author: SEAY, Chief Judge.

text:
    Robert E. COTNER, Plaintiff, v. Melvin CAMPBELL, et al., Defendants. Robert E. COTNER, Plaintiff, v. Denny HOPKINS, et al., Defendants. Scott E. HICKS, Plaintiff, v. William BECKMAN, et al., Defendants. Wesley E. OWENS, Plaintiff, v. William BECKMAN, et al., Defendants. Patrick S. OWENS, Plaintiff, v. William BECKMAN, et al., Defendants. Raymond Herschel JOHNSON, Plaintiff, v. Larry MEACHUM, et al., Defendants. Wendell W. LEADER, Plaintiff, v. William BECKMAN, et al., Defendants. Harold HENDERSON, Plaintiff, v. Peggy FRIES, et al., Defendants. Dennis J. REED, Jr., Plaintiff, v. Larry MEACHUM, et al., Defendants.
    Nos. 85-497-C, 85-502-C, 85-507-C, 85-508-C, 85-514-C, 85-515-C, 85-525-C, 85-526-C and 85-577-C.
    United States District Court, E.D. Oklahoma.
    Sept. 20, 1985.

      Michael C. Turpén, Atty. Gen. for State of Okl., Oklahoma City, Okl., for defendants.
   ORDER

SEAY, Chief Judge.

These cases are before the court on its own motion to be tested under 28 U.S.C. § 1915(d) to determine whether they are frivolous, malicious, or improper. Because these cases involve common questions of law, on its own motion the court orders that they should be consolidated, pursuant to Rule 42(a) of the Federal Rules of Civil Procedure.

Each and every plaintiff is an inmate of the Oklahoma State Penitentiary. They instituted these actions pursuant to 42 U.S.C. §§ 1983-88 and 28 U.S.C. § 1343(3) seeking declaratory and injunctive relief and compensatory damages for claimed deprivations of their civil rights.

In 85-577-C, plaintiff Cotner alleges defendants have interfered with his mail by intercepting and censoring it in accordance with “illegal” Department of Correction policies.

In the remaining cases, each complaint is a virtual verbatim copy of plaintiff Cotner’s complaint in 85-502-C. Indeed, a few of the complaints are merely photocopies of another prisoner’s complaint. Each complaint names the same defendants, makes the same allegations, contains identical causes of action, and seeks identical relief. Essentially, the complaints each allege that all named defendants are engaged in a conspiracy to violate the plaintiffs’ civil and constitutional rights. Plaintiffs allege that the conspirators have developed a scheme to endanger the health and safety of the prisoners, to violate the Battle v. Anderson rulings, to use the Oklahoma prison system to defraud taxpayers and prisoners, and to carry on an illegal criminal enterprise for their own monetary and political interests. Plaintiffs allege defendants have exhibited a total disregard for the prisoners and society in general. As an example of this disregard for rights, each plaintiff makes the following recitation in his complaint:

“Defendants have had over 54 acts of violence at O.S.P. McAlester, and 5 escapes, and 8 murders in the 1st few months of 1985, while the plaintiff and others have been housed there, and NOW defendants have ordered double celling which will mean an additional 108 acts of violence, 10 escapes and 16 unsolved murders instead of the lower amount from single celling. Defendants NOW are forcing non-homosexual men to sleep and live in a one man cell with homosexual men, violent to live with nonviolent, smokers to live with nonsmokers, short time prisoners to live with long term prisoners, religious prisoners to live with non-religious, ones with a T.V. and ones with a radio (who will watch what, and when, etc.) and the people could not get along together BEFORE they were put in prison, so now it is forcing them into a deadly environment when NO medical help is available without a 45 min. delay (travel through 7 locked doors, 3 flights of stairs, another locked door, and lk mile walk, for “EMERGENCY” help!) The food service and clothing service and laundry can NOT provide proper service to the prisoners already here, let alone 100% more!”

DISMISSING ALL ACTIONS

The complaints are subject to dismissal for a variety of legal reasons. Initially, the court notes that in every case, except No. 85-577-C, the plaintiffs do not allege they have been personally deprived of any constitutional right. State inmates may not assert the constitutional rights of other inmates. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Hall v. Wooten, 506 F.2d 564 (6th Cir.1974).

Secondly, each and every complaint in this action is fatally defective because each brings before the court only the conclusory allegations of plaintiffs. They have submitted no supporting facts or any details at all which would support the maintenance of a cause of action under 42 U.S.C. § 1983 or any of the other statutes cited by them. The plaintiffs have wholly failed to allege any factual matter which would demonstrate any substantial, identifiable federal constitutional deprivation warranting the scrutiny of the federal courts.

The court concludes that a special report, as contemplated by Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978) and Martinez v. Chavez, 574 F.2d 1043 (10th Cir.1978) is unnecessary and unwarranted in light of a review of the plaintiffs’ complaints. The court deems it unnecessary to obtain further information where the complaints are so clearly insufficient to raise claims of constitutional magnitude or devoid of any factual material evidencing constitutional violations.

Plaintiffs’ broad conclusory allegations of constitutional violations are unsupported by any facts in support of such charges. The facts pleaded do not show any deprivation of constitutional rights in any of plaintiffs’ causes of action.

The Tenth Circuit Court of Appeals has consistently held that bald conclusions, unsupported by allegations of fact, are legally insufficient; and pleadings containing only such conclusory language may be summarily dismissed or stricken without a hearing, Lorraine v. United States, 444 F.2d 1 (10th Cir.1971); Atkins v. Kansas, 386 F.2d 819 (10th Cir.1967); Hilliard v. United States, 345 F.2d 252 (10th Cir.1965); Martinez v. United States, 344 F.2d 325 (10th Cir.1965). In Wise v. Bravo, 666 F.2d 1328 (10th Cir.1981), the following appears:

“... Constitutional rights allegedly invaded, warranting an award of damages, must be specifically identified. Conclusory allegations will not suffice. Brice v. Day, 604 F.2d 664 (10th Cir.1979), cert. denied, 444 U.S. 1086 [100 S.Ct. 1045, 62 L.Ed.2d 772] (1980).”

In Wells v. Ward, 470 F.2d 1185 (10th Cir.1972), the court quoted from the opinion of Judge Breitenstein in Freeman v. Flake, 448 F.2d 258 (10th Cir.1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1292, 31 L.Ed.2d 489 (1972), in part as follows:

“... The existence of the § 1983 remedy does not require that federal courts entertain all suits in which constitutional deprivations are asserted. A federal constitutional question must exist ‘not in mere form, but in substance, and not in mere assertion, but in essence and effect.’ Cuyahoga River Power Co. v. Northern Ohio Traction & Light Co., 252 U.S. 388, 397, 40 S.Ct. 404, 408, 64 L.Ed. 626.” 470 F.2d at 1189.

While the court views the complaints in the light most favorable to the plaintiffs in considering a motion to dismiss under Federal Rules of Civil Procedure 12(b), the court distinguishes between well-pleaded facts and conclusory allegations. The court disregards unsupported conclusions, Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976). Therefore, the court finds that plaintiffs’ complaints do not state claims for any constitutional deprivation, and are therefore frivolous.

Finally, in the case of Cotner v. Oklahoma National Guard, No. 83-174-C (E.D.Ok.1983), the court was apprised of a letter written by plaintiff Cotner and mailed to the Attorney General’s Office. Cotner’s letter is an open threat to taxpayers, demanding that he be released from prison lest he file numerous civil suits at taxpayer’s expense, and encourage and train other inmates to do likewise. A copy of that letter is annexed to this order and is identified as “Attachment A”. In that letter, plaintiff Cotner stated:

“..., plus that certain prisoner [Cotner] filed over 15 federal law suits which cost tax-payers another $100.00 each (totalling $1,500.00) just to file them, and another $100.00 pr. month, each just for the state attorneys to answer each one, each month, which is a total of another $1,200.00 of tax-payers money, pr. year, pr. case (totalling $18,000.00 per year) and if that is multiplied over the intire 10 years that that one prisoner is to be kept in prison, it comes to a total cost to the tax-payers of about $363,500.00 just to punish that one prisoner (one prisoner!) for $45.00 worth of marijuana! is it worth it? what about the other prisoners that that one prisoner will teach and/or help to file their own civil suits, what will that cost the tax-payers____”

In these cases, at least, the cost to taxpayers will be far less than what plaintiff Cotner obviously had hoped.

Cotner’s “pupils” have followed their lessons so well that their complaints even read the same as their pedagogue — a bit too much so. It is readily apparent that Cotner has done much more than “teach and/or help” other prisoners to file their frivolous lawsuits. Their complaints are obvious copies of plaintiff Cotner’s petition in No. 85-502-C. To suggest otherwise serves only to test the gullibility of the credulous, and requires this court to espouse a naivete unwarranted under the circumstances.

Cotner’s prolific abuse of his in forma pauperis privilege is well-known, and will be discussed in detail later in this order. These complaints are but further examples of his malicious intent to disrupt the courts and to make others pay for his mistakes. These actions are frivolous, malicious and improper — and this court so finds.

Because of Cotner’s demonstrated history of filing frivolous lawsuits, because his letter to the Attorney General clearly indicates those lawsuits were filed for malicious purposes, because he threatened in his letter to do exactly what was done in these cases, and because the remaining plaintiffs took part in this scheme of Cotner’s, the court finds that plaintiffs have abused their in forma pauperis privilege.

This court authorized the commencement of these actions in forma pauperis under the authority of 28 U.S.C. § 1915. Subsection (d) of that statute permits the dismissal of cases when the court is satisfied that the actions are frivolous. Moreover, both the Supreme Court and the Tenth Circuit Court of Appeals have held that federal jurisdiction does not lie where purported civil rights claims are simply unsubstantial. See Hagans v. Lavine, 415 U.S. 528, 536, 94 S.Ct. 1372, 1378, 39 L.Ed.2d 577 (1974); Wells v. Ward, 470 F.2d 1185, 1187 (10th Cir.1972). In view of its holding that plaintiffs have suffered no deprivation of rights constitutionally protected, the court concludes that these actions are frivolous and that plaintiffs’ claims are unsubstantial. Accordingly, these actions are, in all respects, dismissed.

FINDING PLAINTIFF COTNER IN VIOLATION OF COURT ORDER AND IMPOSING APPROPRIATE SANCTIONS

The federal district courts spend an ever-increasing percentage of time on prisoner rights cases. In 1984, United States District Courts entertained 31,107 prisoner petitions — roughly ten percent of all cases filed. In this district alone, 159 prisoner petitions were filed in the 1984 fiscal year. These filings amounted to over seventeen percent of all cases filed in this district during 1984. During the present' fiscal year, this court has thus far entertained 86 prisoner civil rights complaints and 36 habeas corpus petitions. The actual number of these prisoner cases found to have merit is extremely small.

The sheer volume of these prisoners’ cases causes extreme frustration and hardship for all who deal with them. Prison officials must use their limited funds to accommodate a seemingly endless list of prisoner rights. Adequate law libraries, legal clerks, sufficient prisoner access to the library and courts, copying facilities, and mailing privileges are but a few of the many demands made upon the wardens and directors of our correctional institutions. Prison officials must work under the constant threat of having to defend themselves against frivolous claims for money damages filed maliciously by inmates seeking revenge. Court clerks are in the unenviable position of having to receive, file and index hundreds of prisoner petitions. Summons must be issued to all named parties, thereby removing the last obstacle to the avalanche of legal papers which inevitably follow. This torrential stream of written verbage inevitably winds itself to the deputy court clerks. Each and every document must be noted on the corresponding docket sheet, filed, indexed and stored in facilities already subjected to overcrowding by the proliferation of other lawsuits. State attorneys must struggle to understand the vague but verbose pleadings, so that adequate responses may be prepared for the courts by their overburdened deputies and assistants. The judges, magistrates and law clerks of the federal branch, more accustomed to the style, grace, and thoroughness of pleadings filed by professional attorneys, must grapple with the sometimes illegible and almost always incomprehensible pleadings of the prisoners. Threatening or maligning remarks made to the judge and his staff must be ignored and must not be allowed to interfere with the decision on the merits. Taxpayers grow weary of seeing their hard-earned dollars spent defending against frivolous actions filed by felons who have already caused the government to spend a tidy sum of its limited revenues to convict and incarcerate the offenders. Even the prisoners are subject to the horrible repercussions of this explosion in frivolous prisoner rights complaints. The prisoner who actually suffers a meaningful deprivation of his constitutional rights, but has no money to afford a trained lawyer, must act pro se, and labor through a confusing maze of rules, pleadings, motions, decisions, and law in order to vindicate his guaranteed rights. He must hope that in that sea of frivolous prisoner complaints, his lone, legitimate cry for relief will be heard by a clerk, magistrate or judge grown weary of battling the waves of frivolity. See generally, Sensenich, I.J., Compendium of the Law on Prisoners’ Rights. (Federal Judicial Center, 1979).

The task of correcting this abuse seems to be virtually impossible. Prisoners file cases at no cost to themselves, and without fear of retaliation. Case law dictates that such actions may not be dismissed for failure to state a claim unless it appears beyond doubt that a plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Accordingly, the courts are usually forced to order the preparation of special reports so that frivolous actions may be dismissed on the merits. See Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978); Martinez v. Chavez, 574 F.2d 1043 (10th Cir.1978); Robinson v. Benton, 579 F.2d 70 (10th Cir.1978). The entire process takes several months to complete, and is overly costly to the taxpayers — who, in return for their substantial investment in our government, deserve a great deal more than mere court orders dismissing frivolous prisoner petitions.

This court is not a legislative body, however. It cannot create laws or rules to remedy a national problem. This court must accept the laws as written by our legislators, and as interpreted by our higher courts.

This does not mean, however, that this court must sit idly by whilst a prisoner maliciously seeks to hinder the system of justice which incarcerated him for his transgressions against society. This court cannot allow itself, the taxpayers, and prisoners to be victimized by the actions of a malicious remonstrant whose quest in life seems to be nothing more than the denial of justice to others. It is the actions of this person — the repetitive prisoner rights plaintiff, the malicious avenger — and others like him, which have led to the present dilemma. Prisoner Cotner is but one of the many litigious transgressors abusing their in forma pauperis privileges.

The court has exhibited great patience with plaintiff Cotner’s conduct. His applications to proceed in forma pauperis have been routinely granted, pursuant to authority of 28 U.S.C. § 1915; his pro se complaints are construed liberally, as is required by Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652, reh’g denied 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); investigations of his claims are ordered and special reports are prepared and filed, as contemplated by Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978) and Martinez v. Chavez, 574 F.2d 1043 (10th Cir.1978); his complaints are dismissed only if it appears beyond doubt that he can prove no set of facts in support of his claims which would entitle him to relief, in accordance with Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

From October 1982 until the present, this court has permitted plaintiff Cotner to file twelve complaints in forma pauperis, and in addition the court has permitted plaintiff to file three habeas corpus actions in for-ma pauperis, pursuant to the provisions of 28 U.S.C. § 1915. Until June 9, 1983, plaintiffs motions for leave to file in forma pauperis were routinely granted.

In Cotner v. Oklahoma National Guard, No. 83-174-C (E.D.Ok.1983), the court concluded that plaintiff Cotner had abused court process by the filing of successive, frivolous complaints. See Graham v. Riddle, 554 F.2d 133 (4th Cir.1977).

In its order dismissing Cotner v. Oklahoma National Guard, this court traced Cotner’s continued abuse of court process — from his actions charging a wide variety of conspiracies (Cotner v. United States Postal Service, No. 82-528-C; Cotner v. Sheriff Frank Thurmon, No. 82-481-C; Cotner v. Oklahoma Bar Association, No. 83-63-C) to his filing of repetitive claims (Cotner v. Oklahoma Corrections, No. 82-456-C; Cotner v. Department of Corrections, No. 82-472). Additionally, the court noted that plaintiff Cotner had filed numerous civil suits against defendants who were immune from § 1983 actions. Finally, the court took notice of Cotner’s letter to the Attorney General (“Attachment A”). Plaintiff’s claims were, again and again, found to be unsubstantiated and were dismissed as being frivolous.

This court found that plaintiff Cotner had a demonstrated history of filing frivolous lawsuits, and that his letter to the Attorney General clearly indicated those lawsuits were filed for malicious purposes. Accordingly, this court found that plaintiff had abused his in forma pauperis privilege.

It is quite clear that Congress, while intending to extend to poor and meritorious suitors the privilege of having their wrongs redressed without the ordinary burdens of litigation, at the same time intended to safeguard members of the public against an abuse of the privilege by evil-minded persons who might avail themselves of the shield of immunity from costs for the purpose of harassing those with whom they were not in accord, by subjecting them to vexatious and frivolous legal proceedings.

Graham v. Riddle, 554 F.2d at 134.

In well documented and extreme cases, reasonable restrictions may be placed on all litigants who seek to advance repetitive causes, who file actions for obviously malicious purposes, and who generally abuse the processes. Phillips v. Carey, 638 F.2d 207 (10th Cir.), cert. denied, 450 U.S. 985, 101 S.Ct. 1524, 67 L.Ed.2d 821 (1981). Robert E. Cotner has undoubtedly abused his in forma privilege by filing frivolous lawsuits, by filing repetitive actions, by suing defendants he knows to be immune, and by filing actions for malicious purposes. Since October 1982, Cotner has filed 15 actions in this district alone (constituting over three percent of all prisoner rights actions filed in this district!) Ten of these actions were dismissed as being frivolous, two were dismissed at plaintiff’s request, one was dismissed for failure to exhaust administrative remedies, and two were dismissed for abuse of process.

In response to Cotner’s malicious abuse of people and process, this court, by order dated June 9, 1983, made the following decision:

..., pursuant to the court’s finding that plaintiff has abused court process, in the future, leave to filed in forma pauperis will be denied plaintiff except upon a showing of good cause why he should be permitted to sue in a particular case at public expense, West v. Procunier, 452 F.2d 645, 646 (9th Cir.1971).

Additionally, in every cause of action hereafter filed in this court, plaintiff is ordered to satisfy the following requirements:

1. All pleadings hereafter submitted by plaintiff for filing shall be verified, as provided for in Fed.R.Civ.P. 11.
2. Plaintiff shall include in every complaint or petition hereafter submitted a list, by style, docket number, court, date filed, description and disposition, of (a) all cases previously filed on the same, similar or related cause of action and (b) all actions previously filed against one or more of the defendants, including predecessors or successors in interest or office.
3. Plaintiff shall personally send a copy of the complaint and every subsequent pleading to the defendants or defense counsel, and plaintiff shall submit documentary evidence of such service to the court in a supplemental pleading, Carter v. Telectron, Inc., 452 F.Supp. 944, 1003 (1977); 28 U.S.C. § 1651.

Cotner v. Oklahoma National Guard, pp. 3-4.

(Copy of complete order is annexed to this order and identified as “Attachment 1”).

The above order, however, seems to have had little effect upon the vexatious actions of plaintiff Cotner. Since the date of that order, Cotner has, in this court, filed four additional § 1983 actions at public expense. Moreover, he has arranged for seven other plaintiffs to assist him with his malicious plans by filing copies of his [Cotner’s] complaint under their individual names. It is clearly apparent that something more is needed to halt Cotner’s abuse of the judicial process.

Accordingly, pursuant to the court’s finding that plaintiff Cotner has abused court process, the court sets aside its previous orders granting plaintiff leave to proceed in forma pauperis in 85-577-C and 85-502-C.

Furthermore, because of his prior pattern of abuse, which this court has no reason to expect will abate, plaintiff Cotner henceforth shall carry a stronger burden of proving that he is economically unable to pay the initial filing and service fee, or some portion thereof, and that the action is in good faith and not “without arguable merit” or malicious.

The requirements placed upon Cotner by the order of this court in Cotner v. Oklahoma National Guard, No. 83-174-C, are declared to remain in full force and effect.

Finally, the court finds that plaintiff Cotner has violated the court order of June 9, 1983, by filing four successive prisoner rights actions at public expense without first meeting the requirements imposed upon him by the court order in 83-174-C.

The pro se litigant is vested with many rights, but none of them entitle him to flagrantly ignore relevant rules of law and valid court orders. Faretta v. California, 422 U.S. 806, 835 n. 46, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562 (1975). This court is not responsible for instructing plaintiff Cotner on matters regarding ethical responsibilities in filing pleadings. Cf. McKaskle v. Wiggins, 465 U.S. 168, -, 104 S.Ct. 944, 953, 79 L.Ed.2d 122 (1984), reh’g denied, 465 U.S. 1112, 104 S.Ct. 1620, 80 L.Ed.2d 148, on remand, 729 F.2d 1026 (5th Cir.1984); Welsh v. Steinmetz, No. Civ. 84-1846, slip op. at 2 (D. NM, Dec. 20, 1984).

In its order of June 9, 1983, this court imposed upon plaintiff Cotner the duty of verifying all pleadings in accordance with Rule 11, Fed.R.Civ.P. Rule 11 states, in pertinent part:

[The signature of a pro se litigant] constitutes a certification by him that he has read the pleading, ... that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or cause unnecessary de lay or needless increase in the cost of litigation.

(emphasis added).

Plaintiff’s pleadings in these matters are, once again, frivolous, and are totally without factual and legal support. Moreover, it is obvious, in light of plaintiff Cotner’s past conduct and present circumstances, that these actions were interposed for an improper purpose such as to harass or cause unnecessary delay and legal expense.

Pursuant to Rule 11, the court may impose an appropriate sanction upon the plaintiff for signing the pleadings in violation of Rule 11, Fed.R.Civ.P. The sanction in this case shall be a $1,000.00 fine.

NOW, THEREFORE, IT IS ORDERED as follows:

1. All complaints are dismissed with prejudice and plaintiffs shall take nothing by their complaints.

2. The court orders granting plaintiff Cotner leave to file in forma pauperis are set aside and denied.

3. Plaintiff Cotner shall tender to the court clerk, for deposit into the court registry, a fine of $1,000.00 within thirty days from the date of entry of this order.

4. Plaintiff Cotner is barred from filing further actions in this court until the $1,000.00 fine imposed above has been paid in full.

5. Henceforth, plaintiff Cotner shall carry a stronger burden of proving that he is economically unable to pay the initial filing and service fee, or some portion thereof.

6. Henceforth, prior to allowing plaintiff Cotner to proceed in forma pauperis, he must sufficiently demonstrate to the court that his action is in good faith and not “without arguable merit” or malicious.

7. All pleadings hereafter submitted by plaintiff Cotner for filing shall be verified, as provided for in Rule 11, Fed.R.Civ.P.

8. Plaintiff Cotner shall include in every complaint or petition hereafter filed a list, by style, docket number, court, date filed, description and disposition, of every action filed by him in this and every other court of law or equity.

9. Plaintiff Cotner shall personally send a copy of the complaint and every subsequent pleading to the defendants or defense counsel, and plaintiff shall submit documentary evidence of such service to the court in a supplementary pleading. Carter v. Telectron, Inc., 452 F.Supp. 944, 1003 (1977); 28 U.S.C. § 1651.

10. Hereafter, in every action filed in this court, plaintiff Cotner shall make specific reference to this order, and shall detail to the court how he has complied with each and every requirement imposed upon him by this order.

Failure of plaintiff Cotner to comply with any of these orders will subject him to the imposition of an appropriate sanction, including further restrictions on the nature of his access to the courts.

ATTACHMENT 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

ROBERT E. COTNER, Plaintiff, vs. OKLAHOMA NATIONAL GUARD, et al., Defendants.

No. 83-174-C

ORDER

This case is before the court to be tested under 28 U.S.C. § 1915(d) to determine whether it is frivolous, malicious, or improper.

The plaintiff Robert E. Cotner is an inmate of the Stringtown Correctional Institution. He instituted Cotner v. Oklahoma National Guard, 83-174-C, pursuant to 42 U.S.C. §§ 1983-88 and 28 U.S.C. § 1343(3) seeking declaratory and injunctive relief and compensatory damages for claimed deprivations of his civil rights. Plaintiff alleges that defendants conspired to use “agent orange” herbicides on land located in Oklahoma. Plaintiff alleges he was exposed to the herbicides and he now suffers from various illnesses as a result of said exposure. Plaintiff further alleges that defendants have knowingly conspired to conceal the evidence of damages caused by the use of the herbicide.

GRANTING MOTIONS TO DISMISS

Plaintiffs action against Oklahoma National Guard must be dismissed because said defendant is not a “person” for purposes of 42 U.S.C. § 1983 and 1985. Coopersmith v. Supreme Court of Colorado, 465 F.2d 993 (10th Cir.1972).

As to defendants Dow Chemical Company, Ethyl Corporation, Monsanto Company, Pennwalt Corporation, General Anoline and Film Corporation, and Ansul Chemical Company, plaintiff’s action must also be dismissed. A complaint should be dismissed for failure to state a claim only when it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). One essential element of a cause of action under 42 U.S.C. § 1983 is that the defendants’ action be taken under color of state law, Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978).

The court finds that plaintiff has not alleged facts sufficient for the court to even remotely infer that the alleged actions of defendants were committed under color of state law, custom, usage or regulation as required by the asserted basis of this claim. While plaintiff may have stated facts sufficient to support a tort claim under state procedure, his complaint wholly fails to assert a claim cognizable in this court.

FINDING PLAINTIFF’S ACTION FRIVOLOUS

Plaintiff has recently filed numerous other actions in this district alleging a wide variety of conspiracies, all in violation of plaintiff’s civil rights.

In Cotner v. United States Postal Service, et al, No. 82-528-C, plaintiff alleged a conspiracy between the United States Postal Service and the Oklahoma Department of Corrections to deny plaintiff direct access to the United States mails. In Cotner v. Sheriff Frank Thurman, et al., No. 82-4,81-C, plaintiff alleged a conspiracy between various law enforcement officers to murder plaintiff. In Cotner v. Oklahoma Bar Association, et al, No. 83-63-C, plaintiff alleged a conspiracy between various attorneys and the Bar to prevent an investigation of certain Oklahoma attorneys. All of these cases were found to be frivolous and were dismissed by this court.

Plaintiff has also filed repetitive claims. In Cotner v. Oklahoma Corrections, et al., No. 82-456-C, and Cotner v. Department of Corrections, et al., No. 82-472-C, plaintiff alleged a variety of civil rights violations due to conditions of confinement at Stringtown. All of Cotner’s allegations were investigated by the Department of Corrections and a special report was filed with this court, in accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978), Martinez v. Chavez, 574 F.2d 1043 (10th Cir.1978), and Robinson v. Benton, 579 F.2d 70 (10th Cir.1978). All of plaintiff’s claims were found to be unsubstantiated and the court dismissed both actions as being frivolous.

Additionally, plaintiff Cotner has filed numerous civil rights suits against defendants who are immune from § 1983 actions. The instant case is the most recent example of such conduct. Seven of the eight defendants in his case were found to be immune from this § 1983 action.

Since 1982 began, Cotner has filed ten cases in this district. Of these ten cases, six were dismissed as being frivolous, one was dismissed for failure to exhaust administrative remedies, one was dismissed by plaintiff’s own ’motion, and two are still pending.

Furthermore, on April 8, 1983, the Attorney General’s Office received a statement prepared by plaintiff entitled “Is It Worth It?” A copy of that statement is annexed to this order and is identified as “Attachment A”. In that statement plaintiff said:

“..., plus that certain prisoner [Cotner] filed over 15 federal law suits which cost tax-payers another $100.00 each (total-ling $1,500.00) just to file them, and another $100.00 pr. month, each just for the state attorneys to answer each one, each month, which is a total of another $1,200.00 of tax-payers money, pr. year, pr. case (totalling $18,000.00 pr. year) and if that is multiplied over the intire 10 years that that one prisoner is to be kept in prison, it comes to a total cost to the tax-payers of about $363,500.00 just to punish that one prisoner (one prisoner!) for $45.00 worth of marijuana! is it worth it? what about the other prisoners that that one prisoner will teach and/or help to file their own civil suits, what will that cost the tax-payers____”

Because plaintiff has a demonstrated history of filing frivolous lawsuits, and because plaintiffs letter to the Attorney General clearly indicates those lawsuits were filed for malicious purposes, this court finds that plaintiff has abused his in forma pauperis privilege.

This court authorized the commencement of this action in forma pauperis under the authority of 28 U.S.C. § 1915. Subsection (d) of that statute permits the dismissal of a case when the court is satisfied that the action is frivolous. Moreover, both the Supreme Court and the Tenth Circuit Court of Appeals have held that federal jurisdiction does not lie where a purported civil rights claim is simply unsubstantial. See Hagans v. Lavine, 415 U.S. 528, 536, 94 S.Ct. 1372, 1378, 39 L.Ed.2d 577 (1974); Wells v. Ward, 470 F.2d 1185, 1187 (10th Cir.1972). In view of its holding that plaintiff has suffered no deprivation of rights constitutionally protected, the court concludes that this action is frivolous and that plaintiffs claim is unsubstantial. Accordingly, this action is, in all respects, dismissed.

In well documented and extreme cases, reasonable restrictions may be placed on all litigants who seek to advance repetitive causes, who file actions for obviously malicious purposes, and who generally abuse the processes, Phillips v. Carey, 638 F.2d 207 (10th Cir.1981). Robert E. Cotner has undoubtedly abused his in forma pauperis privilege by filing frivolous lawsuits, by filing repetitive actions, and by suing defendants he knows to be immune. Since 1982 began, Cotner has filed, by his own admission, fifteen civil rights cases. Ten of these cases have been filed in this district alone — so many that the court is still attempting to process them all.

Therefore, pursuant to the court’s finding that plaintiff has abused court process, in the future, leave to file in forma pauperis will be denied plaintiff except upon a showing of good cause why he should be permitted to sue in a particular ease at public expense, West v. Procunier, 452 F.2d 645, 646 (9th Cir.1971).

Additionally, in every cause of action hereafter filed in this court, plaintiff is ordered to satisfy the following requirements:

1. All pleadings hereafter submitted by plaintiff for filing shall be verified, as provided for in Fed.R.Civ.P. 11.
2. Plaintiff shall include in every complaint or petition hereafter submitted a list, by style, docket number, court, date filed, description and disposition, of (a) all cases previously filed on the same, similar or related cause of action and (b) all actions previously filed against one or more of the defendants, including predecessors or successors in interest or office.
3. Plaintiff shall personally send a copy of the complaint and every subsequent pleading to the defendants or defense counsel, and plaintiff shall submit documentary evidence of such service to the court in a supplemental pleading, Carter v. Telectron, Inc., 452 F.Supp. 944, 1003 (1977); 28 U.S.C. § 1651.
IT IS SO ORDERED this 9th day of June, 1983.
/s/ Frank H. Seay
Frank H. Seay
United States District Judge

ATTACHMENT A

      . In 1974, federal district courts received 5,236 prisoner petitions. Ten years later, in 1984, the federal courts are suffering from an approximate 500 percent increase in prisoner rights cases.

      . Federal Court Management Statistics, p. 129 (Administrative Office of the United States Courts, 1984).

      . Statistics for this court were obtained from the Office of the Clerk of the Court, United States District Court for the Eastern District of Oklahoma.

      . See Report of the Study Group on the Caseload of the Supreme Court, 57 F.R.D. 573, 587 (1972).


source: Caselaw Access Project

author: ENSLEN, District Judge.

license: Public Domain

text:
    Frank J. KELLEY, Attorney General of Michigan for and on Behalf of the PEOPLE OF the STATE OF MICHIGAN and the Natural Resources Commission, Plaintiffs, v. The UNITED STATES of America; United States Department of Transportation; the Honorable Elizabeth Dole, Secretary of the Department of Transportation; the United States Coast Guard; and Admiral James Gracey, Commandant of the Coast Guard, Defendants.
    No. G83-630.
    United States District Court, W.D. Michigan, S.D.
    Sept. 20, 1985.

      Frank J. Kelley, Atty. Gen. of Michigan by Stephen F. Schuesler, Asst. Atty. Gen., Environmental Protection Div., Lansing, Mich., for plaintiffs.
    John A. Smietanka, U.S. Atty., Grand Rapids, Mich., and Dean K. Dunsmore, U.S. Dept, of Justice, Land & Natural Resources Div., Environmental Defense Section, Washington, D.C., for defendants.
   OPINION

ENSLEN, District Judge.

This case is currently before the Court on Defendants’ two pending dispositive motions. On July 13,1984, Defendants filed a motion to dismiss Plaintiffs’ complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (FRCP) or in the alternative for summary judgment pursuant to FRCP 56(b). In this motion, Defendants contend that Plaintiffs’ claim under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (Clean Water Act or CWA), fails to state a claim upon which relief can be granted. Defendants also argue that Plaintiffs’ state law claims under Michigan’s Water Resources Commission Act, M.C.L.A. § 323.1 et seq. (WRCA), and Thomas J. Anderson, Gordon Rockwell Environmental Protection Act, M.C.L.A. § 691.1201 et seq. (MEPA), are both barred by sovereign immunity. Defendants’ second dispositive motion was filed on June 14, 1985, and requests a grant of partial summary judgment dismissing all claims for damages or costs incurred by East Bay Township and by residents, homeowners and businesses in the Avenue E area. Defendants argue that the instant Plaintiffs, the State Attorney General and the Natural Resources Commission, do not as a matter of law have standing as parens patriae to represent these narrow, private interests in a suit against the federal government. These two motions will be discussed separately.

At this point, some brief background is in order. Plaintiffs’ original complaint contained only three counts, the federal claim under the Clean Water Act and the two state claims. Plaintiffs requested injunctive relief and an award of damages to the state on behalf of the state itself, East Bay Township and certain residents thereof. However, shortly after Defendants filed their initial motion to dismiss, Plaintiffs amended their complaint to include a fourth count claiming the same relief under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (CERCLA). Defendants have not contested the ability of Plaintiffs to maintain their CERCLA action, except as to the narrow parens patriae damages issue. Therefore, even if both of Defendants’ motions are granted in full, Plaintiffs’ CERCLA claim would remain for resolution.

I

A. Plaintiffs Claims Under the Clean Water Act

In a nutshell, this case involves allegations that certain toxic chemicals were released into the ground at the United States Coast Guard Air Station in Traverse City, Michigan, by Coast Guard personnel. Plaintiffs further allege that these chemicals contaminated the groundwater underlying the Air Station and that the plume of contamination is migrating downgradient in a north-easterly direction through East Bay Township and eventually discharging into the East Arm of Grand Traverse Bay. It is undisputed that the Coast Guard neither applied for nor received a permit from either the federal government or the state for this discharge.

Plaintiffs bring this “citizen suit” pursuant to section 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a), which provides in pertinent part that:

Except as provided in subsection (b) of this section [precluding suit except after proper notice], any citizen may commence a civil action on his own behalf—
(1) Against any person (including (i) the United States and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter____

Section 301(a) of the CWA, 33 U.S.C. § 1311(a), provides that “[e]xcept as in compliance with this section and [certain other sections of the Act], the discharge of any pollutant by any person shall be unlawful.” The term “discharge of a pollutant” is defined in section 502(12), 33 U.S.C. § 1362(12), as “any addition of any pollutant to navigable waters from any point source____” For the purposes of the CWA, the term “navigable waters” has been defined very broadly to mean simply “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). Some courts have interpreted “navigable waters” as broadly as possible under Congress’ commerce power, United States v. Byrd, 609 F.2d 1204 (7th Cir.1979); Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir.1978), even so far as to exclude from consideration any concept of navigability, in law or in fact, United States v. GAF Corp., 389 F.Supp. 1379 (S.D.Tex.1975).

Defendants argue that while the term “navigable waters” is construed broadly, Congress did not intend to include groundwater within its definition. Indeed, Defendants maintain that the regulatory and enforcement aspects of the Clean Water Act were not designed to control the discharge of pollutants into the soil and groundwater. Certainly Congress realized the importance of the groundwater pollution issue. It specifically directed the Administrator of the Environmental Protection Agency (EPA) to cooperate with the states in establishing a national groundwater surveillance system. CWA section 104(a)(5), 33 U.S.C. § 1254(a)(5). It conditioned future grants to any state on the establishment of groundwater quality monitoring procedures. CWA section 106(e)(1), 33 U.S.C. § 1256(e)(1). It also directed the EPA to develop and periodically publish the latest scientific criteria for groundwater quality, the effect of its contamination, and information regarding its cleanup. CWA section 304(a)(1), (2), 33 U.S.C. § 1314(a)(1), (2). However, Defendants argue that the fact that Congress did not expressly include the term “groundwaters” in most of the regulatory provisions of Title III of the CWA, including section 301(a), indicates a clear intent to leave the regulation of groundwater pollution to the states.

This argument is substantially supported by the legislative history of the 1972 amendments. The Senate Committee on Public Works reported:

Several bills pending before the Committee provided authority to establish Federally approved standards for groundwaters which permeate rock, soil, and other subsurface formations. Because the jurisdiction regarding ground-waters is so complex and varied from State to State, the Committee did not adopt this recommendation.
The Committee recognizes the essential link between ground and surface waters and the artificial nature of any distinction. Thus, the Committee bill requires in section 402 that each State include in its program for approval under section 402 affirmative controls over the injunction or placement in wells of any pollutants that may effect groundwater.

S.Rep. No. 414, 92d Congress, 1st Sess. 78, reprinted in 1972 U.S.Code Cong. & Ad. News 3668, 3739. In response to the Senate’s rejection of federal regulatory jurisdiction over groundwater, Representative Aspin introduced an amendment into the House to expressly bring groundwater within the regulatory scope of the Act. See 118 Cong.Rec. 10666 (1972) (remarks of Rep. Aspin). After a spirited debate, the Aspin amendment was defeated by a vote of 86-34. Id. at 10669.

This same legislative history was more thoroughly analyzed in Exxon Corp. v. Train, 554 F.2d 1310 (5th Cir.1977). That court characterized the Senate Report quoted above as “evincpng] a clear intent to leave the establishment of standards and controls for groundwater pollution to the states.” Id. at 1325. Likewise, it concluded that the “House bill, like the Senate bill, did not authorize federal control over any phase of groundwater pollution.” Id. at 1326.

Plaintiffs seek to distinguish the facts of the principal case from those found in Exxon. The instant complaint alleges that the pollutants released into the ground at the Air Station not only contaminated the groundwater, but are naturally discharging into the Grand Traverse Bay — an undisputed navigable body of water. Complaint ¶ s 34, 43 & 47. By comparison, the Exxon case dealt with disposal of pollutants into deep wells. The Exxon court prefaced its entire discussion with the recognition of the distinction:

Throughout this opinion, we will use certain terms interchangeably that are not, strictly speaking, equivalent. The main example is our equation of “disposal into deep wells” with “disposal into groundwaters”____ We make this equation because neither party before us argues that the disposal into wells at issue here ... is disposal into anything other than groundwaters. Specifically, EPA has not argued that the wastes disposed of into wells here do, or might, “migrate” from groundwaters back into surface waters that concededly are within its regulatory jurisdiction____ We mean to express no opinion on what the result would be if that were the state of facts.

Exxon, 554 F.2d at 1312 n. 1 (emphasis added).

Plaintiffs also rely on an unpublished opinion from the Eastern District of Michigan in a case similar to the case at bar. Kelley v. United States, No. 79-10199 (E.D.Mich. Oct. 28, 1980). In that opinion, the court ruled that the State Attorney General could maintain an action against the United States under section 505 of the Clean Water Act for an alleged discharge of toxic chemicals into the groundwaters from sites at the Wurtsmith Air Force Base in Alpena, Michigan, where plaintiff claimed the discharge was ultimately affecting surface waters. The court’s analysis on this point was brief:

Defendants cite the case of Exxon Corp v Train, 554 F2d 1310 (CA 5, 1977) as their primary authority for the argument that groundwater pollution was not intended to be regulated under the Federal Water Pollution Control Act, supra. Plaintiff, however, quite correctly points out that the Court of Appeals for the Fifth Circuit concedes that wastes which migrate from groundwaters back into surface waters are within the EPA’s regulatory jurisdiction. Exxon Corp v Train, 554 F2d 1310, 1312 Fn 1 (CA 5, 1977). This Court believes that the type of pollution of navigable waters which plaintiff complains of in the instant case is encompassed by the Federal Water Pollution Control Act, supra notwithstanding defendants’ arguments to the contrary.

Kelley v. United States, No. 79-10199, slip op. at 2-3 (E.D.Mich. Oct. 28, 1980) (emphasis added).

I think that the court and the State Attorney General have both misinterpreted footnote one of Exxon. The Fifth Circuit did not concede that discharges into the soil will be subject to the regulatory provisions of CWA if the groundwater contaminated thereby eventually migrates into navigable waters. On the contrary, it specifically “express[ed] no opinion on what the result would be [under the CWA] if that were the state of facts.” Exxon, 554 F.2d at 1312 n. 1. Moreover, the remainder of the Exxon opinion and the unmistakably clear legislative history both demonstrate that Congress did not intend the Clean Water Act to extend federal regulatory and enforcement authority over groundwater contamination. Rather, such authority was to be left to the states. Therefore, Count I of Plaintiffs’ complaint is dismissed.

B. Plaintiffs’ State Law Claims

Section 313(a) of the CWA, 33 U.S.C. § 1323(a), was amended in 1977 to waive the federal government’s sovereign immunity from all state water pollution laws and processes. This section now provides in pertinent part that:

Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law.

With regard to the amendment of section 313(a), the Senate Environment and Public Works Committee reported that: “[t]he act has been amended to indicate unequivocably that all Federal facilities and activities are subject to all of the provisions of State and local pollution laws.” S.Rep. No. 95-370, 95th Cong., 1st Sess. 67, reprinted in 1977 U.S.Code Cong. & Ad. News 4326, 4392 (emphasis added).

The immediate issue is whether section 313(a) operates as a waiver of federal sovereign immunity with respect to Plaintiffs’ state law claims under the WRCA and the MEPA. Consent to suit must be clearly expressed, and sovereign immunity will not be impliedly waived. Block v. North Dakota ex rel. Board of University and School Lands, 461 U.S. 273, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). When given, such waiver must be strictly construed. United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969).

The federal Defendants contend that the scope of section 313(a)’s waiver extends only to violations of state substantive and procedural “requirements.” Defendants further argue that the Michigan statutory provisions involved here, sections 6(a), (c) of the WRCA, and sections 2(1), 4(1) of the MEPA, do not constitute such requirements. Therefore, Defendants conclude, the federal government has not consented to be sued under these provisions.

It is noteworthy that section 313(a) of the CWA closely parallels the federal sovereign immunity waiver provisions of section 118(a) of the Air Pollution Prevention and Control Act (Clean Air Act or CAA), 42 U.S.C. § 7418(a), and section 6001 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6961. See Department of Environmental Regulation v. Silvex Corp., 606 F.Supp. 159, 161-62 & n. 3 (M.D.Fla.1985). In 1976, the United States Supreme Court held that the “requirements” language of the waiver provisions of section 313(a) of the Clean Water Act and section 118(a) of the Clean Air Act referred only to objective state standards of control. EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 215, 96 S.Ct. 2022, 2029, 48 L.Ed.2d 578 (1976) (legislative history of CWA section 313 suggests “requirements” language refers only to substantive “effluent limitations and standards and schedules of compliance”); Hancock v. Train, 426 U.S. 167, 187-89, 96 S.Ct. 2006, 2016-17, 48 L.Ed.2d 555 (1976) (legislative history of CAA section 118 suggests “requirements” language refers only to emissions standards and compliance schedules). Furthermore, because of the narrow construction given to congressional waivers of federal sovereign immunity, similar “requirements” language has generally been held to mean “relatively precise standards capable of uniform application.” Romero-Barcelo v. Brown, 643 F.2d 835, 855 (1st Cir.1981), rev’d on other grounds, sub nom. Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) (interpreting section 12 of the Noise Control Act, 42 U.S.C. § 4911). See also Department of Environmental Regulation v. Silvex Corp., 606 F.Supp. at 163-64 (interpreting section 6001 of the RCRA). Lastly, the Sixth Circuit has held that the 1977 amendment to section 313 of the Clean Water Act “did not change the extent to which section 313 waived immunity from state or local control; it merely made it clear that where federal agencies are subject to state or local regulation, they must comply with state or local procedural as well as substantive requirements.” United States ex rel. TVA v. Tennessee Water Quality Control Board, 717 F.2d 992 (6th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1909, 80 L.Ed.2d 458 (1984).

I now turn to the Michigan statutes under which Plaintiffs bring their claim. Section 6(a) of the WRCA, M.C.L.A. § 323.6(a), makes it unlawful to “discharge into the waters of the state any substance which is or may become injurious to the public health, safety or welfare____” Section 6(c), MCLA 323.6(c), provides that a violation of section 6(a) constitutes “prima facie evidence of the existence of a public nuisance.” Similarly, sections 2(1) and 4(1) of MEPA, M.C.L.A. § 691.1202(1), .1204(1), provide that the State Attorney General and others may maintain actions for equitable and declaratory relief “for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction.”

I find that neither of these state statutes provide objective, quantifiable standards subject to uniform application. For that reason, neither constitute “requirements” for the purposes of section 313 of the Clean Water Act. Since the federal government has not consented to be sued under these statutes, Counts II and III of Plaintiffs’ complaint must also be dismissed. Therefore, all that remains of Plaintiffs’ complaint is the CERCLA claim in Count IV.

II

Defendants’ motion for partial summary judgment seeks an order dismissing all claims presented for costs or other damages incurred by East Bay Township and by residents, homeowners and businesses in the Avenue E area. Plaintiffs in this action, the Michigan Attorney General and the State Natural Resources Commission, purport to represent these individuals and entities as parens patriae. The law on this point is clear:

The state does not have standing as parens patriae against the Federal Government. Massachusetts v. Mellon, 262 U.S. 447 [43 S.Ct. 597, 67 L.Ed. 1078] (1923) (“while the state, under some circumstances, may sue in that capacity for protection of its citizens (Missouri v. Illinois, 180 U.S. 208, 241 [21 S.Ct. 331, 343, 45 L.Ed. 497]), it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae.”)

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 610 n. 16, 102 S.Ct. 3260, 3270 n. 16, 73 L.Ed.2d 995 (1982). See also South Carolina v. Katzenbach, 383 U.S. 301, 324, 86 S.Ct. 803, 816, 15 L.Ed.2d 769 (1966).

Plaintiffs allege that this case falls within an exception to the Massachusetts v. Mellon rule allowing states to maintain parens patriae suits against the federal government to prevent a violation of federal laws by federal agencies. See Washington Utilities and Transportation Commission v. FCC, 513 F.2d 1142 (9th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975); Louisiana v. Lee, 596 F.Supp. 645 (E.D.La.1984), vacated, 758 F.2d 1081 (5th Cir.1985); Holden v. Heckler, 584 F.Supp. 463 (N.D.Ohio 1984); Abrams v. Heckler, 582 F.Supp. 1155 (S.D.N.Y.1984); City of New York v. Heckler, 578 F.Supp. 1109 (S.D.N.Y.), aff'd, 742 F.2d 729 (2nd Cir.1984); Alabama v. TV A, 467 F.Supp. 791 (N.D.Ala.1979), rev’d on other grounds 636 F.2d 1061 (5th Cir.), cert. denied, 454 U.S. 837, 102 S.Ct. 142, 70 L.Ed.2d 118 (1981). However, in each of these cases, the state was seeking to enforce the affirmative obligations of a federal regulatory statute. CERCLA, by comparison, is a remedial statute. Thus, the exception is inapplicable.

Plaintiffs alternatively maintain that since the state has a “quasi-sovereign interest” in its groundwater, it can maintain its parens patriae action. The Supreme Court has characterized quasi-sovereign interests as “inter alia, a state’s interest in the health and well-being — both physical and economic — of its residents in general.” Alfred L. Snapp & Son, 458 U.S. at 607, 102 S.Ct. at 3268 (emphasis added). Such a general interest must be distinguished from “the interests of particular private parties.” Id. Under this analysis, the state may of course proceed on behalf of the people of the State of Michigan and recover its response costs, etc.; but it may not represent the individual interests of private parties such as East Bay Township, its residents and businesses and recover response costs incurred solely by them. Accordingly, Defendants’ motion for partial summary judgment is granted.

Nevertheless, in the interests of fairness and pursuant to FRCP 19(a), East Bay Township and the affected homeowners and businesses in the Avenue E area may, at their discretion, join this action as individual Plaintiffs by filing a motion to that effect with the Court no later than November 1, 1985. This joinder of Plaintiffs should cause no substantial prejudice to Defendants because Defendants have had notice of their claims since this case was filed in 1983.

An appropriate judgment order will be entered forthwith.