text:
    A.T., R.B., K.A., Individually and on Behalf of all Persons Similarly Situated, Plaintiffs, v. COUNTY OF COOK, ILLINOIS, and James M. Jordan, Superintendent, Cook County Juvenile Temporary Detention Center, Defendants.
    No. 85 C 0325.
    United States District Court, N.D. Illinois, E.D.
    July 2, 1985.

      Benjamin S. Wolf, Harvey Grossman, Chicago, 111., for plaintiffs.
    Terry McDonald, Ronald Kammer, Asst. State’s Attys., Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiffs in this civil rights class action seek to enjoin defendants’ practice of indefinitely detaining alleged juvenile delinquents even though a state court judge has ordered that they be “released upon request” of a responsible adult. Plaintiffs sue under 42 U.S.C. § 1983, alleging many constitutional violations. Defendants have moved to dismiss on three grounds: the doctrine of quasi-judicial immunity, the failure to state a claim against defendant Cook County (“the County”) and the doctrine of abstention. For the following reasons, this motion is denied.

Facts

The complaint’s allegations, which for purposes of this ruling we assume to be true, paint a sad picture of children regularly being detained from a few months to two years, even though a state court judge had ruled that they do not meet the statutory criteria for detention. A technicality explains this seemingly bizarre state of affairs. In each case a judge has ordered the juvenile “released upon request” of the child’s parent or other responsible adult. But for one reason or another, no adult shows up, and the child languishes in jail.

Illinois has an extensive statutory procedure for prosecution and detention of juveniles. See generally Ill.Rev.Stat. ch 37, 11701-1 et seq. (1983). Plaintiffs apparently have fallen through a crack in that system. In general the “Juvenile Court Act,” id,., frowns upon detention of children. See H 701-2(1). Children alleged to be delinquents must be given a preliminary hearing within thirty-six hours after being initially detained in a detention home or jail. 11703-5(1). At such a hearing the court must determine whether there is probable cause to believe that the child is delinquent as defined by 11702-2. If no probable cause does exist, detention is still not automatic, and, in fact, is disfavored. To continue detention the Court must find on the basis of evidence that:

... it is a matter of immediate and urgent necessity for the protection of the minor or of the person or property of another that the minor be detained or placed in a shelter care facility or that he is likely to flee the jurisdiction of the court....

11703-6(2). Otherwise, the child must be released. For alleged delinquents, the Court must consider four factors in making the determination of “immediate and urgent necessity”:

(a) the nature and seriousness of the alleged offense; (b) the minor’s record of delinquency offenses, including whether the minor has delinquency cases pending; (c) the minor’s record of willful failure to appear following the issuance of a summons or warrant; and (d) the availability of non-custodial alternatives, including the presence of a parent, guardian or other responsible relative able and willing to provide supervision and care for the minor and to assure his compliance with a summons.

Id. If ordered temporarily detained, the child is entitled to an adjudicatory hearing within ten judicial days of the preliminary detention order; if not detained, the child is entitled to such a hearing within thirty days. H 704-2. At such a hearing, the judge determines whether the child should be made a ward of the State. II704-8. If the court judges the child to be its ward, it must then conduct a “dispositional hearing” at which it considers various options, such as probation or conditional discharge, placement with an appropriate governmental agency or commitment to jail. See ¶¶ 705-1, 705-2(a).

The complaint alleges that each of the plaintiffs has been detained at the Audy Home. In each case, a preliminary hearing was held, in which a judge ruled that the child did not meet the specific statutory criteria for detention set forth in ¶ 703-6(2). The judge ordered each “released upon request” of his or her parents or some other adult, such as a relative or probation officer. Tragically, either no one shows up or someone shows up only several months later. As a result, the child remains confined in the Audy Home for months until an adult shows up or a hearing on the merits is held, whichever occurs first. Plaintiffs allege that this has been happening frequently. They allege several constitutional violations. First, they charge that the continued detention amounts to punishment without trial in violation of due process. Similarly, the unique facts allegedly amount to a violation of the Eighth Amendment right to bail. Fourth Amendment and First Amendment rights are also allegedly violated by searches and other restrictive measures which flow from the fact of continued detention. Plaintiffs seek only declaratory and injunctive relief now.

Defendant James Jordan (“Jordan”), Superintendent of the Audy Home, claims that the doctrine of quasi-judicial immunity insulates him from the relief requested. He and the County also argue that the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 760, 27 L.Ed.2d 669 (1971), and its progeny commands the Court to dismiss the suit. Finally, the County claims that the complaint alleges relief against it only under a theory of respondeat superior, and thus Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), bars relief against it.

Abstention

The Younger doctrine originally held that a federal court must, absent exceptional circumstances, dismiss a claim for injunctive relief against pending state criminal proceedings. The Supreme Court has since expanded the doctrine to include cases of a quasi-criminal nature involving states as parties and implicating important state interests. See Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (abstention from enjoining state bar disciplinary proceedings); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (state emergency child abuse proceedings); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (state contempt proceedings); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (public nuisance proceedings). Several policies underlie the doctrine and must inform our application of it. One is the traditional doctrine of equity that a court should not issue an injunction when an adequate remedy at law exists and should not easily restrain a criminal prosecution. Huffman, 420 U.S. at 600-01, 95 S.Ct. at 1206, citing, Younger v. Harris, 401 U.S. 37 at 43, 91 S.Ct. 746 at 750, 27 L.Ed.2d 669. Thus, one focus of our inquiry is whether the ongoing state proceeding provides an adequate opportunity to raise federal constitutional issues. See, e.g., Middlesex County, 457 U.S. at 432, 102 S.Ct. at 2521. Another policy underlying Younger is the notion of “comity,” that is, a “proper respect for state functions,” such that in vindicating federal rights we must “always endeavor [] to do so in ways that will not unduly interfere with the legitimate activities of the State.” Younger, 401 U.S. at 44, 91 S.Ct. at 750.

Three questions must be addressed. First, is there some ongoing state judicial proceeding? See Middlesex County, 457 U.S. at 432, 102 S.Ct. at 2521. This question is crucial because “ ‘the relevant principles of equity, comity, and federalism “have little force in the absence of a pending state proceeding.” ’ ” Huffman, 420 U.S. at 602-03, 95 S.Ct. at 1207, quoting Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 1217, 39 L.Ed.2d 505 (1974). When no state proceeding is pending, federal intervention does not duplicate legal proceedings, disrupt the state system of justice or insult the state’s abilities to enforce constitutional principles. Id. Second, if proceedings are pending, we must decide whether they implicate important state interests. Middlesex County, 457 U.S. at 432, 102 S.Ct. at 2521. Finally, we must see whether the state proceedings give an adequate opportunity to raise constitutional challenges. Id.

The second question yields the easiest answer. The detention proceedings in issue are criminal in nature. And the state obviously has a strong interest in figuring out what to do about alleged delinquents and how to go about doing it. Even so, we do not think the first or third questions yield answers favoring abstention.

It is true that the state proceedings are pending in a strict sense. That is, juveniles have been ordered “released upon request,” and wait in the Audy Home for their adjudications on the merits. But in another sense this case affects nothing in that state court proceeding. While they wait, nothing is happening in court. Unlike the Younger line of cases, this case does not challenge the state juvenile detention statute or procedures itself. Nor do plaintiffs seek to enjoin or delay those proceedings or interfere with any state decision on the merits of whether they are delinquents subject to detention. Rather, the case addresses the fact of plaintiffs’ indefinite pretrial confinement, not the underlying proceedings. The policy of comity does not warrant abstention here. Federal intervention will not duplicate state proceedings, disrupt the state court determination on the merits or insult the competence of the state courts. The case is therefore like Gerstein v. Pugh, 420 U.S. 103, 108 n. 9, 95 S.Ct. 854, 860 n. 9, 43 L.Ed.2d 54 (1975), which was also a challenge to pretrial detention procedures. There plaintiffs challenged the state’s practice of jailing them on the basis of a prosecutor’s information alone, without a judicial finding of probable cause. The Supreme Court held that Younger did not bar the suit, because the injunction did not interfere with the criminal prosecutions themselves, but rather ordered only that preliminary hearings be held. 420 U.S. at 108 n. 9, 95 S.Ct. at 860; see also Coleman v. Stanziani, 570 F.Supp. 679, 687-88 (E.D.Pa.1983) (no abstention where challenge to procedures for pretrial detention of juveniles is collateral to merits of prosecution). Similarly, the challenge here is only to the fact of the indefinite pretrial detention and asks that procedures be developed to deal with this fact. Plaintiffs are asking for something akin to another hearing to determine how to deal with the children who are not “claimed.” The procedures on the merits are left intact.

Defendants see the case differently as a direct invasion of the state judicial system. They emphasize that they are not detaining plaintiffs who have simply been ordered “released.” Rather, a state court judge has ordered each plaintiff “released upon request ” of a responsible adult. This purportedly complies with 11703 — 6(2)(d), which mandates that the judge consider non-custodial alternatives in deciding whether the juveniles should be detained. That is, the state court has found that each child can be released only upon fulfillment of a condition precedent, the appearance of an adult, just as an accused felon can be released only upon his payment of bail. Detention here is no worse than continued pretrial detention of a defendant who cannot make bail, argue defendants. They conclude that this case in effect seeks to reverse the orders of these judges and thereby interferes unduly with the state pretrial detention process.

The defendant’s approach is too formalistic, misreads the complaint and ignores key elements of the Juvenile Court Act. Plaintiffs are not challenging the judges’ decisions to “release them upon request.” They are not challenging the propriety of considering “the availability of non-custodial alternatives, including the presence of a parent ...” H703-6(2)(d). What they are challenging is what happens after a judge has made this determination and decided that such non-custodial alternatives do exist. He or she orders them released, but then those alternatives fail to materialize in the form of a relative who comes to pick up the child. The children then languish in the Audy Home. No procedures exist to cope with this unforseen event. Months may pass before a final determination is made. That is what plaintiffs challenge. We disagree with defendants that such a challenge interferes with ongoing state proceedings. We do not think that when the judge ordered the plaintiffs “released upon request” he or she also implicitly ordered them “held indefinitely if no one shows up to so ‘request.’ ” Indeed, such an implicit order would violate the Juvenile Detention Act itself, and for that reason we should construe the order to comply with the Act. As noted earlier, when judges order children detained, the statute requires that an “adjudicatory hearing” be held within ten days. ¶ 704-2. Yet judges have allegedly not scheduled such hearings themselves. If, as the Younger doctrine teaches, we must presume that state judges can competently decide federal constitutional issues, see, e.g., Middlesex County, 457 U.S. at 432, 102 S.Ct. at 2521, it follows that we must presume that they can apply state law at least as well. Assuming that they are not ignoring the state law regarding dates for hearings, we must assume that the judges who entered the “release upon request” orders were not ordering that the children be “detained indefinitely upon no request.” If they were, they would have scheduled such a hearing contingent on the failure of a responsible adult to show up. In sum, then, this suit does not seek to reverse or interfere with orders of the state courts. Rather, it deals with the constitutional consequences of the failure of those orders to be fulfilled.

Even if this suit did interfere more directly with ongoing state judicial proceedings, we are not persuaded that those proceedings provide plaintiffs an adequate opportunity to challenge their indefinite detention. Indeed, the gist of the complaint is that there are no certain procedures available within the Juvenile Court Act through which plaintiffs could challenge their indefinite detention. Plaintiffs have fallen through a crack in that system. Defendants have pointed out no procedures plaintiffs can use. Even if there were such procedures, it does not appear that the juvenile’s objections could effectively be raised on appeal. The detention order is interlocutory, cf. In re J.N., 91 Ill.2d 122, 126-27, 61 Ill.Dec. 776, 778-79, 435 N.E.2d 473, 475-76 (1982) (in proceedings under the Juvenile Court Act the dispositional order is the final appealable order), and by the time the issues here could be raised in appeal, they would probably be moot. Viable appellate remedies have been held crucial to the decision of whether state procedures are adequate. See Coleman v. Stanziani, 570 F.Supp. at 687. Moreover, the plaintiffs challenge far more than the allegedly unlawful fact of their confinement; they challenge many of the conditions of their confinement as well. Defendants have not suggested how these allegations can be dealt with in the ongoing state detention proceedings.

Because plaintiffs are not asking this Court to interfere unduly with ongoing state proceedings, because our intervention will not frustrate concerns of comity, and because the state proceedings cannot adequately address the full scope of plaintiffs’ claims, abstention is improper. Abstention appears unwarranted for another reason as well. The complaint alleges that plaintiffs’ parents or guardians use the loophole in the “release upon request” procedures to punish plaintiffs, that is, to “teach them a lesson,” and that defendants and the state court judge often know this, yet do nothing. Complaint, ¶ 18. Assuming this very serious allegation to be true, we believe that this case also comes within the “bad faith” or “other extraordinary circumstances” exception to Younger abstention. See above at n. 5. For all of the above reasons, then, we do not abstain.

Immunity

Defendant Jordan argues that he is entitled to judicial immunity because he was merely following court orders by not releasing the juveniles when no responsible adult “requested” that he do so. See Doe v. McFaul, 599 F.Supp. 1421, 1430-32 (D.Ohio 1984) (director of corrections who follows even unconstitutional judicial order shares immunity of judge who issued the order). However, Doe and related cases dealt only with immunity from damages. Plaintiffs seek only injunctive and declaratory relief. The Supreme Court recently held that judicial immunity does not bar claims for declaratory or prospective injunctive relief. Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). Jordan has not tried to distinguish Pulliam, and that failure proves fatal, for Pulliam appears to control here.

Jordan changes tack in his reply brief. Implicitly conceding the Pulliam issue, he essentially argues under Fed.R. 12(b)(6) that plaintiffs have failed to allege a claim which supports declaratory or injunctive relief. We think plaintiffs’ allegations concerning the fact of their indefinite confinement plainly do state constitutional claims. Jordan does not contest this in their brief. Instead he challenges only the parts of the complaint in which plaintiffs attack the conditions of their confinement. Jordan might be correct that plaintiffs’ allegations on their face seem to fail to state a claim under Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). But Bell is premised on the presumption that the pretrial detainees are being lawfully jailed. That premise is allegedly absent here. Moreover, Bell involved detention of adults, not children with special needs. For now we express no opinion on whether Bell disposes of plaintiffs’ conditions challenges. Jordan’s arguments concerning Bell arose for the first time in his reply and are not directly related to the grounds of the pending motion; most importantly, plaintiffs have not had a chance to respond fully to this argument. Should Jordan wish to pursue what is essentially a motion under Rule 12(b)(6) premised on Bell, he may file such a motion with a supporting memorandum, and we will set a briefing schedule. For now we hold only that Jordan is not entitled to judicial immunity to the extent plaintiffs’ claim seeks declaratory and injunctive relief.

Respondeat Superior

Defendant County argues that it is named as a defendant only under a theory of respondeat superior, and that it must therefore be dismissed under Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The County is correct that Monell immunizes it from liability simply because one of its employees violates § 1983. Id. at 691, 98 S.Ct. at 2036; Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985). However, the County can be held liable if its official policies or unwritten customs caused the alleged constitutional violations. See Monell, 436 U.S. at 690, 91, 98 S.Ct. at 2036; Strauss, at 767.

The complaint here plainly alleges such an official policy. It alleges that the practice of detaining juveniles indefinitely is common. It backs up that allegation with the circumstances of three named plaintiffs and three purported class members. It alleges that this practice has continued for well over a year, and that it constitutes the official policy or practice of the County. It alleges that Jordan, an official of the County, “is the highest level decision-maker with authority over the Audy Home, and he determines the policies of the Audy Home with respect to plaintiffs’ release and the conditions of their confinement.” Complaint, ¶ 17. These allegations suggest that the practice of indefinite detention is at least the custom, if not the policy, of Jordan. As the highest official of the Audy Home, Jordan’s “edicts or acts may fairly be said to represent official policy,” Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38, such that the County can be held liable for his actions and policies. See Reed v. Village of Shorewood, 704 F.2d 943, 953 (7th Cir.1983) (government necessarily acts through agents and thus court’s job is to identify the official with enough authority such that his or her acts reflect government policy).

In seeking to avoid Monell liability, the County once again tries to shield itself with the state courts’ “release upon request” orders. It claims that it is merely following the letter of the “release upon request” orders, and this “policy” of following court orders cannot be said to be unconstitutional. We disagree. As we noted earlier, the complaint does not attack these orders, but rather the consequences of the failure of responsible adults to show up to pick up the children. It attacks Jordan’s repeated failure to do anything about these children but keep them locked up. Jordan has not been ordered to lock up the children for up to a year, as we noted earlier.

Finally, the County argues alternatively that even if a policy is alleged, it is not alleged with enough particularity under the Seventh Circuit’s recent decision in Strauss. Strauss repeated the oft-cited rule of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), that courts must construe pleadings liberally, and that dismissal is improper “ ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Strauss, at 767, quoting Conley, 355 U.S. at 45-46, 78 S.Ct. at 102. But the Court went on to hold that in § 1983 cases alleging municipal policy, conclusory allegations of policy will not suffice. At 767-69. The complaint cannot merely regurgitate the Monell requirement of official policy. At 768. Rather “some fact indicating the existence of some such policy must be pled.” Id. at 768. This burden is not meant to be heavy.

We do not mean to imply that a plaintiff must plead in greater detail, but merely that the plaintiff must plead some fact or facts tending to support his allegation that a municipal policy exists that could have caused his injury.

Id. at 769.

Plaintiffs here have pled “some fact or facts tending to support” their allegation that a County policy exists. Unlike plaintiff in Strauss, who could allege no more than his claim as evidence of broader municipal custom, slip op. at 4, plaintiffs here have alleged six examples of the indefinite detention. They have also detailed the statutory scheme which makes such detentions plausible, even likely, because of an unforseen loophole in that scheme. They allege that these detentions have occurred continuously well over a year, thus bolstering their allegation that the custom is well established. In short, the complaint here easily satisfies the particularity demanded by Strauss.

Defendants’ grounds for dismissing the suit lack merit, and their motion is denied. It is so ordered.

      . Actually, the children are confined in the "Cook County Temporary Detention Center," more commonly known as "the Audy Home." While this is not a "jail" in the usual sense, it is a “jail” in the sense that the children are confined and deprived of several of their freedoms.

      . A "delinquent” is defined in ¶ 702-2 as a minor who before his or her seventeenth birthday "has violated or attempted to violate, regardless of where the act occurred, any federal or state law or municipal ordinance."

      . The allegations concerning named plaintiff "A.T.” exemplify the preceding story: Age 14, she was arrested and charged with delinquency in November 1984. On November 7, 1984, a judge of the juvenile court found that she did not meet the statutory criteria for detention at the Audy Home and ordered her “released upon request" of her mother. But as of January 14, 1985, when the complaint was filed, she remained at the Audy Home and had not received trial on the merits. As a result, she is not receiving the special educational services she needs. Complaint, ¶ 11. Similarly, class member M.W. is severely retarded, was held at the Audy Home for over one year even though he was ordered "released upon request of probation officer." During his detention, he did not receive the special education he needs. Complaint, ¶ 15.

      . These policies have been extensively debated and often criticized in academia. A nationally renowned authority recently has argued forcefully that the Younger doctrine violates principles of separation of powers in that the Court was substituting its policy judgments for those of Congress in carving out exceptions to broad congressional grants of jurisdiction. See M. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71 (1984).

      . There is a narrow category of exception to Younger abstention. If the state proceeding is brought in bad faith or for harassment, abstention is improper. Other "extraordinary circumstances" might also counsel against abstention. Younger, 401 U.S. at 53-54, 91 S.Ct. at 755.

      . We also agree with the County that it has a strong interest in not merely throwing the children out onto the street. However, we disagree with its conclusion, see Memorandum in Support of Motion to Dismiss, at 6, that the state therefore has an interest in detaining the children indefinitely. This argument intimates that the County is doing these children a favor by keeping them in the Audy Home for months. The County does not have an interest in simply doing nothing when a judge orders the children released upon request and no one shows up.

      . Whether a separate state suit could lie to redress the grievances is irrelevant. There is in general no exhaustion requirement for § 1983 cases. See, e.g., Coleman, 570 F.Supp. at 685-88; Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). For Younger abstention purposes, we need only determine whether the ongoing state proceeding provides adequate remedies.

      . The complaint reserves plaintiffs’ rights to seek damages later. For now we express no opinion on whether Jordan would be immune from damages, as the issue is not ripe. The County does not raise such a defense, probably because an attempt to do so would be fruitless. See Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) (city does not share qualified immunity defense of its officers); Coleman, supra, 470 F.Supp. at 681 (county does not share immunity enjoyed by defendant judges from damages).

      . Bell held that pretrial detainees may not be “punished,” but that their lawful detention is not unconstitutional even though many of their rights are severely curtailed. Here, many of plaintiffs’ conditions complaints flow from the fact of their confinement. For example, they are subject to search, have restricted visiting hours, cannot attend the school of their choice, etc. However, as noted in the text, if the fact of plaintiffs’ confinement is unlawful, so might be the conditions of confinement which flow from this fact and which might otherwise be lawful under Bell.


source: Caselaw Access Project

author: BATTISTI, Chief Judge.

license: Public Domain

text:
    Steven CRAIG, aka Stanley Carlton, Petitioner, v. Ted ENGLE, Superintendent, Respondent.
    No. C81-1800.
    United States District Court, N.D. Ohio, E.D.
    July 3, 1985.

      Michael Dane, Cleveland, Ohio, for petitioner.
    Alexander G. Thomas, Asst. Atty. Gen., Columbus, Ohio, for respondent.
   ORDER

BATTISTI, Chief Judge.

On September 14, 1981, petitioner filed for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition challenged his 1978 state court conviction on two counts of robbery under Ohio Revised Code § 2911.02 on three grounds: violation of the Fifth Amendment right against double jeopardy, violation of the right to effective assistance of counsel and violation of Ohio’s statutory speedy trial right. On February 25, 1985, Magistrate Jack B. Streepy filed his report and recommended the petition be denied. Petitioner filed objections to the Magistrate’s Report on March 4, 1985. The case comes before this court to review the Magistrate’s decision.

II.

On June 2, 1978, petitioner and a female accomplice attempted to steal cigarettes from a grocery store in Cuyahoga County, Ohio. They were interrupted and fled the store. At a nearby gas station, petitioner stole a 1970 Plymouth Valiant by forcing the driver out. Petitioner and his accomplice were able to get away.

On July 20, 1978, petitioner and an accomplice were caught in a department store in Lake County while attempting to steal some dresses. They had arrived at the department store in the same Plymouth Valiant which' had been stolen on June .2, 1978.

Petitioner was indicted in both Lake and Cuyahoga Counties. In Cuyahoga County, petitioner was charged with committing a theft involving a. car and using force against the driver thereby violating Ohio Revised Code § 2911.02. The Cuyahoga County indictment was filed on September 20, 1978.

In Lake County, petitioner was charged with receiving or retaining an automobile knowing it to have been obtained through a theft in violation of Ohio Revised Code § 2913.51. The Lake County indictment was filed September 13, 1978.

The Lake County indictment, although concerning a criminal act which occurred later, was tried first. The prosecution presented the testimony of the car owner and one eyewitness to the June 2nd robbery to establish that the Plymouth Valiant had been stolen. Neither witness was asked to identify the individual who had stolen the car; the eyewitness said she would not be able to identify the individual who stole the car. The defendant-petitioner did not dispute the claim of theft. He testified that he was in the stolen car on July 20. At the time of his arrest, he had the keys to the car in his possession. However, petitioner claimed the car had been driven to the department store by a Buster Lee. Defendant-petitioner admitted that he had driven the car on the previous day and since Buster Lee said he [Lee] owned the car, petitioner had no knowledge the car had been stolen. The Lake County jury acquitted petitioner of the charge of receiving or retaining stolen property.

Petitioner was subsequently tried in Cuyahoga County surrounding the event of June 2. Numerous eyewitnesses identified petitioner as the individual who forced the driver out of the car and drove it away. Petitioner was convicted on two counts of violating O.R.C. § 2911.02.

III.

DOUBLE JEOPARDY CLAIM

Petitioner claims that since he was acquitted in Lake County of receiving or retaining an automobile he knew was stolen, the state is collaterally estopped from trying him in Cuyahoga County on the charge of committing a theft involving a car and using force against the driver. Petitioner relies on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) wherein the Court held that the Fifth Amendment double jeopardy clause embodies collateral estoppel as a constitutional requirement. Id. at 445, 90 S.Ct. at 1195. The magistrate’s report correctly sets out the test applied by the Ashe court to determine whether there is a violation of double jeopardy:

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” The inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240, 92 L.Ed. 180 (1948).

For double jeopardy purposes the state will be considered a single entity acting through subordinate units, namely the counties. Brown v. Ohio, 432 U.S. 161, 164 n. 4, 97 S.Ct. 2221, 2224 n. 4, 53 L.Ed.2d 187 (1977); Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). The burden is on the defendant to establish that the issue he seeks to foreclose from litigation in the present prosecution was necessarily decided in his favor by the prior verdict. United States v. Cala, 521 F.2d 605, 608 (2d Cir.1975). Therefore, this Court must determine whether the jury’s verdict in Cuyahoga County could have been based on an issue other than that which was decided in petitioner’s favor in Lake County.

An examination of the charges themselves is a good starting point. The Lake County indictment was under Ohio Revised Code section § 2913.51, entitled “Receiving Stolen Property” which states:

(A) No person shall receive, retain, or dispose of property of another, knowing or having reasonable cause to believe that the property had been obtained thorough commission of a theft offense.

The Cuyahoga County indictment was under Ohio Revised Code section 2911.02, entitled “Robbery,” which states:

(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall use, or threaten the immediate use of force against another.

As the Magistrate correctly notes, the common element in the two offenses is the commission of a theft. However, the critical difference is that under § 2913.51 the individual need not have been involved in the actual commission of the theft offense at all; he simply needs to know the property was stolen.

It is instructive to examine the cases cited by petitioner. In Ashe, the defendant was charged with the armed robbery of each of six poker players and the theft of a car. In May 1960, the defendant was tried on the charge of robbing one of the poker players. The defense offered no testimony Nonetheless, the jury found the petitioner “not guilty due to insufficient evidence.” Id. 397 U.S. at 438-39, 90 S.Ct. at 1191-92. Six weeks later, the petitioner was tried again, this time for the robbery of another poker player. This time the jury found the petitioner guilty. Id. at 440, 90 S.Ct. at 1192. The Court stated that “collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be relitigated between the same parties in any future lawsuit.” Id. at 443, 90 S.Ct. at 1194. The Court concluded:

For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that [the chief witness] had not been a victim of that robbery. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers____ once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery ... in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery.

Id. at 445-46, 90 S.Ct. at 1195.

The Magistrate analogizes the instant case with United States v. Cala, 521 F.2d 605 (2d Cir.1975). In Cala, 521 F.2d 605 (1975), defendant was arrested and charged with possession of approximately $160,000 in counterfeit currency. He was indicted under 18 U.S.C. § 472 which prohibits possession of counterfeit currency “with intent to defraud.” At defendant’s trial in January 1973, in the Central District of California, he admitted possession of the counterfeit notes but that he had innocently received the money from an unknown source. He was acquitted. On September 5, 1973, defendant was indicted in the Western District of New York for transferring and delivering $200,000 in counterfeit bills with the intent that they be used as genuine Federal Reserve Notes (in violation of 18 U.S.C. § 473) and conspiring to transfer counterfeit currency with a co-defendant. The counterfeit currency was the same currency for possession of which Cola had been acquitted in California. Id. at 606. The jury in the second trial acquitted him of the transport charge but convicted him on the conspiracy count. Defendant contended that the government was collaterally estopped from proving the critical element of intent to defraud since that issue had been resolved in defendant’s favor in California. The Court held that there was no such preclusion since the indictments and trials involved separate crimes relating to a different time period. Id. at 608. Furthermore, the evidence introduced by the parties was “for the most part confined to its separate time period.” Id. As the Court stated, “... the significant fact is that the second trial did not amount to a rehash of the evidence presented at the first trial, but was devoted to proof of a different crime involving different evidence ____in the present case not only are the offenses different but they do not arise out of the same transaction.” Id. at 609.

As to the instant case, in the first trial in Lake County, the issue the jury was faced with was whether (1) petitioner tried to steal dresses on July 20, 1978 and (2) whether petitioner knew the car he possessed on July 20, 1978 was stolen. The Cuyahoga trial required the prosecution to show (1) that petitioner was involved in a theft offense and (2) that he used or threatened the use of force against another on June 2, 1978, both in the grocery store and regarding the car. Judge’s Instructions, Cuyahoga County Tr. at 213-218.

An examination of the trial transcripts reveals largely separate testimony about two separate events. The Lake County transcript shows the prosecution emphasized the theft of the dresses. The owner of the car testified that it had been stolen. Lake County Tr. 5-15. The second witness, Shelly Goldstein Kabert, merely testified that her sister had been forced out of the car but was not able to specifically identify him. Lake County Tr. at 19. The Cuyahoga County Transcript does include testimony from Lorrie Goldstein and Shelley Kabert (who had testified in Lake County) but the emphasis there was that force was being used on June 2, 1978. As the Magistrate correctly found, the eyewitnesses to the June 2 robbery only testified at the Cuyahoga County trial.

Petitioner is correct in noting that Cala differs from the instant case since intent and knowledge differ. Petitioner’s Objections to Magistrate’s Report at 3-4. However, in the instant case, petitioner errs in saying that “the only way Lake County could have proved knowledge and retention by the petitioner was ... by proving that petitioner stole the car and retained it in his possession.” Objections, at 4. It was not necessary for the State to prove in Lake County that petitioner stole the car at all; all that was necessary was for petitioner to have used the car knowing it had been stolen. Indeed the jury could have concluded that petitioner was not involved in the June 2nd theft but had been given the car by Buster Lee and unknowingly used it to drive to the mall. However, in the Cuyahoga County trial, the jury was faced with whether defendant himself actually stole the cigarettes or the car and used force in the commission of the theft. In this Court’s view, the evidence is sufficiently different and the offenses arise out of different transactions (grocery store robbery on June 2nd, department store robbery on July 20th).

Petitioner contends that the state ignored the venue provisions of Ohio Revised Code § 2901.12(H) by splitting its actions against petitioner in Lake and Cuyahoga County, citing State v. Urvan, 4 Ohio App.3d 151, 446 N.E.2d 1161, 4 Ohio Official Reports (1982), 4 Ohio Bar Report 244 (1982). Objections at 4; Supplement to Petitioner’s Traverse. However, the two trials or charges in Urvan arose out of the same incident, that is the theft of property in Cuyahoga County. Although the charge of receiving stolen property was nolled by Medina County, the grand theft charge in Cuyahoga County involved the identical material. The instant case, however, can be distinguished since two separate transactions are concerned. Whether petitioner actually stole the car was irrelevant in the first trial but was central in the second. The crucial element in Urvan was that the court identified the acts as a single “course of criminal conduct.” Furthermore, under the Revised Code § 2941.25, receiving is an “allied offense of similar import.” “Although an accused may be tried for both he may be convicted and sentenced for only one. The choice is given to the prosecution to pursue one offense or the other, and it is plainly the intent of the General Assembly that the election may be of either offense.” Id. at 156, 446 N.E.2d 1161.

The Supreme Court has recognized that the doctrine of collateral estoppel is not to be applied across the board to bar subsequent criminal prosecutions. See e.g., Standefer v. United States, 447 U.S. 10, 11 n. 16, 100 S.Ct. 1999, 2004 n. 16, 64 L.Ed.2d 689 (1980) (“Nothing in the Double Jeopardy Clause or the Due Process Clause forecloses putting petitioner on trial as an aider and abettor simply because another jury was determined that his principal was not guilty of the offense charged”); Briddle v. Illinois, 450 U.S. 986, 101 S.Ct. 1527, 67 L.Ed.2d 823 (1981) (Cf. Brennan, J. & Stewart J. dissent from certiorari denial). Therefore, petitioner’s Double Jeopardy claim is denied.

IV.

INEFFECTIVE ASSISTANCE OF COUNSEL

The Magistrate has properly interpreted Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) as to the test to determine whether petitioner has suffered ineffective assistance of counsel. Therefore, petitioner’s Double Jeopardy Claim is denied. The petitioner has the burden to show: (1) that counsel’s performance was deficient, that his “counsel’s representation fell below an objective standard of reasonableness.” (104 S.Ct. at 2065) and (2) “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

It does not appear to this Court in reviewing the transcript that counsel’s performance was unreasonable. Although it is true that had counsel raised the double jeopardy claim his client might not have been convicted, that claim could also have been denied. Observing the trial itself, there is no indication that counsel’s performance deprived petitioner of a fair trial. While petitioner may complain that the Strickland standard is “next to impossible to sustain,” the Supreme Court intended to make the standard sufficiently stringent to discourage a “proliferation of ineffectiveness challenges.” 104 S.Ct. at 2066. Petitioner has not met his burden in the instant case.

V.

STATE RIGHT TO SPEEDY TRIAL

The Magistrate’s recommendation that petitioner’s third claim, a violation of Ohio’s statutory right to speedy trial, be denied for lack of jurisdiction is adopted.

VI.

After due consideration and review, the Magistrate’s Report and Recommendation is adopted; the petitioner for writ of habeas corpus is denied.

IT IS SO ORDERED.

      . Although petitioner was paroled from the Chillicothe Correctional Institute on September 1, 1983 and was released from parole on October 10, 1984, the fact that petitioner was on parole involves the type of restraint on liberty which satisfies the “custody” requirement for habeas corpus jurisdiction. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).

      . O.R.C. § 2913.02, entitled “Theft,” states
      (A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
      (1) Without the consent of the owner or person authorized to give consent;
      (2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
      (3) By deception;
      (4) By threat.


author: ASPEN, District Judge:

text:
    CO-OPERATIVE SHIPPERS, INC., a Delaware Not-For-Profit Corporation, Plaintiff, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware Corporation, Defendant.
    No. 84 C 2359.
    United States District Court, N.D. Illinois, E.D.
    July 3, 1985.
    Richard J. Billik, Jr., Billik and Billik, Ltd., Chicago, 111., Ronald N. Cobert, Robert L. Cope, Joseph Michael Roberts, Grove, Jaskiewicz, Gilliam and Cobert, Washington, D.C., for plaintiff.

      Dennis A. Kearns, John C. Palmer, Ellen L. Falkof, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiff CO-OPerative Shippers, Inc. (“CO-OP) is an association of shippers which consolidates the freight of its members and tenders the combined loads to line-haul motor and rail carriers, thereby obtaining for its members the benefit of the carriers’ reduced transportation rates for volume shipping. In March of 1983, CO-OP delivered a trailer to defendant The Atchison, Topeka and Santa Fe Railway Company (“Santa Fe”) for trailer-on-flatear (“TOFC”) shipment from Chicago, Illinois, to Richmond, California. The train carrying the trailer derailed in Oklahoma, damaging the trailer’s cargo, and CO-OP filed this action to recover the actual value of the damaged goods. Santa Fe has admitted liability for the loss, but it disagrees as to the rate at which it should reimburse CO-OP. Rather than the full actual cost of the damaged freight, Santa Fe maintains that its liability is limited to a “released rate” of $.35 per pound. Presently before the Court are the parties’ cross-motions for summarv judgment. For the reasons set forth below, CO-OP’s motion is granted in part and denied in part, and Santa Fe’s motion is denied.

I. BACKGROUND

A. Common Law Liability of Carriers

At common law, a carrier’s liability for damage to goods transported by the carrier was virtually unlimited. Though not an absolute insurer, the carrier was liable to the shipper for the full extent of the damage unless it was caused by an act of God, a public enemy, the shipper, public authority or the inherent vice or nature of the goods themselves. E.g., Missouri Pacific Railroad Co. v. Elmore & Stahl, 377 U.S. 134, 137, 84 S.Ct. 1142, 1144, 12 L.Ed.2d 194 (1964). Courts refused to enforce exculpatory agreements between carrier and shipper purporting to relieve the carrier from all liability for property damage caused by the negligence of the carrier or its servants; such contracts were deemed to violate public policy because they tended to induce carelessness on the carrier’s part. Adams Express Co. v. Croninger, 226 U.S. 491, 509-10, 33 S.Ct. 148, 153-54, 57 L.Ed. 314 (1913).

However, common law did permit the carrier and shipper to agree to merely limit — rather than eliminate completely — the carrier’s liability for property loss or damage, so long as the shipper granted the limitation in consideration for a lower transportation rate than would reasonably be charged for the carrier’s unlimited liability. Id.; Hart v. Pennsylvania Railroad Co., 112 U.S. 331, 340, 5 S.Ct. 151, 155, 28 L.Ed. 717 (1884). Such agreements were justified on the grounds that the carrier was entitled to know its potential liability for property loss and to be compensated in proportion to the risk it assumed. Therefore, if a contractual limitation of liability was the result of a “fair, open, just and reasonable agreement” between carrier and shipper, entered into by the shipper “for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount of risk,” Croninger, 226 U.S. at 509-10, 33 S.Ct. at 153, and if the shipper was given “the option of higher recovery upon paying a higher rate,” Boston & Maine Railroad v. Piper, 246 U.S. 439, 444, 38 S.Ct. 354, 355, 62 L.Ed. 820 (1918), the agreement was enforceable at common law.

B. Statutory Law Before Deregulation

Congress codified these common law principles in 1906 when it passed the Car-mack Amendment to the Interstate Commerce Act (“the Act”). Although the Car-mack Amendment provided that no contract, rule, receipt or regulation could exempt a carrier from full liability, the courts continued to uphold reasonable released-rate agreements. Croninger; see also Boston & Maine Railroad v. Hooker, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868 (1914); Kansas City Southern Railway Co. v. Carl, 227 U.S. 639, 33 S.Ct. 391, 57 L.Ed. 683 (1913).

Carriers frequently evaded the Carmack Agreement’s restrictions by publishing reduced rates based upon released values and setting full value rates at prohibitively high levels, effectively denying shippers any real choice. I.C.C. Report to Congress, 8. Congress responded in 1915 by passing the First Cummins Amendment to the Act, prohibiting all released-rate agreements except when the goods were concealed and their character was unknown to the carrier. However, within a year Congress determined that the First Cummins Amendment was too restrictive. In 1916 it passed the Second Cummins Amendment, returning to the common-law practice of allowing released rates but only when such rates were approved in advance by the I.C.C. and only with “value of the property.” This statutory scheme lasted until the passage of the Staggers Rail Act of 1980.

C. Deregulation Under the Staggers Act

In October 1980, Congress enacted the Staggers Rail Act of 1980 in order to improve the economic and competitive conditions of the national rail system “through financial assistance and freedom from unnecessary regulation.” H.R.Cong.Rep. No. 1430, 96th Cong., 2d Sess. 80 (1980), reprinted in 1980 U.S.Code Cong. & Ad. News 3978, 4110-11. Among other changes, the Staggers Act amended 49 U.S.C. § 10730, making § 10730(a) inapplicable to rail carriers and adding a new subsection (c) specifically relating to rail carriers. Section 10730(c) allows rail carriers to offer released rates without first obtaining I.C.C. approval, and it omits the provision that the released rate must be “reasonable under the circumstances.”

The Staggers Act also amended the I.C. C.’s authority to exempt carriers from regulation. Revised § 10505 directs the I.C.C. to grant an exemption when it finds that, with respect to a person, class of persons, or a transaction or service, regulation

A rail carrier ... may establish rates for transportation of property under which the liability of the carrier for such property is limited to a value established by written declaration of the shipper or by a written agreement between the shipper and the carrier....
(1) is not necessary to carry out the transportation policy of section 10101a of this title; and
(2) either (A) the transaction or service is of limited scope, or (B) the application of a provision of this subtitle is not needed to protect shippers from the abuse of market power.

Moreover, § 10505(f) singled out “transportation that is provided by a rail carrier as part of a continuous intermodal movement” as a service particularly appropriate for deregulation. Acting pursuant to these directions from Congress, the I.C.C. exempted from regulation rail and truck transportation provided by rail carriers in connection with TOFC 'and container-on-flatcar (“COFC”) service. 46 Fed.Reg. 14,348 (1981).

Although freed from most regulation, rail carriers offering TOFC/COFC service are still subject to the liability provisions of § 11707. American Trucking Associations, Inc. v. I.C.C., 656 F.2d 1115, 1124 (5th Cir.1981). Section 10505(e) states that:

No exemption order issued pursuant to this section shall operate to relieve any rail carrier from an obligation to provide contractual terms for liability and claims which are consistent with the provisions of section 11707 of this title. Nothing in this subsection or section 11707 of this title shall prevent rail carriers from offering alternative terms nor give the Commission the authority to require any specific level of rates or services based upon the provisions of section 11701 of this title. (Emphasis added.)

The I.C.C. addressed the issue of carrier liability in a “Clarification of Notice of Final Rule [Exemption],” dated June 10, 1981:

We exempted the TOFC/COFC traffic pursuant to 49 U.S.C. 10505. Subsection (e) of 49 U.S.C. 10505 specifically states that “[n]o exemption order * * * shall operate to relieve any rail carrier from an obligation to provide contractual terms for liability and claims which are consistent with [49 U.S.C. 11707].” 49 U.S.C. 11707 imposes, on the carrier, liability for actual loss or injury to property shipped unless released rates under 49 U.S.C. 10730 are involved. Released rates under 49 U.S.C. 10730 are at the election of the shipper as an alternative to otherwise applicable full liability rates. From this it follows that our prior exemption could not enable carriers to disclaim their general loss and damage obligations---- To the extent railroad tariffs or contractual items on TOFC/COFC service are in violation of 49 U.S.C. 11707, they are unenforceable as a matter of law.

Ex Parte No. 230 (Sub-No. 5) Improvement of TOFC/COFC Regulation, 46 Fed. Reg. 32,257 (1981). See also I.C.C. Report to Congress, 11-12.

II. DISCUSSION

Santa Fe’s arguments in this case may be summarized as follows: Because TOFC service has been deregulated, common law liability restrictions imposed upon common carriers are irrelevant. Likewise, § 10730 is inapplicable to CO-OP’s deregulated shipment. The contract between CO-OP and Santa Fe is the only thing which affects the latter’s liability for the damaged shipment, and the contract clearly provides that liability is to be limited to the released rate of $.35 per pound. The parties’ contract satisfies the requirements of § 10505(e) by providing that full liability rates (“terms consistent with § 10707”) are available upon the shipper’s request — a request CO-OP never made. Thus, Santa Fe is entitled to summary judgment limiting its liability to the released rate.

We disagree with each of these premises.

In the first place, the deregulation of TOFC service has not changed Santa Fe’s status as a common carrier. Santa Fe claims that “common carrier obligations are created and governed by statute,” but this claim is belied by the fact that railroads were deemed to be common carriers long before any statutes or government regulations related to them were enacted. Rather, common carriers are such" because of the nature of their business, not because of the existence of any statutory or regulatory duties.

Santa. Fe argues that its business has in fact changed with deregulation, in that it is now free to deal or refuse to deal with whomever it chooses. Indeed, one definition of “common carrier” is one that “undertakes to carry for all people indifferently.” National Association of Regulatory Utility Commissioners v. F.C.C., 525 F.2d 630, 641 (D.C.Cir.1976), cert. denied, 425 U.S. 992, 96 S.Ct. 2203, 48 L.Ed.2d 816 (1976). Because Santa Fe now has the freedom “to make individualized decisions, in particular cases, whether and on what terms to deal,” id., Santa Fe claims that it is relieved of its common carrier status. This argument is not persuasive. Another definition of “common carrier” is simply one “whose occupation or business is transportation of persons or things for hire or reward,” Black’s Law Dictionary, 194 (5th ed. 1979), and it is this meaning that Congress and the Supreme Court have attributed to railroads. The Supreme Court discussed the status of railroads that enter into “special contracts” in Railroad Co. v. Lockwood, 84 U.S. (17 Wall.) 357, 21 L.Ed. 627 (1873):

It is argued that a common carrier, by entering into a special contract with a party for carrying his goods or person on modified terms, drops his character and becomes an ordinary bailee for hire, and, therefore, may make any contract he pleases. That is, he may make any contract whatever, because he is an ordinary bailee; and he is an ordinary bailee because he has made the contract.
We are unable to see the soundness of this reasoning. It seems to us more accurate to say that common carriers are such by virtue of their occupation, not by virtue of the responsibilities under which they rest____ The common law subjects the common carrier to insurance of the goods carried, except as against the act of God or public enemies____ And if by special agreement the carrier is exempted from still other responsibilities, it does not follow that his employment is changed, but only that his responsibilities are changed. The theory occasionally announced, that a special contract as to the terms and responsibilities of carriage changes the nature of the employment, is calculated to mislead. The responsibilities of a common carrier may be reduced to those of an ordinary bailee for hire, whilst the nature of his business renders him a common carrier still....
A common carrier may, undoubtedly, become a private carrier, or a bailee for hire, when, as a matter of accomodation or special engagement, he undertakes to carry something which it is not his business to carry.... But when a carrier has a regularly established business for carrying all or certain articles, and especially if that carrier be a corporation created for the purpose of the carrying trade, and the carriage of the articles is embraced within the scope of its chartered powers, it is a common carrier, and a special contract about its responsibility does not divest it of the character.

Id. (17 Wall.) at 376-77, 21 L.Ed. 627 (emphasis added). Congress too has applied this meaning of “common carrier” to railroads. In the definitions section of the Act, Congress recognizes that the term “carrier” includes both common carriers and contract carriers, but places all rail carriers into the former category. 49 U.S.C. § 10102(2), (4) and (6). Thus, we find that the deregulation of TOFC/COFC service did not alter Santa Fe’s status as a common carrier.

The parties’ dispute about Santa Fe’s common carrier status is all rather academic because, deregulation notwithstanding, TOFC carriers are still subject to the Act’s liability provisions. Santa Fe concedes that § 11707 applies to it (at least to some extent), but argues that it is no longer governed by § 10730. Santa Fe asserts that:

The ICC exempted TOFC shipments from the Interstate Commerce Act which includes 49 U.S.C. § 10730. Moreover, by its clear language 49 U.S.C. § 10730(c) states that this section only applies to rail carrier “service or transportation subject to the jurisdiction of the Commission under subchapter I of chapter 105 of [Title 49]” which is the Interstate Commerce Act. Accordingly, the requirements of § 10730 did not apply to COOP’s deregulated shipment____

The flaw in Santa Fe’s reasoning is that it overstates the breadth of the I.C.C. exemption. As already explained, § 10505(e) states that no exemption order issued by the I.C.C. may relieve a rail carrier of the duty to provide contractual liability terms consistent with the provisions of § 11707. Section 11707(c)(1) and (4), set forth in footnote 2 above, declares that a common carrier may limit its liability only as provided in § 10730; any other limitation of liability is void. Therefore, because § 11707 expressly incorporates § 10730, the latter provision (as well as the former) applies even to deregulated rail carrier service.

The I.C.C. interprets the relationship of §§ 10505, 11707 and 10730 the same way: “49 U.S.C. § 11707 imposes, on the carrier, liability for actual loss or injury to property shipped unless released rates under 49 U.S.C. § 10730 are involved.” Ex Parte No. 230 (Sub-No. 5) Improvement of TOFC/COFC Regulation, 46 Fed.Reg. 32,-257 (1981). Congress has committed to the I.C.C.’s discretion the matter of whether to permit or prohibit different types of liability limitations, Shippers National Freight Claim Council, Inc. v. I.C.C., 712 F.2d 740, 748 (2d Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 3534, 82 L.Ed.2d 839 (1984), so its interpretation of this question is entitled to deference from this Court. See also Household Goods Carriers’ Bureau v. I.C.C., 584 F.2d 437, 441 (D.C.Cir.1978). In any event, we agree with the I.C.C. — § 10730 does apply to exempted shipments such as the one in this case.

Given the applicability of § 10730, we must next determine whether the parties’ agreement satisfies this statutory provision. As the I.C.C. explained in its clarification of the TOFC/COFC exemption order, “[Released rates under 49 U.S.C. § 10730 are at the election of the shipper as an alternative to otherwise applicable full liability rates.” Ex Parte No. 230 (Sub-No. 5) Improvement of TOFC/COFC Regulation, 46 Fed.Reg. 32,257 (1981) (emphasis added). This is consistent with its previously stated position that released rates may not be automatic, but must involve some affirmative act by the shipper. For example, in Ex Parte No. MC-98 (Sub-No. 2), Released Rates in Conjunction with a Small Shipments Tariff, 361 I.C.C. 405 (1979), the I.C.C. ruled:

We agree with the majority that releasing rates ought not be automatic. The shipper who deliberately signs for released rates is less likely to release the value by mistake than is the shipper whose shipments are subject to released value unless he or she indicates full liability is desired. An accidental release of value could be catastrophic, whereas higher full value rates may be more easily absorbed.
sk sk sk sk * sk
Shippers must be able to choose the transportation service which most closely conforms to their needs. A released rates provision can add flexibility to rates and services. However, if the release is automatic, the flexibility of the system could be illusory____

361 I.C.C. at 416, 417.

The courts also have held that a carrier cannot limit its liability automatically or by implication. Instead, “[t]here must be an absolute, deliberate and well-informed choice by the shipper.” Anton v. Greyhound Van Lines, Inc., 591 F.2d 103, 108 (1st Cir.1978). As the Second Circuit stated,

To permit a carrier, without any action whatever by the shipper in respect to valuation in writing, to limit its liability on the basis of declared or released value on which the rate was charged would be to ignore entirely the statutory requirement that the shipper must make the declaration or agreement in writing____

Caten v. Salt City Movers & Storage Co., 149 F.2d 428, 432 (2d Cir.1945).

Santa Fe does not dispute CO-OP’s assertion that § 10730 requires some type of written release by the shipper before a carrier’s limitation of liability is effective. Indeed, Santa Fe used a written release procedure before deregulation. Unless the shipper signed a released value statement on the shipping order and bill of lading, full liability rates applied. However, Santa Fe did not follow such a procedure in this case, apparently believing that it no longer needed to do so after the I.C.C.’s exemption order.

Santa Fe argues that CO-OP agreed to a released rate for its shipment because of the inclusion in the parties’ contract of Item 52 of ATSF Circular No. TOFC-1. Item 52 provides that Santa Fe’s liability for loss or damage “shall be subject to released values” as established by Santa Fe. Thus, the application of released rates is automatic. According to Santa Fe, CO-OP could have obtained full liability only by proceeding under item 57 of Circular No. TOFC-1. Item 57 purports to offer terms consistent with 49 U.S.C. § 11707, “[a]s an alternative to terms for claims and liability for loss or damage.”

The problem with this contractual scheme is that it reverses the assumption of liability required by §§ 10730 and 11707. Santa Fe is offering full liability rates, but only as an alternative to otherwise applicable released rates. The automatic nature of Santa Fe’s limitation of liability is precisely the “trap for the unwary” that the I.C.C. has refused to allow by requiring carriers to obtain a deliberate release from the shippers. Accordingly, Items 52 and 57 do not comply with §§ 10730 and 11707, and they are unenforceable. 49 U.S.C. § 11707(c)(1); see also Fruitco Corp. v. Consolidated Rail Corp., 118 Misc.2d 1090, 462 N.Y.S.2d 754, 757 (N.Y.Cir.Ct.1983).

Even if Items 52 and 57 conformed to the Act, there is a second reason why they should not be enforced here: they are inconsistent with another contractual provision which also seems to apply to this matter. Item 56 of Circular No. TOFC-1, entitled “RELEASED VALUE RATES,” provides:

If rate circular quotes “released value rates,” transportation at such rates is subject to all the terms of this offer except that such rates are based upon a maximum value of the lading per hundred pounds in the amount stipulated in the rate circular. Released value rates will be applicable only if the Shipping Order is endorsed by consignor, before its receipt by ATSF; “RELEASED VALUE SHIPMENT: RELEASED VALUE $_ ewt,” and released value amount must be inserted by consignor. Recovery for delay, loss, or damage to lading will be governed by the rules herein but in no event will payment by ATSF exceed released value amount.

Thus, although Item 52 provides that released rates apply automatically, Item 56 provides that they “will be applicable only if the Shipping Order is endorsed by consignor.”

Santa Fe unconvincingly attempts to explain how Items 52 and 56 are not contradictory. Essentially, Santa Fe claims that Item 52 applies only to shipments for which released rates have been published already, while Item 56 applies only in cases in which the shipper must obtain a special released rate quotation. This makes no sense, however, in light of Item 56’s reference to released value rates in a rate circular. All of Santa Fe’s established released rates, including the one Santa Fe claims applies to CO-OP, are included in a rate circular, so Item 56 appears to apply to all of them.

The conflict between Items 52 and 56 renders the parties’ contract confusing and ambiguous. Under standard rules of contract interpretation, any ambiguity must be construed against Santa Fe, which drafted the contract. E.g., Chicago & North Western Railway Co. v. Hunt-Wesson Foods, Inc., 504 F.2d 905, 908 (7th Cir.1974); The Atchison, Topeka & Santa Fe Railway Co. v. United States, 572 F.2d 843, 849, 216 Ct.Cl. 54 (1978). Thus, Item 52 cannot be considered to be the only provision governing released rates in this case and should not be enforced.

Finally, CO-OP claims that it is entitled to recover costs, fees and interest under Item 37 of Circular No. TOFC-1. However, we agree with Santa Fe that Item 37 is intended to apply only to suits initiated by Santa Fe for the collection of freight charges from shippers or consignees, not to actions such as this one brought by a shipper for damages. Santa Fe “readily admits that CO-OP is entitled to a refund of any freight charges paid to Santa Fe for the shipment which was derailed and damaged,” and we find that CO-OP may not base a claim for any other costs, fees or interest on Item 37.

In sum, we find that Santa Fe is liable to CO-OP for the full actual cost of the damaged goods, but CO-OP may not recover court costs, attorney’s fees or interest. Accordingly, Santa Fe’s motion for summary judgment is denied, and CO-OP’s motion for summary judgment is granted in part and denied in part. It is so ordered.

      . This rule of liability dates back to the Roman Republic (circa 200 B.C.) and was established very early by the English courts. See, e.g., the Interstate Commerce Commission’s Rail Carrier Cargo Liability Study, A Report to Congress Pursuant to Section 211 of the Staggers Rail Act of 1980 (“I.C.C. Report to Congress"), 3-5 (Sept. 29, 1981).

      . This law and its later amendments are presently codified at 49 U.S.C. § 11707, which provides in relevant part that:
      (a)(1) A common carrier ... shall issue a receipt or bill of lading for property it receives for transportation.... That carrier and any other common carrier that delivers the property ... are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property____
      * * it it * it

      (c)(1) A common carrier may not limit or be exempt from liability imposed under subsection (a) of this section except as provided in this subsection. A limitation of liability or of ■ the amount of recovery ... in a receipt, bill of lading, contract, rule, or tariff filed with the Commission in violation of this section is void.

        it it it it it it

      (4) A common carrier may limit its liability for loss or injury of property transported under section 10730 of this title.

      . Until mid-1980, these limitations were found in 49 U.S.C. § 10730 and its predecessor section, § 20(11). Section 10730 read, in pertinent part:
      The Interstate Commerce Commission may require or authorize a carrier ... to establish rates for transportation of property under which the liability of the carrier for that property is limited to a value established by written declaration of the shipper, or by a written agreement, when that value would be reasonable under the circumstances surrounding the transportation.
      49 U.S.C. § 10730 (Supp. Ill 1979). In June 1980, Congress passed the Motor Carrier Act of 1980. This legislation divided § 10730 into two subsections; subsection (a) consisted of the former § 10730, and subsection (b) added new provisions applying specifically to motor carriers of nonhousehold property.

      . Section 10730(c) now provides, in pertinent part, that:

      . The first two subsections of section 10101a explain that:
      In regulating the railroad industry, it is the policy of the United States Government—
      (1) to allow, to the maximum extent possible, competition and the demand for services to establish reasonable rates for transportaion by rail;
      (2) to minimize the need for Federal regulatory control over the rail transportation system and to require fair and expeditious regulatory decisions when regulation is required ....

      . This case deals with the definition of "common carrier” for purposes of the Communications Act of 1934, and accordingly is not completely applicable to the status of railroads and other cargo carriers under the common law.

      . Santa Fe simply contends that § 10730 no longer applies to it, an argument we have already rejected.

      . Item 56 might better be explained as a vestige of Santa Fe’s former procedure of obtaining a shipper’s written release in all cases. As noted above, Santa Fe abandoned this procedure too quickly.

      . Santa Fe claims that CO-OP should not be allowed to complain now about the contract’s confusion because it failed to raise the liability issue with Santa Fe before entering the agreement. However, we agree with CO-OP that CO-OP acted reasonably in assuming that the procedure followed before deregulation was still in effect. Moreover, the fact that the parties did not previously discuss the issue of liability shows the lack of a deliberate, affirmative release as required by § 10730.


author: ELLEN B. BURNS, District Judge.

text:
    Paul MANGANELLA v. Thomas KEYES, Jr., et al.
    Civ. No. N-84-13.
    United States District Court, D. Connecticut.
    July 5, 1985.

      Keith Bradoc Gallant, Peter F. Culver, New Haven, Conn., for plaintiff.
    Hugh F. Keefe, New Haven, Conn., for defendants.
   RULING ON PLAINTIFF’S MOTION TO DISQUALIFY COUNSEL

ELLEN B. BURNS, District Judge.

The events giving rise to this suit, brought under 42 U.S.C. § 1983 and Connecticut state law, occurred on February 1, 1983, at a roller skating rink in the Town of East Haven. Plaintiff, Paul Manganella, alleges that defendant police officers, Thomas Keyes, Jr. and Thomas Dacosta “acting within the scope of their employment” and “under color of their authority as police officers and as employees of the defendant Town of East Haven,” beat him and subsequently unlawfully arrested him. Plaintiff sues Keyes and DaCosta in their individual and official capacities and also sues the Town of East Haven (the Town). All the defendants in this action are represented by the same attorney.

Plaintiff has moved to disqualify defense counsel from continued joint representation claiming an inherent conflict of interest between the defense of the police officers in their individual capacities and the defense of the municipality. The basis of plaintiff’s motion is Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir.1984) in which the court ordered disqualification of the County Attorney, who acted as defense counsel for both the police officers and their county employer, after actual conflict surfaced at trial. Plaintiff asserts that such multiple representation violates the Code of Professional Responsibility: Canon 5, requiring an attorney to exercise independent judgment on behalf of a client; Canon 4, requiring an attorney to preserve the confidences of a client; and Canon 9, requiring an attorney to avoid even the appearance of impropriety.

For reasons set forth below, the motion to disqualify is granted unless the Town complies with the requirements of this ruling within thirty days. To protect the interests of defendant police officers jointly represented with their municipal employer, the municipality shall provide the court with a waiver of its right to reimbursement for the costs of the defense under Conn. Gen.Stat. § 7-lOla. In addition, the attorney for the joint defendants shall submit affidavits of the defendant police officers that they have been given notice of the potential conflict arising from the joint representation and that they have elected to retain joint representation, thereby making an informed waiver of their right to separate counsel.

I. Potential Conflict of Interest

An inherent conflict of interest arises in a § 1983 action when co-defendants in a suit are a local government and police officers or other employees in their individual capacity, as differing theories of liability and differing defenses are applicable to each defendant. In Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, the Supreme Court held that “when execution of a government’s policy or local custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury [on a plaintiff] ... the government as an entity is responsible under § 1983.” Id. at 694, 98 S.Ct. at 2038. Consequently, to avoid liability, the municipality must show that the employee acted outside the scope of his duties, and thereby beyond the scope of municipal policy. But the employee, if he is to avoid liability, must show that his actions were reasonably within the umbrella of his official duties. Dunton v. County of Suffolk, 729 F.2d 903, 907 (2d Cir.1984).

Furthermore, although § 1983 does not expressly incorporate any common law immunities, the Supreme Court has “found that [in some instances] a tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that ‘Congress would have specifically so provided had it wished to abolish the doctrine.’ ” Owen v. City of Independence, 445 U.S. 622, 637, 100 S.Ct. 1398, 1408, 63 L.Ed.2d 673 (1980) (quoting Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967)). Among the traditional immunities is that of police officers who, when acting within the scope of their duties, “enjoy a ‘good faith and probable cause’ defense to § 1983 suits similar to that which existed in false arrest actions at common law.” Owen, supra 445 U.S. at 637, 100 S.Ct. at 1408. By contrast, neither a tradition of immunity nor policy considerations justify a qualified immunity for municipalities and local governments under § 1983. Moreover, the good faith of its employees cannot be adopted by a governmental entity as a defense to a § 1983 action. Id. at 638, 100 S.Ct. at 1409. Consequently, a police officer who successfully defends a § 1983 action by asserting good faith immunity may leave the municipality, which does not have such a defense available, wholly liable.

The attorney representing both the police officer and the municipality is faced with two opposing defenses of his clients. On behalf of the police officer he may be required to argue that his client was performing his duties in accordance with official policy. At the least, the success of this defense will lead to joint liability with the municipality, and may result in sole liability of the municipality if the officer is found to be protected by qualified immunity. How;ever, on behalf of the municipality, the attorney may be required to argue that the officer’s actions were violative of municipal policy or custom, potentially resulting in the officer’s exclusive liability.

In Connecticut this potential conflict is somewhat reduced by statute. Conn.Gen. Stat. § 7-101a requires that a municipality “protect and save harmless any municipal officer ... from financial loss or expense ... arising out of any claim, demand, suit, or judgment____” This protection extends to negligent as well as wanton, willful, malicious or ultra vires acts. See Conn. Gen.Stat. § 7-101a(b). As long as the municipality ultimately is liable for any damages, whether imposed against the officer or the municipality, the conflict of interest is greatly diminished. By virtue of the statute, the financial interests of the parties are no longer in conflict and the only remaining conflict is the stigma associated with liability. This relatively minor conflict may be resolved by the informed consent of the parties.

Two difficulties remain, however, in the application of § 7-101a. First, the municipality is only liable for actions of the officer “in the discharge of his duties.” Second, if the officer is found to have acted in a malicious, wanton, or willful manner, the municipality may seek reimbursement from the officer and will not be liable to him for any losses. In other words, by arguing that the officer’s actions were malicious, wanton, or willful, the municipality may escape financial liability under the statute. Therefore, in order to prevent the potential conflict of interest it is necessary that the municipality waive whatever rights to reimbursement it may have under § 7-101a and agree to pay any judgment entered against the officer.

II. Waiver of Defense and Right to Reimbursement

By virtue of Conn. Gen.Stat. § 7-101a, a municipality is obligated to provide a defense for any of its officers or employees who are sued for actions occurring in the discharge of their duties. Although a municipality may meet this obligation by hiring separate lawyers for itself and its employees, in many cases it may be much more economical to have the same attorney represent both clients. This is the course chosen by the defendants in the instant case.

If the municipality chooses to reduce its legal costs by providing joint representation, it is necessary that the municipality take steps to reduce or eliminate the potential conflict of interest. Because Conn. Gen.Stat. § 7-101a already imposes a duty upon the municipality to hold its officers and employees harmless, the conflict of interest can be eliminated by the municipality waiving the defenses to liability that are permitted under § 7-101a.

In the instant case the municipality and the individual defendants have filed a joint answer admitting that the officers were acting within the scope of their duties. See note 1, supra. However, the municipality must provide a waiver of all rights it may have against the employee for reimbursement of legal expenses. The municipality must also agree to pay any judgment entered against the officer whether or not his actions are found to be willful, wanton, malicious or ultra vires. By complying with these requirements the municipality will remove any potential conflicts of interest, at least from a financial viewpoint, between the jointly represented parties.

III. Informed Consent

When co-defendants in a § 1983 action are represented by the same counsel, the trial court is obligated to ascertain that notice of any potential conflict of interest is provided to affected litigants. Dunton v. County of Suffolk, 729 F.2d 903, 909 (2d Cir.1984). In Dunton, the court found disqualification appropriate because the County Attorney, defending both the police officers and their county employer, did in fact undermine the officer’s good faith immunity defense at trial. The court did not hold that disqualification is mandated in all cases of joint representation and inherent conflict, but rather held that a district court has a duty to ensure that defendants potentially affected by such a conflict are fully cognizant of the circumstances. Id. at 908.

In so holding, the Dunton court followed a prior Second Circuit decision in In re Taylor, 567 F.2d 1183 (2d Cir.1977). The Taylor court rejected a blanket “single representation” rule which would require separate representation in all instances of potential or actual conflict. Rather, the court held that, while affected clients should be fully informed of possible adverse consequences of joint representation, they should also be free to retain the counsel of their choice subsequent to receiving the requisite information. Id. at 1191.

It is the responsibility of this court to ascertain that defendants Keyes and Da-Costa have the knowledge and understanding necessary to make an informed choice of counsel. As a means of ensuring that the litigants have such knowledge and understanding, the defense attorney shall provide this court with an affidavit from each of the individual defendants stating that he has been given adequate notice of the conflict inherent in joint representation, and that he has chosen to continue to retain the municipality’s attorney as his counsel. The officers must also be informed of their right, under Conn.Gen.Stat. § 7-101a, to have the municipality pay for their defense if they choose to employ separate attorneys. However, if they choose to employ separate attorneys the municipality will not be required to waive its right to seek reimbursement under § 7-101a(b).

IV. Conclusion

A potential conflict currently exists in the representation of the municipality and individual defendants by the same attorney. The motion to disqualify defendants’ attorney from joint representation is therefore granted unless the defendants comply with the requirements of this ruling.

SO ORDERED.

      . In the instant case the defendants have filed a joint answer in which they admit that the police officers were acting within the scope of their duties. Had such an admission not been made, an irreconcilable conflict may exist that would preclude joint representation. See Conn.Gen. Stat. § 7-101a requiring the municipality to provide representation and reimbursement to municipal officers for acts taken within the scope of their duties. Had such an admission not been made, the municipality’s interest would be to prove that the police officers were not acting within the scope of their duties, while the police officers’ interest would be to prove that they were so acting.

      . No conflict would exist when the co-defendants are a municipality and its employee sued only in his official capacity. The Supreme Court has recently held that in a § 1983 action in which a public employee is sued in his "official capacity,” only the liability of the governmental entity by whom he is employed is at issue. Brandon v. Holt, — U.S. ---, ---, 105 S.Ct. 873, 877, 83 L.Ed.2d 878 (1985). The Court had previously noted that suits against a government employee in his official capacity were in actuality suits against the entity of which he was an agent. Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 2035, n. 55, 56 L.Ed.2d 611 (1978). Because of the identity of defendant government entities and defendant public servants in their official capacities, the same theories of liability protect both, and neither has a defense available which it can assert to the detriment of the other. Consequently, no conflict of interest can arise.

      . By admitting that the employee was acting in the discharge of his duties for purposes of Conn. Gen.Stat. § 7-101a, the municipality is not necessarily admitting that the employee was acting pursuant to an official policy or custom so as to make the municipality liable under Monell. The phrase “within the discharge of his duties,” as used by § 7-101 a, includes ultra vires acts. Conn.Gen.Stat. § 7-101a(b). Ultra vires acts are those taken without any authority whatsoever, and will not serve to impose liability on the municipality. Cf. Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 697, 102 S.Ct. 3304, 3321, 73 L.Ed.2d 1057 (1982) (Eleventh Amendment does not protect state officers from suit based upon unauthorized acts).

      . Such an agreemént to pay any verdict entered against the officer is required for joint representation by Conn.Gen.Stat. § 7-465, another statute imposing liability upon municipalities for damages caused by their employees.