727 F.2d 79 (3d Cir.1984) for the proposition that, by alleging joint activity between Churchill and a “rubber stamp” state official, they have satisfied the requirement of alleging action “under color of state law.”

In Lugar, the Supreme Court set forth a two-pronged test for determining when private action is “fairly attributable” to the state.:

First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible---- Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Without a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.

Lugar, 457 U.S. at 937, 102 S.Ct. at 2754, 73 L.Ed.2d at 495.

In Lugar, a debtor filed an action under § 1983 against a creditor who had caused the debtor’s property to be attached pursuant to a Virginia statute permitting prejudgment attachment. The attachment procedure required only that the creditor allege, in an ex parte petition, a belief that the debtor was disposing of his assets in order to defeat his creditors. Acting on the creditor’s petition, a clerk of the state court issued a writ of attachment. The writ was executed by the county sheriff and the debtor’s property was sequestered. Id. at 924-25, 102 S.Ct. at 2747-48, 73 L.Ed.2d at 487.

The debtor’s complaint alleged that he had been deprived of his property without due process by 1) misuse of the Virginia attachment procedure; and 2) constitutional defects in the procedure itself. Id. at 925, 102 S.Ct. at 2748, 73 L.Ed.2d at 487-88. The district court dismissed on the ground that the alleged actions of the creditors did not constitute state action. The Court of Appeals affirmed on that basis. Id. at 925-26, 102 S.Ct. at 2748-49, 73 L.Ed.2d at 488.

The Supreme Court held that insofar as the complaint challenged the constitutionality of Virginia’s prejudgment attachment statute itself, the joint participation between state officials and the defendant creditor was sufficient to satisfy the requirements of state action and action under color of state law. Id. at 940-42, 102 S.Ct. at 2756-57, 73 L.Ed.2d at 497-98. The Court also held, however, that insofar as the debtor had alleged only a private misuse of the state statute, no cause of action was stated under § 1983. Id. at 940, 942, 102 S.Ct. at 2756, 2757, 73 L.Ed.2d at 497, 499. Of particular significance to this case is the fact that all nine justices in Lugar agreed that a private party’s “mere invocation of state legal procedures” does not constitute joint participation or conspiracy satisfying the § 1983 requirement of action under color of state law. See id. at 939 n. 21, 943, 951 n. 8, 102 S.Ct. at 2755 n. 21; 2757, 2762 n. 8. Numerous other courts have likewise so held. See Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir.1983); Taylor v. Gilmartin, 686 F.2d 1346, 1355 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983); Hernandez v. Schwegmann Bros. Giant Supermarkets, Inc., 673 F.2d 771, 772 (5th Cir.1982); Taylor v. Nichols, 558 F.2d 561, 564 (10th Cir.1977); Grow v. Fisher, 523 F.2d 875, 879 (7th Cir.1975); Anderson v. Glismann, 577 F.Supp. 1506 (D.Colo.1984); Lomax v. Davis, 571 F.Supp. 805, 807 (N.D. Miss.1983); Rosquist v. Jarrat Construction Corp., 570 F.Supp. 1206, 1211 (D.N.J. 1983); Weisman v. Sherry, 514 F.Supp. 728, 733-34 (M.D.Pa.1981).

Since we find the conduct alleged by Plaintiffs cannot be “fairly attributable to the state,” the Complaint, as amended, fails to state a cause of action.

B. The § 1981 Claim

42 U.S.C. § 1981 grants to all persons within the United States “the same right ... to make and enforce contracts ... as is enjoyed by white citizens____” While § 1981 has been held to prohibit discrimination on the basis of race, see McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976); Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); courts have held that the statute does not extend to other forms of discrimination. See Runyon v. McCrary, 427 U.S. 160, 167, 96 S.Ct. 2586, 2592, 49 L.Ed.2d 415 (1976) (§ 1981 not applicable to discrimination based on religion), Woods v. New York, 469 F.Supp. 1127 (S.D.N.Y.), aff'd, 614 F.2d 1293 (2d Cir.1979) (national origin); National Ass’n of Gov’t Employees v. Rumsfeld, 413 F.Supp. 1224 (D.D.C.1976), aff'd, 556 F.2d 76 (D.C.Cir.1977) (same); Petrone v. City of Reading, 541 F.Supp. 735 (E.D. Pa.1982); Vuksta v. Bethlehem Steel Corp., 540 F.Supp. 1276, 1281 (E.D.Pa. 1982), aff'd, 707 F.2d 1405 (3d Cir.), cert. denied, — U.S. -, 104 S.Ct. 121, 78 L.Ed.2d 119 (1983); Boddorff v. Publicker Indus., 488 F.Supp. 1107, 1109 (E.D.Pa. 1980); Vera v. Bethlehem Steel Corp., 448 F.Supp. 610, 613 (M.D.Pa.1978); Jones v. United Gas Improvement Corp., 68 F.R.D. 1, 15 (E.D.Pa.1975).

Since Plaintiffs have alleged no discrimination on account of race, we will dismiss the claim under § 1981.

C. The § 1985 Claim

Section 1985 contains three major subsections. Plaintiffs have failed to identify which subsection they invoke; we hold, however, that Plaintiffs have failed to state a claim under any of its provisions.

Section 1985(1), by its terms, proscribes only conspiracies which interfere with the performance of official duties by federal officers. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 1487, 75 L.Ed.2d 413 (1983). Since Plaintiffs’ Complaint indicates no action by any federal officer, we must dismiss any claim under § 1985(1).

The first part of § 1985(2) proscribes conspiracies to intimidate or retaliate against parties, jurors, or witnesses in federal court proceedings. 42. U.S.C. § 1985(2). We find no allegation addressed to any such actions.

The second clause of § 1985(2) and § 1985(3) prohibit conspiracies designed to deprive persons of equal protection of the law. The Supreme Court has held that a requisite element of both sections is class-based, invidiously discriminatory animus. See United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) (§ 1985)(3)); Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (§ 1985(3)). See also Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 1487, 75 L.Ed.2d 413 (1983) (§ 1985(2)). Courts in this circuit have uniformly required allegations and proof of class-based animus in evaluating claims based on § 1985(3) and the second part of § 1985(2). See Jennings v. Shuman, 567 F.2d 1213, 1221 (3d Cir. 1977); Schnabel v. Building & Construction Trades Council, 563 F.Supp. 1030, 1039 (E.D.Pa.1983); People ex rel. Snead v. Kirkland, 462 F.Supp. 914, 920 (E.D.Pa. 1978) .

In addition, courts have held that the necessary class-based discrimination must be based upon immutable characteristics, such as race or gender. See, e.g. United Brotherhood of Carpenters, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) (nonunion employees not protected class for purposes of § 1985(3)); Carchman v. Korman Corp., 594 F.2d 354, 356 (3d Cir.) (tenant organizers not protected class), cert. denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979); Three Rivers Cablevision, Inc. v. City of Pittsburgh, 502 F.Supp. 1118, 1133-34 (W.D.Pa.1980) (no allegation of immutable characteristic; dismissal of § 1985(3) claim).

In the absence of any allegations that Plaintiffs are members of a protected class or that Defendants’ alleged conduct was motivated by class-based animus, we find the allegations insufficient to state claims based on § 1985(3) or the second part of § 1985(2).

Finally, we find that Defendants’ Complaint, taking the allegations as true, describes nothing more than conduct based on personal animosity. Such conduct does not state a claim under § 1985. Duff v. Sherlock, 432 F.Supp. 423, 429 (E.D.Pa. 1977).

Conclusion

Having determined that the amended complaint would not withstand a motion to dismiss, we will deny Plaintiffs’ Motion to Amend, and grant Defendants’ Motion to Dismiss the Complaint, with prejudice. An appropriate order will follow.


author: SWEET, District Judge.

text:
    Carrie L. CHANDLER, individually and on behalf of all other persons similarly situated, Plaintiff, v. Elaine A. LORD, individually, and in her official capacity as Deputy Superintendent of the Bedford Hills Correctional Facility, Bedford Hills, New York, Defendant.
    No. 84 Civ. 4024 (RWS).
    United States District Court, S.D. New York.
    Jan. 23, 1985.

      Carrie L. Chandler, pro se.
    Robert Abrams, Atty. Gen., State of New York, New York City (Howard L. Zwickel, Frederic L. Lieberman, Asst. Attys. Gen., New York City, of counsel), for defendant.
   OPINION

SWEET, District Judge.

This action, brought by pro se prisoner Carrie Chandler (“Chandler”) pursuant to 42 U.S.C. § 1983, alleges a violation of Chandler’s constitutionally guaranteed right to due process as a result of her being transferred from the “honor” floor to “general prison population” without a hearing. Elaine Lord (“Lord”), Superintendent of Bedford Correctional Facility (“Bedford”) has moved for summary judgment, arguing that no liberty interest attaches to continued habitation on the “hon- or” floor and therefore due process did not require a hearing before the transfer. The motion is granted, and the complaint is dismissed.

Facts

The facts surrounding this case are undisputed. Chandler is an inmate at Bed-ford. On December 28, 1982 she was moved from the general prison population to the “honor” floor. Inmates on the honor floor have certain additional privileges, including the right to have a personal television, to make more frequent phone calls, and to remain outside their cell in the evening. Bedford officials made continued residence on the honor floor conditional on satisfying the rules regulating conduct on the floor, (see exhibit one) and the rules, issued by Bedford personnel, state that “You will be removed from the floor for any behavior which does not meet these standards.”

On September 20,1983 Chandler received a memorandum from Lord informing Chandler that she was being placed on probation as a result of an evaluation by an honor floor correction officer. According to the memorandum, Chandler required constant reminders to remain neat, and Chandler’s behavior would “be monitored over the next month to determine whether you improve. If not, you will be removed.”

On February 8,1984, Chandler received a memorandum from Lord stating that Chandler was to be removed from the honor floor for violating Department of Correctional Services Directive 4760, which limits inmate-to-inmate correspondence. The memorandum stated that Chandler was being removed from the honor floor “because of the seriousness with which we hold your action, and because it shows little effort to improve despite your less than acceptable evaluations.” Chandler was removed from the honor floor and returned to the general prison population on February 17, 1984.

Conclusions

I must first determine whether Chandler has a protected liberty interest that requires that due process standards be met prior to her transfer to general prison housing. Meachum v. Fano, 427 U.S. 215, 223-24, 96 S.Ct. 2532, 2537-38, 49 L.Ed.2d 451 (1976). Chandler claims such a liberty-interest in freedom from transfer to the general prison population from the more desirable honor floor. The due process clause itself does not make freedom from such transfer a liberty interest.

As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight. The clause does not require hearings in connection with transfers whether or not they are the result of the inmate’s misbehavior or may be labeled as disciplinary or punitive.

Montayne v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). Further, in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) the Court held that the due process clause did not prevent transfer from general prison population to disciplinary or administrative segregation without a hearing.

Respondent argues, rather weakly, that the Due Process clause implicitly creates an interest in being confined to a general population cell, rather than the more austere and restrictive administrative segregation quarters. While there is little question on the record before us that respondent’s confinement added to the restraints on his freedom, we think his argument seeks to draw from the Due Process clause more than it can provide ... Accordingly, administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration. This conclusion finds ample support in our decisions regarding parole and good time credits. Both these subjects involve release from institutional life altogether, which is a far more significant change in a prisoner’s freedoms than that at issue here, yet in Greenholtz and Wolff we held that neither situation involved an interest independently protected by the Due Process Clause. These decisions compel an identical result here. Id.

Chandler’s alleged liberty interest therefore cannot stem directly from the due process clause. The requirement of living in the general prison population is within the sentence imposed, is not independently violative of the Constitution, and is a less egregious deprivation than being held in disciplinary segregation, freedom from which is not a liberty interest. Hewitt, supra.

A protected liberty interest may also be created by state law, however, and once such an interest is established the due process clause “insure[s] that the state-created right is not arbitrarily abrogated.” Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); Meachum v. Fano, supra; Hewitt, supra; Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). States can create such liberty interests by statute or regulation, although the Supreme Court has cautioned that in the absence of “unmistakenly mandatory” language, the state-created interest will not be interpreted as a liberty interest. “The creation of procedural guidelines to channel the decision-making of prison officials is, in the view of many experts in the field, a salutary development. It would be ironic to hold that when a state embarks on such desirable experimentation it thereby opens the door to scrutiny by the federal courts, while states that choose not to adopt such procedural guidelines, without more, suggests that it is these restrictions alone, and not those federal courts might also impose under the Fourteenth Amendment, that the state chose to require.” Hewitt v. Helms, 103 S.Ct. at 871. In Olim, supra, moreover, the Court held that “a state creates a protected liberty interest by placing substantive limitations on official discretion. An inmate must show ‘that particularized standards or criteria guide the state’s decisionmakers.’ ” Olim, supra, 103 S.Ct. at 1747, quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467, 101 S.Ct. 2460, 2465, 69 L.Ed.2d 158 (1981) (Brennan, J., concurring).

There is no foundation for establishing a state-created liberty interest against the transfer to which Chandler was subjected. Chandler concedes in her brief that “neither the Correction Law or [sic] the State of New York nor the New York Codes, Rules and Regulations, do not require that there be Privileged Housing Units at any correctional facility in this state, and the commissioner has not promulgated any published rules regarding transfer from same.” [sic, plaintiffs brief at 7-8]. Moreover, in Montayne, analyzing New York Correctional Law, and upholding an interprison transfer with “substantially burdensome consequences” without a hearing, the Supreme Court concluded that “there is no more basis in New York law for invoking the protections of the Due Process clause than we found to be the case” in Meachum. Montayne at U.S. 243, 96 S.Ct. at 2547. The relevant New York statutes and regulations are unchanged since Montayne. Although Montayne involved wierprison transfers, it necessarily follows that there is no state created liberty interest against intra prison transfers with similar consequences.

Although Chandler does not do so, one might argue that the listing of honor floor rules, which concludes by stating that “You will be removed from the floor for any behavior which does not meet these standards,”. creates an expectation of a hearing. Such an argument must fail, for the warning attached to the honor floor rules is not even a “prodedural guideline,” but is, rather, a statement of the consequences that follow from certain conduct. The'Court in Hewitt, supra, found a liberty interest only because:

the Commonwealth has gone beyond simple procedural guidelines. It has used language of an unmistakably mandatory character, requiring that certain procedures “shall,” “will,” or “must” be employed, see note 6 supra, and that administrative segregation will not occur absent specified substantive predicates— viz., “the need for control,” or “the threat of a serious disturbance.”
6- Section 95.104(b)(1) of Title 37 of the Pennsylvania Code provides that: An inmate who has allegedly committed a Class 1 Misconduct may be placed in Close or Maximum Administrative Custody upon approval of the officer in charge of the institution, not routinely but based upon his assessment of the situation and the need for control pending application of procedures under § 95.103 of this title. Section 95.103(b)(3) of the same title provides:
An inmate may be temporarily confined to Close of Maximum Administrative Custody in an investigative status upon approval of the officer in charge of the institution where it has been determined that there is a threat of a serious disturbance or a serious threat to the individual or others. The inmate shall be notified in writing as soon as possible that he is under investigation and that he will receive a hearing if any disciplinary action is being considered after the investigation is completed. An investigation shall begin immediately to determine whether or not a behavior violation has occurred. If no behavior violation has occurred, the inmate must be released as soon as the reason for the security concern has abated but in all cases within ten days.

Id. 103 S.Ct. at 871.

The absence of any statutory or regulatory restraints upon the discretion of New York prison officials in transferring inmates from the “honor” floor to the general prison population makes it impossible to find a liberty interest in avoiding such transfers without a hearing. Chandler’s complaint therefore fails to state a claim upon which relief can be granted, and the motion to dismiss is granted. The clerk is directed to enter judgment dismissing the complaint.

IT IS SO ORDERED.

HONOR FLOOR

RULES AND REGULATIONS

1. No yelling, no loud or boisterous conduct. No running up and down corridors.

2. TV’s must not be able to be heard outside of your cell.

3. Radios and tape players can be used only with headphones, or earphones, at all times, unless otherwise approved for a group activity by the Executive Team.

4. No loitering in the corridors or kitchen area at any time.

5. No entering another inmate’s room on your corridor without permission from the occupant.

6. No behavior that would be disruptive to officers on duty will be tolerated.

7. Your language and manner of approach to both inmates and staff must be courteous. Profanity and rudeness will not be tolerated.

8. Typewriters cannot be used after 10:00 PM in your cell. They must be used in the Rec Area.

9. Ironing, showers, hair dryers, curling irons, cannot be used after 10:00 PM. The kitchen can only be used after 10:00 PM for toast, popcorn, or boiling water.

10. No hanging out in the kitchen at any time. It is to be used for cooking and not as a meeting area.

11. The study room is for quiet use for educational or religious purposes.

12. There is no singing in the cells, corridor area, or recreation area.

13. Musical instruments are not to be played on the floor.

14. Cell inspections can and will be held at any time. Each woman is responsible for maintaining standards of neatness and cleanliness.

15. It is your responsibility as an Honor inmate to participate in cleaning activities on the floor over and above your regular assignment.

16. All other rules and regulations of the facility are to be upheld unless an exception has been made for the Honor Floor.

You will be removed from the floor for any behavior which does not meet these standards.

Date Signature