author: TURK, Chief Judge.

text:
    Brenda Long WALKER, Plaintiff, v. David GRIFFITH and Randy Wayne Meador, Defendants. Daniel Lee WALKER, Plaintiff, v. David GRIFFITH and Randy Wayne Meador, Defendants.
    Civ. A. Nos. 85-0032, 85-0033.
    United States District Court, W.D. Virginia, Roanoke Division.
    Jan. 21, 1986.

      Jeffrey H. Krasnow, Roanoke, Va., James S. Arnold, King, Betts & Allen, Charleston, W. Va., for plaintiff.
    James F. Johnson, Johnson, Ayers & Matthews, Roanoke, Va., Robert S. Jacobson, Lewisburg, W. Va., James R. Austin, Gentry, Locke, Rakes & Moore, Roanoke, Va., for defendants.
   MEMORANDUM OPINION

TURK, Chief Judge.

On June 21, 1984, plaintiffs Daniel Lee Walker and Brenda Long Walker filed these diversity actions seeking relief for personal injuries sustained in an automobile accident. Named as defendants were David Griffith, the driver of the other automobile involved in the accident, and Randy Wayne Meador, owner and operator of the Red Sulphur Springs Road House, a business licensed by the State of West Virginia to sell alcoholic beverages for on-premises consumption. Defendant Meador has moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the Walkers’ claims for failure to state a claim for which relief can be granted. For the reasons set forth below, defendant Meador’s motion to dismiss is denied.

The plaintiffs Walker allege that on the evening of March 12, 1983, Griffith was operating a vehicle on Route 12 near Cashmere in Monroe County, West Virginia. They allege that Griffith was highly intoxicated when operating the vehicle, and that he became intoxicated at the Red Sulphur Springs Road House, a tavern owned by defendant Meador. Plaintiffs further allege that Meador or his employees negligently served Griffith while he was already intoxicated, served Griffith despite the fact that he had not paid the cover charge which would have made him a member of the club, and then ejected him from the tavern. Following his ejection from the tavern, and while driving on Route 12, the Walkers allege that Griffith failed to properly control his car. As a result of the ensuing accident, they sustained serious injuries. The Walkers seek to hold both Griffith and Meador liable for damages.

The current status of the existence of a private cause of action in West Virginia against the vendor of alcoholic beverages for the injuries inflicted by an intoxicated patron and sustained by a third party is not clear. The question has not been addressed by the West Virginia courts. This Court has indicated its willingness to certify a question, pursuant to W.Va.Code § 51-1A-1, to the Supreme Court of Appeals of West Virginia. The parties have expressly stated that they do not wish to take advantage of the certification procedure. Accordingly, this court must apply the law that it appears the highest court of West Virginia would apply. See Brendle v. General Tire & Rubber Co., 505 F.2d 243, 245 (4th Cir.1974).

In support of his motion to dismiss, Meador asserts that West Virginia does not recognize a cause of action brought against a vendor of alcohol for the damages inflicted by an intoxicated patron and sustained by a third party. Meador notes that West Virginia statutes do not provide for such a cause of action. In addition, Meador contends that the general common law rule does not permit such a cause of action, and that West Virginia adheres to the common law position. In response, the Walkers contend that the West Virginia courts would recognize a common law action for damages of the type they bring here. In addition, the Walkers assert that W.Va. Code § 60-7-12 gives rise to a private cause of action against Meador. This court need not reach the question of whether W.Va.Code § 60-7-12 gives rise to a private cause of action, however, for this court is convinced that the West Virginia courts would recognize a common law cause of action in the instant case.

While the West Virginia legislature has not specifically imposed civil liability on tavern owners for injuries arising out of the sale of alcoholic beverages, it has recognized the inherent unreasonableness of Meador’s alleged conduct in W.Va.Code § 60-7-12. Under § 60-7-12, a tavern owner who sells an alcoholic beverage to an intoxicated individual or an individual who is not a member in good standing of that club is guilty of a misdemeanor and stands to have his liquor license revoked or suspended. See W.Va.Code §§ 60-7-12(c) and 60-7-13. While it is not clear whether § 60-7-12 gives rise to a private cause of action, it does serve to define a minimum standard of care applicable to those who serve alcoholic beverages. West Virginia courts have consistently ruled that violation of a statute raises a rebuttable presumption of negligence, and will support a recovery for damages where the violation is the proximate cause of the injury complained of. Flanagan v. Mott, 145 W.Va. 220, 114 S.E.2d 331, 335 (I960); Pitzer v. M.D. Tomkies & Sons, 136 W.Va. 268, 67 S.E.2d 437, 441 (1951). See also Tarr v. Keller Lumber & Construction Co., 106 W.Va. 99, 144 S.E. 881, 882 (1928) (“We are committed to the view that a statutory disregard constitutes ‘actionable negligence’ or ‘prima facie negligence.’ ”)

While Meador’s alleged violation of § 60-7-12 may not have been the immediate cause of the plaintiffs’ injuries, West Virginia does not appear to embrace the notion that proximate cause means the immediate cause. Instead, the Supreme Court of Appeals of West Virginia has noted that proximate cause defies easy definition and “must be determined largely from the facts of the particular case.” Lilly v. Taylor, 151 W.Va. 730, 155 S.E.2d 579, 589 (1967). The court has attempted to define proximate cause in a number of decisions, and the theme running through those decisions is that the proximate cause of any injury is the superior or controlling agency from which springs the harm, as distinguished from causes which are merely incidental or subsidiary. See Yates v. Mancari, 153 W.Va. 350, 168 S.E.2d 746, 752-53 (1969). Moreover, the West Virginia court has made clear that separate and distinct acts of negligence of two or more persons constitute the proximate cause of an injury when they continue in unbroken sequence until the injury occurs, and directly and immediately contribute to and are the efficient cause of the injury. Perry v. Melton, 299 S.E.2d 8 (W.Va.1982); Wilson v. Edwards, 138 W.Va. 613, 77 S.E.2d 164, 172-73 and Syllabus Point 3 (1953). Further, the West Virginia court has decreed that whether the negligence of a defendant is the proximate cause of a plaintiff’s injury is a question for the jury to determine. Flanagan v. Mott, 145 W.Va. 220, 114 S.E.2d 331, 336 (1960).

Based upon the foregoing analysis of West Virginia law, this court concludes that Meador’s alleged negligence could be considered the proximate cause of the Walkers' injuries. It is entirely foreseeable, given the likelihood that patrons will drive after leaving a bar, that accidents such as the one alleged to have happened in this ease will occur. Given the mandate of state law and the staggering costs of death and damage caused by drunk drivers, tavern owners should be aware of the dangers of serving drinks to intoxicated patrons.

Having concluded that Meador’s alleged negligence could be considered the proximate cause of the Walkers’ injuries, this court is confident that a West Virginia court would recognize that the Walkers have stated a common law cause of action in negligence against Meador. In light of W.Va.Code § 60-7-12 and the Flanagan line of cases, this court holds that under West Virginia law, tavern owners have a duty to refrain from selling alcohol to those individuals who, by industry standards, common experience or actual knowledge, the tavern owner knows or should know are intoxicated. Moreover, given the express purpose of the West Virginia statutory scheme regulating alcoholic beverages, see W.Va.Code § 60-1-1, this court believes the West Virginia courts would find this duty is owed to persons such as the plaintiffs in this case. Accordingly, this court so holds.

In spite of § 60-7-12 and Flanagan, Meador argues forcefully that a West Virginia court would still decline to impose civil liability upon a seller of intoxicating beverages under circumstances such as those alleged here. Such a position, however, would be at odds with the vast majority of reported decisions and the clear trend nationally in favor of recognizing liability. Courts construing the law of at least fifteen states and the District of Columbia have imposed liability under the common law on vendors of intoxicating beverages for the injuries caused by persons purchasing such beverages while intoxicated. An additional twenty-three states have imposed such liability by enacting “Dram Shop” or “Civil Liability” statutes. See Corrigan v. United States of America, 595 F.Supp. 1047, 1050 (E.D.Va.1984) (recognizing common law cause of action under Virginia law in same circumstances as here). This court cannot conclude that a West Virginia court would refuse to impose liability here in the face of such a pronounced trend and against the great weight of case law in other jurisdictions.

A final factor influencing this court’s decision is the expressed willingness of West Virginia courts to expand the common law in the absence of specific legislative guidance. For instance, in Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978), the Supreme Court of Appeals of West Virginia recognized the right of at will employees to sue for discharges that contravene a substantial public policy. The court was also quick to recognize a cause of action for intentional infliction of emotional distress. See Montelone v. Cooperative Transit Co., 128 W.Va. 340, 36 S.E.2d 475 (1945). Since West Virginia has been in the forefront of adapting the common law to meet today’s needs, this court is confident that the West Virginia courts would continue that proud tradition were they called upon to decide the issue presented in this case.

CONCLUSION

For the reasons set forth above, defendant Meador’s motion to dismiss is denied.

ORDER

On October 18, 1985, a hearing was held on motion of defendant Randy Wayne Meador, pursuant to Rule 12(b)(6) of the Fed. Rules Civ.Pro., to dismiss the plaintiffs’ claims against him on the grounds that the plaintiffs had failed to state a claim for which relief could be granted. At the conclusion of the hearing, the court took the motion under advisement to allow defendant Meador 10 days to notify the court if Meador wished to have the court certify a question for decision to the West Virginia Supreme Court. On October 22, 1985, counsel for defendant Meador notified the court that Meador does not wish the court to certify any questions to the West Virginia Supreme . Court. Thus, defendant’s motion to dismiss will now be considered by the court.

For the reasons set forth in the accompanying memorandum opinion, it is hereby

ORDERED

that defendant’s motion to dismiss is denied.

The Clerk of Court is directed to send copies of this order and the accompanying memorandum opinion to counsel for all the parties.

      . W.Va.Code 60-1-1 provides, in relevant part:
      The purpose of this chapter is ... to assure ... the health, safety and good morals of the people of the state. To these ends the police power of the state is pledged to the sound control and the temperate use of alcoholic liquors.

      . Hawaii, Idaho, Indiana, Kentucky, Louisiana, Massachusetts, Mississippi, Missouri, New Jersey, South Dakota, Texas, Virginia, Washington, Wisconsin.

      . Alabama, Alaska, California, Colorado, Connecticut, Florida, Georgia, Illinois, Iowa, Maine, Michigan, Minnesota, New Mexico, New York, North Carolina, North Dakota, Ohio.


source: Caselaw Access Project

author: HANSON, Senior District Judge.

license: Public Domain

text:
    HORACE MANN INSURANCE COMPANY, Plaintiff, v. Donald D. COMBS, Arnold H. Berry, Jeraldine B. Berry, Travis Berry, Troy Berry, Glen E. Frease, Mary Jo Frease, Kay Lloyd Finch, Kay Lloyd Finch, Executor of the Estate of Orlanda Constance Finch, Deceased, John D. Galiher, and Lois Galiher, Defendants.
    Civ. No. 84-78-A.
    United States District Court, S.D. Iowa, C.D.
    Jan. 21, 1986.
    Jerry E. Williams, of Nyemaster, Goode, McLaughlin, Emery & O’Brien, Des Moines, Iowa, for plaintiff.
    Yern M. Ball, Bloomfield, Iowa, for defendant Combs.
    Dannis W. Emanuel, of Weber, Gaumer & Emanuel, P.C., and John N. Moreland, of McKay & Moreland, P.C., Ottumway, Iowa, for defendants.
   FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT

HANSON, Senior District Judge.

This diversity of citizenship case was tried to the Court and proposed findings of fact and conclusions of law have been submitted.

FINDINGS OF FACT

Approximately thirty (30) days prior to August 15, 1980, the defendant Donald D. Combs and Judith Combs (Combs) met with Richard Abernathy, a licensed agent for the plaintiff, Horace Mann Insurance Company (Horace Mann), to discuss homeowner’s insurance coverage on the Combs’ home. The Combs told Abernathy that they wanted “full” homeowner’s coverage, including liability coverage, which would “cover most of the basic things one incurs in life.” Abernathy advised the Combs that Horace Mann felt that their insureds should carry liability insurance at least equal to the amount of the value of their home. The Combs applied for coverage in the amount of $100,000. Abernathy bound that coverage for the period of one year, commencing August 15, 1980. At the time the application was prepared and signed, the Combs owned only one boat, a 12-foot aluminum boat with a six horsepower motor.

At some time prior to August 15, 1980, Horace Mann issued to Combs its H02 homeowner’s policy No. H0589326, for the policy term of one year commencing August 15, 1980. That policy was in force on August 8, 1981. The homeowner’s policy issued by Horace Mann to the Combs contained the following provision, under the bold-faced heading “Exclusions”:

This policy does not apply:
1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
d. to bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to non-business pursuits; * * *.

Section 8 of Part A of the policy provides:

8. DEFINITIONS: (Refer to Section II of the Form made a part of this policy for Additional Definition).
When used in this policy the following definitions apply:
••Je s): ‡ ‡ ‡ *
d. ‘business’ means
(1) a trade, profession or occupation, including farming, * * *.

On or about May 1, 1980, Steven Dent, a fellow schoolteacher and acquaintance of the Combs, obtained from the State of Iowa a Commercial Concession Permit granting him for the calendar year 1981 the exclusive right to operate the beach and boathouse at Lake Wapello State Park, including the right to rent out certain fishing boats, paddle boats, and canoes, owned and furnished by the State of Iowa, and required that Dent pay to the State of Iowa 12% of his gross receipts.

In May of 1981, Dent proposed to Donald Combs that the two of them purchase from Peter Burehette, at a price of $850, a used 20-foot by 7-foot Palm Beach pontoon boat equipped with a six horsepower outboard motor, suggesting that he (Dent) could dock the boat free at the dock provided for him by the State, and that the boat would then be available for personal use of Dent and Combs at no cost to either of them. Dent and Combs agreed that: (1) they would purchase the pontoon with each paying $425 of the purchase price; (2) they would dock the boat at no cost at the dock provided to Dent by the State of Iowa; (3) Dent would rent the boat out to the general public; (4) Dent would pay to the State of Iowa that percentage of the rental fees for the boat required by his concession permit; and (5) Dent and Combs would each make personal use of the boat at no cost to themselves whenever the boat was not rented out to others. The agreement between Dent and Combs was not made in writing. Furthermore, even though Combs believed that they would eventually split the profits at the end of the season from the rental of the pontoon boat, there appears to have never been anything said by either Combs or Dent as to this eventuality-

On or about May 26, 1981, Combs and Dent purchased the pontoon boat from Peter Burehette, signing a note for $850 payable at the end of the summer.

On the Iowa Application for Boat Registration, signed by both Dent and Combs, the “Type of Use” designated was “Pleasure” and “Livery (Rental).”

Combs and Dent docked the boat at the dock provided by the State, and it was available for rental to the public through August 8, 1981.

During the period from June 1981 through August 8, 1981, the pontoon boat was used for personal pleasure by both Dent and Combs and Combs once or twice paid small amounts of money incurred in the operation of the boat. During that same period, Dent rented it out thirty times and received payment for those rentals.

The thirtieth rental by Dent was to Arnold H. Berry on August 8, 1981. That same day, while occupied by John D. Galiher, Lois Galiher, Kay L. Finch, Orlanda Constance Finch, Arnold Berry, Jerrie Berry, Troy Berry, Travis Berry, Glen Frease and Joe Frease, the boat capsized.

About a week after the accident, Donald Combs informed Abernathy that he had purchased a pontoon boat, with a co-owner, for his personal use and that his co-owner had rented it out to the people who had the accident. He also told Abernathy that he had received no money for the rental. When Combs asked Abernathy if he had coverage under the Horace Mann policy, Abernathy stated that the pontoon boat would be covered for personal liability but not commercial liability.

After the accident on August 8, 1981, no accounting was ever made between Combs and Dent, and Combs never received any of the rental income. On September 21, 1981, they each paid $450 to Peter Burchette. They are still co-owners of the boat.

Defendants Arnold H. Berry, Jeraldine B. Berry, Travis Berry, Troy Berry, Glen E. Frease, Mary Jo Frease, Kay Lloyd Finch, Kay Lloyd Finch as Executor of the Estate of Orlanda Constance Finch, deceased, John D. Galiher, and Lois A. Galiher, through lawsuits brought in the Iowa District Court for Davis County, are asserting claims against Donald Combs for bodily injuries sustained in the August 8, 1981 accident. Each alleges that Donald Combs was negligent in the following particulars:

(1) In permitting the pontoon boat to be used for commercial purposes by Dent without first having been properly inspected and licensed;
(2) In permitting Dent to use the boat for rental purposes, • without determining that the boat was in good repair; and,
(3) In failing to inspect and determine that the pontoon boat was properly inspected and licensed by the State Conservation Commission as provided by Chapter 106, Code of Iowa, 1980.

CONCLUSIONS OF LAW

The parties in this case have made assertions as to the applicability or inapplicability of the Combs’ insurance contract coverage of the accident at Lake Wapello. However, the parties ignore the preliminary issue: whether there was any joint business enterprise between Combs and Dent, that is, whether there was a partnership between these parties. The elements necessary to establish the existence of a partnership are a sharing of profits and losses of a business, joint control, and intent. See Rickman v. Rickman, 190 Iowa 462, 180 N.W. 182, 183 (1920); R. Hayes, Iowa Practice: Business Organizations, § 51, at 431-44 (2d ed. 1985). While there is some indicia in Donald Combs’ deposition that he believed the profits from the rental would pay for the pontoon boat, there does not appear to have been a mutual consent between Dent and Combs as to the partnership agreement to share in any profits or losses. Donald Combs’ unexpressed belief that at some point there would be an accounting, at which time they would split the profits for the rental of the pontoon boat, simply is not enough to prove that this was a joint business enterprise. Rather, this appears to have been an individual enterprise with one party intending to use the pontoon boat for pleasure and the other intending the boat for business and pleasure. Combs under no circumstances supervised or directed use of the boat for commercial purposes. This was entirely done by Dent. Nor did Combs have any intention to be part of the business. The Court therefore concludes that their joint ownership of the boat does not transform this into a relationship between partners.

Having determined that there was no apparent partnership between the Combs and Dent, the Court must determine whether the business pursuits exclusion in the Combs’ homeowner’s policy would deny coverage in this case. The Court must be guided by certain basic rules of construction. Insurance contracts are controlled by the same rules of construction as are applied to other contracts; however, because an insurance contract is a contract of adhesion, its provisions will be construed in a light most favorable to the insured. Sable v. Horace Mann Ins. Co., 362 N.W.2d 495, 496 (Iowa 1985); State Farm Auto Ins. Co. v. Malcolm, 259 N.W.2d 833, 836 (Iowa 1977).

It is generally recognized that “[t]he ‘business pursuits’ exclusion is a common exception to the broad coverage provided in homeowner’s and general liability insurance policies.” Bertler v. Employers Ins. of Wausau, 86 Wis.2d 13, 271 N.W.2d 603, 606 (1978). Courts interpreting this exclusion have developed several different tests to determine whether a particular activity is a “business pursuit” within the meaning of an insurance policy. See Annot. Construction and Application of “Business Pursuits” Exclusion Provision in General Liability Policy, 48 A.L.R.3d 1096 §§ 3[a], [b], and [c]. Although there is no controlling authority in Iowa on this issue, the majority of the courts which have addressed this issue have adopted a 2-pronged analysis, consisting first of continuity of the pursuit and, second, of a profit motive. E.g., Bertler, 271 N.W.2d at 607; State Mut. Cyclone Ins. Co. v. Abbott, 52 Mich.App. 103, 216 N.W.2d 606, 608 (1974); Fadden v. Cambridge Mut. Fire Ins. Co., 51 Misc.2d 858, 274 N.Y.S.2d 235, 241 (N.Y.1966). “[A]s to the first, there must be a customary engagement or stated occupation; and as to the latter, there must be shown* to be such activity as a means of livelihood, gainful employment, means of earning a living, procuring subsistence or profit, commercial transaction or engagements.” State Mut. Cyclone Ins. Co., 216 N.W.2d at 608.

In addition to there being no partnership agreement, it is impossible to impute Dent’s business use to Combs. Combs’ policy excludes coverage of the pontoon boat if the bodily injury or property damage arose “out of business pursuits of an insured * * *.” (Horace Mann policy [¶] 589326, page HO-2, § 2, Coverage E 1(d)). The Horace Mann policy defines the “insured” under the policy as “the insured named in the declaration above and legal representatives * * *.” (See Declaration Sheet.) The insureds named in the Declaration Sheet of the Horace Mann policy are Donald D. and Judy Combs. Therefore, in order for the exclusion 1(d) under Coverage E to apply, bodily injury or property damage must have arisen out of the Combs’ “business pursuit” use or ownership of their pontoon boat. While it would have been possible to impute the business pursuits exception had there been a business partnership between Combs and Dent, see State Farm Fire & Casualty Co. v. Drasin, 199 Cal.Rptr. 749, 152 Cal.App.3d 864 (1984), because no partnership existed, Dent’s business use cannot be impliedly become a business use for Combs.

The Court therefore concludes, as to his co-ownership of the boat, that Donald' D. Combs was not engaging in a business pursuit. The Court also concludes that the policy of homeowner’s insurance issued by Horace Mann for the period August 15, 1980 to August 15, 1981, applies to all the claims asserted against Combs by the other defendants in this action.

ORDER FOR JUDGMENT

IT IS ORDERED that judgment be entered in favor of the defendants Donald D. Combs, et al., and against the plaintiff Horace Mann Insurance Company.


author: JOSÉ A. CABRANES, District Judge:

text:
    Brian CHESHIRE v. Richard FENNELL.
    Civ. No. H-85-731 (JAC).
    United States District Court, D. Connecticut.
    Jan. 22, 1986.

      Paul E. Farren, Jr., New Haven, Conn., for plaintiff.
    John A. Danaher, III, Hartford, Conn., for defendant.
   RULING ON MOTION TO STAY

JOSÉ A. CABRANES, District Judge:

The defendant has moved the court to stay this action pending the resolution of an action in state court arising out of the same motor vehicle collision. The defendant contends that the instant action “involve[s] essentially the same issues that either are before the state court, or which could be pleaded in the state court action.” Memorandum in Support of Motion to Stay (filed Sept. 3, 1985) (“Defendant’s Memorandum”) at 1.

It is clear that a federal district court does not lose jurisdiction over an action merely because a similar action is already pending in state court. The Supreme Court has held that, when parallel in personam actions are pending in federal and state courts,

[e]ach court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata by the court in which the action is still pending in the orderly exercise of its jurisdiction[.]

Kline v. Burke Construction Company, 260 U.S. 226, 230, 43 S.Ct. 79, 81, 67 L.Ed. 226 (1922). However, the court may in appropriate circumstances exercise its discretionary power to stay its own proceedings in order to “avoid[ ] wasteful duplication of judicial resources.” Giulini v. Blessing, 654 F.2d 189, 193 (2d Cir.1981).

The court holds for the following reasons that no such deference is appropriate in the instant circumstances.

First, this action is not strictly “parallel” to the action pending in state court. For example, the plaintiff in the state action was a passenger in a vehicle driven by the plaintiff in this action; the state plaintiff is not a party to the federal litigation. The defendants in the state action include not only the plaintiff and the defendant in this action but also a third individual who is not a party to these proceedings.

Furthermore, the defendant can offer no assurance that the state action will be concluded before the action pending in this court. Indeed, given the length of this court’s trial list and the defendant’s representations that much of the discovery necessary for both lawsuits has already been completed, see Defendant’s Memorandum at 5-6, this action is likely to come to trial within six to nine months. Of course, an earlier decision by the state court would be given appropriate res judicata effect by this court; the state court presumably would accord similar effect to a decision of this court.

Finally, as the Supreme Court has recognized, diversity jurisdiction was established “not ... for the benefit of the federal courts or to serve their convenience [but] ... to afford to suitors an opportunity in such cases, at their option, to assert their right in the federal rather in the state courts.” Meredith v. City of Winter Haven, 320 U.S. 228, 234, 64 S.Ct. 7, 11, 88 L.Ed. 9 (1943). The defendant has not demonstrated sufficient cause in the instant action to deprive the plaintiff of his choice of a federal forum.

Accordingly, the defendant’s motion to stay is denied.

It is so ordered.


author: MORAN, District Judge.

text:
    Betty DOTY, as Administratrix of the estate of Gregory Shearer, deceased, and Roosevelt Shearer, father of Gregory Shearer, deceased, Plaintiffs, v. John CAREY and Martin Morrison, individually and as officers of the Police Department of the City of Chicago, Defendants.
    No. 84 C 9420.
    United States District Court, N.D. Illinois, E.D.
    Jan. 22, 1986.

      David C. Thomas, Law Clinic Offices, IIT Chicago-Kent College of Law, Chicago, Ill., for plaintiffs.
    Gregory E. Kulis, Asst. Corp. Counsel, City of Chicago, Chicago, Ill., for defendants.
   MEMORANDUM AND ORDER

MORAN, District Judge.

Plaintiff Betty Doty, as the personal representative of her brother Gregory Shearer and on behalf of his estate, seeks redress for his death from two Chicago police officers under 42 U.S.C. § 1983. Plaintiff Roosevelt Shearer brings his own § 1983 action against the same officers for the loss of society of his son. Plaintiff Doty also has brought a pendent claim for wrongful death under Ill.Rev.Stat. ch. 70, HU 1 and 2, for the benefit of Gregory Shearer’s spouse, Myrna, and his next of kin, his father. The defendants move to dismiss the federal claims, arguing that these plaintiffs are limited to the remedy available to them through the Illinois Wrongful Death Act.

A motion to dismiss may be granted only when relief would not be available under any set of facts consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). For purposes of such a motion the court accepts all the allegations in the complaint as true. The complaint alleges that the defendants, responding to a call of a possible home burglary, found Gregory Shearer in bed, and without provocation shot him seven times, killing him instantly. Simply put, this court thinks that those facts state a claim for violation of constitutional rights. The motion is denied.

DISCUSSION

Defendants, in their brief in support of their motion, appear to argue that plaintiffs have no remedy under § 1983 since the Illinois Wrongful Death Act provides them with an adequate remedy. Alternatively, however, they may be arguing that while plaintiffs have § 1983 actions, 42 U.S.C. § 1988 and the Seventh Circuit decision in Bell v. City of Milwaukee, -746 F.2d 1205 (7th Cir.1984), effectively limit those actions to the contours defined by the Illinois Wrongful Death Act. Neither contention is correct.

I.

The first argument would presumably be based on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), although that case is nowhere cited in defendants’ brief. Defendants, however, argue that Illinois law provides adequate redress for the wrongs committed and therefore the § 1983 claim should be dismissed. That would be the result if Parratt applied here. In Parratt, a prisoner sued under § 1983 for negligent deprivation of property without due process of law. Prison officials had lost a hobby kit of his worth $23.50. The court held that § 1983 did not apply because the official’s conduct did not violate due process. State court law provided an adequate post-deprivation remedy in a situation where a pre-deprivation hearing was not practical. 451 U.S. at 543-544, 101 S.Ct. at 1916-1917. In some circumstances, then, the existence of an adequate remedy under state law precludes a § 1983 claim.

The intentional or reckless deprivation of life by state officials, however, is not one of those situations. As the Fifth Circuit succinctly put it, in Augustine v. Doe, 740 F.2d 322, 329 (5th Cir.1984):

Parratt v. Taylor is not a magic wand that can make any section 1983 action resembling a tort suit disappear into thin air. Parratt applies only when the plaintiff alleges a deprivation of procedural due process; it is irrelevant when the plaintiff has alleged a violation of some substantive constitutional proscription.

In other words, concern with the adequacy of state remedies may be appropriate when the challenge is to the absence of some kind of a hearing or procedure. It is not an issue when, as here, the challenge is to the conduct itself. Augustine, 740 F.2d at 326-327. Accord: Rodgers v: Lincoln Towing Service, Inc., 771 F.2d 194, 199 (7th Cir.1985); Guenther v. Holmgreen, 738 F.2d 879, 882 (7th Cir.1984), cert. denied, 469 U.S. -, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985). See generally Toney-El v. Franzen, 111 F.2d 1224, 1226-1228 (7th Cir.1985) (explaining distinction between substantive and procedural due process).

Defendants’ confusion may come from the fact that Parratt is sometimes cited for another related principle: in some cases a § 1983 due process action will not lie unless a particular state of mind is present. While § 1983 itself does not require that defendants have a particular state of mind, Parratt, 451 U.S. at 534,101 S.Ct. at 1912, nevertheless the statute only provides a remedy when the state deprives the plaintiff of a right guaranteed by the constitution or federal law. With some substantive constitutional rights no deprivation has occurred unless the conduct was accompanied by an intent to harm or a reckless attitude toward the right in question. Parratt, 451 U.S. at 534, 101 S.Ct. at 1912; also 546 (Blackmun, J., concurring). See Baker v. McCollan, 443 U.S. 137, 140 n. 1, 99 S.Ct. 2689, 2692 n. 1, 61 L.Ed.2d 433 (1979). The substantive rights to life and liberty guaranteed by the due process clause of the Fourteenth Amendment may be among these, at least under some circumstances, though at present that question is uncertain. Compare Jackson v. City of Joliet, 715 F.2d 1200, 1204 (7th Cir.1983), cert. denied, 465 U.S. 1049, 104 S.Ct. 1325, 79 L.Ed.2d 720 (1984) and Young v. City of Killeen, 775 F.2d 1349 (5th Cir.1985) (both apparently requiring intent) with Davidson v. O’Lone, 752 F.2d 817, 828 (3d Cir.1984), cert. granted sub nom. Davidson v. Cannon, 471 U.S.-, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985) (gross negligence); Kelson v. City of Springfield, 767 F.2d 651 (9th Cir.1985) (negligence); Gann v. Schramm, 606 F.Supp. 1442 (D.Del.1985) (case-by-case analysis). In such cases what began as a substantive claim against conduct may shade into a claim for negligent deprivation without procedural due process and then the adequacy of state remedies may be relevant. See, e.g., State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.1983), cert. denied, 464 U.S. 995, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983); Davidson, 752 F.2d at 829-830.

That question, however, is not at issue in this case. Whatever the eventual result when the state is negligent, the Seventh Circuit held in Bell that intentional or reckless deprivation of life by the state violates a substantive constitutional guarantee. Bell, like the instant case, involved a fatal shooting by a police officer without apparent cause. The victim in Bell had been stopped for a faulty taillight. He was recklessly shot while attempting to flee. The court found that his next of kin had § 1983 claims notwithstanding the existence of a state wrongful death action. 746 F.2d at 1238. Cf. Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir.1985) (substantive right violated when innocent resident recklessly mistaken for fugitive and killed); Holland v. Breen, 623 F.Supp. 284 (D.Mass.1985) (callousness toward detainee allowing his suicide was conduct which shocks the conscience, infringing substantive right). In the same opinion it also held that a parent has a substantive liberty interest not to be deprived of the society of his or her child by the state without due process of law. Bell, 746 F.2d at 1244. The interest encompasses adult children, and an intentional, reckless or lawless killing of the child violates the parent’s substantive constitutional guarantees. Id. at 1242,1245. Cf Trujillo v. Board of County Commissioners, 768 F.2d 1186 (10th Cir.1985). Presumably defendants do not argue that firing seven times at a man in bed, without provocation, is not either intentional or reckless. At least for the purposes of this motion to dismiss, then, Gregory and Roosevelt Shearer’s substantive constitutional guarantees were violated. In addition, the Bell court expressly noted in passing that for such violations Parratt’s concern with the adequacy of state remedies does not apply. 746 F.2d at 1238 n. 39; see also Kufalk v. Hart, 610 F.Supp. 1178, 1190 (N.D.Ill.1985). Plaintiffs state a claim under § 1983.

II.

It is possible, however, that recovery under that claim might be limited to the recovery available under the Illinois Wrongful Death Act. Selection of the appropriate law for § 1983 actions is governed by 42 U.S.C. § 1988. That section mandates a three-step process. First, one uses federal civil rights law unless that law is “deficient” in that it fails to provide a rule for the particular problem at hand. If federal law is deficient, then one considers turning to the most closely analogous state law to fill the gap. State law, however, can only be used insofar as it is consistent with the meaning and purpose of § 1983. If it is inconsistent it must be disregarded and the court must fashion a remedy from federal common law. See Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984); Bass by Lewis v. Wallenstein, 769 F.2d 1173, 1188 (7th Cir.1985); Bell, 746 F.2d at 1234.

Defendants, then, may be arguing that the proper application of § 1988 here leads to § 1983 actions identical in all respects with the Illinois wrongful death action. In Bell, the Seventh Circuit applied § 1988 to the various civil rights claims and found that federal law was deficient. It provided no specifics on, for example, whether the deceased’s right of action survived his death; if so, who may bring that action; and what the measure of damages should be. 746 F.2d at 1234. Federal law is similarly deficient in the case at bar. The Bell court then turned to Wisconsin law to see if it could fill the vacuum. In that case, ultimately it could not. The court found it too restrictive with, for example, a maximum damage recovery of $25,000 for loss of society, and developed a federal remedy. 746 F.2d at 1250-1251. Defendants point out that Illinois has no maximum damage limit. Characterizing Bell as essentially a damage limitation case, they argue that Illinois’ tort remedy for wrongful death, unlike Wisconsin’s, is sufficiently consistent with the purpose of § 1983 to apply in this situation. Cf Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978); Brown v. Morgan County, 518 F.Supp. 661 (N.D.Ala.1981). Thus, while plaintiffs have a federal claim, defendants maintain that it should be defined by Illinois law. Either the federal or state claim might then be subject to dismissal as surplusage or double recovery. See Cain v. City of Chicago, 619 F.Supp. 1228, 1232 n. 6 (N.D.Ill.1985).

A.

The Seventh Circuit in Bass, 769 F.2d 1173, did not read Bell as turning solely on maximum damage limits. In a civil rights action against prison medical personnel on behalf of a prisoner who died of cardio-respiratory arrest while confined, the trial judge had given an instruction on damages which tracked Illinois’ wrongful death law. The Court of Appeals, following Bell, found the instruction’s use of state law reversible error. Illinois’ wrongful death law was not consistent with the meaning and purpose of § 1983. Bass, 769 F.2d at 1190.

Bell involved much more than a damage limitation. It described “the fundamental policies behind section 1983” as “compensation for and deterrence of unconstitutional acts committed under state law.” 746 F.2d at 1239. See Carey v. Piphus, 435 U.S. 247, 257-258, 98 S.Ct. 1042,. 1049, 55 L.Ed.2d 252 (1978). State law which does not promote those policies cannot be used for a § 1983 action. The law under consideration in Bell did not allow damages for loss of life itself but rather only for pecuniary losses. It also barred punitive damages. The court found that these provisions failed to compensate and deter. When the victim died as a result of the unconstitutional act, § 1983 required damages for loss of life. When the conduct involved intent, recklessness or callous indifference, § 1983 required punitive damages. 746 F.2d at 1240-1241.

Illinois’ wrongful death law suffers from the same weaknesses. Damages are limited by statute to the beneficiary’s pecuniary losses as a result of the death. Ill.Rev. Stat. ch. 70, ¶ 2. While pecuniary loss has been defined broadly to include several types of non-monetary loss, see, e.g., Bullard v. Barnes, 102 Ill.2d 505, 468 N.E.2d 1228, 82 Ill.Dec. 448 (1984), there is no recovery for loss of life itself. Bass, 769 F.2d at 1189. Similarly, punitive damages are not available. Winter v. Schneider Tank Lines, Inc,, 107 Ill.App.3d 767, 438 N.E.2d 462, 63 Ill.Dec. 531 (1st Dist.1982). Bell, therefore, dictates that “such restrictive state laws must give way to federal common law rules that permit recovery.” Bass, 769 F.2d at 1190. In a § 1983 action where the constitutional violation has caused death, the Bass court found that regardless of Illinois law the victim’s beneficiaries should be able to recover damages for loss of life and punitive damages. Therefore the claim brought by plaintiff Doty is not limited to the recovery permitted by state law.

B.

Applying § 1988 in the manner used in Bell and Bass to Roosevelt Shearer’s § 1983 claim for loss of his child’s society, Illinois law again does not control. While the claim does not face a statutory damage limit, as the claim in Bell did, nevertheless it is limited by other restrictions similarly inconsistent with federal policy. First, a parent does not have an independent action for loss of society in Illinois. Loss of society can be considered as a component of the pecuniary loss in a wrongful death action. Bullard, 102 Ill.2d at 515, 468 N.E.2d at 1234, 82 Ill.Dec. at 454. However, the claim does not stand alone. A parent can only recover as a beneficiary under that Act, and he will only be a beneficiary if he is a “next of kin” under ch. 70, 11 2. If the deceased leaves a child, the parent is not “next of kin” and has no claim. Rodgers v. Consolidated Railroad Corp., 136 Ill. App.3d 191, 482 N.E.2d 1080, 90 Ill.Dec. 797 (4th Dist.1985). Bell, however, found that a parent has a constitutional right not to be lawlessly deprived of the society of his child. 746 F.2d at 1244. A state law which would make his redress for that right hinge on the accident of whether or not his son left a child cannot be consistent with the meaning and purpose of § 1983.

Further, the Illinois claim for loss of society damages in a wrongful death action is heavily weighted toward damages based on economic factors. For example, the parent of a minor child is not entitled to damages for loss of life, but merely to a rebut-table presumption of pecuniary injury through loss of the child’s society. That pecuniary injury figure then must be reduced by the money the parent has saved by not having to raise the dead child to adulthood or put it through college. Bullard, 102 Ill.2d at 517-518, 468 N.E.2d at 1234-1235, 82 Ill.Dec. at 454-455. The parent of an adult child is, at least in one appellate district, not even entitled to a presumption of pecuniary loss. He can only recover if he can show actual loss, for example because the child provided housing for him. Ballweg v. City of Springfield, 130 Ill.App.3d 241, 473 N.E.2d 342, 84 Ill. Dec. 941 (4th Dist.1984). And, by statute, the total recovery in a wrongful death action, including any loss of society damages, is divided between the spouse and the next of kin on the basis of the “degree of dependency.” Ch. 70, ¶ 2; see In re Estate of Keeling, 133 Ill.App.3d 226, 478 N.E.2d 871, 88 IlLDec. 380 (3d Dist.1985).

The Bell court, in discussing a parent’s loss of society claim, did not indicate a concern with economic factors but rather with factors inherent in an emotional relationship. The liberty interest it described belongs to parents of minor and adult children alike, regardless of dependency. 746 F.2d at 1245. It referred to components such as care, companionship and warmth, and called the deprivation of the child through death not a pecuniary loss but “the annihilation of the parent-child relationship.” Id. at 1245. An Illinois court has already determined, in a choice of law case, that Illinois’ wrongful death law is so weighted toward economic factors that it conflicts with law based on a policy of compensation for loss of companionship and destruction of family relationships. Estate of Barnes, 133 Ill.App.3d 361, 478 N.E.2d 1046, 88 Ill.Dec. 438 (1st Dist.1985). Yet, compensation for such losses, according to Bell, is precisely the meaning and purpose of a § 1983 loss of society claim.

Illinois tort law for wrongful death is inconsistent with the meaning and purpose of § 1983 in several key respects. In an action brought on behalf of the spouse and next of kin, it allows no recovery for loss of life and no punitive damages. For a parent’s claim for loss of society of his son, it permits no right of action independent from the wrongful death claim. A civil rights action should include all of these. Further, it awards and distributes damages on the basis of economic factors, whereas federal civil rights concerns demand compensation for intangible losses. Plaintiffs have § 1983 actions which are separate and distinct from the Illinois wrongful death claim.

CONCLUSION

Defendants’ motion to dismiss count I is denied.

      . Defendants’ motion also included a request to dismiss plaintiffs Doty and Roosevelt Shearer from the complaint because they are not proper parties under the Illinois Wrongful Death Act. That contention has apparently been withdrawn since it does not appear in defendants’ brief. See Local Rule 13. In any case, plaintiff Doty is the-proper party to bring such an action. The administrator of the estate brings it for the benefit of the decedent's spouse and/or next of kin. Rodgers v. Consolidated Railroad Corp., 136 IIl.App.3d 191, 482 N.E.2d 1080, 90 Ill.Dec. 797 (4th Dist.1985). Roosevelt Shearer is not a party to count II, the Illinois wrongful death action, but rather appears along with Myrna Shearer as a beneficiary for distribution of any recovery.

      . As this case was being decided, the Supreme Court answered part of the question with its decisions in Daniels v. Williams, — U.S.-, 106 S.Ct. 662, 88 L.Ed.2d 662, and Davidson v. Cannon, — U.S. -, 106 S.Ct. 668, 88 L.Ed.2d 677, (1986). The court held in those cases that injury to liberty or property stemming from ordinary negligence by a state official is not a deprivation within the meaning of the due process clause. However, it expressly left open the question of whether an official’s grossly negligent conduct would infringe a substantive right guaranteed by the due process clause of the Fourteenth Amendment. Daniels, — U.S. at — n. 3, 106 S.Ct. at 667 n. 3, 88 L.Ed.2d 670.

      . St. Charles has been cited on behalf of the proposition that the Seventh Circuit applies Parratt to deprivations of life. See, e.g., Guenther v. Holmgreen, 738 F.2d 879, 882 (7th Cir.1984); Kufalk v. Hart, 610 F.Supp. 1178, 1190 (N.D.Ill. 1985). In fact, the opinion makes clear that the court was unsure about the reach of Parratt and based its judgment on alternative holdings. If Parratt applied, the plaintiff had an adequate remedy in a wrongful death action. If it did not, then defendants had been at most negligent in circumstances where intent or recklessness was necessary to violate decedent’s rights. St. Charles, 712 F.2d at 1147 and n. 5. Bell has presumably superseded the former alternative. 746 F.2d at 1238 n. 39; see discussion infra.

      . Bell based its holdings on the substantive rights guaranteed by the due process clause of the Fourteenth Amendment. Plaintiffs here allege violations of the Fourth and Fifth Amendments, as well as the Fourteenth. Note that at least in some circumstances a death at the hands of police officers can be characterized as an unreasonable seizure and therefore a Fourth Amendment violation. Tennessee v. Gamer, 471 U.S.-, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Parratt itself distinguished claims involving violations of substantive rights under the Fourth Amendment. 451 U.S. at 536, 101 S.Ct. at 1913.

      . Here, as in the discussion supra, this court attempts to interpret defendants' argument in a way that would make legal sense. In fact, defendants’ brief appears to confuse the issue of consistency of state law under § 1988 with that of adequacy of state law. in Parratt and its progeny. Defendants seem to think that a conclusion in a § 1988 analysis that state law would be consistent and so should be borrowed is grounds for dismissal. But a § 1983 claim which borrows state law to define its elements or recovery is still a federal claim, and it is not subject to dismissal for that reason. The Parratt line of cases, on the other hand, involve a determination that no claim exists because no constitutional right has been violated. Where the procedure required by due process cannot in practice be followed before a deprivation, in some cases the existence of remedies after the deprivation will satisfy due process, and therefore procedural due process rights have not been infringed. But to be precise, the claim is dismissed not because of the adequacy of state law as such, but rather because there has been no deprivation of federal rights.


author: WOLF, District Judge.

text:
    Norwood G. MOORE and Julia S. Moore, Plaintiffs, v. ELI LILLY AND COMPANY, Defendant.
    Civ. A. No. 84-609-W.
    United States District Court, D. Massachusetts.
    Jan. 23, 1986.
    Leo D. Allen, New Bedford, Mass., for plaintiffs.
    Martha Coakley, Goodwin, Procter & Hoar, Boston, Mass., Alan F. Herman, Freeman & Hawkins, Atlantic, Ga., for defendant.
   MEMORANDUM AND ORDER

WOLF, District Judge.

Plaintiffs Norwood Moore and Julia Moore, husband and wife, initiated this products liability action to recover for personal injuries allegedly caused by the ingestion by Mr. Moore of the pharmaceutical drug Oraflex, manufactured by defendant Eli Lilly and Company (“Lilly”). Plaintiffs now request leave to amend the complaint to add new counts alleging defendant’s conduct violated the Racketeer Influenced and Corrupt Organization Act (“RICO”), 18 U.S.C. § 1961 et seq., and alleging defendant committed common law battery. Defendant opposes this motion on the grounds that neither additional count states a claim upon which relief may be granted and, therefore, allowing leave to amend would be futile. For the reasons stated below, the motion for leave to file the Amended Complaint is hereby denied.

Plaintiffs’ original complaint contains two counts. Count I alleges personal injury to Norwood Moore, based upon theories of negligence, breach of warranty, and strict liability in the manufacture of Ora-flex, an anti-inflammatory drug, which Mr. Moore was prescribed and ingested in July and August of 1982. Count II alleges injury to Mr. Moore’s spouse, Julia Moore, for loss of consortium and medical expenses.

Plaintiffs state that information recently obtained indicates that they have additional causes of action. Specifically, plaintiffs contend that they have learned that defendant fraudulently misrepresented facts related to the defective nature of the drug Oraflex in violation of several United States criminal statutes. Thus, plaintiffs request leave to amend their complaint to assert an additional claim under the civil RICO statute, 18 U.S.C. § 1964(c), (proposed Count III). They also seek to assert claims of common law battery (proposed Counts IY and V), based upon what they contend to be recently obtained evidence concerning Lilly’s intent with regard to certain previously alleged facts.

Motions for leave to file an amended complaint under Rule 15(a) of the Federal Rules of Civil Procedure are liberally granted. However, when it would be futile to allow a complaint to be amended because the new assertions would fail to withstand a motion to dismiss, leave to amend should be denied. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Bricker v. Crane, 468 F.2d 1228, 1233 (1st Cir.1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973); Massarsky v. General Motors Corp., 706 F.2d 111 (3d Cir.), cert. denied, 464 U.S..937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983); Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539 (5th Cir.1980), rehearing denied, 642 F.2d 1210, cert. denied, 454 U.S. 927, 102 S.Ct. 427, 70 L.Ed.2d 236 (1981). This motion to amend is denied because it is evident that even if proven, the facts plaintiffs seek to allege would not, as matters of law, establish the causes of action in question. See Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957); Haryer v. Cserr, 544 F.2d 1121, 1122 (1st Cir.1976).

The RICO Count

The section of the RICO statute establishing a civil cause of action provides:

Any person injured in his business or yroyerty by reason of a violation of Section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.

18 U.S.C. § 1964(c) (emphasis added).

Recognizing that the statute establishes rights and remedies only for persons injured in their “business or property,” plaintiffs claim that the alleged diminution of Mr. Moore’s estate and the loss of consortium allegedly suffered by Mrs. Moore are injuries to “property.” This contention, however, is incorrect. Plaintiffs’ allegations constitute conventional claims for personal injuries. As described below, injury to persons are generally deemed distinct from injury to property by federal law and by Massachusetts law. Absent a clear statement to the contrary by Congress, it would be inappropriate to infer either that it intended to include personal injury as well as property injury within the ambit of the RICO statute or that it understood property injury to include injury to persons. There is no such indication in the RICO statute. Morrison v. Syntex Laboratories, Inc., 101 F.R.D. 743 (D.D.C.1984); Van Schaick v. Church of Scientology of California, Inc., 535 F.Supp. 1125, 1137 (D.Mass.1982); Callan v. State Chemical Manufacturing Co., 584 F.Supp. 619, 623 (E.D.Pa.1984).

If Congress had intended that the rights and remedies established by RICO be available in every personal injury action involving financial loss, it could easily have enacted a statute referring to “injury” generally or have referred expressly to injury to “persons” in addition to injury to “business or property.” As the Supreme Court stated in interpreting the identical “business or property” language in the Clayton Act, “Congress must have intended to exclude some class of injuries by the phrase ‘business or .property.’ ” Reiter v. Sonotdne Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979). As the Supreme Court also said with regard to the Clayton Act, in language equally applicable here, “the phrase ‘business or property’ ... retains restrictive significance. It would, for example, exclude personal injuries suffered. E.g., Hamman v. United States, 267 F.Supp. 420, 432 (Mont.1967).” Id.

Contrary to plaintiffs’ contention, the conclusion that injury to “business or property” does not include injury to “persons” is not qualified by the Suprreme Court’s decision in Sedima S.P.R.L. v. Imrex Co., Inc., — U.S. -, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). Sedima held that no distinct “rackeetering injury” is necessary to maintain a RICO action if a pattern of rackeetering activity has injured a plaintiff in his business or property. Id. 105 S.Ct. at 3285. In Sedima the majority recognized and reiterated that a “plaintiff has standing if, and can only recover to the extent that, he has been injured in his business or property____” Id. The majority did not discuss the meaning of “business or property.” The four dissenting Justices stated, however, that, “the statute permits recovery only for injury to business or property. It .therefore excludes recovery for personal injuries.” Sedima, 105 S.Ct. 3292, 3297 (1985) (Marshall, J., dissenting). Thus, at a minimum, Sedima does not indicate that the statute applies in cases, such as this, involving only personal injury.

This conclusion is reinforced by the relevant decisions of the courts of the Commonwealth of Massachusetts. The Massachusetts Supreme Judicial Court, interpreting the state’s consumer protection law which creates a cause of action for loss of “money or property,” has found that “ ‘property’ means the kind of property that is purchased or leased ...” Baldassari v. Public Finance Trust, 369 Mass. 33, 45, 337 N.E.2d 701 (1975). Neither plaintiff seeks to allege any loss of property as defined in Baldassari.

With regard to Mrs. Moore’s claim specifically, Massachusetts allows a wife a claim for consortium shown to arise from personal injury to her husband caused by negligence of a third person because of its analogy to emotional distress, among other forms of personal injury. Diaz v. Eli Lilly & Co., 364 Mass. 153, 167, 302 N.E.2d 555 (1973). Emotional distress has been deemed a form of “personal” rather than “property” injury in the context of RICO. Van Schaick, 535 F.Supp. at 1137; Callan, 584 F.Supp. at 623. This conclusion is equally appropriate with regard to loss of consortium.

For the foregoing reasons, plaintiffs’ proposed Count III fails to state a RICO claim on which relief could be granted. The requested amendment would be an exercise in futility. It is, therefore, denied.

The Battery Counts

Plaintiffs also seek to amend the complaint to add proposed Count IV, alleging a battery causing direct injury to Mr. Moore, and proposed Count V, alleging that battery caused a loss of consortium and medical expenses to be suffered by Mrs. Moore. In pertinent part, proposed Counts IV and V allege that:

On or about June 1982 and thereafter, the defendant caused a battery to be committed upon the plaintiff through the administration of the drug Oraflex.

Amended Complaint, Count IV at 11 5, and Count V at II2.

Battery is an intentional offensive touching of a person done without consent. Belger v. Arnot, 344 Mass. 679, 684, 183 N.E.2d 866 (1962); In the Matter of Spring, 380 Mass. 629, 638, 405 N.E.2d 115 (1980). In the medical context, a cause of action for battery may be maintained where there is a lack of consent by the patient to the treatment. Id.; see e.g., Lojuk v. Quandt, 706 F.2d 1456, 1460 (7th Cir.1983); Mink v. University of Chicago, 460 F.Supp. 713, 717 (N.D.Ill.1978). However, matters involving lack of consent are distinguishable from cases in which patients claim that they were not informed about a medication’s inherent dangers. If the patient was admittedly aware that he was being given some form of a drug, then he must rely on a negligence action alleging a lack of informed consent. Mink, 460 F.Supp. at 717.

As stated in Mink: While early cases treated lack of informed consent as vitiating the consent to treatment so there was liability for battery, the modern view ‘is that the action ... is in reality one for negligence in failing to conform to the proper standard____’ W. Prosser, Law of Torts, § 32, at 165 [4th ed. 1971]).

460 F.Supp. at 716. In accordance with this “modern view,” Massachusetts allows plaintiffs to maintain cases in which there was an alleged lack of informed consent as negligence actions. Halley v. Birbiglia, 390 Mass. 540, 458 N.E.2d 710 (1983); Harnish v. Children’s Hospital Medical Center, 387 Mass. 152, 439 N.E.2d 240 (1982).

In this case, plaintiff’s amended complaint fails to allege facts which, if proven, would establish a lack of consent, rather than a lack of informed consent. In order to state a cause of action for battery, plaintiffs must allege intentional acts by the defendant resulting in an offensive touching and the lack of consent to defendant’s conduct. Mink, 460 F.Supp. at 718. The proposed amended complaint, however, merely asserts in conclusory fashion that the defendant caused a battery to be committed on Mr. Moore. Plaintiffs do not allege that Mr. Moore did not consent to take Oraflex. This is an essential element of a battery claim, for even under liberal “notice pleading,” it is not enough merely to state a legal conclusion unsupported by factual allegations in the complaint. See O’Brien v. DiGrazia, 544 F.2d 543, 546 n. 2 (1st Cir.1976), cert. denied, O’Brien v. Jordan, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977).

The battery claims alleged in Count IV and Count V of the proposed amended complaint, therefore, fail to state claims for which relief may be granted. This aspect of the requested amendment would also be an exercise in futility. Thus, it is also denied.

For the reasons stated above, the motion to amend is hereby DENIED.

      . In Baldassari, the Massachusetts Supreme Judicial Court said plaintiffs claimed,
      they were deprived of the benefit of contractual and statutory rights to protection against harrassing collection practices and that those rights are property. They also assert that their loss of time amounts to a loss of money. We think, however, that in § 9(1) "money" means money not time, and that “property” means the kind of property that is purchased 626 F.Supp — 10
      or leased, not such intangibles as a right to a sense of security, or to peace of mind, or to personal liberty. A different question would be presented if it were alleged that plaintiffs paid debts they did not owe, lost wages or other income, or suffered expense.
      369 Mass, at 45, 337 N.E.2d 701. The court understands the last sentence quoted to qualify the definition of money, not the definition of property.


author: WILLIAM C. LEE, District Judge.

text:
    John M. DOMINGUEZ, Plaintiff, v. Dan FIGEL, Sheriff of Allen County; and Donald Crick, Deputy Chief, Defendants.
    Civ. No. F 85-250.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    Jan. 23, 1986.

      Joseph W. Ruppert, Bowman, Crowell & Teeters, Fort Wayne, Ind., for plaintiff.
    William F. McNagny, Barrett, Barrett & McNagny, Fort Wayne, Ind., for defendants.
   ■MEMORANDUM OPINION AND JUDGMENT

WILLIAM C. LEE, District Judge.

This matter is before the court for a decision on the merits following a bench trial. This case was brought pursuant to 42 U.S.C. § 1983 for alleged violations of the plaintiffs first and eighth amendment rights arising out of plaintiff being restricted to his cell at the Allen County Jail for five days. Having examined and considered the entire record, having determined the credibility of the witnesses after viewing their demeanor and considering their interests, and being duly advised, the court hereby enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

Findings of Fact

The plaintiff, John M. Dominguez (“Dominguez”), is a resident of Fort Wayne, Indiana. During May, 1985, he was confined as a inmate in the Allen County Jail, which is under the control of defendant Daniel Figel, the Sheriff of Allen County, Indiana. Co-defendant Donald Crick is a Deputy Chief in the Allen County Sheriffs Department (“Sheriffs Department”) and is the Commander of the jail.

In early May, 1985, the Sheriffs Department became aware of a serious drug problem in the Allen County Jail. Several inmates filed a written complaint that Dominguez had reneged on an agreement to supply them with marijuana in exchange for cigarettes. The Sheriffs Department then cultivated an informant among the inmates, who obtained drugs from Dominguez. These drugs were turned over to Inspector Joseph Squadrito, who had them tested. Squadrito, of the Sheriff Department’s Internal Affairs Division, had been investigating the jail’s drug problem, attempting to ascertain whether any jail staff member had been involved. Squadrito’s investigation had already uncovered that Dominguez’ fiance and the wife of Jerry Landis (“Landis”), Dominguez’ cellmate, were involved in drug dealing outside the jail.

When the informant turned over the drugs to Squadrito, a decision was made with Crick’s approval to conduct a search, or “shakedown,” of Dominguez’ cell on Friday, May 17, 1985. The search uncovered a small quantity of marijuana. Dominguez and Landis were ordered placed on “lock-down” status, with the added restriction that they not be allowed to leave their cell at any time. The decision to restrict Dominguez and Landis to their cell was made both to protect the Sheriff Department’s informant, as well as to isolate Dominguez and Landis in order to discover how drugs got into the jail.

The lockdown was ordered late Friday afternoon, May 17, 1985. Jail regulations require that a locked down prisoner be given a disciplinary hearing within seventy-two hours. However, Crick testified that Saturdays and Sundays are excluded in calculating such time. Because of the lateness of the time on Friday, this time did not effectively begin to run until Monday. A disciplinary hearing for Dominguez was held on Thursday, May 23, 1985, at 2:00 p.m.

Jail regulations also require that a prisoner on lockdown be given one hour of exercise out of his cell each day. Although Dominguez was confined to his cell generally, he exercised in his cell. He testified that he always exercised in his cell, and thus the restriction to his cell did not disrupt or impair his ability to exercise during • the five days he was on lockdown.

The jail had a Sunday religious service which inmates could attend. In addition, the Jail Chaplain, Rev. Warren Doyle Sta-ton, was available for individual consultations with inmates. On Sunday, May 19, 1985, Dominguez requested that he be allowed to attend the religious services. He was let out of his cell and allowed to visit with Rev. Staton for approximately an hour. During that conversation, Dominguez revealed that he wanted to sue the jail and its officials.

On May 23, 1985, a disciplinary hearing was held, at which Dominguez signed a form accepting the findings of the disciplinary committee and accepting as punishment the five days of lockdown and a loss of commissary privileges.

Conclusions of Law

This action is brought pursuant to 42 U.S.C. § 1983. The court has jurisdiction over this cause pursuant to 28 U.S.C.

§ 1343, and jurisdiction has been conceded by counsel.

Dominguez argues that the lockdown and restriction against leaving his cell violated his first and eighth amendment rights. The court considers each of these claims in turn.

A. First Amendment — Freedom of Religion

Dominguez argues that his freedom of religion was violated by the refusal to let him leave his cell to attend religious services on Sunday, May 20, 1985. As an initial matter, the court finds that there is no factual predicate to this claim. The facts of this case indicate that Dominguez in fact left his cell and visited with Rev. Staton for nearly an hour. During such a visit, Dominguez had the opportunity to exercise his religion with the assistance of Rev. Staton. Thus, the court finds that Dominguez was not denied his right to religious freedom during his five days in “lockdown” status. The defendants are entitled to judgment on this ground alone.

Even if Dominguez’ factual assertions were correct, the court finds that Dominguez would not make out a first amendment claim. It is true that “convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). Courts which have examined the regulation of the right to worship in prison settings have generally recognized that the regulations must be “reasonably and substantially justified by considerations of prison discipline and order.” Gallaban v. Hollyfield, 670 F.2d 1345, 1346 (4th Cir.1982), quoting Sweet v. South Carolina Dept. of Corrections, 529 F.2d 854, 863 (4th Cir.1975); Teterud v. Burns, 522 F.2d 357 (8th Cir.1975). See Dreibelbis v. Marks, 742 F.2d 792, 794 (3d Cir.1984) (right to practice religion may be reasonably restricted in order to facilitate the maintenance of proper discipline in prison). The Seventh Circuit has formulated a two part test for measuring the constitutional propriety of restrictions on the exercise of religion:

[Pjrison rules that incidentally restrain the free exercise of religion are justified only “if the state regulation has an important objective and the restraint on religious liberty is reasonably adapted to achieving that objective.”

Madyun v. Franzen, 704 F.2d 954, 959-60 (7th Cir.), cert. denied, 464 U.S. 996, 104 S.Ct. 493, 78 L.Ed.2d 687 (1983), quoting La Reau v. MacDougall, 473 F.2d 974, 979 (2d Cir.1976).

Here, the Sheriff Department’s objective was two-fold: to protect the informant working in the jail population, as well as to isolate Dominguez as part of the continuing investigation into how drugs got into the jail. Restricting Dominguez to his cell was reasonably and substantially justified by these two interests, which relate directly to prison order and discipline. Under the Seventh Circuit standard, the Department’s objectives are “important” precisely because they sought to maintain prison order and discipline through preventing Dominguez from harming the informant and by stopping the flow of drugs into the jail. Further, the confinement was “reasonably adapted” to achieving those objectives. Precisely because the maintenance of discipline and order are within the province of prison or jail officials, wide-ranging deference should be given to their discretionary judgments. Bell, 441 U.S. at 547, 99 S.Ct. at 1877; Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 132, 97 S.Ct. 2532, 2541, 53 L.Ed.2d 629 (1977). The Sheriff’s Department believed that Dominguez posed a threat to prison order and discipline, and their decision to confine him was reasonable. Thus, the confinement of Dominguez in his cell for one Sunday is constitutionally justified even if it prevented Dominguez from exercising his religion for one day. In short, Dominguez cannot make out a first amendment claim even if his factual assertions were correct.

The court therefore finds that judgment for the defendants on Dominguez’ first amendment claim is justified by both the law and the facts.

B. Eighth Amendment — Failure to Allow Exercise

Dominguez’ second claim is that the failure to let him out of his cell to exercise constituted cruel and unusual punishment. Once again, the facts of this case indicate that Dominguez has no claim. Dominguez testified that he exercised in his cell during the time on “lockdown.” On cross-examination, he also admitted that he never exercised in any area outside of his cell when he was not on lockdown — in effect admitting that the only place he ever exercised was in his cell. Thus, the fact that he was confined to his cell during the lockdown could not have had any effect on his exercise routine, and thus could not have constituted some kind of infringement on his right to exercise. Once again, the facts make it clear that the defendants are entitled to judgment.

The legal basis for the claim is likewise unpersuasive. As the Seventh Circuit has noted: “Various prison conditions do not exist in isolation. Rather, challenged conditions must be viewed in light of other prison conditions that may aggravate or mitigate the effect of the challenged conditions.” Wellman v. Faulkner, 715 F.2d 269, 274 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984). In analyzing claims based on restrictions on exercise, a court must “look at the totality of the circumstances, including the extent to which the restrictions affect the mental or physical health of the inmate.” Clay v. Miller, 626 F.2d 345, 347 (4th Cir.1980). Here, as in Clay, there was no showing that Dominguez’ mental or physical health deteriorated or was threatened as a result of not having more area to exercise in. Dominguez was able to and in fact did engage in exercises in his cell. This overwhelmingly mitigates the fact that he was confined to his cell. He testified that he would not have exercised in the dayroom area, which he would have had access to if he had been released for exercise. In addition, the amount of time that Dominguez was unable to leave his cell was relatively short — five days. The totality of the circumstances here indicate that at best nominal restrictions on Dominguez’ ability to exercise did not rise to the level of a constitutional violation.

The court therefore finds that the defendants are entitled to judgment on the basis of both the law and the facts.

C. Award of Attorneys Fees and Sanctions

Although not directly raised by the defendants, an issue arises from the facts of this case concerning the propriety of awarding attorneys fees and sanctions against Dominguez for filing this suit. Rule 11 of the Federal Rules of Civil Procedure requires that each pleading or motion be signed by an attorney or the party if the party is proceeding pro se. The rule then provides:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information and belief formed after a reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

If a pleading violates this rule the court “shall impose” an “appropriate sanction,” which may include the amount of reasonable expenses and attorneys fees incurred by the other party because of the filing of the pleading or motion.

The Notes of the Advisory Committee on the Federal Rules make it clear that Rule ll’s provisions are designed to “discourage dilatory or abusive tactics and [to] help streamline the litigation process by lessening frivolous claims or defenses.” The Rule applies to anyone who signs a pleading, motion, or other paper, and the same standards apply to pro se litigants, although the concerns of Haines v. Kemer, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), may be taken into account.

The core of Rule 11 is that the signature on the pleading certifies that “after reasonable inquiry [the pleading, motion, or other paper] is well grounded in fact and warranted by existing law____” Thus, Rule 11 sanctions cannot be avoided by a merely subjective belief that the law or facts are a certain way; the “reasonable inquiry” language makes the test an objective one. Indianapolis Colts v. Mayor and City of Baltimore, 775 F.2d 177,181 (7th Cir.1985); Glick v. Koenig, 766 F.2d 265, 270 (7th Cir.1985).

The court begins by noting that Dominguez’ attorney, Joseph Ruppert, is not responsible for actions which might . give rise to Rule 11 sanctions. Mr. Ruppert was appointed by this court to represent Dominguez after Dominguez had filed this action pro se. He was presented with a client who made certain factual assertions that were not obviously incorrect. Mr. Ruppert recognized the potential legal inadequacy of the two claims, but represented his client with commendable diligence.

However, Dominguez filed this action with complete knowledge of the facts as they occurred. He knew that Rev. Sta-ton was available and had visited him. He knew that he was able to exercise in his cell, and that his cell was the only place he would exercise, whether confined to it or • not. Despite this knowledge of the facts, Dominguez filed this action. He knew or should have known that his action was not well grounded in fact, yet he chose to prosecute it. Perhaps most revealing of this bad faith is a claim which was removed from this cause by Mr. Ruppert. When Dominguez first filed this suit, he claimed that he had been denied a shower during the five days he was on lockdown status. Later, Dominguez admitted that he had received a shower during that time, and this fact was confirmed by the testimony of Inspector Squadrito. Dominguez had filed a claim about not receiving a shower knowing that he had received one. The testimony of Rev. Staton provides the rationale why Dominguez would do this — as early as Sunday, May 19,1985, Dominguez was contemplating suing the jail and its officials. It is clear that he wanted to sue regardless of the facts.

Such bad faith places an unfair and unreasonable burden on defendants and the court alike. These defendants were required to defend an action that had no basis in fact. The costs incurred and fees paid should never have been expended. Likewise, this court was required to hold conferences and a half day of trial to reach a conclusion which should have been clear from the beginning: Dominguez’ claims have no basis in fact. The waste of judicial resources caused by this case is inexcusable. The court therefore finds that Dominguez should pay the reasonable attorneys fees and costs incurred by the defendants in defending this suit as a Rule 11 sanction for filing this suit. The defendants shall have ten days from the date of this order to submit their detailed request for fees and costs.

In addition, the court finds that Dominguez must be held accountable for the waste of judicial resources his suit has caused. A conservative estimate of the time spent by the court on this case is 5.75 hours, which includes the conferences held in this cause, the trial itself, and the writing of this memorandum of decision. According to Levin and Colliers, “Containing the Cost of Litigation,” 37 RUTGERS L.REV. 219, 227 (1985), a single hour spent by a federal judge on a case costs the government Six Hundred Dollars ($600.00). Thus, Dominguez has cost the taxpayers at least $3,450.00 for persisting in a factually baseless suit. An appropriate sanction would be to require Dominguez to reimburse the taxpayers for this expense. The court hereby gives notice to future litigants that the measure of Rule 11 fines will be based on this formula. For purposes of this case, however, this amount will be discounted to $1,500.00, to reflect the fact that Dominguez was unaware of this method of computing Rule 11 fines. The court therefore finds that Dominguez should pay a fine of $1,500.00 as a further Rule 11 sanction for filing this factually baseless suit.

This court stands ready and willing to hear all meritorious cases, whether they are filed by jail inmates or citizens. But the crowded dockets of the federal courts cannot tolerate the burden posed by factually baseless suits that drain judicial resources. This court will sanction those cases, like this one, that are so meritless they can only waste the court’s resources.

This Memorandum of Decision contains the court’s Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure. See Rucker v. Higher Educational Aids Board, 669 F.2d 1179, 1183-84 (7th Cir. 1982).

Conclusion

The plaintiff has failed to establish by a preponderance of the evidence any violation of his right to freedom of religion or his right to be free from cruel and unusual punishment. Therefore, the court hereby enters judgment for the defendants.

In addition, the plaintiff is hereby ORDERED to pay the reasonable attorneys fees and costs incurred by the defendants in defending this cause as a Rule 11 sanction for filing this lawsuit. The amount of these fees and costs will be determined by the court. The defendants are hereby GRANTED ten (10) days from the date of this order to file their detailed request for fees and costs. The plaintiff is also hereby ORDERED to pay One Thousand Five Hundred Dollars ($1,500.00) to the Clerk of this court as a further Rule 11 sanction.


author: OWENS, Chief Judge.

text:
    Henry Lee McCOY, Petitioner, v. Lanson NEWSOME, Respondent.
    Civ. A. No. 85-30-VAL.
    United States District Court, M.D. Georgia, Valdosta Division.
    Jan. 23, 1986.

      Henry Lee McCoy, pro se.
    Susan V. Boleyn, Atlanta, Ga., for respondent.
   ORDER

OWENS, Chief Judge.

Henry Lee McCoy, who is confined in the Georgia State Prison in Reidsville, Georgia, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.A. § 2254. He challenges his 1982 conviction in the Superior Court of Tift County, Georgia. Petitioner raises eleven grounds of error:

(1) denial of the right to fully present his habeas corpus claims in the state courts;

(2) his attorney’s refusal to strike three jurors after petitioner requested his attorney to do so;

(3) his attorney’s refusal to subpoena seven witnesses whom petitioner asked his attorney to subpoena;

(4) trial court’s refusal to suppress a statement that was unconstitutionally obtained and his attorney’s failure to submit evidence on involuntariness of the statement;

(5) ineffective assistance of counsel at trial;

(6) trial court incorrectly charged the jury on the recidivist count of the indictment;

(7) insufficient evidence to sustain the conviction on the recidivist count and obtaining the conviction on the recidivist count without first obtaining an indictment from the grand jury;

(8) trial court improperly admitted into evidence copies of petitioner’s prior felony convictions and sentences;

(9) unconstitutional indictment on the recidivist count;

(10) denial of the right to appellate review of his conviction because of an incomplete trial transcript; and

(11) ineffective assistance of counsel on appeal in that his appointed counsel withdrew from the case on appeal.

The respondent has filed a motion to dismiss the petition on the ground that petitioner failed to exhaust state remedies as to some of his allegations of error. Federal law states that an application for a writ of habeas corpus shall be denied unless the applicant has exhausted the available state remedies. 28 U.S.C.A. § 2254(b) (West 1977). Furthermore, a petition that contains both exhausted and unexhausted claims must be dismissed. Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 1199, 71 L.Ed.2d 379 (1982). The issue before the court, therefore, is whether any of petitioner’s allegations of error have not been exhausted in the Georgia state courts.

Petitioner was represented at trial by a court-appointed attorney, David E. Perry. The attorney filed a timely notice of appeal on petitioner’s behalf in the Court of Appeals of Georgia. The attorney subsequently filed a motion to withdraw as counsel under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Anders Court set forth the procedure that a court-appointed attorney must follow in the first appeal from a criminal conviction when the attorney has determined that there is no merit to the appeal:

[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel— then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Id. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498 (emphasis added).

The Court of Appeals of Georgia granted the attorney’s motion to withdraw and affirmed the conviction. McCoy v. State, 168 Ga.App. 598, 310 S.E.2d 2 (1983). In so ruling, the state court noted: “After considering the points raised in the brief and conducting a thorough examination of the record and transcript to determine independently whether there is any ground for reversal, we are in agreement with counsel that there is no arguable merit to the appeal.” Id. at 598, 310 S.E.2d at 3 (emphasis added).

The state courts have thus had the opportunity to review all petitioner’s claims arising from his trial. See Stevens v. Zant, 580 F.Supp. 322, 325 (S.D.Ga.1984). All those claims have therefore been exhausted as required by 28 U.S.C.A. § 2254(b) (West 1977).

However, one of petitioner’s allegations of error occurred subsequent to the Court of Appeals’ decision. In ground one, petitioner claims that he was denied the right to fully present his habeas corpus claims in the state courts. The habeas corpus petition at issue in ground one was filed subsequent to the Court of Appeals’ decision affirming petitioner’s conviction on direct appeal. Therefore, the Court of Appeals did not have the opportunity to consider that issue under Anders. This issue was not properly raised by petitioner before any state court. Ground one has therefore not been exhausted.

Petitioner has the choice of returning to state court to exhaust his first claim or of resubmitting the petition for a writ of habeas corpus to present only the exhausted claims to the court. Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 1199, 71 L.Ed.2d 379 (1982). Petitioner is hereby GRANTED thirty days to notify the court of his election.


author: TOM S. LEE, District Judge.

text:
    Arthur SHARPE, Wanda Sharpe and Mississippi Veterans Farm and Home Board, Plaintiffs, v. EMPLOYERS MUTUAL CASUALTY COMPANY, Defendant.
    Civ. A. No. E83-0058(L).
    United States District Court, S.D. Mississippi, E.D.
    Jan. 23, 1986.

      William C. Walker, Jr., University Law Center, University, Miss., Ronald S. Cochran, Biloxi, Miss., for plaintiffs.
    Joe W. Hobbs, Hobbs and Brand, Jackson, Miss., for defendant.
   ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of the defendant, Employers Mutual Casualty Company, for judgment notwithstanding the verdict as it relates to punitive damages. At the trial of this action, defendant requested a directed verdict following the conclusion of plaintiffs’ casein-chief and the court denied the motion. Defendant renewed its motion at the end of the trial. The jury returned a verdict in favor of plaintiffs for $2600.00 actual damages and $125,000.00 punitive damages.

In Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc) and its progeny, the Fifth Circuit has established that, in considering a motion for judgment notwithstanding the verdict, the court should consider all of the evidence “in the light and with all reasonable inferences most favorable to the party opposed to the motion.” Boeing, 411 F.2d at 374. The motion should be granted “only if the evidence points so strongly and overwhelmingly in favor of the moving party that the court believes reasonable persons could not arrive at a contrary verdict.” Dalton v. Toyota Motor Sales, Inc., 703 F.2d 137, 140 (5th Cir.1983).

Plaintiffs’ claims for punitive damages are premised on assertions that the defendant, in denying plaintiffs’ insurance policy claims, acted in “bad faith.” The Mississippi Supreme Court has often addressed the availability of punitive damages in such cases, although not with the precision necessary to provide adequate guidance to the court and counsel. The court has stated that punitive damages will lie in a “bad faith” case when the insurer lacks an “arguable reason” for denying coverage; this term, however, does not “diminish the rule regarding the resolution of punitive damages because the assessment is no different in ‘bad faith’ cases than in other punitive damage cases.” State Farm Fire & Casualty Co. v. Simpson, 477 So.2d 242, 250 (Miss.1985). The Mississippi Supreme Court has made clear that the imposition of punitive damages should be reserved for the most extreme of cases. “Punitive damages are not recoverable for breach of contract unless such breach is attended by some intentional wrong, insult, abuse or gross negligence which amounts to an independent tort.” Lincoln National Life Insurance Co. v. Crews, 341 So.2d 1321,1322 (Miss.1977). “In order to warrant the recovery of punitive damages, there must enter into the injury some element of aggression or some coloring of insult, malice or gross negligence, evidencing ruthless disregard for the rights of others, so as to take the case out of the ordinary rule.” Standard Life Insurance Co. v. Veal, 354 So.2d 239, 247 (Miss.1978) (quoting Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 150, 141 So.2d 226, 233 (1962)). Defendant’s actions cannot be likened to those which, in the opinions of the Mississippi Supreme Court, merit the imposition of punitive damages. “[N]ot all denied claims constitute the gross, wanton or intentional conduct essential to the creation of an independent tort for which punitive damages will lie.” State Farm, at 250.

This court has reviewed all of the evidence presented in the light most favorable to plaintiffs and is of the opinion that the evidence is “strongly and overwhelmingly” in favor of defendant and that reasonable and fair-minded persons could not reach a contrary verdict. Accordingly, defendant’s motion for judgment notwithstanding the verdict should be granted.

It is, therefore, ordered that defendant’s motion for judgment notwithstanding the verdict is granted. A separate judgment shall be submitted in accordance with the local rules.

      . See, e.g., Dalton v. Toyota Motor Sales, Inc., 703 F.2d 137, 140 (5th Cir.1983); Doucet v. Diamond M Drilling Co., 683 F.2d 886, 889 (5th Cir.), cert. denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1982); Houser v. Sears, Roebuck & Co., 627 F.2d 756, 757 (5th Cir. 1980); Jefcoat v. Singer Housing Co., 619 F.2d 539, 543 (5th Cir.1980).


author: SHADUR, District Judge.

text:
    Larry ANDERSON, Plaintiff, v. AMALGAMATED TRANSIT UNION LOCAL UNION # 1150 and Greyhound Lines, Inc., Defendants.
    No. 86 C 0388.
    United States District Court, N.D. Illinois, E.D.
    Jan. 24, 1986.
    David H. Locks, Chicago, Ill., for plaintiff.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Larry Anderson (“Anderson”) has filed a complaint under Labor Management Relations Act § 301, 29 U.S.C. § 185 (“Section 301”) against his former union (Amalgamated Transit Union Local Union No. 1150, “Union”), charging a breach of its duty of fair representation, and his former employer (Greyhound Lines, Inc., “Greyhound”), charging its breach of the applicable collective bargaining agreement with Union. Because Anderson’s Complaint and the exhibits he has attached are self-defeating in those terms, this Court dismisses this action sua sponte.

It is unnecessary to treat with the merits of Anderson’s claim. What is relevant is the fatal time sequence the Complaint and exhibits disclose:

1. Union initially pursued on Anderson’s behalf the grievance contesting Anderson’s discharge by Greyhound. Then Union notified Anderson December 5, 1984 that Union’s Executive Board had decided to recommend to the membership that the grievance not be pursued further, because the Executive Board disbelieved Anderson on the merits.
2. After the membership had met and voted on the Executive Board’s recommendation, Union wrote Anderson January 14, 1985 that the membership had voted not to pursue the grievance.
3. Anderson then filed a charge against Greyhound with the Equal Employment Opportunity Commission.
4. Anderson also wrote Union’s International President seeking to get reconsideration of the adverse decision, but he was rebuffed by a June 13, 1985 letter from the President.
5. Anderson filed charges complaining of the matter before the NLRB, which rejected those charges August 7, 1985. Then he appealed to the NLRB’s Office of the General Counsel, which rejected the appeal September 30, 1985.

This action was not filed until January 17, 1986.

Since DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) it has been settled law that “hybrid Section 301/unfair representation claims” such as this one are subject to the same six-month statute of limitations that applies to unfair labor practice claims under National Labor Relations Act § 10(b), 29 U.S.C. § 160(b). For that purpose Union’s January 14, 1985 notice to Anderson, stating its turndown of any further pursuit of his grievance, clearly started the six-month clock ticking. Even were that not so, on the reading most favorable to Anderson the International President’s June 13, 1985 letter would represent the outside date for commencement of the six-month period. In all circumstances, then, a mid-January 1986 filing of this lawsuit came too late under DelCostello.

That leaves for consideration only the question whether Anderson’s filing of an unfair labor practice charge with the NLRB somehow prevented his claim from accruing or somehow tolled the running of the limitations period. But the law is equally plain that a Section 301 unfair representation claim is wholly independent of any unfair labor practice charge before the NLRB. Vaca v. Sipes, 386 U.S. 171, 178-88, 87 S.Ct. 903, 910-15, 17 L.Ed.2d 842 (1967). And the corollary of that, recognized by every court that has dealt with the issue posed by this case, is that an NLRB filing does not toll or prevent the accrual of the Section 301 unfair representation claim itself. Adkins v. International Union of Electrical, Radio & Machine Workers, AFL-CIO-CLC, 769 F.2d 330, 335 (6th Cir. 1985) and cases cited there.

Accordingly Anderson’s Complaint carries its own death warrant. This action is dismissed.