author: JAMES C. FOX, District Judge.

text:
    Wiley B. BUNTING, Jr., Plaintiff, v. PERDUE, INC., Perdue Farms, Inc., and Perdue, Inc. & Perdue Farms, Inc. t/a “Perdue”, Defendants.
    No. 82-124-CIV-4.
    United States District Court, E.D. North Carolina, New Bern Division.
    June 14, 1985.

      J. David Duffus, Durham, N.C., for plaintiff.
    Stephen R. Burch, Windsor, N.C., Grady Barnhill, Jr., Winston-Salem, N.C., for defendants.
   MEMORANDUM OF DECISION

JAMES C. FOX, District Judge.

Plaintiff initiated this action by complaint filed against defendants Perdue- Farms, Inc. (hereinafter Perdue) and Perdue, Inc., both Maryland corporations, on December 15, 1982. With leave of the court, plaintiff filed an amended complaint on August 1, 1983. Plaintiff seeks declaratory and injunctive relief, as well as compensatory and punitive damages, for injuries allegedly caused by defendants’ breach of contract, and violations of the Packers and Stockyards Act (7 U.S.C. §§ 181 et seq.), the North Carolina Business Opportunity Sales Act (N.C.G.S. §§ 66-94 et seq.) and the North Carolina Unfair and Deceptive Trade Practices Act (N.C.G.S. § 75-1.1). This matter is before the court on defendants’ motions to dismiss and for summary judgment as to plaintiff’s statutory claims. These motions have been thoroughly briefed, and are now ripe for disposition.

FACTS

Except as otherwise indicated, the undisputed facts are as follows:

Perdue is an integrated poultry producer engaged in the poultry business in Northeastern North Carolina. Within this integrated operation, Perdue owns its own hatchery and breeding flocks, delivering its baby chicks to independent contract growers. During the course of a six to eight week grow-out period, the contract grower cares for and feeds the chicks. At the end of this grow-out period, Perdue picks up the chickens for delivery to its processing plants, which are operated by Perdue, Inc., a wholly owned subsidiary of Perdue. The birds are then processed and packed, and shipped to wholesale distributors and retail chain stores for resale to the consumer.

The plaintiff in this case was one of Perdue’s independent contract growers, and he attempts herein to challenge the validity of Perdue’s growing operations under the statutes indicated above. On June 30, 1976, plaintiff contracted with Perdue to become an independent contract grower. Pursuant to this contract, Perdue constructed a 12,800 square foot poultry house for the plaintiff, at a cost of $36,500. The parties also executed a North Carolina Large Bird Agreement on October 1, 1976, whereby plaintiff raised three-week old birds for Perdue. Large birds are less difficult to grow than small birds, and require less time and supervision'. Plaintiff alleges that this arrangement attracted him to the program since he held a full-time job. On September 16, 1977, however, plaintiff entered into a North Carolina Small Bird Agreement with Perdue; a discontinuation of the large bird program necessitated this change. Pursuant to the Small Bird Agreement, plaintiff agreed to accept day-old birds and raise them until they were seven to eight weeks old. Because small birds are more difficult to grow and require more supervision, plaintiff contends he was required to leave his full-time job. On January 20, 1978, plaintiff expanded his poultry operation, and contracted with Per-due to build a second poultry house. Thereafter, plaintiff signed several different grow-out contracts with Perdue, some calling for the placement of large birds on his farm, and others calling for the placement of small birds. Plaintiff contends that each change from large bird to small bird agreement, or vice versa, was forced upon him by Perdue’s threats to terminate him as a grower if he did not sign a new contract.

In March of 1980, plaintiff’s performance output fell to the point that Perdue contends he ranked as one of the least productive growers in Perdue’s grow-out program. Plaintiff alleges that Perdue’s productivity figures are inaccurate for several reasons. First, plaintiff contends that he was given the wrong feed mixture by Per-due for one flock, and the weight of these chickens differed markedly from previous flocks. With other flocks, plaintiff alleges that he began missing chickens from the time they were picked up on his farm by Perdue and the time that they were weighed at Perdue’s plant. On September 11, 1981, Perdue picked up the chickens from plaintiff’s chicken houses. At this time, plaintiff was engaged in raising small birds for Perdue. Perdue then extended an offer to plaintiff to raise larger birds. Plaintiff declined to sign another agreement, but contends he told Perdue that he would grow whatever birds they placed with him on his farm. Because plaintiff would not enter into a written agreement with Perdue, however, plaintiff's status as an independent contract grower was terminated. Plaintiff alleges that he was not given written notice of his termination until March of 1982, when he received a letter from Perdue, Inc. Plaintiff further alleges that this failure to notify him in writing is in violation of the terms of the North Carolina Grower Agreement of June 12, 1981.

ANALYSIS

I. The Packers and Stockyards Act

In Count I of his complaint, plaintiff alleges that defendants committed unfair, discriminatory, and/or deceptive practices in violation of the Packers and Stockyards Act, 7 U.S.C. § 181 et seq. Sections 202(a) and (e) of the Act, 7 U.S.C. § 192(a) and (e), state:

It shall be unlawful with respect to livestock, meats, meat food products, livestock products in unmanufactured form, poultry, or poultry products for any packer or any live poultry dealer or handler to:
(a) Engage in or use any unfair, unjustly discriminatory, or deceptive practice or device; or ...
(e) Engage in any course of business or do any act for the purpose or with the effect of manipulating or controlling prices, or of creating a monopoly in the acquisition of, buying, selling, or dealing in, any article, or of restraining commerce.

Section 503 of the Act, 7 U.S.C. § 218b, defines “live poultry dealer” as “any person engaged in the business of buying or selling live poultry in commerce for purposes of slaughter either on his own account or as the employee or agent of the vendor or purchaser.”

Plaintiff contends that the facts alleged in his complaint demonstrate that Perdue is a live poultry dealer or handler in that it is engaged in the business of buying live poultry from its contract growers. In support of his contention, plaintiff alleges that the form and substance of the transactions between himself and Perdue Farms was that of a sale and purchase. Evidence of these “sales” is allegedly embodied in the terms of Exhibit “E” attached to the Affidavit of Wiley B. Bunting, Jr., filed August 31,1983. Plaintiff also alleges that Exhibit “F”, which is attached to the same affidavit, strengthens his characterization of the arrangement as that of a sale. Exhibit “E” is a receipt or delivery ticket given to the plaintiff by Perdue Farms when Perdue Farms picked up the chickens. This receipt contains sale terminology, and reflects a charge — which plaintiff alleges was charged to him — of 12 cents per chick. Exhibit “F” is a flock settlement sheet which also contains sale terminology and identifies 39,036 chicks as the number “sold.”

Conversely, Perdue contends that it retains title and the burdens of ownership throughout the entire operation, from the egg to the processed poultry. The affidavit of William F. Bollinger, the Complex Manager for Perdue Farms, Inc. and Per-due, Inc. operations in Eastern North Carolina, demonstrates that Perdue Farms carries insurance on the chicks while they are being raised by the contract growers; Perdue also declares and pays county property tax on the chicks that the growers are raising at the end of each calendar year. (May 8, 1984, Affidavit of William F. Bollinger at p. 2). Perdue further contends that there have been no sales of live poultry to the plaintiff or any other contract grower. Perdue also contends that while the delivery ticket and the flock settlement sheet (Exhibits “E” and “F” respectively) use sale terminology, plaintiff and other contract growers do not pay Perdue Farms twelve cents for each chick that fails to survive the grow out period.

Perdue maintains that it pays the expenses incurred in raising a flock. Such expenses include feed, litter, fuel and medication, all variable costs, used by the producer in raising the chicks to broiler weight. These expenses also include, for accounting purposes, the costs of all chicks delivered to the producer, such cost being set at twelve (12) cents each. The aggregate costs, or expenses, are not paid by the producer, but are used to measure his efficiency; the comparison of all producers’ costs is the predicate for Perdue’s incentive system in computing an individual producer’s compensation. In other words, Perdue pays its contract growers on an incentive system, rather than paying a flat fee. (May 8, 1984, Affidavit of William F. Bollinger at p. 3 and August 1, 1983, Affidavit of William F. Bollinger).

As an alternate basis for jurisdiction under the Packers and Stockyards Act, plaintiff also contends that Perdue Farms is a live poultry dealer or handler within the terms of the Act, in that it is engaged in de minimus sales of live poultry. Defendants admittedly are engaged in de mini-mus sales of live poultry; live chickens are sold at scrap value to dispose of excess live broilers and “spent” breeder hens and cockerels. Perdue contends that these live poultry sales are simply to avoid waste. The May 15, 1984, affidavit of William F. Bollinger demonstrates that the annual sales of live poultry by Perdue Farms in the last five fiscal years as a percent of its total poultry sales are:

1980— .73%
1981— .57%
1982— 17%
1983— .29%
1984— .29%

Perdue contends that these sales of live chickens do not subject its entire operation to regulation under the Packers and Stockyards Act.

In determining whether or not Perdue is a live poultry dealer or handler, and therefore subject to regulation under the Packers and Stockyards Act, a court must look to the legislative history of this statutory enactment. In quoting Mr. Justice Frankfurter, the Fourth Circuit has indicated that this statute “like other living organisms, derives significance and sustenance from its environment, from which it cannot be severed without being mutilated. Especially is this true where the statute, like the one before us, is part of a legislative process having a history and a purpose. The meaning of such a statute cannot be gained by confining inquiry within its four corners.” U.S. v. Monia, 317 U.S. 424, 432, 63 S.Ct. 409, 413, 87 L.Ed. 376, 382 (1943), quoted in Cross and Blackwell Co. v. Federal Trade Commission, 262 F.2d 600, 603 (4th Cir.1959). Therefore, it is important to refer to the problem which the Congress sought to resolve, and the purpose to be served, when the Packers and Stockyards Act was enacted. 262 F.2d at 603-04.

As previously indicated, 7 U.S.C. § 218b defines live poultry dealer as “any person engaged in the business of buying or selling live poultry in commerce for purposes of slaughter ...”; live poultry handler, however, is not defined in the statute. In order to come within the purview of the statute, Perdue’s activities must be either those of a live poultry dealer, or a live poultry handler. , In 1934, a comprehensive definition of poultry dealer was rejected in favor of the narrower definition contained in 7 U.S.C. § 218b. The original proposal, S. 2246, would have attacked the problem by making a “poultry dealer” equivalent to a “packer.” In other words, the bill as originally proposed defined “poultry dealer” as “any person engaged in the business (a) of buying or selling poultry in commerce for purposes of slaughter or (b) of manufacturing or preparing poultry or poultry products for sale or shipment in commerce.” 78 Cong.Rec. 457 (1934). This comprehensive definition was aimed at certain racketeering practices concerning the sale of live poultry primarily in large urban areas such as New York City. 78 Cong.Rec. 451-52 (1934).

It is important to note that the statute as enacted provides for jurisdiction over “live poultry dealers or handlers.” The statute does not provide for the regulation of a company dealing solely with and in slaughtered poultry. The court finds that Perdue deals primarily, but not solely, with the latter. Plaintiff’s argument that Perdue is “engaged in the business of buying” live poultry, 7 U.S.C. § 218b, when it receives the chickens from its contract growers, is simply without merit. Although the receipt (Exhibit “E” to plaintiff’s August 31, 1983, Affidavit) and the flock settlement sheet (Exhibit “F” to plaintiff’s August 31, 1983, Affidavit) contain sale terminology, the court does not find that a sale between plaintiff and Perdue transpired. The “charges” indicated on both of these exhibits, were not made with a view toward obtaining payment therefor, but for the purpose of ultimately calculating plaintiff’s compensation. Furthermore, the burden of taxation and insurance, which is indicative of the true nature of the transaction, fell on defendant Perdue. By the very terms of the contract, plaintiff did not have the authority to sell the birds, and he has paid as an independent contractor for services rendered by him in growing the birds. See, e.g., Exhibits “C”, “J”, “K” and “L” to plaintiffs August 31, 1983, Affidavit. The more difficult question, however, is whether or not Perdue’s de minimus sales of live poultry extend jurisdiction under the Packers and Stockyards Act to its business in slaughtered and dressed poultry products. Although the Second Circuit held otherwise in United States v. Perdue Farms, Inc., 680 F.Supp. 277 (1982), this court is of the opinion that de minimus sales of live chickens does not subject a dealer to jurisdiction under the Act as to all its poultry products.

In deciding whether or not the Packers and Stockyards Act extends to the activities of Perdue, even though sales of live poultry are not involved herein and the only sales of live poultry that Perdue is engaged in are de minimus sales, the court must again look to the legislative history of the Act. As discussed previously, nothing in the 1935 amendments to the Act, which added live poultry dealers and handlers to its regulatory scheme, indicates a Congressional intent to apply the Act to slaughtered poultry production. Although the 1958 amendments to the Act changed the language of Section 202 to read as previously indicated, see supra text at pp. 4-5, the language of the section does not mandate its application to the slaughtered poultry activities of live poultry dealers. 7 U.S.C. § 192(a) and (e). Rather, the 1958 amendments predicated jurisdiction on the activities rather than the persons covered, so as not to extend jurisdiction of the Act beyond those activities enumerated in the statutory definition of a “packer,” to packers’ other unrelated activities. It is difficult to perceive that Congress did not intend the same to be true in applying the Act to live poultry dealers and handlers. As Judge Oakes of the Second Circuit states in his dissenting opinion in United States v. Perdue Farms, Inc., “[tjhere is nothing in this legislative history to negate the inference that Congress similarly intended the USDA to exercise jurisdiction over the live poultry activities of live poultry dealers.” 680 F.2d at 289. Although subsequent negative legislative history cannot be relied upon solely, the court again notes that Congress has several times rejected amendments to the Act which would clearly bring the integrated poultry producer within the Act’s coverage. Id. See discussion supra.

Judge Oakes’ construction that the Act is inapplicable to an entire industry when de minimus sales are involved is supported by the Fourth Circuit opinion in Crosse and Blackwell Company v. Federal Trade Commission, 262 F.2d 600 (4th Cir.1959). The court held therein that a canner of soups, relishes, preserves and similar products, which included a small number containing meat ingredients, was not a packer within the meaning of the Packers and Stockyards Act. Of the approximately 185 products produced by the company, only 14 contained meat or meat stock as one of the ingredients, which collectively accounted for .“something less than three percent of the annual sales of all the products of Crosse and Blackwell.” Id. at 602. In analyzing whether or not the company’s activities fell within the Act, the court stated that “its total activity is not to be finally characterized upon a look at a small portion of the whole ... and we must inquire whether its general business is the sort which Congress intended to, and did” place under the Act. Id. at 603. Although the court found that the Act is susceptible to the construction that one engaged in the business of processing meats for sale is subject to regulation in that business, any other business in which he may be engaged is subject to the general restraints of the antitrust laws. Id. at 605. This rationale leads this court to find that Perdue’s de minimus sales of live poultry do not result in the regulation of its entire business by the Packers and Stockyards Act. Whereas the court in Cross and Blackwell states that “[t]here is much reason for the belief that a vertically integrated business which handles meat through all of the steps from the hoof to the hand of the ultimate consumer may be effectively regulated only if the regulatory responsibility is lodged in one agency,” this court does not believe that the language of the Act warrants total regulation of Perdue's industry, by virtue of its de minimus sales, by the Secretary of Agriculture rather than the Federal Trade Commission.

Plaintiff also argues that even if defendant Perdue is not a live poultry “dealer” within the Act, it is certainly a “handler.” The plaintiff bases this argument on the definition of “handler,” as it is contained in Webster’s Dictionary, and concludes that Perdue is definitely one who “handles something” or “who deals with, acts upon, disposes of, or performs some function with regard to a commodity which passes through his hands in commercial transactions.” Plaintiff’s Brief in Opposition of Defendants’ Motion to Dismiss and for Summary Judgment at p. 11. This argument is also without merit. The term “handler” as used in the Act refers to shippers, “coopsters,” and other middle men involved in the racketeering aimed at by the 1935 amendment. The portions of the legislative history used by Judge Oakes in his dissenting opinion are illustrative. The term “handler” was intended to regulate the activities of those individuals involved in the transportation of poultry. Congress was concerned that the cost of the transaction had been “more than doubled by reason of the excessive charges made through ... [the transportation] in the handling of poultry.” 78 Cong.Rec. 451-52 (1934). Senator Copeland of New York said when he introduced the bill that “[i]f they do not hire the right truck and use the right coops the poultry will never reach the destination in salable condition.” These transportation middlemen are the “handlers” referred to in the Packers and Stockyards Act. Perdue does not fall within this definition, particularly since the producer is one of the intended beneficiaries of the Act’s protection. Soloman Valley Feed Lot, Inc. v. Butz, 557 F.2d 717, 720 (10th Cir.1977). The statute as eventually enacted, 7 U.S.C. § 218, articulated as its purpose the regulation of various unfair, deceptive, and fraudulent practices and devices, resulting in the producers’ sustaining sundry losses and receiving prices far below the reasonable value of their live poultry. See, United States v. Perdue Farms, Inc., 680 F.2d 277, 282 (2d Cir.1982).

In his dissenting opinion in United States v. Perdue Farms, Inc., Judge Oakes summed it up best: “The expansive reading of the Act and its amendments to cover activities never once mentioned in the legislative history, activities which concededly would not be covered were Perdue simply to slaughter and process its spent hens and cockerels and excess live broilers, was not within the Congressional ‘purpose’ or ‘intent.’ ” 680 F.2d at 290. Accordingly, defendants’ motions to dismiss and for summary judgment as to plaintiff’s cause of action under 7 U.S.C. § 181 et seq., are GRANTED.

II. The North Carolina Business Opportunity Sales Act

The North Carolina Business Opportunity Sales Act, N.C.G.S. §§ 66-94, et seq., which was enacted in 1977, defines “business opportunity” as the “sale or lease of any products, equipment, supplies or services for the purpose of enabling the purchaser to start a business.” N.C.G.S. § 66-94. Plaintiff began his business as a contract grower for Perdue in June of 1976, when he entered into a housing construction contract with Perdue. Plaintiff contends that because of Perdue’s assurances that his operation would produce a guaranteed income, he elected to have Per-due construct a second chicken house on his land. This second construction contract was signed with Perdue on January 20, 1978. Plaintiff contends that in purchasing this second chicken house from Perdue he was able to start a second chicken operation. Plaintiff further contends that each subsequent agreement allowed him to start a new business, and therefore Perdue’s transactions with him fall squarely within the Business Opportunity Sales Act.

Conversely, defendants maintain that starting of a new business is the operative element controlling the application of the North Carolina Business Opportunity Sales Act. Defendants contend that because plaintiff started his poultry growing business in 1976, over one year before the North Carolina Business Opportunity Sales Act became effective, the Act is not applicable. Defendants argue that although the parties signed several agreements, and two sales of chicken houses were consummated, there could be but one sale “for the purpose of ... startpng] a business.” Defendants maintain that plaintiff’s construction of the second poultry house on his farm in 1978, was simply an expansion of his poultry growing business. Brief in Support of Defendants’ Motion to Dismiss and for Summary Judgment at p. 23.

Once again, the court agrees with the defendants and finds that the North Carolina Business Opportunity Sales Act is not applicable to the situation herein. The Act specifically applies to the starting up of a business. There is no question but that the plaintiff initially contracted with defendant Perdue in June of 1976, over one year before October 1, 1977, the effective date of the North Carolina Business Opportunity Sales Act. All further contracts between the plaintiff and the defendant enabled plaintiff to continue and/or expand his business as an independent contract grower for Perdue. None of the contracts subsequent to the one entered in June of 1976, were for the purpose of starting a business. Therefore, the court agrees with defendants’ assertion that any violation of the North Carolina Business Opportunity Sales Act, assuming its applicability, occurred before the statute became operative.

The North Carolina Business Opportunity Sales Act is inapplicable to the situation herein for an additional reason. In order for the Act to apply there must be a sale or lease of products, equipment, supplies, or services, for the purpose of enabling the purchaser to start a business; in addition, the seller must make one of the four types of representations listed in N.C. G.S. § 66-94, to the purchaser. Plaintiff contends that N.C.G.S. 66-94(2), which applies where the seller represents “[t]hat it may, in the ordinary course of business, purchase any or all products made, produced, fabricated, grown, bred or modified by the purchaser using in whole or in part the supplies, services or chattels sold to the purchaser,” is applicable. To satisfy the requisites of this section, plaintiff contends that Perdue represented to him that it would purchase live pounds of poultry grown by the plaintiff using the broiler house and associated equipment. Plaintiff's Brief in Opposition of Defendants’ Motion to Dismiss and for Summary Judgment at p. 32. As discussed in Section I above, this court is of the opinion that there was no sale of poultry between plaintiff and defendant. Therefore, the North Carolina Business Opportunity Sales Act is inapplicable. Accordingly, defendants’ motions to dismiss and for summary judgment as to plaintiff’s claims under the North Carolina Business Opportunity Sales Act are GRANTED.

III. The North Carolina Deceptive Trade Practice Act

The North Carolina Deceptive Trade Practice Act, as codified in N.C.G.S. § 75-1.1, provides that “unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are” unlawful. N.C. G.S. § 75-16 provides that a person injured by such acts is entitled to treble damages. Plaintiff invokes these provisions in Counts II and III of his complaint, and alleges that defendant: (1) coerced him into executing agreements that he would not have executed but for defendants’ dominant market power; (2) caused him to make improvements to his houses which defendants did not require other producers to make; (3) dumped plaintiff’s birds after picking them up from plaintiff’s farm; and (4) provided plaintiff with misleading and false settlement records. Plaintiff also alleges that defendants’ violations of the North Carolina Business Opportunity Sales Act constitute unfair and deceptive commercial practices in violation of N.C.G.S. § 75-1.1. Because the court finds that the North Carolina Business Opportunity Sales Act is inapplicable, plaintiff’s latter claim is without merit.

N.C.G.S. § 75-1.1, as initially enacted, seemed to be applicable only to those situations wherein the contract in question involved the sale of goods. See, e.g., State Ex Rel. Edmisten v. J.C. Penney Company, 292 N.C. 311, 233 S.E.2d 895 (1977). The statute was later revised, however, and the North Carolina Supreme Court broadened its interpretation of “commerce” as it is contained in § 75-1.1. In Johnson v. Phoenix Mutual Life Insurance Company, 300 N.C. 247, 266 S.E.2d 610 (1980), the court held that a contract between a mortgage broker and a borrower for the exclusive right to place permanent mortgage financing was “commerce” within the meaning of the statute. The court has since emphasized the consumer protection nature of the Act, and the notion that the treble damages provision of § 75-16 was intended to create an effective private remedy for aggrieved consumers. Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981). In Marshall, plaintiff residents of a mobile home park sought damages for misrepresentations allegedly made by defendant owners and managers of the park concerning services defendants would provide to plaintiffs. In analyzing the situation, the North Carolina Supreme Court stated that: “[i]n enacting G.S. 75-16 [the treble damages provision] ..., our Legislature intended to establish an effective private cause of action for aggrieved consumers in this state.” 276 S.E.2d at 400. (emphasis added). In addressing whether a trade practice is unfair or deceptive, the court noted that “[consistent with federal interpretations of deception ... state courts have generally ruled that the consumer need only show that an act or practice possessed the tendency or capacity to mislead, or created the likelihood of deception, in order to prevail under the state’s unfair and deceptive practices act.” Id. at 403, 276 S.E.2d 397. (emphasis added). Finally, the court noted that the relevant factor in determining the applicability of § 75-1.1 is the “effect of the actor’s conduct on the consuming public.” Id. Therefore, the more recent pronouncements from the North Carolina Supreme Court concerning the applicability of § 75-1.1, emphasize the consumer protection purpose of the statute. As the Fourth Circuit indicated in United Roasters, Inc. v. Colgate-Palmolive Company, 649 F.2d 985, 991, (4th Cir.1981), cert. denied, 454 U.S. 1054, 102 S.Ct. 599, 70 L.Ed.2d 590, “[i]n that context, the provision of treble damages is surely understandable.” The court further stated that “the statute encompasses such things as misrepresentation and a wide variety of shady practices sometimes associated with the marketing of consumer goods and services.” Id. at 992. (emphasis added). A fairly recent opinion from the North Carolina Court of Appeals states that the “purpose of ... [§ 75-1.1] is to declare, and to provide civil legal means to maintain, ethical standards of dealings between persons engaged in business, and the consuming public within this state, to the end that good faith and dealings between buyers and sellers at all levels of commerce be had in this state.” Buie v. Daniel International Corporation, 56 N.C.App. 445, 289 S.E.2d 118 (1982), rev’w denied, 305 N.C. 759, 292 S.E.2d 574.

A case which this court finds particularly instructive is the North Carolina Court of Appeals decision in Hammers v. Lowe’s Companies, Inc., 48 N.C.App. 150, 268 S.E.2d 257 (1980). In that case, the North Carolina Court of Appeals found that § 75-1.1 did not embrace a situation in which defendants failed to negotiate an agreement for construction of a house on terms satisfactory to the plaintiff. Plaintiff brought suit due to defendant’s breach of an alleged agreement to furnish plans for and to provide a contractor to construct a house for the plaintiff. Plaintiff alleged that: (1) He relied on defendant’s expertise and that the defendant knew so; and (2) defendant had wilfully made false representations to induce plaintiff to accept its services, and to attempt to cause plaintiff •to accept a building cost much higher than that originally agreed upon. Id. 268 S.E.2d at 258. In that opinion, the court also noted that the extremely broad language of § 75-1.1 renders the treble damage penalty provided by G.S. 75-16 of questionable constitutional validity.

Because the court herein finds that the language of N.C.G.S. 75-1.1 does not embrace plaintiff’s claims, there is no need to reach the Constitutional question. The only transactions between the plaintiff and defendants in which the plaintiff could be characterized as a purchaser/consumer, were those in which plaintiff contracted with Perdue to build two poultry houses on his farm. These contracts were entered on June 30, 1976, and January 20, 1978, respectively. Plaintiff's original complaint was filed on December 15, 1982; assuming plaintiff had a cause of action arising out of defendants’ representations concerning the construction of the poultry houses, the causes of action accrued when he entered into the contracts on June 30, 1976, and January 20, 1978. Both of these contracts were entered into more than four years before plaintiff’s original complaint was filed. Therefore, any claims plaintiff has which are based on the inducement to enter into these contracts are barred by N.C.G.S. § 75-16.2. N.C.G.S. § 75-16.2 provides that “[a]ny civil action brought under this Chapter to enforce the provisions thereof shall be barred unless commenced within four years after the cause of action accrues.” Accordingly, plaintiff’s claims regarding the alleged acts by the defendants which induced him to enter into the contracts of June 30, 1976, and January 20, 1978, are DISMISSED because they are barred by the statute of limitations.

The remaining contracts entered into between plaintiff and defendants were service contracts, in which plaintiff contracted to raise either large or small birds to maturity. Plaintiff certainly cannot be characterized as a “consumer,” and thereby deserving of the statute’s protection. Such an application would be inconsistent with the purpose behind the enactment of § 75-1.1. Once again, N.C.G.S. § 75-1.1 and the accompanying treble damages provision of N.C.G.S. 75-16, were intended to establish an effective private cause of action for aggrieved consumers. Marshall v. Miller, 276 S.E.2d at 400. See also, Lindner v. Durham Hosiery Mills, 761 F.2d 162 (4th Cir.1985). Because this court desires to be consistent with § 75-1.1’s purpose to protect the consuming public, plaintiff’s claims thereunder are hereby DISMISSED, and defendants’ motion for summary judgment is GRANTED. Accordingly, plaintiff’s statutory claims contained in his amended complaint are hereby DISMISSED.

SO ORDERED.

      . Perdue, Inc. is a subsidiary of Perdue Farms, Inc.

      . The grow-out part of the production phase is performed by local individuals who contract with Perdue to provide the land and labor during the grow-out period. The chickens are grown to maturity in houses owned by the producer and built to Perdue’s specifications. Per-due provides the chicks, feed, and medicine.

      . A "packer" is defined in 7 U.S.C. § 191 as "any person engaged in the business (a) of buying livestock in commerce for purposes of slaughter, or (b) of manufacturing or preparing meats or meat food products for sale or shipment in commerce, or (c) of marketing meats, meat food products, or livestock products in an unmanufactured form acting as a wholesale broker, dealer or distributor in commerce.”

      . Before the 1958 amendments, any person or firm who fell within the definition of "packer" was under the jurisdiction of the Act with respect to all his activities in interstate commerce, whether or not they were directly related to the slaughter, processing, and marketing of livestock.

      . See also Safeway Stores, Inc. v. Freeman, 244 F.Supp. 779 (D.D.C.1965), aff'd, 369 F.2d 952 (D.C.Cir.1966), in which it was held that the Act included those activities of the two grocery store chains in question in respect to preparation of meats. The court also found, however, that the stores were subject to the Act only with respect to those activities that comprised the operations performed in respect to meat at their warehouses and plants and not any of their other activities or the sales of food products of other types. Id. at 781.

      . A business opportunity under the Act is present whenever the sale or lease of products, equipment, supplies, or services enables the purchaser to start a business. Although technically a business may be started either by opening a new business or by materially altering an existing business, neither occurred herein; plaintiff merely expanded his operations in exactly the same business. See 17 Wake Forest L.Rev. 623 (1981).

      . This court notes that no private right of action for treble damages is available for the enforcement of the equally broad language of § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. The Federal Trade Commission Act provides for administrative proceedings wherein the determination that a particular act is unfair or deceptive is made by the Federal Trade Commission. Upon such a finding, the Commission issues a cease and desist order which is appealable. Only a party who violates a final order is subject to penalties, which do not begin to accrue until the Commission notifies a party subject to a cease and desist order that his conduct is in violation of the order. See, 15 U.S.C. § 45. Continental Baking Company v. Dixon, 283 F.Supp. 285 (D.Del.1968). Conversely, however, N.C.G.S. 75-16 confers upon the plaintiff in a private action the right to recover treble damages, on proof that he has been damaged by a violation of G.S. 75-1.1. The North Carolina statute does not contain any notice provisions as contained in the federal enactment.


source: Caselaw Access Project

author: La PLATA, District Judge.

license: Public Domain

text:
    Ingrid D. CRUMMIE, Plaintiff, v. DAYTON-HUDSON CORPORATION, a foreign corporation, Shirley Davis and William Wrobleski, jointly and severally, Defendants.
    No. 85-CV-71689-DT.
    United States District Court, E.D. Michigan, S.D.
    June 14, 1985.
    William K. Necker, Wayne, Mich., for plaintiff.
    Larry W. Davidson, Detroit, Mich., for defendants.
   ORDER DENYING PLAINTIFF’S MOTION TO REMAND TO WAYNE COUNTY CIRCUIT COURT

La PLATA, District Judge.

On March 25, 1985, Plaintiff, Ingrid D. Crummie, filed a five-count Complaint in the Wayne County Circuit Court against the above-named Defendants, essentially alleging that Defendants wrongfully detained and arrested her on September 15, 1984, while she was a business invitee at the Dearborn, Michigan, Hudson’s Department Store. Based on Count V of Plaintiff’s Complaint, in which she asserted that Defendants, acting under color of state law, violated her federal constitutional rights, Defendants removed the case to this Court on April 17, 1985. 28 U.S.C. § 1441(a).

On June 3, 1985, Plaintiff filed a Motion to Remand the matter to the state court. In support of her Motion, Plaintiff asserts that a result of her filing of an Amended Complaint in state court on April 22, 1985, wherein the federal claim was deleted, the federal court does not have subject matter jurisdiction over the action. The statute under which Plaintiff seeks to have the case remanded to the Wayne County Circuit Court, 28 U.S.C. § 1447(c), prescribes in pertinent part:

(e) If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs.

After a removal of an action, a federal court acquires total, exclusive jurisdiction over the litigation. French v. Hay, 89 U.S. (22 Wall.) 238, 22 L.Ed. 854 (1875); Wright, Law of Federal Courts, § 40 at 165 (3d ed. 1976). The removed case is governed by the Federal Rules of Civil Procedure and is treated as though it originally had been instituted in the federal court. Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 437, 94 S.Ct. 1113, 1123, 39 L.Ed.2d 435 (1974).

Applying the foregoing precepts to the matter at bar, it is evident that Plaintiffs filing of an amended complaint in state court subsequent to the removal of the cause- was of no effect. The only pleading this Court can review is the original complaint, where, in Count V, Plaintiff claimed that Defendants deprived her of her federal constitutional rights. Consequently, this Court finds that Defendant did not remove the action improvidently.

WHEREFORE, Plaintiff’s Motion to Remand the ease to the Wayne County Circuit Court is DENIED.

So Ordered.


author: BAKER, Chief Judge.

text:
    Enrique PARDO, Plaintiff, v. Paul HOSIER, Don Polizzi, Louis Lowery, Kent Mills, and Lt. R. Foster, Defendants. La Carttle JONES, Plaintiff, v. Gayle M. FRANZEN, James W. Fairman, L.O. Lowery, Eugene Robinson, Lt. Denge Dennis and J.A. Davis, Defendants.
    Nos. 80-2178, 80-2248.
    United States District Court, C.D. Illinois, Danville Division.
    June 14, 1985.

      Mary Perlstein, Todd M. Tennant, Champaign, 111., for plaintiff.
    Steve Kehoe, Asst. Atty. Gen., Chicago, 111., for defendants.
   ORDER GRANTING AND DENYING SUMMARY JUDGMENT IN PART

BAKER, Chief Judge.

This case is before the court on cross-motions for summary judgment. For the reasons stated below, summary judgment is granted for the plaintiffs in part and for the defendants in part.

In these consolidated cases, two inmates from the Pontiac Correctional Center raise five due process claims. First, the plaintiff Enrique Pardo alleges that on two separate occasions he was placed in administrative segregation improperly pursuant to Administrative Regulation 804(II)(J). Second, the plaintiff LaCarttle Jones alleges that on four separate occasions he was placed in administrative segregation improperly pursuant to Ad.Reg. 804(II)(C). Third, the plaintiff Jones alleges that he received three disciplinary tickets for violations of administrative regulations in September, 1980, and that the report of the hearing on each ticket failed to state an adequate summary of the evidence relied upon by the Adjustment Committee in finding the plaintiff guilty and failed to state reasons supporting the specific disciplinary action taken against him. Fourth, the plaintiff Jones alleges that the Adjustment Committee improperly refused to call a witness he requested at his Committee hearing on September 29, 1980. Finally, the plaintiff Jones alleges that he was denied his right to an impartial decision maker on April 5, 1981, when the defendant Lowery refused to disqualify himself from serving on the committee after being notified of this pending lawsuit.

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In determining whether summary judgment is proper, a court ordinarily must view the record in the light most favorable to the party opposing the motion, drawing all inferences most favorable to that party. Rose v. Bridgeport Brass Co., 487 F.2d 804, 808 (7th Cir.1973).

I. ENRIQUE PARDO

A. Segregation Pending Investigation

The plaintiff Pardo alleges that on two occasions, first in May, 1980, and again in June, 1981, he was segregated on investigative status without explanation and without notice of the charges or allegations which were under investigation. When Pardo was confined to the holding unit, he was told only that he was being placed on investigative status and that the investigation would last no more than thirty days. This issue is identical to the issue raised in Hewitt v. Helms, 459 U.S. 460[, 103 S.Ct. 864, 74 L.Ed.2d 675] (1983): what limit does the Due Process Clause of the Fourteenth Amendment place on the authority of prison administrators to remove inmates from the general population and to confine them to a less desirable location for administrative reasons?

In Hewitt, the Court first noted the limits on the interests protected by the Fourteenth Amendment:

While no State may ‘deprive any person of life, liberty or property without due process of law’ it is well settled that only a limited range of interests fall within this provision. Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States. Meachum v. Fano, 427 U.S. 215, 223-227 [96 S.Ct. 2532, 2537-2539, 49 L.Ed.2d 451] (1976).

Hewitt, 459 U.S. at 466[, 103 S.Ct. at 869]. The Court further concluded that administrative segregation is the sort of confinement inmates should reasonably anticipate receiving at some point in their incarceration, and that sort of confinement does not invoke an interest independently protected by the Due Process Clause:

[A]s long as the conditions or degree of confinement to which the prisoner is subject is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight. Montanye v. Hay mes, 427 U.S. 236, 242 [96 S.Ct. 2543, 2547, 49 L.Ed.2d 466] (1976). See also Vitek v. Jones, 445 U.S. 480, 493 [100 S.Ct. 1254, 1263, 63 L.Ed.2d 552] (1980).

459 U.S. at 468[, 103 S.Ct. at 869], Further, “[i]t is plain that the transfer of an inmate to less amenable and more restrictive quarters for non-punitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence.” Id.

However, the Court observed a state may create a liberty interest protected by the Due Process Clause through its enactment of certain statutory or regulatory measures. Hewitt, 459 U.S. at 469[, 103 S.Ct. at 870]. The Court concluded that the repeated use of “explicitly mandatory language” by Pennsylvania in connection with requiring “specific substantive predicates” indicated that Pennsylvania had created a protected liberty interest for an inmate in continuing to reside in the general prison population:

Nonetheless, in this case the Commonwealth has gone beyond simple procedural guidelines. It has used language of an unmistakably mandatory character, requiring that certain procedures “shall,” “will,” or “must” be employed ... and that administrative segregation will not occur absent specified substantive predicates — viz., “the need for control,” or “the threat of a serious disturbance.”... [W]e are persuaded that the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.

Hewitt, 459 U.S. at 471-72[, 103 S.Ct. at 871],

In the present case, Pardo was twice confined to a segregation holding unit pending investigation pursuant to Ad.Reg. 804(II)(J). Ad.Reg. 804(II)(J) provides in relevant part that:

1. It is recognized that incidents occur which, in the interest of institutional security and safety, require that a resident be removed from the general population and placed in a holding unit pending the completion of an investigation. As the holding unit functions in the same manner as a segregation unit (except that single celling is not required in the holding unit), a resident must be provided with the same procedural safeguards and services as are required by this regulation relative to placements, conditions and services in a segregation unit.
2. A resident disciplinary report must be prepared and the appropriate hearing before the institutional Adjustment Committee must be held within the 72-hour guideline. The report and hearing should provide the resident with as much information as possible regarding the incident which resulted in his/her placement in a holding unit. It is not necessary that information which would be a detriment to the investigative process be provided to .the resident; however, sufficient evidence must be provided so that the resident understands the reason for placement on investigative status and the general nature of the allegations or charges under investigation. (Emphasis added.)

Ad.Reg. 804(II)(J) uses similar “mandatory language” in connection with requiring “specific substantive predicates” as did the Pennsylvania regulations at issue in Hewitt. The Illinois regulation uses mandatory language requiring that certain procedures “must” be employed, and that administrative segregation will not occur absent a specified substantive predicate— viz., “in the interest of institutional security and safety.” Consequently, the court concludes that Ad.Reg. 804(II)(J) creates a liberty interest in continuing to reside in the prison’s general population.

This conclusion is consistent with the Seventh Circuit’s approach in Arsberry v. Sielaff 586 F.2d 37 (7th Cir.1978):

Meachum [v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976)] make it clear that the Supreme Court looks primarily to state law as the source of prisoners’ liberty interests. Essentially a plaintiff must demonstrate a justifiable expectation that he will not be deprived of a benefit absent the occurrence of specified events. Meachum, 427 U.S. at 226-27 [96 S.Ct. at 2539]; Montanye, 427 U.S. at 242 [96 S.Ct. at 2547],
The question then is what is sufficient to create the necessary justifiable expectation____ In essence, prisoners must show some restriction upon the prison officials’ discretion to remove the benefit sought. Lombardo v. Meachum, 548 F.2d 13 (1st Cir.1977). In Meachum and Montanye, the court indicated that the states could create the necessary entitlements “by statute, by rule or regulation, or by interpretation of their own constitutions”. Meachum, 427 U.S. at 229 [96 S.Ct. at 2540],

Id. at 46.

“Explicitly mandatory language” is but one way of showing “some restriction upon the prison officials’ discretion to remove the benefit sought.” A justifiable expectation that a benefit will not be withheld “absent the occurrence of specified events” is another way of stating that the benefit will not be denied “absent specified substantive predicates.” Consequently, under either approach, Ad.Reg. 804(II)(J) creates a protected liberty interest for an inmate in continuing to reside in the general population.

Once the existence of a liberty interest is ascertained by reference to state law, the task of defining the procedural protections which attach to that interest is wholly a matter of federal constitutional law. Shango v. Jurich, 681 F.2d 1091, 1097-98 (7th Cir.1982). Consequently, the procedures set out in the administrative regulations do not state the federal constitutional requirements of due process as the plaintiff insists. In order to meet the minimum requirements of procedural due process, the defendants “were obligated to engage only in an informal, non-adversary review of the information supporting [the plaintiffs] administrative confinement, including whatever statement [the plaintiff] wished to submit, within a reasonable time after confining him to administrative segregation.” Hewitt v. Helms, 459 U.S. at 472[, 103 S.Ct. at 872]. “An inmate must merely receive some notice of the charges against him and an opportunity to present his view to the prison official charged with deciding whether to transfer him to administrative segregation.” Id. at 476[, 103 S.Ct. at 874] (emphasis added).

On May 26, 1980, Pardo was placed on investigative status. He received a disciplinary report which read: “A.R. Sec J. I am reporting the above resident under Sec J which will be investigate [sic] thru inter[nal] affairs office.” On May 28, 1980, the plaintiff was brought before the Adjustment Committee. The Committee Summary states in its entirety, “A.R. 80411-Section J. Resident is assigned to holding unit pending by internal affairs to be completed within 30 days.”

Similar reports and summaries were issued to the plaintiff in June, 1981. On June 11, 1981, the plaintiff was placed on investigative status and received a disciplinary report, which read: “A.R. Sec II J. The above resident is pending investigation and investpgation] thru internal affair[s] office. This will last for [a] period of thirty days or RDR will be written.” Also on June 11, 1981, the plaintiff was brought before the Adjustment Committee. The Committee Summary states: “Section J. Assigned to segregation under provision of AR 804 Sec[tion] J. To be investigated by internal affairs. Investigation not to exceed 30 days.”

Clearly, the defendants failed to provide the plaintiff with the minimum requirements of due process. The defendants failed to provide the plaintiff with any notice of either the charges against him or the matter under investigation and thereby deprived him of an opportunity to present his views. Moreover, the court need not consider what specific process was due pri- or to Hewitt, since the defendants should have known that some process was due pursuant to Meachum v. Fano, 427 U.S. 215[, 96 S.Ct. 2532, 49 L.Ed.2d 451] (1976), and failed to provide any process at all. See Hewitt v. Helms, 459 U.S. at 476[, 103 S.Ct. at 874],

B. Good Faith Immunity

The defendants advance the defense of good faith immunity. The Supreme Court held in Harlow v. Fitzgerald, 457 U.S. 800, 818-19[, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396] (1982) that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The Court set out the procedure for determining whether an official is entitled to immunity:

On summary judgment, the judge appropriately may determine, not only the current applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. Until this threshhold immunity question is resolved, discovery should not be allowed.
If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew or should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors.

Harlow v. Fitzgerald, 457 U.S. at 819[, 102 S.Ct. at 2738]. See also Crowder v. Lash, 687 F.2d 996 (7th Cir.1982).

Aside from Hughes v. Rowe, 449 U.S. 5[, 101 S.Ct. 173, 66 L.Ed.2d 163] (1980) the court has not found any cases dealing with administrative segregation or Administrative Regulation 804(II)(J). However, the absence of a Seventh Circuit opinion specifically holding that Ad.Reg. 804(II)(J) creates a liberty interest requiring prison officials to provide inmates with procedural due process, does not necessitate the conclusion that “the law” was not “clearly established” at the time of the events in issue.

By May, 1980, the defendants should have been aware of the consequences of the Supreme Court’s decision in Meachum v. Fano, 427 U.S. 215[, 96 S.Ct. 2532, 49 L.Ed.2d 451] (1976) upon which this court relies today in concluding that Administrative Regulation 804(II)(J) created a protected Fourteenth Amendment liberty interest. In addition, by May, 1980, the law was clearly established that Illinois Department of Corrections Administrative Regulations would create a protected Fourteenth Amendment liberty interest where the language of a specific administrative regulation demonstrated a justifiable expectation that a benefit granted inmates by the regulations would not be withheld without due process. See Arsberry v. Sielaff, 586 F.2d 37, 46 (7th Cir.1978). Of course, not all Illinois prison administrative regulations create protected liberty interests. However, opinions of the Seventh Circuit announced subsequent to Meachum v. Fano, and prior to the incidents involved in this case, applied Meachum and concluded that various Illinois statutes, prison regulations, or policies did, or did not, create protected liberty interests. The court concludes that the defendants are not entitled to the qualified good faith immunity defense.

Consequently, the plaintiff Pardo’s motion for summary judgment shall be granted on his administrative segregation claim. The defendants’ motion for summary judgment shall be denied.

II. LACARTTLE JONES

A. Segregation Pending Adjustment Committee Hearing.

Plaintiff LaCarttle Jones was charged four times with violations of Administrative Regulations, and all four times was immediately removed to a segregation holding unit prior to receiving a hearing on the charge. Plaintiff Jones, like plaintiff Par-do, alleges that this form of administrative segregation violates the due process clause of the United States Constitution.

Administrative Regulation 804(11) (C)(2) of the Illinois Department of Corrections states:

2. The shift supervisor shall determine whether or not it is necessary to place the resident in temporary confinement status pending a disciplinary hearing. Such a decision shall be based on the degree of aggressiveness exhibited by the resident, the degree of threat posed to the safety and security of the institution, and/or the resident’s need for safekeeping to protect him/her from injury.

The state again uses “explicit mandatory language” in combination with a “specified substantive predicate” in prescribing the conditions under which the inmate may be confined to a segregation holding unit pending an Adjustment Committee hearing. Supra, p. 696-97. Consequently, the court concludes that Ad.Reg. 804(II)(C) creates a protected liberty interest in continuing to reside in general population. Cf. Isaac v. Jones, 529 F.Supp. 175, 181 (N.D.Ill.1981) (Ad.Reg. 804-A(II)(C) provides the predicate necessary for triggering due process by limiting the circumstances in which an inmate may be transferred from disciplinary segregation to controlled segregation); Williams v. Franzen, 499 F.Supp. 304, 305 (N.D.Ill.1980) (Illinois prisoners have a protected liberty interest in not being placed in disciplinary segregation absent a finding of major misconduct).

However, the plaintiffs allegation that on all four occasions in issue the shift supervisor incorrectly placed the plaintiff in administrative segregation pursuant to 804(II)(C), if true, does not necessarily indicate that the plaintiff’s liberty interest was deprived without due process. Rather, as the Court of Appeals stated in Shango v. Jurich:

Although the existence of a liberty or property interest may be ascertained by reference to state law, once such an interest is identified, the task of defining the procedural protections which attach to that interest is fully a matter of federal constitutional law____ To be sure, state procedural protections are not ignored. Rather, once it is determined what process is due to the individual before he can be deprived of the specific liberty or property interest by the state, state procedures are scrutinized to see if they comport with the federal procedural due process requirements. However, state procedural protections cannot define what process is due. The Fourteenth Amendment’s limitation on state action would be illusory indeed if state practices were synonymous with due process.

681 F.2d 1091, 1097-98 (7th Cir.1982).

Furthermore, in Hewitt v. Helms, the Supreme Court noted the intuitive nature of decisions required of prison officials assessing the seriousness of threats to institutional security and stated that trial type procedural safeguards would not appreciably aid in making those decisions:

As we said in Rhodes v. Chapman, 452 U.S. 337, 349 n. 14 [101 S.Ct. 2392, 2400 n. 14, 69 L.Ed.2d 59] (1981), “a prison’s internal security is peculiarly a matter normally left to the discretion of the prison administrators.” In assessing the seriousness of a threat to institutional security, prison administrators necessarily draw on more than the specific facts surrounding a particular incident; indeed, they must consider the character of the inmates confined in the institution, recent and long standing relations between prisoners and guards, prisoners inter se, and the like. In the volatile atmosphere of a prison, an inmate easily may constitute an unacceptable threat to the safety of other prisoners and guards even if he himself has committed no misconduct; rumor, reputation, and even more imponderable factors may suffice to spark potential disastrous incidents. The judgment of prison officials in this context, like that of those making parole decisions, turns largely on “purely subjective evaluations and on predictions of future behavior,” Connecticut Board of Pardons v. Dunschat, 452 U.S. 458, 464 [101 S.Ct. 2460, 2464, 69 L.Ed.2d 158] (1981); indeed, the administrators must predict not just one inmate’s future actions, as in parole, but those of an entire institution. Owing to the central role of these types of intuitive judgments, a decision that an inmate or group of inmates represents a threat to the institution’s security would not be appreciably sponsored by the trial type procedural safeguards suggested by the respondent.

459 U.S. at 474[, 103 S.Ct at 872] (footnote omitted). The court concluded that “an informal, non-adversary evidentiary review is sufficient both for the decision that an inmate represents a security threat and the decision to confine an inmate to administrative segregation pending completion of an investigation into misconduct charges against him.” Id. at 476[, 103 S.Ct. at 874].

Initially, the court concludes that the plaintiff’s allegation that the supervisor “incorrectly” placed the plaintiff in administrative segregation pursuant to Ad.Reg. 804(II)(C) is not supportive of a denial of due process. Hewitt v. Helms clearly indicates that as long as the prison administration “reviews the charges and then available evidence against the prisoner [within a reasonable time], the Due Process Clause is satisfied.” 459 U.S. at 476[, 103 S.Ct. at 874],

However, the defendants did not comply with the minimum due process requirements of the Fourteenth Amendment as set forth in Hewitt v. Helms. After each incident in issue, a shift supervisor determined that the plaintiff Jones should remain in segregation pending his disciplinary hearing. The defendants notified the plaintiff of the charges against him and provided him with an Adjustment Committee hearing pursuant to Ad.Reg. 804. However, based upon the general requirements of Hewitt v. Helms and the specific language of Ad.Reg. 804(II)(C), the shift supervisor was required to provide the plaintiff an opportunity to present his views before the shift supervisor made his decision on the plaintiff’s continued confinement in administrative segregation.

Unlike the Pardo situation, however, the court concludes that the defendants are entitled to qualified good faith immunity as to plaintiff Jones. The court first notes that the procedural due process requirements of Ad.Reg. 804(II)(C) apparently have never been addressed by a court of this circuit. Although the defendants should have known that under Meachum v. Fano, 427 U.S. 215[, 96 S.Ct. 2532, 49 L.Ed.2d 451] (1976), Ad.Reg. 804(II)(C) creates a protected liberty interest, the defendants provided the plaintiff with substantially all the requirements of due process which Hewitt requires. Compare Hewitt, 459 U.S. at 476[, 103 S.Ct. at 874] with Ad.Reg. 804(II)(C). However, the defendants could not have reasonably known that the failure of the shift supervisor rather than the Adjustment Committee to provide the plaintiff the opportunity to present his views prior to the decision to continue the plaintiff’s confinement in administrative segregation violated the plaintiff’s constitutional rights.

As the Supreme Court noted in Hewitt v. Helms:

Wolff [v. McDonnell, 418 U.S. 539, 563-572, 94 S.Ct. 2963, 2978-2982, 41 L.Ed.2d 935 (1974)] required that inmates facing disciplinary charges for misconduct be accorded twenty-four hours advance notice of the charges against them; a right to call witnesses and present documentary evidence in defense, unless doing so would jeopardize institutional safety or correctional goals; the aid of a staff member or inmate in presenting a defense, providing the inmate is illiterate or the issues complex; an impartial tribunal; and a written statement of reasons relied on by the tribunal.

459 U.S. at 466, n. 3[, 103 S.Ct. at 868, n. 3], Prior to Hewitt v. Helms, neither Wolff v. McDonnell nor its progeny gave any indication that any individual or individuals other than members of the Adjustment Committee would be constitutionally required to review the plaintiffs placement and continued confinement in segregation. Likewise, although Ad.Reg. 804(II)(C) gives rise to a protected liberty interest, 804(II)(C) itself does not give any indication that the plaintiff should be allowed to provide the shift supervisor with a statement prior to the supervisor’s review of the plaintiff’s placement in administrative segregation.

Therefore, the court concludes that the law prior to Hewitt v. Helms was not so clearly established that the defendants could fairly be said to have known that the failure of a shift supervisor to provide an inmate with an opportunity to present his views before the supervisor considered the propriety of the inmate’s continued confinement in administrative segregation, although not previously identified as unlawful, was prohibited. Harlow v. Fitzgerald, 457 U.S. at 819[, 102 S.Ct. at 2738]. Consequently, although the plaintiff was denied a protected Fourteenth Amendment liberty interest without due process, the defendants are entitled, to a good faith immunity defense. The plaintiff’s motion for summary judgment shall be denied as to this claim. The defendants’ motion for summary judgment shall be granted.

B. Adequacy of Committee Summaries

1. On September 29, 1980, Jones received three Adjustment Committee hearings for disciplinary reports issued on September 27, 1980. The three disciplinary reports were written by three correctional officers based upon a single incident which occurred on February 27, 1980. The three hearings were held consecutively and, for all practical purposes, the three summaries that were issued are identical. The plaintiff alleges that the Adjustment Committee failed to give an adequate statement of the evidence relied upon in finding the plaintiff guilty and failed to state reasons supporting the specific disciplinary action taken against him. To provide an inmate with the minimum requirements of due process, the Adjustment Committee must provide the inmate with a “ ‘written statement by the fact finders as to the evidence relied upon and reasons’ for the disciplinary action.” Wolff v. McDonnell, 418 U.S. 539, 564[, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935] (1974), cited in Aikens v. Lash, 514 F.2d 55, 60 (7th Cir.1975), vacated on other grounds, 425 U.S. 947[, 96 S.Ct. 1721, 48 L.Ed.2d 191], reinstated as modified on other grounds, 547 F.2d 372 (7th Cir.1976). See also Heyes v. Walker, 555 F.2d 625, 631 (7th Cir.1977); Redding v. Fairman, 717 F.2d 1105, 1114-16 (7th Cir.1983). As the Supreme Court stated in Wolff v. McDonnell, the considerations underlying this requirement are the protection for a prisoner from collateral consequences of a disciplinary action and encouragement of fair administrative decision making:

Written records of proceedings will thus protect the inmate against collateral consequences based on a misunderstanding of the nature of the original proceeding. Further, as to the disciplinary action itself, the provision for a written record helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been averred, will act fairly. Without written records, the inmate will be at a severe disadvantage in propounding his own cause to or defending himself from others.

418 U.S. at 565[, 94 S.Ct. at 2979]; Hayes v. Walker, 555 F.2d at 631-32; Redding v. Fairman, 717 F.2d at 1114.

In Hayes v. Walker, the Court of Appeals rejected as inadequate an Adjustment Committee summary which stated: “Based on our review of the violation report and the report by the special investigator it is our motion that we find Mr. Hayes guilty as charged. We find that Mr. Hayes is guilty of conspiracy to incite to riot and commit mutinous acts.” The Committee report to inmate Hayes stated: “The committee’s decision is based on the violation report as written and upon the report by the special investigator which during your absence was made part of the record.” 555 F.2d at 631-33 and n. 1; Redding v. Fairman, 717 F.2d at 1114-15.

In Redding v. Fairman, the Court of Appeals rejected as inadequate summaries based “on all available evidence” or “all evidence presented.” The Court stated:

“The phrases ‘based on all available evidence’ or ‘all evidence presented’ are conclusory; they do not disclose what evidence forms the bases of the Committee rulings. The Committee apparently gives credence to the resident disciplinary report in almost every case, but does not admit to doing so in its summaries. Also, no reasons are given for discounting the inmates’ contradictory evidence.”

717 F.2d at 1115. The Court further stated the distinction between constitutionally adequate and inadequate summaries:

The line between constitutional adequacy and inadequacy is a fine, but important one. When the Committee writes “based on all available evidence the resident is guilty,” no agency or court can discern the basis for the Committee’s rulings. If, however, the Committee writes “resident is lying,” ... or another .statement establishing the evidence underlying its decision, then the inmate is protected from a mischaracterization of the disciplinary action when it comes under review.

717 F.2d at 1116 (emphasis added).

Unlike the summaries at issue in Hayes and Redding, the three summaries provided to plaintiff Jones reflect the evidence relied upon by the Adjustment Committee. The summaries indicate that the Committee concluded, as a factual matter, that the plaintiff caused a general disturbance by cursing and making improper and disrespectful remarks to an employee. The summaries indicate that the Committee’s conclusion was based upon the resident’s statements (which were summarized on the summary sheets) and the officer’s report (which had been read into the record in the presence of the plaintiff). Although the summaries provided plaintiff Jones could have been more detailed, the plaintiff was provided with the minimum requirements of due process. The summaries sufficiently establish the evidence underlying the Committee’s determination of the plaintiff’s guilt and thereby adequately protect the plaintiff against collateral consequences of a subsequent review based upon mischaracterization of the disciplinary action taken by the Pontiac administration.

Additionally, the three summaries at issue in the present case are procedurally adequate for the same reasons two of eighteen summaries were found adequate in Redding:

Evaluating the form summaries as a whole by combining the sections “Record of Proceedings” with the sections “Basis for Decision/Evidence Relied Upon” rescues two of the eighteen summaries from constitutional inadequacy. In the section “Record of Proceedings” for plaintiff Jones, the Committee noted in part: “Resident states he struck resident due to he owed him money.” In the section “Basis for Decision/Evidence Relied Upon,” the Committee noted “resident’s testimony given.” Because there was no conflict between the resident disciplinary report and testimony at the Committee hearing, it can be assumed that the Committee relied on plaintiff Jones’ own testimony to find him guilty. Similarly, the “Record of Proceedings” for the February 4, 1980, hearing on plaintiff Tedder states in part: “resident states he was not going to be assigned with a Black, and this is why he refused [his housing assignment].” The plaintiff thus admitted his infraction, and the “Basis for Decision” notes: “Resident’s testimony given.” It therefore can be assumed that the Committee relied on plaintiff Tedder’s admission to find him guilty, though the summary does not so state. Accordingly, the summary for plaintiff Jones and the summary for plaintiff Tedder’s February 4, 1980, hearing satisfied minimum constitutional requirements.

717 F.2d at 1115-16.

In the present case, evaluating each summary as a whole by combining the sections “Record of Proceedings” with the sections “Basis for Decision/Evidence Relied Upon” rescues these summaries from constitutional inadequacy. In the section “Record of Proceedings” on plaintiff Jones’ first summary, the Committee noted in part: “Conversation was between Roberts and myself. I made remarks to Roberts after he made derogatory remarks to me.” In the section “Basis for Decision/Evidence Relied Upon,” the Committee noted “based on resident’s statements.” As in Redding, because there was no conflict between the resident’s disciplinary report and testimony at the Committee hearing, it can be assumed that the Committee relied on plaintiff Jones’ own testimony to find him guilty.

Similarly, the “Record of Proceedings” on plaintiff Jones’ second summary states in part: “I only made derogatory remarks after Robinson harrassed me. He was drunk man.” The plaintiff thus admitted his infraction, and the “Basis for Decision” notes: “Based on resident’s statements.” It therefore can be assumed that the Committee relied on the plaintiff Jones’ admission to find him guilty.

The third Summary provided to the plaintiff Jones is even less detailed than those at issue in Redding. However, based upon the particular facts of the present case, the court concludes that this Summary is also adequate. The court notes that the three resident disciplinary reports issued to the plaintiff arose from a single incident. Although the plaintiff received three separate disciplinary hearings, the hearings were held consecutively on September 27, 1980, at approximately 2:00 p.m. The court further notes that the plaintiff received three identical, concurrent sentences of fifteen days in disciplinary segregation and thirty additional days demotion to “C” grade status. In the section “Basis for Decision” the Committee notes: “Based on resident’s statements.” The section “Record of Proceedings” states in part: “Officer Robinson was drunk and started making derogatory remarks to me. He was harrassing me, spitting all over me and my cell.” Although the Summary does not indicate that the plaintiff admitted facts constituting the infraction, the language of the third Summary clearly indicates that the plaintiff raises the same “defense” he raised at each hearing, namely, that his improper conduct was provoked by, and in retaliation to, improper conduct of correctional officers.

Consequently, under both analyses, the Summaries at issue in the present case are constitutionally adequate for purposes of the Due Process Clause. The plaintiff’s motion for summary judgment shall be denied. Summary judgment for the defendants shall be granted.

2. However, due process requires not only a written statement by the factfinders as to the evidence relied upon, but also “reasons for the disciplinary action.” Wolff v. McDonnell, 418 U.S. 539, 564[, 94 S.Ct. 2963, 2978, 41 L.Ed.2d 935] (1974). In Wolff, the importance of each procedural requirement was considered in some detail, but the need for “reasons” was simply stated, without further amplification. Id. In Hayes v. Walker, 555 F.2d 625 (7th Cir.1977), the Seventh Circuit Court of Appeals addressed this issue as follows:

In United States ex rel. Richerson v. Wolff, 525 F.2d 797 (7th Cir.1975), cert. denied 425 U.S. 914, 96 S.Ct. 1511, 47 L.Ed.2d 764, a case involving the adequacy of reasons for the denial of parole, this court stated that the following test was consistent with Mr. Justice White’s analysis in Wolff of the minimum due process requirements for the revocation of a prisoner’s good time credit:

In United States ex rel. Johnson v. Chairman of New York State Board of Parole, 500 F.2d 925 (2nd Cir.) vacated as moot, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974), the Court said at page 934:
To satisfy minimum due process requirements a statement of reasons should be sufficient to enable a reviewing body to determine whether parole has been denied for an impermissible reason or for no reason at all. For this essential purpose, detailed findings of fact are not required, provided the Board’s decision is based upon consideration of all relevant factors and it furnishes to the inmate both the grounds for the decision ... and the essential facts upon which the Board’s inferences are based ....

526 F.2d at 804.

The institutional adjustment committee failed in the present case to give an adequate statement as to ... reasons for the action taken.

555 F.2d at 632-33; United States ex rel. Speller v. Lane, 509 F.Supp. 796, 800-01 (S.D.Ill.1981).

In the present action, the “disposition and/or disciplinary action” section of the three summaries are essentially identical. Each summary indicates the committee’s determination of the plaintiff’s violation of Ad.Reg. 804(II)(A)(1), (2), (4), and (8). Each summary sentences the plaintiff to fifteen days in segregation and thirty additional days on “C” grade status. Summaries two and three indicate that their sentences run concurrent with that imposed in summary one. However, each summary is devoid of reason or explanation for the specific disciplinary action taken against the plaintiff. Under Wolff and Hayes, the plaintiff was deprived of his right to procedural due process. Cf. Redding v. Fairman, 717 F.2d at 1115 n. 4 (none of eighteen summaries stated reasons underlying the nature and amount of punishment imposed); Smith v. Stoner, 594 F.Supp. 1091 (N.D.Ind.1984) (no explanation as to the severity of sanctions imposed for findings of guilt of violations of rules); Craig v. Franke, 478 F.Supp. 19, 21 (E.D.Wis.1979) (well justified decision based on undisputed facts nonetheless failed to state reasons for imposing segregation). Consequently, the plaintiff’s motion for summary judgment shall be granted.

C. The Right to Call Witnesses

Plaintiff Jones alleges that the defendants failed to call Officer Robinson as requested by the plaintiff at his Adjustment Committee hearing on September 29, 1980. In Wolff v. McDonnell, the court held that “the inmate facing disciplinary proceedings should be allowed to call witnesses to present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” 418 U.S. at 566[, 94 S.Ct. at 2979]; see also Baxter v. Palmigiano, 425 U.S. 308, 321[, 96 S.Ct. 1551, 1559, 47 L.Ed.2d 810] (1976). Furthermore, “some support for the denial of a request for witnesses [should] appear in the record [enabling] a court to make [a] limited inquiry into whether the broad discretion of prison officials has been arbitrarily exercised.” Hayes v. Walker, 555 F.2d 625, 630 (7th Cir.1977).

The defendants claim that the plaintiff received a disciplinary report containing the witness request form two days before the Adjustment Committee hearing, yet the plaintiff failed to properly request witnesses in accordance with Administrative Regulations. However, the plaintiff claims that he did not receive the disciplinary reports until three hours before the Adjustment Committee hearing and consequently did not have an opportunity to properly request witnesses. Obviously, this is a genuine issue of material fact and summary judgment is not appropriate at this time. Therefore, the plaintiffs motion for summary judgment shall be denied as to this issue.

D. Impartial Decision Maker

On April 5, 1981, the plaintiff Jones allegedly refused to move to his assigned cell. At the Adjustment Committee hearing on April 10, 1981, Jones requested that the defendant Lowery remove himself from the Committee. Plaintiff Jones informed the Committee that defendant Lowery had been named as a defendant in this case which was pending at the time of the committee hearing. Lowery told Jones and the committee that he was unaware of this case, although he had been served with process on December 5, 1980. See Plaintiffs Exhibit N. The Committee, chaired by the defendant Lowery, found the plaintiff guilty of rules violations and sentenced him to seven days in segregation.

The issue of disqualification of Adjustment Committee members was addressed recently by the Court of Appeals in Redding v. Faimnan, 717 F.2d 1105 (7th Cir.1983):

The Third Circuit has ruled, following Justice Marshall’s concurrence in Wolff [v. McDonnell, 418 U.S. 539, 592, 94 S.Ct. 2963, 2992, 41 L.Ed.2d 935 (1974) ] that due process prohibits “only those officials who have a direct personal or otherwise substantial involvement, such as major participation in a judgmental or decisionmaking role, in the circumstances underlying the charge from sitting on the disciplinary body”. Rhodes v. Robinson, 612 F.2d 766, 773 (3rd Cir.1979)---- Nevertheless, we believe that circumstances other than those arising directly out of the disciplinary process may raise such doubts about the integrity of the hearing procedure and the impartiality of its participants so as to trigger due process considerations.

717 F.2d at 1113. The district court was directed “to evaluate the circumstances involved in the lawsuits and determine whether disqualification is required. Among other considerations, the district court should determine the extent of the Committee members’ personal involvement in those lawsuits.” Id.

Summary judgment is not appropriate at this time. The defendant Lowery was served with process in this case on December 5, 1980, four months prior to the Adjustment Committee hearing of April 5, 1981. See Plaintiff’s Exhibit N. However, the court notes that substitute service was made. The Marshal’s return shows he served the process on Lynette Pharris, the secretary to the Assistant Deputy Director of the Department of Corrections in Springfield, Illinois. The plaintiff has not alleged, and there is no indication that the defendant was personally aware of the pending lawsuit prior to the Adjustment Committee hearing of April 5, 1981. Therefore, at least one question of material fact remains concerning the plaintiff’s claim of denial of an impartial decision maker, i.e., the extent of Lowery’s personal knowledge of the pendency of the suit. Consequently, the plaintiff’s motion for summary judgment shall be denied.

IT IS THEREFORE ORDERED that the plaintiff Pardo’s motion for summary judgment on the issue of liability on the plaintiff’s due process claim concerning placement in administrative segregation is granted.

IT IS FURTHER ORDERED that the defendants’ motion for summary judgment on that issue is denied.

IT IS FURTHER ORDERED that the defendants’ motion for summary judgment on the plaintiff Jones’ due process claim concerning placement in administrative segregation is granted.

IT IS FURTHER ORDERED that the plaintiff Jones’ motion for summary judgment on that issue is denied.

IT IS FURTHER ORDERED that the plaintiff Jones’ motion for summary judgment on the issue of liability on the plaintiff’s due process claim concerning the adequacy of Committee Summaries stating the evidence relied upon in finding the plaintiff guilty is denied.

IT IS FURTHER ORDERED that summary judgment for the defendants is granted on that issue.

IT IS FURTHER ORDERED that the plaintiff Jones’ motion for summary judgment on the issue of liability on the plaintiff’s due process claim concerning the adequacy of committee summaries stating the reasons for the specific disciplinary action taken against him is granted.

IT IS FURTHER ORDERED that the plaintiff Jones’ motion for summary judgment on the plaintiff’s remaining claims concerning the right to call witnesses and the right to an Adjustment Committee composed of impartial committee members is denied.

      . Other courts have approached the question in similar fashion, but with differing results. Compare Wright v. Enomoto, 462 F.Supp. 397 (N.D.Cal.1976), aff’d memorandum 434 U.S. 1052[, 98 S.Ct. 1223, 55 L.Ed.2d 756] (1978) (inmate had interest, conferred by statewide regulation and protected by due process, in not being confined in maximum security segregation for administrative reasons unless found, for clearly documented reasons, to come within standard set by state rules) with Love v. Duckworth, 554 F.Supp. 1067, 1070 (N.D.Ind.1983) (inmates had no legitimate expectation that an offender would remain in general population absent a finding of particular events since the procedure in Indiana does not restrict the discretion of officials to place offenders in administrative segregation only after particular events). See also Hughes v. Rowe, 449 U.S. 5, 16 — 17[, 101 S.Ct. 173, 179, 66 L.Ed.2d 163] (1980) (White, J. concurring).

      . Hughes was essentially a pleading case rather than an exposition of the substantive constitutional issues invoked. See Hewitt, 459 U.S. at 469, n. 5[, 103 S.Ct. at 870, n.5].

      . The Supreme Court has recently reaffirmed the principles set forth in Meachum v. Fano. See Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983).

      . See e.g. Arsherry v. Sielaff, 586 F.2d 37 (7th Cir.1978) (recognizing that a prisoner may have due process rights as a result of entitlements created by prison regulations, but remanded to the district court to consider and determine whether Administrative Regulation 807 creates a state law entitlement deserving of due process protection); Bono v. Saxbe, 450 F.Supp. 934 (E.D.Ill.1978) aff’d 620 F.2d 609 (7th Cir.1980) (Marion policy statement MI-7300.80(A) stating that placement in the control unit is based on an inmate’s demonstrated inability to adjust to an open institutional setting, gives rise to a protected liberty interest that only upon some proof of non-conformity will an inmate be placed in the control unit). But see Durso v. Rowe, 579 F.2d 1365 (7th Cir.1978); (Ill.Rev. Stat. ch. 38, § 1003-8-7(e), providing that certain procedures must be followed in prisoner disciplinary cases applies only when the change in prison assignment is for disciplinary purposes and does not prohibit a change in assignment for non-disciplinary reasons and does not limit the discretion of prison officials in making transfer decisions).

      . The defendants have not asserted that prison authorities were faced with emergency situations which outweighed the inmate’s interest in a prior procedural safeguard. See generally LaBatt v. Twomey, 513 F.2d 641, 645-48 (7th Cir.1975); Hayes v. Walker, 555 F.2d 625, 633 (7th Cir.1977); Hughes v. Rowe, 449 U.S. 5, 11[, 101 S.Ct. 173, 177, 66 L.Ed.2d 163] (1980).

      . But see Ra Chaka v. Nash, 536 F.Supp. 613, 616-17 (N.D.Ill.1982) (violation of Ad.Reg. 804(C)(1) and (2) requiring shift supervisor to sign disciplinary report and authorize prehearing confinement did not violate the plaintiff’s substantive due process rights where plaintiff did not allege that defendant acted arbitrary or capriciously, only that defendant acted contrary to the regulations).

      . The first summary states: "Based on resident’s statement and officer’s report the committee is convinced resident violated AR 804 by cursing, making improper and disrespectful remarks to an employee and thereby causing a general disturbance." The second and third summaries state identically: "Based on resident’s and officer’s report the committee is convinced resident violated AR 804 by cursing, making improper and disrespectful remarks to an employee and thereby causing a disturbance." See Plaintiffs' Exhibits G-l through G-3, and Defendants' Exhibits 7, 9, and 11.

      . The first summary states: “Guilty-violated-Administrative Regulation 804(II)(2)(A)-1, 2, 4, and 8. Segregation-fifteen days — release 10-13-80. Demotion to C grade thirty days — consecutive to previous demotion.” The second summary states: "Guilty-violated-AR 804(II)(A)-1, 2, 4, and 8. Segregation-fifteen days-release 10-13-80. C grade demotion-thirty days-consecutive to previous demotion. RDR 2 to run concurrently with RDR 1 written on same day and approximate time.” The third summary states: “Guilty-violated-AR 804(II)(A)-1, 2, 4, and 8. Segregation-fifteen days-release 10-13-80. C grade demotion-thirty days-concurrent to previous demotion. RDR 3 to run concurrent with RDR 2 and 1 written on same date and approximate time.”