author: BAKER, Chief Judge.

text:
    Carol A. PARKER, Plaintiff, v. DANVILLE METAL STAMPING COMPANY, INC., Defendant.
    No. 84-2374.
    United States District Court, C.D. Illinois, Danville Division.
    Jan. 30, 1985.

      David J. Ryan (Court Appointed), Dan-ville, 111., for plaintiff.
    Patricia A. Brandin, Bradford L. Livingston, Chicago, 111., John Jenkins, Danville, 111., for defendant.
   ORDER

BAKER, Chief Judge.

On September 25,1984, the plaintiff filed this action pursuant to Title VII of the Civil Rights Acts of 1964, 42 U.S.C. § 2000e et seq., charging the defendant, Danville Metal Stamping, with employment discrimination. In particular, the plaintiff claims that she was denied proper wage increases and eventually was discharged because of her race and sex. The plaintiff also claims that she was subjected to racial harrassment by her supervisor. This matter is before the court on the defendant’s “Motion to Dismiss and for Summary Judgment.”

I. FACTS

The plaintiff, Carol Parker, was the complainant in the case of Carol Parker v. Danville Metal Stamping Company, charge No. 1981SF-0445 (Illinois Human Rights Commission). On March 23, 1981, the plaintiff filed her charge of employment discrimination with the Illinois Department of Human Rights (“the DHR”) claiming that the Danville Metal Stamping Company had discriminated against her on the basis of her race, sex, and “physical handicaps.” The DHR conducted an investigation and held a fact-finding conference on September 11,1981, which was attended by both parties and their witnesses. After reviewing the evidence, the DHR dismissed all of the charges for lack of substantial evidence.

The plaintiff then filed a request for a review of the DHR’s decision with the Illinois Human Rights Commission (“the HRC”) on April 21, 1982. On August 18, 1982, the HRC ruled that a hearing should be held to consider three of the plaintiff’s allegations. Accordingly, the HRC issued a complaint on September 2, 1982, and assigned the matter to an administrative law judge (“ALJ”) for an adjudicative hearing.

On September 30, 1982, the defendant answered the complaint and initiated the discovery process. The plaintiff’s counsel answered the defendant’s discovery requests and initiated discovery on the plaintiff’s behalf, filing both a request for the production of documents and a set of interrogatories. The plaintiff’s attorney also prepared a pre-hearing memorandum which was submitted to the HRC on December 21, 1982.

On December 28 and 29, 1982, an evidentiary hearing was held to adjudicate the merits of the plaintiff’s complaint. During the two-day hearing, each party had an opportunity to examine and cross-examine witnesses under oath pursuant to the Illinois Rules of Evidence. The plaintiff’s attorney made an opening statement, called five witnesses for examination, and offered six exhibits, all of which were admitted into evidence.

In a recommended order and decision dated September 14, 1983, the ALJ recommended that the HRC dismiss the plaintiff’s complaint. After the defendant appealed the ALJ’s failure to award the company its attorney’s fees, a three-member panel of the HRC reviewed the findings of facts and conclusions of law contained within the recommended order. The panel affirmed the ALJ’s findings and conclusions in a final order and decision dismiss ing the complaint. The plaintiff did not appeal the HRC’s decision within the Illinois state court system, but instead filed this Title VII action in federal court.

II. ANALYSIS

In its “Motion to Dismiss and for Summary Judgment”, the defendant urges the court to follow the decision of the Northern District of Illinois in Buckhalter v. Pepsi-Cola General Bottlers, Inc., 590 F.Supp. 1146 (N.D.I11.1984), and to bar this Title VII action by the doctrine of res judicata. In Buckhalter, the plaintiff alleged that he was discharged from his employment because of his race. The plaintiff first filed a charge of racial discrimination with the Illinois Fair Employment Practices Commission (“the FEPC”). After a full hearing, an ALJ dismissed the plaintiffs claims. The full HRC affirmed the dismissal. The plaintiff then was issued a right to sue letter from the EEOC and filed suit under Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. As in this case, the plaintiff in Buckhalter made the same claims as were considered and decided upon by the HRC. The district court in Buckhalter held that the plaintiffs claims were barred by the res judicata effect of the state administrative decision.

The district court in Buckhalter held that it was required to give “full faith and credit” and preclusive effect to a state administrative determination if the administrative tribunal was acting in a “judicial capacity” in rendering a decision. Buck-halter, 590 F.Supp. at 1149. The court thus distinguished the findings of a state agency in its investigative capacity from an agency’s determinations in its “judicial capacity”. Buckhalter, 590 F.Supp. at 1149. The district court further read Kremer v. Chemical Construction Corporation, 456 U.S. 461, 470 n. 7,102 S.Ct. 1883, 1891 n. 7, 72 L.Ed.2d 262 (1982), as foreclosing res judicata effect only to those state administrative decisions which are investigative or purely administrative in nature and not to the determinations of an agency when acting in a “judicial capacity”. Buckhalter, 590 F.Supp. at 1148-1149.

The district court then noted that the HRC has no equivalent in the federal system, insofar as it is empowered to act in a judicial capacity. Buckhalter, 590 F.Supp. at 1149. Indeed, the HRC may grant several forms of relief upon a determination of a civil rights violation. See Ill.Rev.Stat. ch. 68, Par. 8-108. HRC decisions are given preclusive effect in Illinois courts and may be overturned only if contrary to the manifest weight of the evidence. Ill.Rev.Stat. ch. 68, Par. 8-111. A HRC holding may be appealed to the Illinois Circuit Courts pursuant to the Administrative Review Law (Ill.Rev.Stat. ch. 110, Par. 3-101 et seq.). Ill.Rev.Stat. ch. 68, Par. 8-111(a). In finding that the HRC determination should be given preclusive effect, the district court in Buckhalter also placed emphasis on the fact that the plaintiff was afforded due process before the HRC.

The court, however, disagrees with the Northern District of Illinois’ interpretation of Kremer and its holding in Buckhalter. The court holds that the determination of the HRC in this case is not to be given preclusive effect in the plaintiff’s subsequent Title VII action. The United States Supreme Court, in Kremer v. Chemical Construction Corporation, 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), held that a district court was required under the Full Faith and Credit Clause, United States Constitution, Article IV, § 1, and its implementing statute, 28 U.S.C. § 1738, to give preclusive effect to a state court decision upholding a state administrative agency’s rejection of an employment discrimination claim. Kremer, 456 U.S. at 485, 102 S.Ct. at 1899. The Full Faith and Credit Clause, implemented by § 1738, is the means by which state adjudications are made res judicata. Batiste v. Furnco Construction Company, 503 F.2d 447, 457 (7th Cir.1974). The focus of the Supreme Court’s attention in Kremer was on the state court’s decision on review of the state administrative determination. The failure of the plaintiff in this case to fully pursue state procedures does not indicate the inadequacy of the procedures, Kremer, 456 U.S. at 485, 102 S.Ct. at 1899, but her failure to appeal the HRC’s determination to a state circuit court does not elevate the HRC’s findings to the level of a final state court judgment for res judicata purposes under Title VII.

Indeed, the Supreme Court in Kremer found that Title VII is not immunized from the applications of “full faith and credit” and res judicata principles. The Supreme Court correctly recognized that no “affirmative showing” of a “clear and manifest” legislative intent exists behind Title VII to deny res judicata or collateral estoppel effect to a state court judgment affirming a state agency determination. Kremer, 456 U.S. at 468-76, 102 S.Ct. at 1890-94. An exception to 28 U.S.C. § 1738 will not be recognized unless a later statute contains an express or implied partial repeal. Allen v. McCurry, 449 U.S. 90, 99, 101 S.Ct. 411, 417, 66 L.Ed.2d 308 (1980). No claim is made that Title VII expressly repealed § 1738, and repeals by implication are not favored. See Radzanower v. Touche Ross and Company, 426 U.S. 148, 154, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1976). No manifest incompatability exists between Title VII and § 1738. Kremer, 456 U.S. at 470, 102 S.Ct. at 1891.

The Supreme Court, however, sought not to force a collision, but to recognize an accommodation between the important precepts of Title VII on the one hand and res judicata and “full faith and credit” on the other hand. Title VII was enacted to assure equality of employment opportunities by removing practices and devices which discriminated on the basis of race, color, sex, religion, or national origin. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973). Cooperation and voluntary compliance were selected as the preferred means for achieving this goal. Alexander v. Gardner-Denver Company, 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974). When an incident of alleged employment discrimination occurs in a state which prohibits such discrimination and which has established an “authority to grant or seek relief from such [discrimination]” no charge may be actively processed by the EEOC until the state remedy has been invoked and at least sixty days have passed, or until the state proceedings have terminated. 42 U.S.C. § 2000e-5(c). Thus, only after allowing an appropriate state agency the opportunity to resolve the complaint may an individual press the issue before the EEOC.

Congress has evinced a general intent to afford parallel or overlapping remedies against discrimination. Title VII provides for consideration of employment discrimination claims in several forums. See 42 U.S.C. § 2000e-5(b) (EEOC); 42 U.S.C. § 2000e-5(c) (state and local agencies); 42 U.S.C. § 2000e-5(f) (federal courts). Title VII obviously was meant to supplement, not supplant, other laws and institutions relating to employment discrimination. Alexander v. Gardner-Denver Company, 415 U.S. 36, 47-49, 94 S.Ct. 1011, 1019-1020, 39 L.Ed.2d 147 (1974). No provision of Title VII requires claimants to pursue in state courts an unfavorable state administrative action. Kremer, 456 U.S. at 469, 102 S.Ct. at 1890. The “civil action” authorized to follow consideration by federal and state administrative agencies, 42 U.S.C. § 2000e-5(f)(1), has been held to be a “trial de novo”. Alexander v. Gardner-Denver Company, 415 U.S. 36, 38, 94 S.Ct. 1011, 1015, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 798-799, 93 S.Ct. 1817, 1822-1823, 36 L.Ed.2d 668 (1973). The Supreme Court in Kremer, however, recognized that neither its decisions nor Title VII “indicate that the final judgment of the state court is subject to redetermination at such a trial.” Kremer, 456 U.S. at 470, 102 S.Ct. at 1891. Similarly, the requirement that the EEOC give “substantial weight” to findings made in state proceedings, 42 U.S.C. § 20.00e-5(b), “indicates only the minimum level the EEOC must afford to all state determinations; it does not bar affording the greater preclusive effect which may be required by § 1738 if judicial action is involved.” Kremer, 456 U.S. at 470, 102 S.Ct. at 1891.

The Supreme Court further stated that the EEOC’s consideration of discrimination charges previously rejected by state agencies would be futile if federal courts were bound by such agency decisions. Kremer, 456 U.S. at 470 n. 7, 102 S.Ct. at 1891 n. 7. Since EEOC decisions do not preclude a trial de novo in federal court, “it is clear that unreviewed administrative determinations by state agencies also should not preclude such review even if such a decision were to be afforded preclusive effect in a state’s own courts.” Kremer, 456 U.S. at 470 n. 7, 102 S.Ct. at 1891 n. 7. The Supreme Court cited Batiste v. Furnco Construction Corporation, 503 F.2d 447 (7th Cir.1974), with approval for these propositions. Obviously, the Supreme Court reached an accommodation between the preclusive principles of “full faith and credit” and res judicata, and the important federal interest in combatting employment discrimination as codified in Title VII.

This accommodation in no way removes the responsibility for the enforcement of Title VII from the federal system. If such federal actions are barred by the applications of res judicata, the statutory scheme of deferral to state proceedings will be frustrated by requiring that a plaintiff first commence state proceedings, but abandon them before an adjudication is made. Batiste, 503 F.2d at 450. Congressional standards for the EEOC’s examination of eases after state agency determinations were made would be meaningless if Congress had intended that those cases would be barred from federal judicial consideration. The EEOC, without any enforcement power, would be attempting to resolve disputes with defendants who are already insulated from any further legal action. Batiste, 503 F.2d at 450 n. 1.

The Seventh Circuit, in Batiste, also recognized that “other well-defined federal policies, statutory or constitutional” may compete with, but not eclipse, policies underlying § 1738 and principles of res judicata. Batiste, 503 F.2d at 450. The case of Alexander v. Gardner-Denver Company, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), is illustrative. In Alexander, the Supreme Court held that an employee’s statutory right to bring a Title VII action is not foreclosed by a final decision of an arbitrator under the non-discrimination clause of a collective bargaining agreement. Alexander, 415 U.S. at 59-60, 94 S.Ct. at 1025-1026. The decision of the arbitrator may be admitted into evidence and given appropriate weight. Alexander, 415 U.S. at 60, 94 S.Ct. at 1025. By following the prescribed arbitration procedures, the plaintiff did not waive his Title VII cause of action. Alexander, 415 U.S. at 51, 94 S.Ct. at 1021. This decision was made in light of the strong federal policy favoring arbitration of labor disputes. See e.g., Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957); United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1352-1353, 4 L.Ed.2d 1409 (1960). In enacting the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Congress indicated that it considered the policy against discrimination to be of the highest priority. See e.g., Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). Certainly, the strong federal policy to assure equality of employment opportunities by eliminating practices and devices that discriminate on the basis of race, color, sex, religion, and national origin, competes with, but does not eclipse, established principles such as res judicata. The Supreme Court in Kremer recognized this need for accommodation by limiting the application of res judicata in Title VII cases to state court judgments, not state administrative determinations. See Kremer, 456 U.S. at 470 n. 7, 102 S.Ct. at 1891 n. 7.

Kremer reinforces the principle that federal courts have the ultimate enforcement responsibility under Title VII, while recognizing the “integral” role played by state courts within the statutory scheme. Kremer, 456 U.S. at 468-469, 102 S.Ct. at 1890-1891. A prior state court judgment upholding a state agency determination relating to employment discrimination cannot be disregarded. Kremer, 456 U.S. at 477, 102 S.Ct. at 1895. By vesting “final responsibility” in one forum, Congress did not intend to deny finality to decisions in another forum. Kremer, 456 U.S. at 477, 102 S.Ct. at 1895. Title VII, however, does not require a claimant to pursue an unfavorable state administrative action in state court. Kremer, 456 U.S. at 469, 102 S.Ct. at 1890.

Following Kremer, the unappealed determination of the HRC in this case is not the equal of final state court judgment. See Kremer, 456 U.S. at 470 n. 7, 102 S.Ct. at 1891 n. 7. The “initial resort to state administrative remedies does not deprive an individual of a right to a federal trial de novo on a Title VII claim.” Kremer, 456 U.S. at 477, 102 S.Ct. at 1895. Concerns of comity and federalism, as well as for cooperation and voluntary compliance, were woven into Title VII in the form of referrals to state agencies when appropriate and the giving of substantial weight to state administrative determinations during subsequent EEOC investigations. See 42 U.S.C. § 2000e-5(b) and (c). The “final responsibility for enforcement ” of Title VII must rest in federal court. See Kremer, 456 U.S. at 477, 102 S.Ct. at 1895 (emphasis added).

State proceedings need only satisfy the minimum procedural requirements of the Fourteenth Amendment’s Due Process Clause in order to receive the “full faith and credit” guaranteed by federal law. Kremer, 456 U.S. at 481, 102 S.Ct. at 1897. Preclusive effect may not be given to a constitutionally infirm judgment. Kremer, 456 U.S. at 482, 102 S.Ct. at 1897. The due process afforded the plaintiff in this case does not raise the state administrative determinations to the level of a final state court judgment for Title VII purposes. An unappealed state administrative decision does not become a final state court decision under Title VII, as there is no requirement under the statute that a claimant pursue appeals through the state court system of an adverse administrative decision before bringing a Title VII action. See Kremer, 456 U.S. at 469, 102 S.Ct. at 1890.

The intent behind Title VII was to provide an avenue for relief in the federal courts for victims of employment discrimination. The plaintiff in this case went through a state administrative stage mandated by Title VII. No requirement exists in Title VII that the plaintiff must appeal the adverse state administrative results to the state courts. Kremer accommodates the federal policy against employment discrimination with the long standing principle of respect for state court judgments. The court disagrees with the holding of Buck-halter that an unappealed Illinois HRC determination bars the subsequent Title VII action in federal court. The plaintiff has done all she is required to do under Title VII in order to bring an employment discrimination action based upon race and sex. Accordingly, the plaintiff’s Title VII action is not barred by res judicata, and the defendant’s “Motion to Dismiss and for Summary Judgment” is denied.

IT IS THEREFORE ORDERED that the defendant’s motion for summary judgment be, and hereby is, denied.

      . The FEPC was abolished by the repeal of the Illinois Fair Employment Practices Act in 1980. The subsequent enactment of the Illinois Human Rights Act, Ill.Rev.Stat. ch. 68, Par. 1-101 etseq. (1983), created the Illinois Human Rights Commission and the Illinois Department of Human Rights which enforce Illinois' antidiscrimination policies.


source: Caselaw Access Project

author: HASTINGS, District Judge. HERBERT S. SHAPIRO, United States Magistrate.

license: Public Domain

text:
    Adelina LORENZO, SSN [ XXX-XX-XXXX ], Plaintiff, v. Margaret M. HECKLER, Defendant.
    No. 83-1457-Civ.-Hastings.
    United States District Court, S.D. Florida, Miami Division.
    Feb. 1, 1985.
    Marvin J. Kristal, Miami, Fla., for plaintiff.
    Marilynn Koonce, Asst. U.S. Atty., Miami, Fla., for defendant.
   FINAL ORDER

HASTINGS, District Judge.

Upon review of the Report and Recommendation of United States Magistrate Herbert S. Shapiro, and upon independent review of pertinent parts of the entire record herein, it is hereby

ORDERED AND ADJUDGED that said Report and Recommendation is hereby adopted, and the cause be, and the same is hereby, remanded back to the Secretary of the Department of Health and Human Services for further proceedings.

REPORT AND RECOMMENDATION

HERBERT S. SHAPIRO, United States Magistrate.

This is a review of the final decision of the Secretary of Health and Human Services of the United States of America who has denied the application of Adelina Lorenzo for Disability Insurance Benefits pursuant to 42 U.S.C.A. § 405 et seq.

The cause has been referred to the undersigned by the Honorable Alcee L. Hastings, United States District Judge, for a report and recommendation in accordance with 28 U.S.C. § 636(b).

SUMMARY OF FACTS AND CONCLUSIONS OF LAW

The defendant Secretary has promulgated Regulations to be followed in evaluating claims of disability. 20 C.F.R. § 404.1 et seq. (1984). Section 404.1520 outlines a five-step sequential process which determines whether an individual is disabled within the meaning of the Social Security Act.

Evaluation of disability begins with whether the claimant is presently engaged in substantial gainful activity. If so, then a finding of no disability is made. 20 C.F.R. 404.1520(b) (1984). If not, the second inquiry is whether the claimant suffers from a “severe” impairment which significantly affects basic work related activities. 20 C.F.R. § 404.1520(c) (1984). If so, the inquiry progresses. If not, then a finding of no disability is made. In this case the defendant Secretary found that the plaintiff does not suffer from a severe impairment, and accordingly determined that the plaintiff is not disabled within the meaning of the Social Security Act.

The Regulations define basic work related activities as the abilities and aptitudes necessary to do most jobs. Examples of these include:

Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling.

20 C.F.R. § 404.1521 (1984).

The issue presented is whether the defendant Secretary’s finding that the plaintiff does not have any impairment which significantly limits the ability to perform basic work-related functions is supported by substantial evidence. As will be demonstrated below, the Secretary’s finding is not supported by substantial evidence. Therefore, the cause must be remanded for the Secretary to continue the sequential evaluation. Boyd v. Heckler, 704 F.2d 1207, 1211 (11th Cir.1983).

EVIDENCE

From 1962 through 1978 the plaintiff was employed as a sewing machine operator in the Miami, Florida, area. At the administrative hearing, the plaintiff testified that she was unable to work after 1978 because of back pain and diminished sensory perception in her hand.

On April 16, 1979, the plaintiff was admitted to Variety Children’s Hospital in Miami, Florida, for her back pain. On April 18, 1979, she underwent surgery to alleviate idiopathic thoracolumbar scoliosis. Attending physician and surgeon, Harry Shufflebarger, performed a Harrington rod instrumentation and spinal fusion, wherein a five inch rod was inserted into the plaintiff's body to ease the plaintiffs condition. Upon her discharge, the plaintiff's lumbar spine curve had improved from 60° to about 30°. (Administrative Record, hereinafter referred to as “R”, p. 87). After being placed in a body cast for nine months (R.105), the plaintiff was taught how to walk. She was scheduled for office appointments with Dr. Shufflebarger.

In a letter to the Florida Department of Health and Rehabilitative Services dated December 28, 1981, Dr. Shufflebarger wrote:

The above named individual has idiopathic scoliosis and underwent a spinal fusion for this in April, 1979. She has a pseudoarthrosis and fracture of the rod although her back pain is negligible. She has a rather marked limitation of spinal motion due to spinal fusion. She has symptoms compatible with carpal tunnel syndrome on the right being treated.
She is unable to use her right hand for sustained fine movements. She is unable to climb, stoop, bend or lift.

R.99.

In support of the Secretary’s decision is a report by Forrest H. Foreman, M.D., F.A. C.S., dated January 28, 1982. Based on one examination, Dr. Foreman stated that the plaintiff’s back motion was slightly limited and noted rigidity in the fused area which is the lower dorsal and lumbar spine. Further, he observed decreased sensation over the thumb, index and the middle finger of the right hand without weakness of the grip. Finally, Dr. Foreman commented that the plaintiff apparently has no discomfort from the spinal fusion procedure, but tires easily and she has incipient carpal tunnel syndrome. R.100-101. Attached to this report is a range of motion chart showing the plaintiff’s lumbar spine flexion extension to be 70° of a possible 90°, and a lateral flexion of 10° of a possible 20°. The plaintiff’s range of motions in all other measured aspects was 100%. R.102-103.

On October 1, 1982, Dr. Shufflebarger addressed a letter to “Whom It May Concern” stating:

The above named individual has been under my care for many years. In 1979 she underwent Harrington rod instrumentation and spinal fusion. This was for marked thoracolumbar scoliosis with disabling back pain. She made satisfactory recovery from her surgery. She had some evidence of pseudoarthrosis which subsequently emerged with a minor loss in her correction. At the present time, she is not permitted to engage in any activities requiring lifting more than 8-10 pounds. Climbing, bending, twisting, pushing or pulling is, likewise, not permitted. In addition, she is not allowed to sit more than 20-30 minutes at a time.

R.109.

The conclusion of the treating physician is a mirror image of the conclusion of the consultative physician. Both doctors agree that the plaintiff’s lumbar spinal curve is approximately 30° and that spinal fusion has occurred, but they disagree as to the impairment’s affect on basic work activities. The treating physician asserts that the plaintiff has marked limitation of spinal motion, but the consultative physician asserts that the plaintiff has slight limitation of spinal motion. The treating physician has not put forth any supporting medical evidence. On the other hand, the consultative physician has submitted a chart of body motion ranges. However, the plaintiffs lumbar, lateral flexion is only half of what is expected (i.e., 10° of 20°). In addition, the record does not indicate the effect of a lumbar spinal flexion reduced from 90° to 70°. Both physicians have put forth conclusory opinions concerning the plaintiff, and neither sets forth substantial evidence of the impairment’s severity or non-severity. The treating physician’s opinion, however, is entitled to substantial weight, Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir.1983), and Pitsiniagas v. Heckler, 740 F.2d 977 (11th Cir.1984).

While the record does not show that the treating physician’s opinion of October 1,1982, is based on any specific or individual item, Dr. Shufflebarger does point out that “the above named individual has been under my care for many years”. “Many years” of observation and treatment outweighs a single consultative visit or examination. The treating physician (certainly one of many years) feels the patient, senses the patient, studies the patient, ascertains progress, stabilization or regression, and can discern malingering, if any. The consultation, however, is a one shot visit of a stranger to a stranger. It is not to be disregarded, but is not, without more, entitled to the same weight as that of the many year treating physician.

The plaintiff’s testimony at the administrative hearing supports a finding of a severe impairment. She testified that she is unable to work because of her back and hand problems. Since April, 1979, she visits Dr. Shufflebarger approximately four times per year. R.29. She testified that she cannot stoop or bend because of the rod in her back (R.3) and that she does not perform the household chores. R.30. In addition, the plaintiff does not drive, goes to church “once in a while”, walks only short distances, hardly ever goes shopping, and does not go to the beauty parlor. Although the plaintiff is able to dress, bathe, and pick up a phone book, due to the lack of sensitivity in her hand, she is very careful when she cooks. R.32. In sum and in accordance with her physician’s conclusory opinion, the plaintiff’s scoliosis interferes with her household chores and social activities. The plaintiff’s carpal tunnel syndrome inhibits her ability to handle objects, but does not affect her strength.

The Administrative Law Judge (hereinafter referred to as ALJ) found that the plaintiff has incipient carpal tunnel syndrome, but that it does not affect her ability to perform work related functions, and thus is not a severe impairment. The only evidence concerning the plaintiff’s carpal syndrome condition is that it prevents her from making fine hand movements (i.e., her hand becomes numb). R.32,99. As stated previously, the Regulations provide that handling is a basic work activity. Therefore, the ALJ’s finding of non-severe impairment is not supported by substantial evidence.

In finding that the plaintiff does not suffer from a severe impairment, the ALJ found her testimony not credible to the extent alleged. However, the ALJ did not put forth any reasons for rejecting the plaintiff’s credibility. If the ALJ does not articulate a reason for rejecting credibility, the Court cannot ascertain whether his finding is supported by substantial evidence. The ALJ can only reject credibility for a legally sufficient reason. For example, he cannot do so based on his visual observations at the hearing. Wilson v. Heckler, 734 F.2d 513 (11th Cir.1984) (“sit and squirm jurisprudence”). Although the Secretary is not bound by the plaintiff’s testimony, she must have a legal reason to discount it. Absent such a reason, the cause must be remanded.

RECOMMENDATION

Based upon the foregoing, the undersigned RECOMMENDS that the cause be REMANDED, and

1. The Secretary shall determine the effect of the plaintiff’s scoliosis on her ability to perform basic work related activities (i.e., walking, standing, sitting, lifting, pushing, pulling, reaching, carrying and handling) (see 20 C.F.R. § 404.1521(b) (1984));

2. If the Secretary rejects the credibility of any portion of the plaintiff’s testimony, the Secretary shall put forth legally, sufficient reasons for doing so;

3. The Secretary shall continue beyond step two of the sequential process (20 C.F.R. § 404.1520 et seq (1984));

4. Upon remand, the Secretary shall develop the record further and take additional medical testimony so as to ascertain the basis for the opinions of both the treating physician and consultative physician, and articulate reasons for the acceptance or rejection of such medical evidence. See Cowart v. Schweiker, 662 F.2d 731 (11th Cir.1981).

Pursuant to 28 U.S.C. § 636(b)(1)(B), the parties may serve and file written objections to this report with the Honorable Alcee L. Hastings, United States District Judge, within ten (10) days after being served with a copy of this Report and Recommendation. See Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B 1982).

      . The leading case defining a non-severe impairment states:
      An impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education, or work experience.

        Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984).

      . Carpal tunnel syndrome is caused by pressure on the median nerve as it passes through the space formed by the bones of the wrist and the transverse carpal ligament.


author: HUYETT, District Judge.

text:
    Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor v. PENNSYLVANIA OPTICAL WORKERS ASSOCIATION.
    Civ. A. No. 84-5015.
    United States District Court, E.D. Pennsylvania.
    Feb. 1, 1985.

      Edward T. Ellis, Asst. U.S. Atty., Philadelphia, Pa., for plaintiff.
    Leon Ehrlich, Reading, Pa., for defendant.
   FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW, AND ORDER

HUYETT, District Judge.

Following a hearing on January 25, 1985, upon plaintiffs petition for an order compelling compliance with the supervisory instructions of the Secretary of Labor (“Secretary”), I make the following findings of fact and conclusions of law.

Findings of Fact

1. Eric Feldman testified at the January 25, 1985 hearing. I found that his testimony was straightforward and candid and found him to be a credible witness.

2. Feldman is an investigator with the Office of Labor Management Standards, United States Department of Labor.

3. Feldman has been assigned to supervise an election of officers of the Pennsylvania Optical Workers Association (“POWA”) directed by my order of December 18, 1984.

4. At the pre-election conference held on January 15, 1985, Feldman was informed that POWA had no intention of waiving several of its by-laws which limited eligibility to hold office within the Union.

5. Feldman stated that the POWA had about 150 members and that to his knowledge, meetings were held irregularly and not on a regular monthly basis.

6. Under the by-laws of the POWA, eligibility for office is limited to those who have belonged to the union for more than five years and who have attended two-thirds of the regular meetings of the union over the twelve months preceeding the election. Government Exhibit 1, Art. 4, Section 2.

7. David Breneiser testified at the January 25, 1985 hearing. Although he had occasional lapses, I found him to be a generally credible witness.

8. Breneiser testified that POWA held regular monthly meetings except in the months of June, July, and August and that the last two or three monthly meetings before contract negotiations begin are tentative.

9. Breneiser produced a list of all meetings that took place in the last year along with a list of all those who were eligible to hold office under the attendance rule. Union Exhibit 1.

10. Breneiser testified that this list had been prepared by the POWA’s recording secretary who had polled all the current union officers. This list was prepared on either January 20,1985 or January 21,1985 at Breneiser’s request.

11. The union maintains no regular records of meeting attendance, although prior to April, 1984, POWA used “sign-in” sheets to record attendance. All records from prior to April, 1984 were lost or stolen.

12. The list prepared by POWA contains the names of twenty-four members of the union including all eight present office holders. Thus, there are a total of sixteen members of POWA who are eligible to run for office and who are not incumbent office holders.

13. Breneiser testified that all twenty-four members on the list had attended every meeting throughout the preceeding year, although Union Exhibit 1 states that only eighteen members attended the February 5, 1984 meeting and only twenty attended the March 11, 1984 meeting.

14. Breineiser could not recall the dates of the September, 1984 or the November, 1984 meetings, but was sure they had occurred although a quorum was not present at the September meeting and it was can-celled.

15. Brenheiser testified that the meeting attendance requirement existed in order to ensure that all members who sought office within the union were familiar With union affairs and suitable for office.

16. Regular notice is given for all meetings which includes posting of notices on plant bulletin boards.

17. All present members of the union have been members for five or more years.

Discussion

This is an action under Title IV of the Labor Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. §§ 401 et seq., 481-483, brought by the Secretary on October 16, 1984. In his complaint the Secretary alleged that the defendant had failed to conduct elections in violation of section 481(b) of the LMRDA.

On December 18, 1984, I granted the Secretary’s motion for summary judgment and ordered POWA to hold an election for officers within ninety days. I made this decision after the government had demonstrated to my satisfaction that the union was in violation of the LMRDA, 29 U.S.C. § 481(b), which requires that unions hold elections “not less often that once every three years.” The order stated that the election was “to be conducted under the supervision of the Department of Labor ... and insofar as lawful and practicable in accordance with the by-laws and constitution of the Association.” In. connection with the implementation of this order, the Department of Labor arranged for one of its investigators to supervise the election.

On January 15, 1985, a pre-election conference was held with Eric Feldman, the Department of Labor’s investigator, and members of the POWA. At that time Feldman was informed that the union had no intention of waiving the enforcement of certain of its by-laws which the Secretary considered invalid. At issue at this stage is POWA’s “meeting attendance” rule which requires that all potential candidates for office have attended two-thirds of the regular monthly meetings held in the twelve months preceeding the date of the election. See Union By-Laws, Government Exhibit 1, Art. 1, Section 2.

The Government contends that the enforcement of this rule violates the LMRDA in that it unreasonably restricts the member’s eligibility to hold office. By the Union’s own reckoning, only sixteen of its 150 members who are not present officeholders would be eligible to run for office.

POWA argues initially that this court lacks the jurisdiction to reach the merits of the arguments concerning the meeting attendance rule because the complainant, Kenneth Nein, did not raise that issue himself before the union. POWA relies on Hodgson v. Local Union 6799, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971). This reliance is misplaced. In Hodgson, the court held that the Secretary could not reach the validity of an eligibility rule in determining whether an election was valid because the complainant had not raised the validity of that particular rule before the union grievance machinery. Later cases reveal, however, that the Hodgson limitation on the power of the Secretary does not apply to situations in which there is a court ordered supervised election. In those situations, Hodgson is inapplicable. Trbovich v. United Mine Workers, 404 U.S. 528, 537 n. 8, 92 S.Ct. 630, 636 n. 8, 30 L.Ed.2d 686 (1972); Donovan v. Illinois Education Ass’n., 667 F.2d 638, 640 (7th Cir.1982). Indeed, the LMRDA requires that the Secretary, upon finding a violation, hold a supervised election in accord with the provisions of the LMRDA. 29 U.S.C. § 482(b).

POWA also argues that the meeting attendance rule does not violate the Act. I need not reach the question whether the rule violates the Act on its face, however, because its application in this case is clearly violative of the LMRDA.

POWA apparently seeks to apply an eligibility rule that would effectively close out more than 80% of the otherwise eligible non-officeholders. Moreover, the Union possesses no records of the attendance at its meetings. I find it incredible that POWA seriously contends that it should be allowed to enforce this by-law when it will have to rely on the collective recollection of the current officeholders in order to “reconstruct” the attendance records. One of those charged with this reconstruction, David Breneiser, could not recall the date of a meeting which occurred in November, 1984, barely, two months ago, yet he claimed to be able to recall all twenty-four members who attended meetings that took place over one year ago. Breneiser also stated that he was not aware of any mechanism for handling challenges to the prepared list and that he was unsure whether meetings called but cancelled because of a lack of a quorum would be counted toward the eligibility requirement. There are no provisions in the by-laws governing these situations nor is there any provision governing how to calculate the number of meetings one need attend if two-thirds of a year’s meetings do not equal an even number (as is the case here).

In Local 3489, United Steelworkers of America v. Usery, 429 U.S. 305, 309, 97 S.Ct. 611, 614, 50 L.Ed.2d 502 (1977), the Court stated: “[w]hether a particular qualification is reasonable within the meaning of the [the Act] must therefore be measured in terms of its consistency with the Act’s commands to unions to conduct ‘free and democratic’ union elections.” (quoting from Wirtz v. Hotel Employees, 391 U.S. 492, 499, 88 S.Ct. 1743, 1748, 20 L.Ed.2d 763 (1968)). The justification proffered by POWA for the eligibility rule falls far short of the justification needed to restrict the exercise of the members’ democratic rights as much as the present rule does. POWA merely asserts that the rule is necessary in order to ensure that all candidates for office are familiar with union affairs and its situation. Congress, in enacting the LMRDA has shown a preference that union elections be, as far as is practicable, based on the same foundations as those elections which take place throughout society. The best means for ensuring that only those qualified to hold office are elected is not to place some arbitrary eligibility requirement on the members which operates to exclude 80% of them from running for office, but rather to provide for the freest elections possible so that the members themselves through the exercise of their rights can decide who is the most qualified.

Conclusions of Law

1. This court has jurisdiction over this case pursuant to 29 U.S.C. § 482(b).

2. The Secretary of Labor in the course of supervising an election, ordered by the court under 29 U.S.C. § 482(c), has the authority to declare void for the purposes of the supervised election, any Union by-law that conflicts with the provisions of Title IV of the LMRDA. 29 U.S.C. § 482(c); Donovan v. Illinois Education Association, 667 F.2d 638, 640 (7th Cir. 1982); Millwrights Local Union 1914 v. Carroll, 654 F.2d 548 (9th Cir.1981); see also Trbovich v. United Mine Workers, 404 U.S. 528, 537, 92 S.Ct. 630, 635, 30 L.Ed.2d 686 (1972).

3. The meeting attendance rule in this case is void and invalid as applied by the POWA. Such a by-law, assuming that it may be enforceable in some contexts, clearly cannot be enforced here where the Union has failed to keep adequate records of the attendance at its meetings and has decided to rely on the collective recollection of the present office holders in order to reconstruct the attendance. The method used by the union is inherently suspect and untrustworthy. It contravenes the purposes of Title IY of the LMRDA to allow the incumbent leadership of a union to determine the eligibility of the membership to hold office in a way which is so obviously open to manipulation.

4. The Union shall comply with the December 18, 1984 order of this court, the election shall proceed as ordered.

      . The Secretary initially sought to have three of POWA’s by-laws declared invalid. One of these was waived through mutual consent. POWA also requires all candidates for office to have belonged to the union for five years. It became apparent at the hearing on January 25, 1985 that all of the present members of the union had belonged to the union for at least five years. The Secretary then stated that he would not contest the validity of the five year rule because its operation would not result in the disqualification of any member.

      . I have examined the by-laws of the Union and have not found any provisions therein for the handling of any election procedures or problems.

      . Because the Union does not hold regular meetings in June, July, or August, a candidate who wanted to run for office in the present supervised election would have had to decide to attend meetings beginning in March of 1984. This, however, is a supervised election scheduled pursuant to my December 18, 1984 order. Therefore, members of the union have no more than 90 days notice of the election. Because a member has to attend at least five (and possibly six) meetings in order to be eligible, no member would have enough notice of this election to be able to attend sufficient meetings to qualify unless she or he had already attended at least two of the preceding seven meetings.


author: SWEET, District Judge.

text:
    In the Matter of the GRAND JURY SUBPOENAS OF Dorie CLAY and Wanda Wareham.
    No. M-11-188.
    United States District Court, S.D. New York.
    Feb. 1, 1985.
   OPINION

SWEET, District Judge.

Dorie Clay (“Clay”) and Wanda Ware-ham (“Wareham”) were subpoenaed to testify before and provide physical evidence to a grand jury now impaneled in the Southern District of New York, which is in the process of investigating, among other things, conspiracies to commit armed robberies, to facilitate prison escapes and to commit other related crimes. That grand jury continues its investigation with the aim of returning an indictment to supersede the previous initial indictment against eight individuals, including Omowale Clay (“Omowale Clay”) and Roger Wareham (“Roger Wareham”), the spouses of the movants. Clay and Wareham have now moved to quash the subpoenas by asserting a claimed spousal privilege, by alleging that the subpoenas were issued for improper purposes, and by pointing to alternative sources for the handwriting exemplars, photographs and major-case prints also called for by the subpoenas. The joint motion to quash the subpoenas is denied.

Clay’s and Wareham’s principal ground for quashing the subpoenas is their contention that being required to testify before the grand jury would violate their claimed spousal testimonial privilege. The privilege against adverse spousal testimony continues to be recognized by federal courts, although it is narrowly construed. Trammel v. United States, 445 U.S. 40, 51-53, 100 S.Ct. 906, 912-913, 63 L.Ed.2d 186 (1980). The government contends, however, that it had made a procedural offer which entirely does away with any basis for enforcing Clay’s and Wareham’s privilege against adverse spousal testimony. That procedure is described in the affidavit of AUSA Lorna G. Schofield, who together with AUSA Kenneth Roth is in charge of the grand jury investigation to which Clay and Wareham are summoned. The pertinent paragraphs of that affidavit read as follows:

2. If Dorie Clay and Wanda Wareham agree to testify, the Government will follow the procedure described below to ensure that the testimony of Dorie Clay will not be used directly or indirectly in the investigation or prosecution of her husband, Omowale Clay, and to ensure that the testimony of Wanda Wareham will not be used directly or indirectly in the investigation or prosecution of her husband, Roger Wareham, as such use has been defined under Title 18, United States Code, Sections 6002 and 6003.
3. This treatment of Dorie Clay’s testimony will be accomplished by the following:
(a) An Assistant United States Attorney other than myself or Mr. Roth will question Dorie Clay before a Grand Jury other than the principal Grand Jury.
(b) The Assistant who appears before the second Grand Jury and others who are not conducting the principal investigation will determine whether Dorie Clay’s testimony is sufficiently valuable as it relates to Omowale Clay’s co-conspirators (not Omowale Clay) to warrant severing Omowale Clay from the proceedings against his co-conspirators.
(c) If so, then Dorie Clay’s testimony will be introduced to the principal Grand Jury and Omowale Clay will be severed from all proceedings against his co-conspirators. In particular, any superseding indictment against Omowale Clay will be returned by a third Grand Jury and the trial against Omowale Clay will be conducted separately from the trial of his co-conspirators. Both the Grand Jury investigation and trial against Omowale Clay will proceed without the testimony of Dorie Clay. In addition, the Clay proceedings will involve only assistants and agents who have had no contact with Dorie Clay’s testimony or its fruits.
(d) If, on the other hand, Dorie Clay’s testimony is determined to be of insufficient importance as against Omowale Clay’s co-conspirators to warrant separate treatment of Omowale Clay, then no further use will be made of her testimony and Omowale Clay will continue to be investigated and prosecuted together with his co-conspirators. Again, precautions will be taken to ensure that no one involved in the investigation or prosecution of Omowale Clay has any access to Dorie Clay’s testimony or its fruits.
4. If Wanda Wareham agrees to testify, her testimony will be similarly insulated from the investigation and prosecution of her husband Roger Wareham in the manner described above____

Affidavit of AUSA Lorna G. Schofield.

The purpose of this suggested “Chinese Wall” is to ensure that no grand jury testimony elicited from Clay or Wareham will be used, either directly or indirectly, against their respective spouses, thereby eliminating the conceptual possibility of marital strain.

The procedure suggested by the government was previously approved by the Honorable Charles S. Haight as applied to Dr. Jean Ford, a spouse of another defendant in this case, both in denying the motion to quash a grand jury subpoena on grounds of spousal privilege, In re Grand Jury Subpoena of Jean Ford, M-11-88 (CSH), memorandum opinion and order at 8-10 (S.D.N.Y. January 9, 1985), and in denying Dr. Ford’s motion for a stay pending appeal, memorandum opinion and order at 7 n. 1 (S.D.N.Y. January 21, 1985). I subsequently denied Dr. Ford’s motion to reconsider the quashing of the subpoena, holding that the new evidence presented by Dr. Ford was not sufficient to render invalid the premises of Judge Haight’s decision. In re Grand Jury Subpoena of Jean Ford, M-11-88, order at 3-4 (S.D.N.Y. January 28, 1985).

In considering Dr. Ford’s motion, I also considered the basis of Judge Haight’s decision and concurred in his opinion that the government’s proposed procedure would adequately protect Dr. Ford’s privilege.

As Judge Haight found (January 9 Opinion at 8), other courts that have addressed this issue have held that use-fruits immunity, if not some lesser degree of protection, fully preserves the spousal testimonial privilege. See, e.g., In re Snoonian, 502 F.2d 110 (1st Cir.1974) (affirming contempt citation when government assured that “nothing said by the husband, and no fruits thereof, will be used against” the wife); In re Grand Jury Proceedings (Hermann), 664 F.2d 423, 430 (5th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1630, 71 L.Ed.2d 866 (1982) (holding that spousal testimonial privilege can be protected by something less than use-fruits immunity; In re Grand Jury Proceedings (Teegardin), 443 F.Supp. 1273, 1281 (D.S.D.1978) (denying motions to quash grand jury subpoenas when government stated in affidavit that “no testimony of the witnesses or fruits of that testimony would in any way be used against the present wives of the witnesses”). In In re Grand Jury Matter, 673 F.2d 688 (3d Cir.1982), the Third Circuit pronounced itself dissatisfied with the government’s procedural remedy and upheld the privilege; however, the government in that case declined to offer the full use-fruits immunity proffered in the present case, agreeing only that “if the wife’s testimony implicated a third party, and that person was willing to testify against the husband, then a separate grand jury would be empaneled from which the United States would seek the husband’s indictment.” 673 F.2d at 690. In the present case, the government offers an agreement barring any use whatsoever of any grand jury testimony elicited from Clay and Wareham against their spouses, either directly or indirectly, a much more complete offer of immunity.

As in Ford, Clay and Wareham argue that the procedure outlined by the government in this case is unworkable and would not ensure that their testimony would not be used against their spouses. They contend that the procedure is so convoluted that it cannot be considered an equivalent substitute for the privilege. Judge Haight rejected this argument in Ford holding that the remedy was “legally sufficient to tip the balance in favor of that public policy which encourages the ascertainment of truth.” January 9 Opinion at 10. I agree that the procedure outlined by the government adequately protects Clay's and Ware-ham’s privileges against adverse spousal testimony. Like Judge Haight, I am not willing to assume that the procedure will not work or that the government will not use its best efforts to ensure that their rights remain protected. If Clay’s and Wareham’s spouses believe that the government has made improper use of their spouses’ testimony, they may request the court to exercise its supervisory powers to enforce the appropriate remedy to protect them. However, I see no reason why a good faith adherence by the government to the suggested procedure would not fully ensure that Clay’s and Wareham’s testimony or its fruits would not be used against their respective spouses.

Clay and Wareham also argue that the court lacks authority to confer use-fruits immunity upon a witness in the absence of any statutory authority. The principal statutory immunity provisions, 18 U.S.C. § 6001 et seq. are applicable only to a witness who has invoked his privilege against self-incrimination. In support, Clay and Wareham rely on a discussion in the Third Circuit case In re Grand Jury Matter, 673 F.2d at 688 of a court’s authority to grant use-fruits immunity sua sponte. In the case at hand, however, the government, and not the court, has proposed the immunity procedure, and thus the issue of judicial usurpation of prosecutorial decision making is not raised. The court’s role in this case is not to grant immunity but to decide whether the immunity granted successfully removes any basis for an exercise of the spousal privilege. Since I find that the government has established a procedure which will ensure that Clay and Wareham’s testimony and its fruits will not be used against their spouses, the danger that the privilege was designed to protect against has been removed. There are, therefore, no grounds for their exercise of the privilege. Given this conclusion, I need not consider the government’s alternative argument that the spousal privilege is not applicable to spouses who are joint participants in crime.

Clay and Wareham also contend that the subpoenas should be quashed because they were issued for improper purposes, in particular the purpose of trial preparation. They argue that by subpoenaing witnesses to obtain testimony to support an already pending indictment the AUSA is abusing the grand jury and suggest that the subpoenas were in reality an attempt to create a “contempt trap.” This claim is in essence a challenge to the grand jury’s jurisdiction to inquire further into these matters. As the government points out, however, grand jury witnesses who are not indicted defendants do not have standing to object to the jurisdiction of a grand jury. Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919); United States v. Flood, 394 F.2d 139, 141-42 (2d Cir.), cert. denied, 393 U.S. 855, 89 S.Ct. 111, 21 L.Ed.2d 124 (1968); In re Grand Jury Subpoenas Served upon Deborah Cooke, M-11-188, memorandum opinion and order (S.D.N.Y. January 4, 1985) (Haight, J.). In any event, the allegations raised in this case are not sufficient to present a legitimate issue of grand jury abuse. As Judge Haight noted in an earlier opinion in this same case involving the identical issue, the grand jury in this case is inquiring into various aspects of a complex criminal undertaking with a view towards a superseding indictment, and in the circumstances cannot be regarded as having trial preparation as their predominant purpose. In re Grand Jury Subpoena Served upon Deborah Cooke, Memorandum Opinion at 6. In my opinion, the government has demonstrated that there is a legitimate good faith basis for continuing the grand jury inquiry into aspects of the conspiracy which were not covered by the initial indictment.

The final argument raised by Clay and Wareham is that they should not be required to provide handwriting exemplars, photographs and major-case prints because they claim alternative sources for these items are available. Because the government has successfully demonstrated that it has a legitimate need for this evidence that cannot be met in an alternative manner, the movants argument must be rejected.

Because the government’s suggested procedure for insulating Clay’s and Ware-ham’s testimony and its fruits from use against their spouse invalidates their claims of spousal privilege, and because the remaining claims asserted by the witnesses are groundless, their motions to quash the grand jury subpoenas are denied.

IT IS SO ORDERED.


author: JUAN M. PEREZ-GIMENEZ, Chief Judge.

text:
    William Maldonado BETANCES, Plaintiff, v. Carlos S. QUIRÓS, et al., Defendants.
    Civ. No. 84-0425(PG).
    United States District Court, D. Puerto Rico.
    Feb. 6, 1985.
    As Amended Feb. 19, 1985.

      M. Dolz Sanchez, Old San Juan, P.R., for plaintiff.
    Edward Borges, O’Neill & Borges, Hato Rey, P.R., for Price Waterhouse & Co.
    Hernando Rivera, Chapman, Duff & Paul, Hato Rey, P.R., for Carlos Quirós & Gabriel Coss.
    Ivan Reichard, Dept, of Justice, San Juan, P.R., for H. Hdez. Soto, R. Cruz, P. Barés & D. Adamés Quirós, Feijoo, Coss & Sanchez.
   OPINION AND ORDER

JUAN M. PEREZ-GIMENEZ, Chief Judge.

Present before us for adjudication is co-defendant Price Waterhouse & Co.’s (Price Waterhouse) Motion to Dismiss Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, filed on May 18, 1984. On October 9, 1984, and after several requests for extension of time, plaintiff, William Maldonado Betances (Maldonado), replied to said motion. On November 20,1984, Price Waterhouse responded to plaintiff’s reply.

In view that Price Waterhouse’s Motion to Dismiss as well as plaintiff’s reply thereto are supported by matters outside the pleadings, in accordance with Rule 12(b)(6), the motion shall be treated as one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The matter, therefore, is ready for adjudication.

This is a civil rights action brought under 42 U.S.C. §§ 1983 and 1985(3) “to recover damages and to redress a deprivation, under color of the Laws and Regulations of the Commonwealth of Puerto Rico, of rights and/or privileges and/or immunities secured by the Constitution and the Laws of the United States ...” and “to recover damages and to redress a deprivation, under color of the Laws and Regulations of the Commonwealth of Puerto Rico and by means of a conspiracy, of rights and/or privileges and/or immunities secured by the Constitution and the Laws of the United States.” (Complaint, at pages 1 and 2.)

This is the second time plaintiff files a case with this Court based on the same cause of action.

In the instant complaint, plaintiff alleges to have been the Director of the Non-Occupational Temporary Disability Benefits Program (hereinafter referred to as SINOT), of the Department of Labor and Human Resources of the Commonwealth of Puerto Rico. He claims that, since 1977, eleven (11) governmental officials and Price Waterhouse allegedly engaged in a conspiracy to deprive him of his civil rights.

As a result of the overt acts allegedly committed generally by all defendants (Complaint, commencing at page 11, paragraph 34), it is alleged that the conspiracy deprived plaintiff from his position as Director of SINOT, resulted in demotions from positions within the Government of the Commonwealth of Puerto Rico and affected his health, dignity and professional reputation. Plaintiff seeks $1,500,000.00 in actual damages and an equal amount in punitive damages. (Complaint, page 53, paragraphs 137 and 138.)

Concerning plaintiffs claim against Price Waterhouse, it is alleged that Price Water-house took part in a conspiracy among defendants to the detriment of plaintiff. The specific alleged overt acts by Price Waterhouse can be summarized as follows:

1. On or about November or December 1977, Price Waterhouse entered into a contract with co-defendant Carlos S. Quirós (Quirós) to audit SINOT (Complaint, paragraphs 13 and 36).

2. During the month of December 1977, Price Waterhouse suspended its audit allegedly claiming that the account was not auditable, that it was not up to date, that it was not trustworthy, that it contained many data errors, and that the supervision of the account was extremely deficient. Price Waterhouse never finished the audit (Complaint, paragraph 38).

3. Quirós and some of the other co-defendants blamed plaintiff for said deficiencies, using Price Waterhouse’s findings in support of their position (Complaint, paragraph 39).

4. On January 24, 1978, Price Water-house submitted to Quirós a written report on its audit (Complaint, paragraph 41).

5. It is alleged that Price Waterhouse’s audit was plagued with voluntary errors and inconsistencies in “callous” disregard for the truth, and that Price Waterhouse was negligent in the preparation of its report (Complaint, paragraph 42).

After the January 24, 1978, report, no further overt acts are alleged to have been committed by co-defendant Price Water-house nor are there specific factual allegations to show that this co-defendant directly or indirectly participated in furtherance of the alleged conspiracy after that date. Plaintiff has failed to allege that Price Waterhouse intended to have its report serve as basis for the alleged conspiracy; that Price Waterhouse entered into any agreement or acted jointly in concert with the other co-defendants to perform the alleged conspiracy; or, that Price Waterhouse acted under color of state law with the other co-defendants in furtherance of the alleged conspiracy.

Price Waterhouse seeks dismissal of plaintiff’s complaint for its failure to state a claim upon which relief can be granted based on the following grounds:

1. Plaintiff is precluded from bringing this action as to Price Waterhouse, under the nonmutual defensive claim preclusion rule of the res judicata doctrine, in view of a previous adjudication by this Court, on the merits, in Civil No. 83-0154 on the same cause of action as in the instant action;

2. Plaintiff failed to allege in the instant action that Price Waterhouse, a private accounting firm, acted under color of state law, a prerequisite to civil rights suits; and,

3. The cause of action against Price Waterhouse is time barred.

We pass to address the issues.

Plaintiffs claim against Price Waterhouse is barred by the nonmutual defensive claim preclusion rule of the res judicata doctrine. The instant action is identical to the prior action brought by plaintiff on January 26, 1983, upon which this Court has entered a final judgment on the merits. Any factual differences between the instant and the prior action are de minimis, with the only exception that Price Water-house was not a defendant in the prior action.

The legal principles governing this case are well settled. Res judicata applies to civil rights actions. Isaac v. Schwartz, 706 F.2d 15, 16 (1st Cir.1983) (under Sections 1981, 1985(3), 1986); Cf. Kremer v. Chemical Construction Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889, 72 L.Ed.2d 262 (1982); see also, Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (under Section 1983). State law on res judicata is inapplicable when, as here, plaintiff invoked federal question jurisdiction in both lawsuits. Gambocz v. Yelencsics, 468 F.2d 837, 841 (3rd Cir.1972); see also, 18 Wright-Miller-Cooper, Federal Practice and Procedure, 1981 Ed., section 4466, at page 618.

The traditional tests to determine whether res judicata bars a subsequent cause of action are: (a) whether the claim decided in the prior adjudication is identical to the one presented in the action in question; (b) whether there was a final judgment on the merits in the prior action; and (c) whether the party against whom the plea of res judicata is asserted was a party or in privity with a party to the prior adjudication; i.e., whether the parties or their prives are bound by the prior adjudication. Blonder-Tongue Labs. v. University of Illinois Foundation, 402 U.S. 313, 323-324, 91 S.Ct. 1434, 1439-40, 28 L.Ed.2d 788 (1971), citing Bernhard v. Bank of America Nat. Trust & Savings Ass’n, 19 Cal.2d 807, 122 P.2d 892 (1942); see also, Article 1204 of the Puerto Rico Civil Code of 1930, as amended, 31 L.P.R.A. § 3343; Pol Stella v. Lugo Christian, 107 D.P.R. 540 (1978).

The res judicata doctrine prevents plaintiff here from relitigating “issues that were or could have been dealt within an earlier litigation”, Isaac v. Schwartz, supra, 706 F.2d at 16, quoting Angel v. Bullington, 330 U.S. 183, 193, 67 S.Ct. 657, 662, 91 L.Ed. 832 (1947). Res judicata has the dual purpose “of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979); Cf Blonder-Tongue Labs. v. Univ. of Illinois Foundation, supra, 402 U.S. at 328-329, 91 S.Ct. at 1442-1443. To permit this relitigation would be a misallocation of resources. Blonder-Tongue Labs. v. Univ. of Illinois Foundation, Id.

Such relitigation is precluded when the prior adjudication was on the merits. A judgment on the merits “extinguishes ... all rights of a plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the complaint arose.” Isaac v. Schwartz, supra, 706 F.2d at 16, quoting Restatement (Second) of Judgments, Sec. 61(1), Tent-Draft No. 5. See also, Armando Capraro, et al. v. Telcon Gammino, Inc., et al., 751 F.2d 56 (1st Cir., 1985).

A dismissal of a claim for failure to state a claim under Rule 12(b)(6), F.R. Civ.P., is a ruling on the merits. This is more so when, as in the instant case, the plaintiff had already amended his complaint prior to the entry of judgment (Isaac v. Schwartz, supra, at 17) and such judgment did not specify that it was not on the merits. See Rule 41(b), F.R.Civ.P.

We find that the instant claim is identical to that in the prior action, and that the judgment entered on the prior action was one on the merits. This Court must examine plaintiff’s claims under the nonmutual defensive claim preclusion rule.

The nonmutual claim preclusion rule is an expansion of the res judicata doctrine that abandons the mutuality requirement as exclusive for limiting between which parties res judicata would be enforced. The rule applies in cases that, as in the instant case, (1) claim an identical cause of action as in a prior lawsuit; (2) a final judgment on the merits has been entered in the prior lawsuit; but, (3) include another defendant who was not previously named in that prior action nor is bound by the judgment thereunder. See, Blonder-Tongue Labs. v. Univ. of Illinois Foundation, supra; Gambocz v. Yelencsics, supra. Price Waterhouse is such other defendant not named in the prior action. Thus, plaintiff is equally precluded from bringing the instant action as to Price Waterhouse under this rule.

The Supreme Court in Blonder-Tongue, acknowledging a new trend being followed by state and federal case law at the time concluded that the mutuality rule had been diminished as a strict requirement to determine whether a plaintiffs claim against one defendant is barred when such plaintiff had a prior fair and full chance to litigate the same claim against another defendant and lost. See, Parklane Hosiery Co. v. Shore, supra; Citadel Corp. v. Puerto Rico Highway Authority, 695 F.2d 31 (1st Cir.1982) (acknowledging that the mutuality requirement has been relaxed in the context of issue preclusion/collateral estoppel); and, A & P General Contractors v. Assoc. Caná, supra. The court in Blonder-Tongue held that if a plaintiff had such a full and fair chance, an adverse judgment against him would subsequently preclude his seeking redress against another defendant for the same cause of action even if such other defendant was not bound by the prior judgment (402 U.S. at 324-325, 91 S.Ct. at 1440-1441). The questions of privity and mutuality lose significance to the idea that litigation should not be duplicative in cases when the same claims are brought against different defendants in different lawsuits if the plaintiff already had a full and fair chance to litigate his claim. Hence, in such instances, the courts have “enlarged the area of res judicata beyond any definable categories of privity between the defendants.” Bruszewski v. U.S., supra, 181 F.2d at 422.

A leading decision permitting the nonmutual claim preclusion defense is the Third Circuit’s decision in Gambocz v. Yelencsics, supra; see, 18 Wright-Miller-Cooper, supra, Sec. 4464, at 387. In Gambocz, the Third Circuit followed its prior decision in Bruszewski, supra, (as explained in Blonder-Tongue), and applied the rule to a situation similar to the case at bar. There, in a civil rights action under Sections 1983 and 1985, the Third Circuit stated, at 468 F.2d page 841, that “res judicata may be invoked against a plaintiff who has previously asserted essentially the same claim against different defendants where there is a close or significant relationship between successive defendants.” (emphasis added) (citing Bruszewski v. U.S., supra.

The court in Gambocz added that the nonmutual res judicata plea “grows out of the fact that the bar of the prior adjudication is not interposed directly, by parties to the prior suit, but indirectly, by new defendants, strangers to the earlier action.” (emphasis added) At 468 F.2d at 841.

The court in Gambocz rejected to categorize the plea as being in the nature of collateral estoppel because such terminology is more properly used in situations where the prior adjudication, on the merits, decided “issues” actually litigated (468 F.2d at 841). Since the situation in Gambocz precluded the relitigation of an identical “claim”, the court concluded that the nonmutual plea was a variant of the general res judicata doctrine operating to bar the relitigation of an identical “cause of action” (At page 841).

Plaintiff had a full and fair chance to litigate the instant cause of action because, as the record here shows, the two causes of action are identical, and plaintiff filed an amended complaint before an adverse judgment was entered against him in the prior action on the merits. In addition, notwithstanding the fact that Price Water-house was not a defendant in the prior action, its alleged relationship with the other defendants and the nature of its alleged participation in the conspiratorial scenario subject of both actions, precludes plaintiff from reasserting now his already adjudicated claim against this new defendant. (See footnote 17, ante)

For the foregoing reasons, plaintiff’s complaint is subject to dismissal.

Co-defendant further contends that the complaint fails to allege an action under color of state law against Price Water-house as is required for civil rights actions. The Court of Appeals for the First Circuit, in the recent decision in McGillicuddy v. Clements, 746 F.2d 76 (1st Cir.1984), touches precisely on this point.

In McGillicuddy, the defendant, Ernst & Whinney moved for the dismissal of the complaint in a civil rights case for its failure to state a claim contending that McGillicuddy had failed to set forth sufficient factual allegations to establish that the accounting firm acted under color of state law, which is a prerequisite allegation to a civil rights suit.

McGillicuddy, similar to the plaintiff here, was the director of a state agency; i.e., the Railroad Division of the New Hampshire Transportation Authority. Ernst & Whinney was hired to review the financial management of the Authority before McGillicuddy was fired from his position. As in the case at bar, McGillicuddy claimed damages for Ernst & Whinney’s alleged failure to follow proper auditing procedures and that the report it submitted to the Authority contained false, inaccurate or misleading information.

In McGillicuddy, the circuit court rejected his attempt to establish the requisite state action by his pointing at the contractual relationship between the state and the accounting firm to support his claim that a conspiracy existed between them to deprive him of his rights. The court stated that the allegations against Ernst & Whinney could only state a claim under Section 1983 if the accounting firm’s conduct was somehow attributable to the state and held that the acts of a private accounting firm whose work does not depend primarily on government contracts did not become state acts for purposes of Section 1983 simply because it was performing an audit for the Authority. McGillicuddy, supra, at 77, quoting from Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). It further held that the allegations of conspiracy between the government and a private party must be pled in some detail to include some factual basis supporting the existence of a conspiracy in pleading civil rights cases. (Ibid)

In the instant action, plaintiff’s complaint falls short from fulfilling these pleading requirements. Contrary to the allegations in McGillicuddy, plaintiff here does not even allege that co-defendant Price Water-house acted “under color of state law” or that it acted “jointly in concert” with the other co-defendants. Plaintiff’s allegations as to Price Waterhouse are limited to blame the private accounting firm for a “wrong” audit report, while blaming the other co-defendants for the use of said report against plaintiff in furtherance of the alleged conspiracy. Noticeably, knowledge of the usage by the other co-defendants of said audit report against plaintiff is not even imputed to Price Waterhouse. Furthermore, even if plaintiff's allegations in the complaint and in his reply to defendants’ motion to dismiss could be taken as a speculation that Price Waterhouse may have been directed by specific order of state officials not to do the audit in the usual and proper way, the court, in McGillicuddy, concluded that speculations about what “might have happened cannot save an otherwise inadequate complaint” (746 F.2d at 78). It added further that “[i]t is not enough to allege a general scenario which could be dominated by unpleaded facts ...” (Id. citing Dewey v. University of New Hampshire, 694 F.2d 1, 3 (1st Cir. 1982)).

Plaintiff’s allegations in the complaint, in his reply to defendants’ motion to dismiss and the exhibits annexed thereto, even if construed liberally and in the light more favorable to plaintiff, merely describe a general scenario, based on speculations and conjectures, which unfoundedly impute Price Waterhouse to be a party to an alleged conspiracy solely for its having submitted an audit report with conclusions adverse to plaintiffs interests. Since no general allegation nor specific facts are alleged that Price Waterhouse acted under color of state law, as such specificity is required for civil rights actions, plaintiffs complaint as to Price Waterhouse is subject to dismissal. McGillicuddy v. Clements, supra, at 78.

It is clear to this Court that any participation Price Waterhouse may have had in the alleged conspiracy ended by its filing of the January 24, 1978 report. We are not persuaded by plaintiffs general, unfounded assertions that Price Waterhouse continued participating in furtherance of the alleged conspiracy after January 24, 1978, and that, therefore, this action is not time barred.

Plaintiffs allegations in the complaint and in his reply are clear and consistent in that the only alleged direct involvement co-defendant Price Waterhouse had in the alleged conspiratorial scenario was for the limited period of three months, late in 1977 and early 1978. No specific allegation of fact is made, nor a scintilla of proof has been submitted, to establish a prima facie case that Price Waterhouse was directly or indirectly involved, or that it may be accountable for the alleged conspiracy, nor that it committed an overt act in furtherance of the alleged conspiracy after submitting its audit report on January 24, 1978.

It is settled law that on the subject of civil rights actions the applicable statute of limitations is the one applicable to analogous actions under the corresponding state law. Board of Regents of the University of New York v. Mary Tomanio, 446 U.S. 478, 483-484, 100 S.Ct. 1790, 1794-1795, 64 L.Ed.2d 440 (1980); Rivera Fernández v. Chardón, 681 F.2d 42, 48 (1st Cir.1982); Gual Morales v. Hernández Vega, 604 F.2d 730, 731 (1st Cir.1979).

Civil rights claims, as the one at bar, have traditionally been said to state a cause of action lying in tort. Graffals González v. Garcia Santiago, 550 F.2d 687, 688 (1st Cir.1977); Edwards v. Sotomayor, 557 F.Supp. 209, 216-217 (D.P.R.1983). Hence, the applicable statute of limitations for plaintiffs claim under 42 U.S.C. §§ 1983 and 1985(3) is the one-year statute of limitations provided under Article. 1868(2) of the Puerto Rico Civil Code of 1930, as amended, 31 L.P.R.A. § 5298(2), for actions lying in tort. Rivera Fernández v. Chardón, supra; Gual Morales v. Hernández Vega, supra, 604 F.2d at 731; Ramirez de Arellano v. Alvarez de Choudens, 575 F.2d 315, 318-319 (1st Cir.1978); Edwards v. Sotomayor, supra, at 218.

It is also , settled that the coordinate tolling rules applicable to said statute of limitations are applicable to civil rights actions as the one at bar. See, Board of Regents v. Mary Tomanio, supra; Gual Morales v. Hernández Vega, supra, 604 F.2d at 731; Rivera Fernández v. Chardón, 648 F.2d 765 (1st Cir.1981), rev’d on other grounds, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981).

The determination of when a civil rights action accrues under the applicable statute of limitations is a matter of federal law. See, Rivera Fernández v. Chardón, supra, 648 F.2d at 767; Rubin v. O’Koren, 621 F.2d 114, 116 (5th Cir.1980); Briley v. State of California, 564 F.2d 849, 855 (9th Cir.1977); Cox v. Stanton, 529 F.2d 47, 50 (4th Cir.1975); Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir.1974); Cf. Cope v. Anderson, 331 U.S. 461, 464, 67 S.Ct. 1340, 1341, 91 L.Ed. 1602 (1947).

Federal law has established that: “The time of accrual for taking a civil rights action under sec. 1983 is when the aggrieved person knows or has reason to know of the injury which is the basis for his action”, Cox v. Stanton, supra, 529 F.2d at 50; Edwards v. Sotomayor, supra, 557 F.Supp. at 214; see also, Young v. Clinchfield R.R.C.O., 288 F.2d 499, 503 (4th Cir. 1961); Lavallee v. Listi, 611 F.2d 1129, 1131 (5th Cir.1980); or, “when facts supportive of a civil rights action are or should be apparent to a reasonably prudent person similarly situated.” Edwards v. Sotomayor, supra; see also, Doyle v. University of Alabama in Birmingham, 680 F.2d 1323, 1325 (11th Cir.1982).

As to the conspiracy charged (Section 1985(3)), “these types of actions accrue when the last overt act alleged to have caused the damages is performed.” (emphasis added) Edwards v. Sotomayor, supra, 557 F.Supp. at 219; Cf Kadar Corp. v. Milbury, 549 F.2d 230, 234 (1st Cir.1977); see also, Morales v. Vega, 461 F.Supp. 656, 657 (D.P.R.1978). The last overt act is with reference to that allegedly committed by a particular defendant, the conspiracy claim against that defendant accruing when such last overt act is committed. Kadar v. Milbury, supra; Edwards v. Soto-mayor, supra. To sustain that the action does not accrue until the last overt act of all the other conspirators is committed would be tantamount to state that “a conspiracy action could not be maintained— since no cause of action would have accrued — until it could be told with certainty that the final overt act in furtherance of the conspiracy had been committed.” Kadar Corp. v. Milbury, supra, 549 F.2d at 235.

In its motion to dismiss Price Water-house established that plaintiff failed to toll the one-year statute of limitations with Price Waterhouse, between January 24, 1978, and January 24, 1979, a fact which was not controverted by plaintiff in his reply.

This Court is not convinced that plaintiff, by seeking redress in administrative forum (specifically Puerto Rico’s State Insurance Fund (the Fund), on or about 1982, in fact tolled the applicable statute of limitations as to Price Waterhouse. In this context, plaintiff relies in Tropigas v. Tribunal, 102 D.P.R. 630 (1974) and in El Dia, Inc. v. Tribunal, 104 D.P.R. 149 (1975), in support of his contention.

The record reveals that Price Waterhouse was never a party to said administrative proceedings, nor was it intended to be. In fact, the instant action is the first time that Price Waterhouse is a named defendant to any proceeding whatsoever concerning plaintiff’s claims. Further, plaintiff has failed to establish specific reasons why Price Waterhouse may be bound by the tolling effects, if any, of said administrative proceedings. Moreover, the cases relied upon by plaintiff in support of his contention stand for the proposition that the time to bring the same cause of action raised at the administrative forum is tolled by the filing of a claim at that forum. Hence, the cases cited by plaintiff are inapposite to the case at bar for the cause of action in the instant case is different from that which can be brought at the State Insurance Fund. The tolling effected by an administrative filing will be operative only if the administrative claim is filed according to the applicable legal provisions and before the statute of limitations expires on the claimant. In accordance with the cases cited by plaintiff, the tolling so effected operates to allow the Fund to eventually subrogate in the rights of the claimant to seek redress from the alleged third party wrongdoer. The claimant is entitled to file independent judicial action only if the Fund fails to subrogate in his rights and file such a claim. (11 L.P.R.A. § 32, and cases cited above).

It is significant to note that plaintiff brought his claim to the State Insurance Fund on April 30, 1982, according to his Exhibit 158 to his reply; i.e., more than four years after the January 24, 1978, Price Waterhouse report. Clearly, the one-year statute of limitations to bring his claim against Price Waterhouse had already expired. There is no provision in the Workmen’s Accident Compensation Act which would legally revive plaintiff’s cause of action against Price Waterhouse by his 1982 filing at the Fund. In addition, there is nothing in the record to show that plaintiff was ignorant of the alleged injury during the one-year period prior to the filing of his claim at the Fund. In fact, as stated above, the facts appear to be to the contrary.

In view of the foregoing, plaintiff should have filed his claim against Price Water-house on or before January 24, 1979; i.e., one year after the last alleged overt act by Price Waterhouse was committed, by the submission of its report on January 24, 1978, for his own allegations clearly establish that he gained knowledge of Price Waterhouse’s report, and supposedly was affect by it, on or about the time it was submitted to Quirós.

Plaintiff’s claim against Price Waterhouse is subject to dismissal as being time barred.

Finally, in its response to plaintiff’s opposition, Price Waterhouse seeks sanctions against plaintiff for the inappropriateness of his arguments by using that pleading as an excuse to reargue against the entry of judgment in the prior action. This Court is compelled to reprimand plaintiff and his counsel for their abuse of the resources of this Court in pursuing this claim.

Plaintiff’s complaint is, in all material aspects, identical to the one previously dismissed by this Court on the merits. Plaintiff’s instant judicial conduct is only a bold attempt to relitigate what was already properly adjudicated.

Furthermore, a review of plaintiff’s reply of October 9, 1984, to Price Waterhouse’s dispositive motion discloses that in the first twenty pages of his reply plaintiff argues reconsideration of the entry of a judgment in civil action number 83-0154(JP), entered by this Court on September 28, 1983, and which is now firm, final and unappealable. Not only is said practice alien to the Federal Rules of Civil Procedure, it also constitutes highly inappropriate conduct, not only by plaintiff but also by his counsel. See, Rules 11 and 54(d), F.R.Civ.P.

In US. v. Nesglo, 744 F.2d 887, 892 (1st Cir.1984), the Circuit Court, in finding for costs and attorney’s fees against the parties and their counsel, strongly reprimanded them for obstructing, delaying and misusing judicial resources to the abuse and detriment of the other parties in a cause of action created only to relitigate already adjudicated issues.

The Court at this time will not impose monetary sanctions against plaintiff and his counsel. However, they are hereby admonished against similar conduct in the future.

Accordingly, it is ORDERED that plaintiff’s complaint against Price Waterhouse be and it is hereby DISMISSED, with prejudice. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

      . The motion was accompanied by an affidavit from one of its partners, Mr. Antonio Ginorio.

      . The reply was accompanied by plaintiffs own sworn statement and with numerous exhibits.

      . Price Waterhouse also supplemented therein its Motion to Dismiss with an additional ground for dismissal.

      . On January 26, 1983, plaintiff instituted his first civil rights claim with this Court entitled William Maldonado Betances v. Carlos S. Quirós, et al, Civil No. 83-0154(JP) (hereinafter referred to as the prior action). On March 10, 1983, plaintiff filed an amended complaint. Thereafter, defendants in the prior action filed a Motion to Dismiss under Rule 12(b)(6) F.R.Civ.P. for plaintiffs failure to state a claim upon which relief can be granted. This Court granted defendants' motion on September 26, 1983, and dismissed plaintiffs amended complaint. Judgment was entered thereon September 28, 1983, without specifying that it was not a judgment on the merits.

      . All the governmental officials named defendants in the prior action are also named defendants here, with the exception of Rafael Curbelo, Ramón Ruiz Roche, José Raúl Badillo and Edwin Rivero.

      . A private accounting firm, not a named defendant in the prior action.

      . Except for the ad damnum clauses, similar language is used in the amended complaint dismissed in the prior action.

      . The same overt acts by Price Waterhouse were alleged in plaintiff's amended complaint dismissed in the prior action.

      . Quirós was at the time Secretary of the Department of Labor and Human Resources of the Commonwealth of Puerto Rico.

      . After paragraph 42 of the complaint, plaintiff alleges that some of the other co-defendants, at times, used Price Waterhouse’s report as one of many other elements allegedly available to them, in furtherance of the alleged conspiracy.

      . This third requirement is the "mutuality” rule of res judicata.

      . Rule 41(b), F.R.Civ.P., provides in part as follows:
      Rule 41 — Dismissal of Actions
      (a) ...
      (b) Involuntary Dismissals: Effect Thereof ... Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, ... operates as an adjudication upon the merits, (underscoring added)

      . Since Price Waterhouse a co-defendant, the rule is raised in the defensive to preclude a prior litigation based on the same cause of action which the same plaintiff lost on the merits. Blonder-Tongue Labs. v. Univ. Foundation, supra; A & P Contractors v. Asoc. Caná, 110 D.P.R, 753 (1981). See also, 18 Wright-Miller-Cooper, supra, 1981 Ed., § 4464 at 587-588.

      . Arguably, a dismissal of plaintiffs complaint by this Court, using the nonmutual claim preclusion rule, could be considered unnecessary for on the face of plaintiffs conspiracy allegations, which are denied by Price Waterhouse, the latter may be considered to be in privity with the co-defendants in the prior action, also co-defendants here, as an alleged co-conspirator with those co-defendants. A finding of privity would, a fortiori, make plaintiff s complaint subject to dismissal under the traditional tests of res judicata. This Court, however, cannot make such a finding at the summary judgment stage of the proceedings for the alleged participation by Price Waterhouse in the alleged conspiracy is in controversy.

      . As expounded in Bernhard v. Bank of America Nat. Trust & Savings Assoc., supra; and Bruszewski v. U.S., 181 F.2d 419 (3rd Cir.1950).

      . It is noted that the "close or significant relationship between successive defendants" criteria enunciated in Gambocz is present here for Price Waterhouse is sued as an alleged co-conspirator of the named defendants in the prior action.

      . There is no excuse for plaintiffs failure to bring Price Waterhouse as a defendant in the prior action, especially when the allegations made here against Price Waterhouse are the same as those made by plaintiff in the amended complaint dismissed in the prior action. See, 18 Wright-Miller-Cooper, supra, § 4465 at 589.

      . Subsequent to Gambocz, many courts have adopted the nonmutual claim preclusion rule although some have categorized it as collateral estoppel. See, Citadel Corp. v. Puerto Rico Highway Authority, supra; O’Neill v. Dell Pub. Co., Inc., 630 F.2d 685, 690 (1st Cir.1980) (denominating the rule as collateral estoppel to bar a subsequent claim while adopting the rule as enunciated in Blonder-Tongue Labs, supra; and Parklane Hosiery, supra). See also, Miller Brewing Co. v. Jos. Schlitz Brewing Co., 605 F.2d 990 (7th Cir.1979); Fowler v. Wolff, 479 F.2d 338 (8th Cir.1973); Heritage Hills Fellowship v. Plouff, 555 F.Supp. 1290 (D.C.Mich.1983); Rosenthal v. State of Nev., 514 F.Supp. 907 (C.C. Nev.1981); Hazzard v. Weinberger, 382 F.Supp. 225 (D.C.N.Y.1974); Ruskay v. Jensen, 342 F.Supp. 264 (D.C.N.Y.1972).

      . In the latter context, this Court rejects plaintiffs position that a dismissal of the prior action pursuant to Rule 12(b)(6), F.R.Civ.P., under the circumstances surrounding that dismissal was not a dismissal on the merits.

      . Like Price Waterhouse, Ernst & Whinney is a private accounting partnership.

      . In McGillicuddy, those two allegations were made and, even then, the Circuit Court concluded that such plain allegations, without more, did not suffice in view of the absence of specific facts in support of the allegations.

      . In reversing the district court’s holding that McGillicuddy’s allegations concerning an incomplete and improper audit adequately supported the conclusory claim of a conspiracy, the circuit court held that those claims merely suggested that the private accounting firm did “a bad job of accounting, not that it was acting in a conspiracy with state officials to deprive the plaintiff of civil rights” (McGillicuddy, supra, at 78).

      . Said article reads, in part, as follows:
      "Secs. 5298 Actions which prescribe in one year.

      The following prescribe in one year:
      1) ...
      2) Actions to demand civil liability for grave insults or calumny, and for obligations arising from the fault or negligence mentioned in Section 5141 of this title (actions lying in tort), from the time the aggrieved person had knowledge thereof, (reference added)

      . There is otherwise nothing in the record to establish that such statute of limitations may have been tolled either judicially or extra-judicially within that period of time.

      . Law No. 45 of April 18, 1935, as amended, 11 L.P.R.A. §§ 1, et seq.