author: LITTLE, District Judge.

text:
    Julius BURNETT v. The GEHL COMPANY.
    Civ. A. No. 82-2373.
    United States District Court, W.D. Louisiana, Alexandria Division.
    March 25, 1985.

      Thomas J. Davis, Oakdale, La., Baggett, McCall & Ranier, Lake Charles, La., for Burnett.
    Provosty, Sadler & Delaunay, Ronald J. Fiorenza and William H. Delaunay, Jr., Alexandria, La., for The Gehl Co.
   RULING

LITTLE, District Judge.

Plaintiff has filed a Motion in Limine which asks this Court to exclude from the impending trial all defendant’s evidence of plaintiff’s assumption of the risk, contributory negligence or comparative negligence. Plaintiff also asks that defendant be admonished to restrict its argument and communications to the jury on those matters as the Court may direct in this ruling.

Defendant manufactured a machine known as a forage box. The mechanism of the forage box is generally operated by attaching it to a power source, such as a tractor. The defendant does not manufacture the power source. The plaintiff suffered an injury when using the forage box when it was attached to an activated power source. This lawsuit followed that injury.

Plaintiff’s allegations against the manufacturer are as predictable as the defendant’s asserted defenses. It is the defenses which are the subject of this analysis. Is the defendant legally authorized to assert contributory negligence, comparative negligence and assumption of the risk, singularly or collectively as a bar, in whole or in part, to the plaintiff's claim? The answer, according to the plaintiff, is an authoritative “no”. The authority springs from the brow of Bell v. Jet Wheel Blast, 462 So.2d 166 (La.S.Ct.1985). The decision of that case comforts the plaintiff but does not provide a safe harbor from exposure to all of the defenses asserted by the defendant. The holding of the case is crowded with as much uncertainty as there is certainty.

“After considering the oral and written arguments of the parties, we hold that contributory negligence does not apply in strict products liability cases, and that the principle of comparative fault may be applied in some products cases according to precepts formulated by analogy from the principle of Civil Code article 2323 and former article 2323, and other relevant social values, ethical principles and empirical data.” (p. 167).

But the uncertainty was not created accidentally. The Supreme Court specifically stated that the holding was not intended “... as an answer to all questions that may be expected to arise. For example, the question of whether other classes of cases fall within the category to which comparative fault may apply must be decided on a case-by-case basis.” (p. 172).

What is certain is that the legislative amendment to Civil Code article 2323, effective 1 August 1980, eliminates contributory negligence as a complete bar to recovery for an injured plaintiff. The article as amended reads in its entirety as follows:

“When contributory negligence is applicable to a claim for damages, its effects shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages recoverable shall be reduced in proportion to the degree or percentage of negligence contributable to the person suffering the injury, death or loss.”

A casual reading of that latest expression of legislative will might lead one to believe that the defendant’s assertions of comparative negligence are clearly admissible. But, as the Louisiana Supreme Court stated, “the article does not, however, state when the courts shall permit a defense of contributory or comparative negligence to affect a plaintiffs recovery, nor does it prohibit the courts from applying comparative negligence to a claim previously insusceptible to the bar of contributory negligence”. (p. 170). The Court did not allow comparative negligence in the Bell case. In that case, the plaintiff was injured while performing a repetitive operation with a defective industrial machine as required by his employer. In such an industrial setting, reducing the plaintiff’s award would not serve realistically to promote careful product use but may reduce the manufacturer’s incentive to make a safer product.

Such philosophy is not applicable to the Burnett case. Burnett was not operating a machine in an industrial setting as required by his employer. He was operating a machine without the intervention of a third party and was operating that machine upon which some warning language appeared. He was the captain and the crew. This is precisely the type of case to which the pure form of comparative negligence should apply. The threat of a reduction in recovery would provide a user of the forage box with an incentive to use it carefully but would not reduce the manufacturer’s incentive to make a safer product.

Plaintiff’s Motion in Limine is granted only to the extent that jury instructions will not be given indicating that contributory negligence is a complete bar to recovery. The motion is denied as it relates to comparative negligence and appropriate jury charges will be given in that regard.


source: Caselaw Access Project

author: PAINE, District Judge.

license: Public Domain

text:
    L.M.E., INC., Plaintiff, v. CITY OF HOLLYWOOD and Sam Martin, Defendants.
    No. 85-6176-Civ-Paine.
    United States District Court, S.D. Florida.
    March 25, 1985.
    As Amended April 19, 1985.

      Bruce Randall, Fort Lauderdale, Fla., for plaintiff, L.M.E., Inc.
    Andrew DeGraffenreidt, City Atty., City of Hollywood, Hollywood, Fla., for defendants.
   PAINE, District Judge.

This cause came before the Court on Thursday, March 21, 1985 for a hearing on plaintiffs motion for a preliminary injunction. (DE 2). Defendants responded in opposition to the issuance of injunctive relief. (DE 9). Plaintiff presented five witnesses and offered a composite exhibit during the course of the hearing. Based on this evidence the Court makes the following findings of fact.

1. Plaintiff operates a twin movie theater located at 2315 North 60th Avenue, Hollywood, Florida.

2. Plaintiffs theater exhibits adult entertainment motion pictures.

3. On November 7, 1984 Officer Berwick observed an advertisement on the theater marquee for the file “Pleasure Zones”. Berwick knew that film to have previously been declared obscene by a judicial officer.

4. Officer Berwick viewed the film, confirmed that it was the same film.

5. Officer Berwick obtained a search warrant authorizing seizure of the film “Pleasure Zones” and the projectors.

6. Officer Berwick executed the search warrant on November 11, 1984. At that time the motion picture “Pleasure Zone” was seized. In addition, Berwick noted the presence of other films which had previously been declared obscene by a judicial officer. These films were also seized. The projectors were not seized because of the fact that Berwick was not mechanically or technically prepared at the time to dismantle the projection system without possible injury to person or property.

7. Berwick also arrested the manager of the theater.

8. Officer Broadlieb went to the theater on February 7, 1985 and viewed two untitled films. While viewing the films, Broadlieb dictated the scenes as he viewed them into a portable tape recorder.

9. Officer Broadlieb returned to the theater the following day, February 8, 1985 with a search warrant authorizing seizure of the two untitled films (to be identified on the basis of the typed affidavit of the recorded dictation) and the projectors.

10. Officer Broadlieb viewed one of the untitled films for one or two minutes and confirmed that the film he was viewing on February 8, 1985 was one of the films he had seen the day before.

11. Officer Broadlieb then went to the projection room, served the search warrant and executed the warrant. He seized one reel of film from the film platter on the projection machine which contained two films. One film was the motion picture he had confirmed to have been the film viewed the previous day and declared obscene by a judicial officer on the basis of Broadlieb’s affidavit and without hearing. In addition to the one reel containing the two untitled films, Broadlieb seized 3 “trailers” of films which had previously been declared obscene.

12. The projectors were not seized because of lack of equipment and expertise.

13. On February 12, 1985 Officers Graziadei and Minger went to the theater. Each officer viewed two untitled films. The same procedure of simultaneous dictation used by Officer Broadlieb was used by these officers.

14. These dictations were transcribed and constitute the exhibits 1, 2, 3, 4 attached to plaintiffs composite exhibit one introduced at the hearing. These exhibits were reviewed by Judge Patti Englander Henning and the untitled films detailed in those exhibits were declared obscene. A search warrant was issued authorizing the seizure of the films and the projectors.

15. Graziadei and Minger, accompanied by two electricians and three other officers at least one of whom was in uniform, went to the theater the next day on February 13, 1985 to execute the warrants.

16. The warrants were served and executed and the four untitled films detailed in exhibits 1 through 4 were seized. In addition the electricians effectuated the dismantling of the theater’s two 35mm projectors and those items were seized as well.

17. The employees of the theater were arrested and transported to the police facilities for processing.

18. The projection systems seized from the theater on February 13, 1985, after removal of the four films from the film platters, were in average to good condition prior to the seizure. The systems have an aggregate value of approximately $45,-000.00.

19. On February 28, 1985 plaintiff filed a motion for preliminary injunction and a complaint for permanent injunction and damages for the alleged violation of plaintiff’s First, Fourth and Fourteenth Amendment rights.

Plaintiff’s Prayers on Motion for Preliminary Injunction

Plaintiff advanced five areas which it desires to be covered by a preliminary injunction:

1. Mandatory direction to return the seized projectors;
2. enjoin seizures of multiple copies of the same film until judicial determination of obscenity;
3. enjoin seizure of items not specifically named in the search warrant;
4. enjoin future seizures of projectors; and
5. enjoin defendants from arresting employees in theater when arrests result in a closing of the theater.

Return of the Seized Projectors

As plaintiff’s counsel conceded during the course of the hearing, the question of the return of the seized projection machines may present a Younger v. Harris problem. The anti-injunction act provides that a federal court “may not grant an injunction to stay proceedings except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgment.” 28 U.S.C. § 2283. By its terms, therefore, the act provides exceptional circumstances in which a federal court may legitimately interfere with a state court proceeding.

The United States Supreme Court in Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) decided the narrow issue that 42 U.S.C. § 1983 (the statute plaintiff employs in this action) falls within the “Act of Congress” exception to the anti-injunction act. The Mitchum Court, however, did not expound on what circumstances must be present to warrant the issuance of a federal injunction. Id. at 243, 92 S.Ct. at 2162. In noting the existence of the remaining question, however, the Mitchum Court referred to the dictates of Younger v. Harris.

Younger v. Harris was the Court’s seminal exposition on what was termed the doctrine of “Our Federalism”. In Younger the Court reasoned that a

court of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.

401 U.S. 37, 43, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). (emphasis added). This doctrine is premised on the notion that a proper respect for state function is fostered by a system “in which there is sensitivity to the legitimate interests of both State and National governments, and in which the national government, anxious though it may be to vindicate and protect federal rights and federal interests ... ‘restrains itself so as not to unduly interfere with the States’ legitimate activities.’ ” Id., 91 S.Ct. at 750.

It is clear that plaintiff does have a course of action in state court through which the seized projectors may be returned. Fla.Stat. § 933.14. Indeed the Court in Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 2291, 45 L.Ed.2d 223 (1975) stated that federal injunctive relief should not issue absent a clear showing that plaintiff could not get his property back through some state proceeding.

In arguing against application of the Younger doctrine to the demand for return of the projectors, plaintiff cites Universal Amusement Co., Inc. v. Vance, 559 F.2d 1286 (5th Cir.1977), for the proposition that a bad faith seizure of projectors used to display obscene films creates an exception to the Younger doctrine. Initially it is important to note that the Younger issue was not raised in the facts of the case because there were no state proceedings, civil or criminal, pending. Id. at 1289. The Vance Court did determine that the multiple seizures and the failure to prosecute on the obscenity charges showed the city’s bad faith in executing the seizures. Id. at 1295.

The facts of this case, however, differ significantly from those in Vance. In the instant case there are pending criminal cases. Additionally, the Court notes that defendants passed the opportunity to seize the projectors on at least four occasions prior to the February 13, 1985 seizure. When questioned by plaintiff’s counsel as to the reason the officers had not effected seizure of the projectors prior to February 13, 1985 Officer Graziadie responded that the plaintiff was “given the benefit of the doubt.”

The facts in the instant case simply do not rise to the level of bad faith which would permit this Court to intrude on the state proceedings. This ruling should not however be misconstrued as disagreement with the reasoning of Judge Gonzalez that projectors in and of themselves are not instrumentalities of crime. Indeed, as noted by the Vance Court the projector itself should not be necessary to establish a defendant’s intent to exhibit an obscene film. Id. at 1295. It is, rather, possession of the film itself which would be the best manner in which to establish the necessary intent and yet leave the theater operator the means with which he might exhibit non-obscene films. The Court’s ruling herein merely notes that there is insufficient evidence upon which a finding of bad faith harassment can be based. That insufficiency coupled with the remedies provided by Florida Statutes and available to plaintiff through the pending state proceedings mandate application of the doctrines espoused in Younger and Hicks as to plaintiff’s request for return of the seized projectors.

With regard to plaintiff’s four remaining prayers, the Court has considered them in light of the Younger principles and finds that the relief sought therein is prospective and therefore may be entertained. Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). The Court now turns to the merits of plaintiff’s four remaining requests for injunctive relief.

Request for an Injunction Prohibiting Seizure of Multiple Copies of a film

The facts adduced during the course of the hearing simply do not support the granting of an injunction of these grounds. There was a total lack of any testimony or evidence which would support the granting of an injunction of these grounds. There was a total lack of any testimony or evidence which would support an inference that the defendants seized multiple copies of the same film. Without such a showing the Court cannot issue an injunction.

Request for an Injunction Prohibiting Seizure of Films not Named in a Search Warrant

The evidence clearly shows that the officers sometimes seized films or trailers of films which were not set forth in the warrant being executed. The record is also clear, however, that each of the films seized was done so on a prior adjudication of obscenity. Florida Statute § 847.-011(1)(a) makes the knowing exhibition of an obscene motion picture film a first degree misdemeanor. Section 847.011(2) provides that possession of an obscene film without intent to exhibit is a second degree misdemeanor. As such, films which have already been declared to be obscene by a judicial officer are evidence of crimes and therefore contraband in the same way controlled substances are contraband.

Initially it is important to note that plaintiff advances no challenge to the manner in which this category of films were declared obscene. The United States Supreme Court noted that “contraband may be seized without a warrant under the ‘plain view’ doctrine.” Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327, n. 5, 99 S.Ct. 2319, 2324 n. 5, 60 L.Ed.2d 920 (1979). The Court did not decide whether the “plain view” exception applied to cases where the films seized have already been declared obscene. Id. at 327, 99 S.Ct. at 2324. The Court merely noted that allegedly obscene films could not be seized without a warrant. Id. at 327, n. 5, 99 S.Ct. at 2324, n. 5.

This Court is of the view that, once properly declared obscene, a film stands in no better position than any other item of contraband. To hold differently would be to afford the obscene film a better status than any other illegal substance. This is so because once a film is properly declared obscene it no longer enjoys the protection of the First Amendment. See Roth v. United States, 354 U.S. 476, 485-86, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957); Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973). So long as the requirements for an exception to the need for a search warrant are present, there is no perceivable reason to require that a search warrant be issued for the seizure of a film that has already been declared obscene. Plaintiff has failed to show the absence of any of the exceptions and it appears from the testimony that the items seized were in “plain view”.

Request for an Injunction Prohibiting the Future Seizure of Projectors

In accordance with the Court’s reasoning regarding the projectors which have already been seized (supra at pages 187-189), the Court will enjoin defendants from the future seizure of projectors. Universal Amusement Co. v. Vance, 559 F.2d 1286 (5th Cir.1977); Route 1 Books, Inc., et al. v. Ron Cochran, Case No. 83-6489-Civ-Gonzalez (order of 8/3/83 S.D. Fla.)

Request for an Injunction Prohibiting the Arrest of Employees

This Court cannot dictate to state and local governments the manner in which individuals may be arrested so long as basic, fundamental constitutional principles are adhered to. In this instance plaintiff complains that the employees could have been given a notice to appear rather than being placed under physical arrest. While it may be true that the officers had that option available to them this Court cannot force them to exercise their discretion. So long as there is probable cause to believe a crime has been, is, or is about to be committed and that the individual is the perpetrator the officer may place the individual under arrest.

Finally the Court notes defendants’ contention that plaintiff has failed to state a claim for damages relief under 42 U.S.C. § 1983. Plaintiff addressed this contention during the course of the hearing citing Monell v. New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) for the position that a city may indeed be liable for compensatory damages in a § 1983 suit. Defendants’ argument is not, however, that cities or police chiefs can never be held liable under § 1983, but rather that they cannot be held liable under a respondeat superior theory. Defendants’ contention is correct. Hearn v. City of Gainesville, 688 F.2d 1328 (11th Cir.1982); Harris v. Pirch, 677 F.2d 681 (8th Cir.1982). A review of plaintiff’s complaint shows that it is devoid of any allegations upon which a § 1983 damages recovery could be obtained against these defendants.

The only remaining claim is plaintiff’s pendent state claim for tortious interference with business relationships. In light of the fact that no federal claims remain the Court will decline to exercise its pendent jurisdiction over the tortious interference claim. It is therefore

ORDERED and ADJUDGED that the motion for preliminary injunction is denied with the exception that defendants are hereafter enjoined in the future from seizing from plaintiff’s premises any projectors. It is further

ORDERED and ADJUDGED that plaintiff’s demand for damages pursuant to § 1983 fails to state a claim upon which relief can be granted and is therefore dismissed without prejudice. It is further

ORDERED and ADJUDGED that the Court declines to exercise its pendent jurisdiction over the remaining state law claim. The Clerk of the Court is directed to close this file.


author: LAFFITTE, District Judge.

text:
    UNITED STATES of America, v. Hector ACEVEDO-RAMOS, et al., Defendants.
    Cr. No. 84-373 HL.
    United States District Court, D. Puerto Rico.
    March 26, 1985.

      Luis F. Abreu Elias, Hato Rey, P.R., William M. Kunstler, Ronald L. Kuby, New York City, for defendants.
    H. Manuel Hernandez, Asst. U.S. Atty., Hato Rey, P.R., for the U.S.
   ORDER

LAFFITTE, District Judge.

The Government has moved this Court, pursuant to F.R.Cr.P. 15(a), for an order to take the preservatory deposition by videotape of Abimael Colón-Cruz, who was indicted along with the other defendants in this case. In support of its claim that there are extraordinary circumstances that in the interest of justice require the taking of Colón-Cruz’ deposition, the Government submits that said co-defendant (1) is presently incarcerated at the Worcester County Jail, West Boylston, Massachusetts, awaiting trial on the charge of first degree murder in the shooting death of Trooper George L. Hanna, in the case entitled Commonwealth of Massachusetts v. Abimael Colón-Cruz, No. 83-103030; (2) that said trial is presently scheduled to begin immediately following the case of a co-defendant, José Aníbal Colón, set for March 25, 1985; (3) that Colón-Cruz’ trial will commence sometime between April 15, 1985 and May 1st, 1985; and (4) that the Commonwealth of Massachusetts will not release the person of Abimael Colón-Cruz until such time as his trial has been completed. See affidavit of Louis P. Aloise, Assistant District Attorney for the Middle District, Worcester County, Massachusetts.

The Government further asserts that Colón-Cruz made a full confession to the FBI and indicated his willingness to cooperate and testify at trial. His willingness to testify was confirmed by the Assistant U.S. Attorney on March 12, 1985. The motion for the taking of Colón-Cruz’ deposition was filed on March 19, 1985. The Government further adduces that Colón-Cruz’ testimony is extremely important and material to its case, since he participated in both the planning of the robbery and in the disposal of the diamonds. Finally, the Government requests that because of the nature of this case, the deposition be taken in the presence of this Court.

Defendants Héctor Acevedo Ramos and Ismael Tarrido Torres have opposed the Government’s motion on the grounds that it is difficult for defendants to afford the expenses to travel to Massachusetts; that the Government has failed to establish exceptional circumstances, and that the Commonwealth of Massachusetts has not informed this Court that it will not comply with a Habeas Corpus Ad Testificandum.

This last objection is not supported by the record. The Commonwealth of Massachusetts has expressly indicated that it will not release Colón-Cruz until completion of his trial. A person who has violated the criminal statutes of both the Federal and State Governments may not challenge the order in which he is tried or punished for said offenses. Gunton v. Squier, 185 F.2d 470, 471 (9th Cir.1950). Furthermore, the determination of custody between State and Federal governments is a matter of comity to be resolved by the executive branches of each sovereign. Hernandez v. United States Atty. Gen., 689 F.2d 915, 917 (10th Cir.1982).

Defendant Ismael Tarrido Torres further alleges, in opposition, that he is also a defendant in Criminal Case No. 84-229 before Judge Jaime Pieras, scheduled for trial on March 28, 1985. Consequently, Tarrido argues, he will not be able to appear at Colón-Cruz’ deposition in violation of his confrontation rights.

We start with the proposition that under F.R.Cr.P. 15(a) the propriety of taking a deposition and the matter of using the deposition at trial must be examined from different perspectives. U.S. v. Keithan, 751 F.2d 9 (1st Cir.1984). “The decision whether to grant or deny a motion to take the deposition of a proposed witness for use at a criminal trial is committed to the discretion of the district court. We have held that this discretion is not broad, and should be exercised carefully.” U.S. v. Keithan, 751 F.2d at p. 12, citing United States v. Mann, 590 F.2d 361, 365 (1st Cir.1978).

Colón-Cruz’ detention by the Massachusetts authorities on a murder charge to be tried on or about the second week of April, 1985, the reluctance of the Commonwealth of Massachusetts to release ColónCruz until such time as his impending trial has been completed, and Colón-Cruz’ decision to cooperate and testify for the Government at the trial of this case scheduled for April 9, 1985, constitute “exceptional circumstances” of this case that allow the deposition of Colón-Cruz “in the interest of justice.”

Regarding the use of the deposition at trial, the Court shall defer ruling until trial. Rule 15(e).

Contrary to defendants’ allegations, the Court finds that there was no delay in the filing of the motion. Rule 15 is silent as to the time for filing the motion. However, it should be made promptly, U.S. v. Foster, 81 F.Supp. 281, 284 (D.C.N.Y.1948), and its filing should not delay the trial. The Government confirmed ColónCruz’ willingness to testify on March 12, 1985. The motion was filed on March 19, 1985. The trial date is April 9, 1985, and defendants were afforded time to respond and oppose the motion. Because the Court finds that the deposition will not delay trial and was timely filed, defendants’ objections in this connection are hereby DENIED.

Defendant Acevedo claims that one of his three retained counsel, Mr. Abreu, will not be able to attend the deposition because of his participation in Criminal Case No. 84-229 before Judge Pieras. But, defendant Acevedo has also retained Messrs. Kuntsler and Kuby, who reside in the mainland and can easily make the necessary arrangements to attend the deposition in Boston, Massachusetts.

As to defendant Ismael Tarrido Torres, also a defendant in the pending case before Judge Pieras, the right-to-confrontation issue is avoided by ordering, as it is hereby ordered, the severance of his case. F.R.Cr.P. 14.

Defendants’ concern relative to the payment of expenses is covered by Rule 15. As to defendant Acevedo, who is in custody, the officer having custody of said defendant shall be notified of the time and place set for the deposition and shall, unless defendant waives in writing the right to attend, produce him at the deposition. F.R.Cr.P. 15(b). The Government shall bear the expenses of travel and subsistence to one of defendant Acevedo’s counsel. Likewise, as to the remainder defendants, the Government shall bear the expenses of travel and subsistence to each of said defendants and their respective attorneys, limited to one attorney per defendant, but excluding defendant Tarrido, whose case has been severed.

In line with the foregoing, the Government’s motion to take Colón-Cruz’ deposition pursuant to F.R.Cr.P. 15(a) is hereby GRANTED.

WHEREFORE, Abimael Colón-Cruz’ deposition shall be taken before the undersigned Judge at the United States Courthouse, John W. McCormack Building, Boston, Massachusetts, on April 5, 1985, at 9:00 A.M., subject to the following conditions:

1. The deposition is to be recorded on videotape and by stenographic means.

2. The cost for the arrangements for the videotaped deposition and the expenses with respect to the stenographic transcript shall be paid by the Government.

3. The videotape operator shall take an oath to record all proceedings accurately and completely, and certify as to the correctness and completeness of the videotape.

4. Objections to the deposition testimony and the grounds for the objection shall be stated at the time of the taking of the deposition.

5. The Government shall make available to the defendants or their attorneys, for examination and use at the taking of Colón-Cruz’ deposition, any statement of Colón-Cruz which is in the Government’s possession and to which the defendants would be entitled at trial.

6. Once the stenographic transcript is prepared, defendants shall be given access to the videotape recording.

It is further ORDERED that the prosecution of defendant Ismael Tarrido Torres is hereby severed.

IT IS SO ORDERED.

      . The other defendants have assented to the opposition filed by Acevedo Ramos.


author: BUA, District Judge.

text:
    Julie Ann LYMAN, Plaintiff, v. BOARD OF EDUCATION OF the CITY OF CHICAGO and Dr. Harry Strasburg, Defendants.
    No. 84 C 5913.
    United States District Court, N.D. Illinois, E.D.
    March 27, 1985.

      Kerr & Longwell, Chicago, Ill., for plaintiff.
    Patricia J. Whitten, Atty., Karen Gatsis Anderson, Mary Denise Cahill, Asst. Attys., Bd. of Educ. of the City of Chicago, Chicago, Ill., for defendants.
   MEMORANDUM ORDER

BUA, District Judge.

Plaintiff Julie Ann Lyman brings this action against defendants, the Board of Education of the City of Chicago, and Dr. Harry Strasburg, alleging violation of her constitutional and statutory rights to employment. Count I is brought pursuant to 28 U.S.C. §§ 1343, 2201, and 2202; 42 U.S.C. § 1983; and the Fourteenth Amendment of the United States Constitution. Count II is brought pursuant to the doctrine of pendent jurisdiction and alleges violations of Ill.Rev.Stat., ch. 122, § 34-15. Count III is brought under the doctrine of pendent jurisdiction and alleges violations of the Illinois Open Meetings Act, Ill.Rev. Stat. ch. 102, § 41 et seq.

Before the Court is defendants’ motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants have also requested that the issue of plaintiff’s status as a career service employee be treated under Fed.R. Civ.P. 56. Finally, defendants have filed a motion to strike the plaintiff’s affidavit. For the reasons stated below, defendant Board of Education’s motion to dismiss is granted. Defendant Dr. Harry Strasburg’s motion to dismiss is granted in part and denied in part. Defendants’ request that the issue of plaintiff’s status as a career service ‘employee be treated under Fed.R.Civ.P. 56 is denied. Defendants’ motion to strike plaintiff’s affidavit is granted without prejudicing plaintiff’s right to submit a new affidavit after discovery.

I. FACTS

Plaintiff was hired as an employee of the defendant Board of Education of the City of Chicago (“Board”) on or about April 1, 1976. Plaintiff performed her duties satisfactorily for the Board continually until June 13, 1983. Defendant Dr. Harry Strasburg (“Strasburg”) is the Deputy Superintendent for Finance and Administration for the Board. On June 13, 1983, Strasburg informed the plaintiff that her employment would be terminated effective July, 1983 because of a budget cut. The Board subsequently took action to terminate plaintiff’s employment.

Lyman alleges she was a career service employee of the Board.

Ill.Rev.Stat., ch. 122, § 34-15 provides, in part:

No civil service employee shall be removed except for cause. The board by a vote of a majority of its full membership must first approve a motion containing written charges and specifications presented by the general superintendent of schools. Such motion shall contain a request to the State Board of Education to schedule a hearing on these charges before an impartial hearing officer....

Lyman further alleges that § 34-15 gave plaintiff the right to continued employment unless terminated for cause, thus creating a property interest in her employment. Lyman claims that the Board did not subsequently reduce its budget and charges that her termination was arbitrary and capricious in that she was terminated for no valid reason. Lyman was never given a hearing prior to termination as required by § 34-15.

The plaintiff predicates liability upon two theories. Count I is a claim for monetary, injunctive, and declaratory relief for defendants’ violation of plaintiff’s civil rights, specifically their unconstitutional deprivation of her property interest in continued employment. Count II is a pendent claim for damages and declaratory relief for defendants’ violation of plaintiff’s statutory rights to employment under Ill.Rev. Stat., ch. 122, § 34-15, which prohibits termination of civil service employees without a showing of cause and a hearing on written charges.

II. DISCUSSION

A. Defendants’ Summary Judgment Request

Defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). In regard to the defendants’ request that the issue of plaintiff’s status as a career service employee be treated as a motion for summary judgment, Fed.R.Civ.P. 12(b) states:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Fed.R.Civ.P. 12(b)(6). (emphasis added)

It is within the trial court’s discretion whether to exclude matters outside the pleadings. In this case, attorneys for the defendant have submitted with their motion to dismiss one affidavit and seven exhibits. This extraneous material is considered matters outside the pleadings. Plaintiff, in her memorandum in opposition to the defendants’ motion to dismiss, submitted one affidavit (by the plaintiff herself) and two exhibits. Defendants have moved to strike much of plaintiff’s affidavit because it is not based on her personal knowledge. Based upon Defendants’ Motion to Strike, it is apparent that defendants, and not plaintiff, have the advantage of access to all the relevant information contained in the Board of Education’s records and files. For this Court to grant summary judgment without giving the plaintiff equal access to such information through the process of discovery would be unjust. Summary judgment in favor of the defendants at this point in the proceedings would be to deny the plaintiff her day in court without even according her the benefits of discovery. Therefore, the defendants’ request that plaintiff’s status as a career service employee be treated under a motion for summary judgment is denied.

B. The Board of Education’s Motion to Dismiss

In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the United States Supreme Court held that municipalities and other local government entities are “persons” subject to liability under 42 U.S.C. § 1983 where the constitutional deprivation suffered by the plaintiff can be casually linked to a governmental “policy” or “custom.” Rivera v. Farrell, 538 F.Supp. 291, 293 (N.D.Ill.1982). There is a substantial disagreement in this district as to the specificity of pleading required in the context of a suit brought against a municipality or other local government entity under section 1983 after Monell. However, as this Court has held in the past, such a complaint must be dismissed if, when subject to careful examination, the complaint appears to have merely attached a conclusory allegation of “policy” to what is in essence a claim based on a single unconstitutional act. See Giarrusso v. City of Chicago, 539 F.Supp. 690, 693 (N.D.Ill.1982).

Based upon the Supreme Court’s ruling in Monell, the Board moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Board argues that Lyman’s complaint is devoid of any allegation that the actions of either the Board or Dr. Strasburg were taken pursuant to any official policy or custom.

The facts of the case have already been set out. The plaintiff alleges she is a career service employee who by virtue of her employment has a protected property interest to her job under state law. In support of this allegation, the plaintiff puts forth .the following argument: First, plaintiff argues that under Monell, school boards and municipalities can be held liable under section 1983. Second, plaintiff admits that under Monell municipalities cannot be liable under section 1983 on a respondeat superior basis without an assertion that the defendant acted pursuant to an unconstitutional policy. Plaintiff asserts, however, that she is not alleging liability under any theory of respondeat superior. Finally, plaintiff argues that because she is not alleging liability under the theory of respondeat superior, she therefore is not required to show that the defendants acted pursuant to an unconstitutional policy or practice. Plaintiff concludes that .the defendants’ termination of plaintiff’s employment was an unconstitutional act of the municipality itself.

Plaintiff’s strained logic, however, is not persuasive. Merely because plaintiff is not asserting liability under respondeat superior does not mean she is excused from alleging that defendants acted pursuant to an unconstitutional policy or practice. The plaintiff is misinterpreting the Supreme Court’s holding in Monell. According to Monell, the plaintiff must not only show that her firing was an unconstitutional act, she must also show that this act is part of the Board’s official policy, custom, or practice.

The court in Hamrick v. Lewis, 515 F.Supp. 983 (N.D.Ill.1981), set forth the requirements for stating a claim for relief under the standard for municipal liability under Monell in the context of a motion to dismiss:

While it is unnecessary to show formal, documentary approval of a governmental custom or policy in order to state a claim under Monell, it is necessary to allege more than a single incident of illegality as evidence of a governmental policy, custom, or practice in order to state a claim for relief.

Id. at 985-86 (citations omitted).

In this case, the plaintiff’s complaint alleges a single, wrongful incident—the asserted unconstitutional firing of a career service employee without notice or a hearing. A single instance of an unconstitutional firing is not sufficient to support a claim that the firing was part of an official governmental policy, practice, or custom. The plaintiff has therefore failed to meet the requirements stated above for municipal liability under Monell. Accordingly, the Board’s motion to dismiss Count I is granted.

Since all of plaintiffs federal claims against the Board in Count I are dismissed before trial, the state claim alleged in Count II against the Board is dismissed without prejudice for lack of pendent jurisdiction. See Aldinger v. Howard, 427 U.S. 1, 16-17, 96 S.Ct. 2413, 2421-2422, 49 L.Ed.2d 276 (1976); Moore v. The Marketplace Restaurant, 754 F.2d 1336, 1353-1354 (7th Cir.1985); Knudsen v. D.C.B., Inc., 592 F.Supp. 1232, 1235 (N.D.Ill.1984).

C. Dr. Harry Strasburg’s Motion to Dismiss

Dr. Harry Strasburg, Deputy Superintendent for Finance and Administration of the Board, moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The guidelines to be used in considering a motion to dismiss are clear. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to the relief requested. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Under the Federal Rules, it is well established that on a motion to dismiss a complaint must be construed in the light most favorable to the plaintiff, the allegations thereof being taken as true; and if it appears reasonably conceivable that at trial the plaintiff can establish a set of facts entitling him to some relief, the complaint should not be dismissed. Hamrick v. Lewis, 515 F.Supp. 983, 985 (N.D.Ill.1981).

Strasburg argues that plaintiff was not a career service employee and that plaintiffs claims are mere conclusory allegations. In support of this allegation Strasburg argues that the affidavits, exhibits, and memoranda filed herein by both parties prove that the plaintiff actually did not have career service status.

As has already been stated, the Court has, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, decided to exclude all matters outside the pleadings. The affidavits and exhibits upon which Strasburg relies are matters outside the pleadings. Keeping in mind that for purposes of this motion plaintiff’s allegations are taken as true, and that Strasburg’s argument rests solely on the inadmissible affidavits and exhibits, Strasburg has therefore failed to persuade the Court that the plaintiff can prove no set of facts in support of her claim. Accordingly, Strasburg’s motion to dismiss Counts I and II is denied.

CONCLUSION

Defendants’ request that the issue of plaintiff’s status as a career service employee be treated as a motion for summary judgment is denied. Defendant Board of Education’s motion to dismiss is granted on Counts I and III. The allegations in Count II against the Board of Education are dismissed without prejudice for lack of pendent jurisdiction. Defendant Dr. Harry Strasburg’s motion to dismiss is deniied as to Counts I and II and granted as to Count III. Defendants’ motion to strike plaintiff’s affidavit is granted without prejudicing plaintiff’s right to submit a new affidavit after discovery.

IT IS SO ORDERED.

      . Count III is based upon pendent jurisdiction and seeks damages and other relief for purported violations of the Illinois "Open Meetings Act,” Ill.Rev.Stats., ch. 102 § 41 et seq. Plaintiff, by failing to respond to defendants’ arguments, apparently concedes that Count III must be dismissed because it was not brought within the applicable state statute of limitations. Although the Illinois Open Meetings Acts, upon which Count III was predicated, provided for a 45-day statute of limitations, plaintiff did not file her complaint until over a year after the violation that she alleges. Accordingly, Count III is dismissed.


author: SHADUR, District Judge.

text:
    Maria LEVKA, Plaintiff, v. CITY OF CHICAGO, Defendant.
    No. 83 C 2283.
    United States District Court, N.D. Illinois, E.D.
    March 27, 1985.

      David J. Letvin, Letvin & Stein, Chicago, for plaintiff.
    James D. Montgomery, Corp. Counsel of City of Chicago, Sharon M. Sullivan, Asst. Corp. Counsel, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Maria Levka (“Levka”) moves for an award of attorneys’ fees for her lawyers’ services on the appeal in this strip search case against the City of Chicago (the “City”). For the reasons stated in this memorandum opinion and order, her motion is denied.

Because the City had admitted the police strip search of Levka had violated her constitutional rights, the jury trial in this Court was limited to damages. From the evidence and the closing argument of Levka’s lawyers, the jury was persuaded to award her $50,000. Though this Court viewed that judgment as substantially higher than it would have awarded had it been the trier of fact in a bench trial, its respect for the jury function led it to deny the City’s post-trial motions. But our Court of Appeals disagreed and ordered Levka to accept a remittitur reducing the judgment to $25,000 or alternatively to try the case anew (of course the appeal, like the trial, had been limited to the damage issue). 748 F.2d 421 (7th Cir.1984).

This Court originally awarded, and Levka has already been paid, $24,475 for her lawyers’ fees at the trial stage. Roe v. City of Chicago, 586 F.Supp. 513 (N.D.Ill.1984) (this Court published that opinion under the “Roe” pseudonym because Levka’s counsel had asked that this Court’s criticisms of their fee request of nearly twice that amount should not be ascribed to them publicly). No appeal was taken from that award by either litigant.

Now Levka urges her lawyers should be compensated for their work on the City’s appeal on the theory she was “the prevailing party in the litigation as a whole” (Pl.Mem. 1). But the myth of the philosopher’s stone—of transmuting base metal into gold—has long since been exploded. Levka has been paid in full—or more—for the fact her lawyers prevailed for her in the trial court to the tune of the original $50,000 verdict. No matter how Levka slices it, she is worse off now, after the appeal, than before it. For that obvious reason this Court rejects the notion she is the “prevailing party” on the appeal. And that—not whether she prevailed “in the litigation as a whole”—is the issue now.

In an effort to make the worse cause appear the better, Levka’s counsel cite cases that purportedly support her position. None does. Not one deals with a situation like this one in which (1) the civil rights plaintiff has been fully paid for services in the trial court, (2) only a single issue—the same single issue involved in the trial—was presented on appeal and (3) plaintiff lost the appeal.

Buian v. Baughard, 687 F.2d 859 (6th Cir.1982) is a square precedent supporting the disallowance of Levka’s fees on the appeal. Levka’s R.Mem. 1-3 seeks to distinguish Buian by relying on the portion of the Sixth Circuit’s analysis that pointed to the fact a fee allowance under 42 U.S.C. § 1988 (“Section 1988”) is stated to be as part of “costs,” and the losing plaintiff on the appeal there had costs awarded against it (as did Levka in our Court of Appeals). Levka urges our Court of Appeals’ reversal in Chesny v. Marek, 720 F.2d 474 (7th Cir.1983) of this Court’s decision, 547 F.Supp. 542 (N.D.Ill.1982) undercuts that analysis. It remains to be seen whether Chesney’s reversal survives in the Supreme Court (where it has been argued and is now awaiting decision). But even if it does (which this Court continues to doubt), the fact that “costs” would then have a different meaning in Section 1988 and in Fed.R.Civ.P. 68 would not control the very different question in this case. Not only the literal language of Section 1988 but the Supreme Court’s teaching in Hutto v. Finney, 437 U.S. 678, 693-98, 98 S.Ct. 2565, 2574-77, 57 L.Ed.2d 522 (1978) tell us an attorneys’ fee award under that section is part of costs, and Levka was certainly the loser, not entitled to costs, on the appeal in this case.

None of the Seventh Circuit cases on which Levka purports to rely leads to a different result. In fact Bonner v. Coughlin, 657 F.2d 931, 935-36 (7th Cir.1981) and (albeit less directly) such cases as Muscare v. Quinn, 680 F.2d 42 (7th Cir.1982) specifically confirm the analysis and commonsense result reached in this opinion.

Levka’s lawyers have now received fees almost exactly equal to Levka’s still-substantial damages award. Whether they would have recovered that much for services at trial had the initial jury verdict been $25,000 is an issue they fortunately need not face. Their claim for more fees now remains base metal, not gold. Levka’s motion, which poses the sole remaining issue in the case, is denied.

      . Levka has since accepted the remittitur. Though the Court of Appeals' opinion had provided Circuit Rule 18 should apply on remand, the parties have stipulated (as the Circuit Rule permits) that this Court should retain the case to decide the fees question.

      . As this Court's original opinion on fees made plain, the case was overtried. Roe, 586 F.Supp. at 517 reflected this Court's “deep conviction" that the fee award, even after appropriate reductions, was "greatly excessive.” One of the factors producing the $24,475 figure was its “reasonable relationship" (id. at 517 n. 9), responsive to the admonition in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), to the jury verdict.

      . Here that issue was Levka's damages, for the City had conceded liability.

      . This opinion will not be extended by a parsing of the authorities Levka cites, for a simple reading of each of those cases demonstrates its inapplicability. It may however be worth observing that Levka’s most extended reliance on and quotation of the "correct rule,” citing to the extended litigation in Vaughn v. Westinghouse Electric Corp., is disingenuous. There a prevailing employment discrimination plaintiff in the District Court, 471 F.Supp. 281 (E.D.Ark.1979), also won on appeal to the Court of Appeals, 620 F.2d 655 (8th Cir.1980). On petition for certiorari the Supreme Court (450 U.S. 972, 101 S.Ct. 1504, 67 L.Ed.2d 808 (1981)) simply vacated and remanded the case for reconsideration in light of Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), which had been decided just a few days earlier. On remand the District Court again ruled for plaintiff, 523 F.Supp. 368 (E.D.Ark.1981), and then refused to separate out and deny compensation for the services of plaintiff’s lawyers in the Supreme Court, 526 F.Supp. 1165, 1169 (E.D.Ark.1981). Fairly viewed, the Vaughn plaintiff was the "prevailing party” throughout. On the merits the Supreme Court action was entirely neutral, not in defendant's favor. Its remand order was simply an incidental waystation on the route to a reaffirmance of plaintiff’s position as the "prevailing party.”

      . Section 1988 reads (emphasis added):
      In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

      . Initially this Court rejected the efforts of Levka's counsel to recover attorneys' fees that nearly matched dollar-for-dollar Levka's recovery (as Roe, 586 F.Supp. at 514 reflects, the original fees request was for nearly $48,000, though Roe mistakenly listed the jury verdict as $60,000 rather than $50,000). Now matters have come full circle, and Levka’s lawyers have in fact received almost exactly what Levka herself has ultimately recovered. Though the current motion is nominally Levka’s, it is plainly for no one’s benefit except that of the lawyers, who originally received the case from the Roger Baldwin Foundation of the ACLU. When this Court was in the active practice of law, its involvement as an ACLU "cooperating lawyer” and in myriad other volunteer activities was in fact pro bono publico, not pro bono advocatus. This Court is advised that the ACLU’s identification of available counsel to plaintiffs (such as Levka) in the many strip search cases was made on a different understanding from the normal “cooperating lawyer" referrals (that is, the lawyers did not initially agree to act pro bono publico), but that does not change the result here. If Levka’s lawyers must bear some expenditure of time without being compensated, it is because they are not entitled to be paid for losing—and they can view themselves as (perhaps involuntarily) serving the best pro bono traditions.


author: NAUMAN S. SCOTT, District Judge.

text:
    Steven M. FRAZIER v. COLUMBIA GAS DEVELOPMENT CORPORATION.
    Civ. A. No. 83-1872.
    United States District Court, W.D. Louisiana, Alexandria Division.
    March 28, 1985.
    Hicks & Brown, C. James Hicks, Alexandria, La., for Frazier.
    Stafford, Stewart & Potter, Larry A. Stewart, Alexandria, La., for Road Equipment Co., Inc.
    Davidson, Meaux, Sonnier & McElligott, John E. McElligott, Jr., Lafayette, La., for Columbia Gas Development Corp.
    Gist, Methvin, Hughes & Munsterman, George C. Gaiennie, III and Howard B. Gist, III, Alexandria, La., for Consolidated Operating Co., Inc. and Maryland Cas. Co.
   RULING

NAUMAN S. SCOTT, District Judge.

On October 31, 1984 we ruled that LSA-R.S. 9:2780 applied to the indemnity agreement between third-party plaintiff Columbia Gas Development Corporation (Columbia) and third-party defendant Consolidated Operating Company, Inc. (Consolidated), 596 F.Supp. 429, 430 (W.D.La.1984). In accordance with that statute and Home Ins. Co. v. Garber Industries, Inc., 588 F.Supp. 1218 (W.D.La.1984), we held the indemnity agreement “void and unenforcible” to the extent that it purports to or does provide for defense and indemnity against the negligence ... “of the indemnitee.” 596 F.Supp. at 431. We further held that in all other respects the agreement was valid and enforceable. Id. at 432. We are now urged to review that ruling.

The law of indemnity in Louisiana is ever-changing. A court must be aware of changing public policy and economic trends. Little help has come from the Fifth Circuit. In cases concerning the recovery of costs and fees when only the negligence of the indemnitee is at issue, their response has been “ambivalent.” See, Sullen v. Missouri Pac. R. Co., 750 F.2d 428, 432 (5th Cir.1985).

Recently, however, a beacon of light has been exposed upon which a confused mariner in this sea of indifference may set his course. In Sullen, supra, the Fifth Circuit has begun to define this intricate area. That case dealt with a situation where one of the defendants at trial, Chevron Chemical Company (Chevron), sought to enforce an indemnity agreement between itself and the employer of plaintiff, Broadmoor Corporation. Chevron argued that it was entitled to reimbursement for the cost of successfully defending an action based solely on its alleged negligence. The district court denied Chevron’s claim.

On appeal, the Fifth Circuit affirmed. 750 F.2d at 430 and 434. The Court reasoned:

“In analyzing Broadmoor’s obligation to defend Chevron we are Erie -obliged to follow and apply Louisiana law. Doing so we focus exclusively on the pleadings considered against the backdrop of the indemnity agreement. Sullen’s complaint was based solely on allegations of Chevron’s negligence. As we have previously held, the language of this indemnity agreement does not obligate Broad-moor to indemnify Chevron for Chevron’s own negligence (citations omitted), and there is no language indicating the intent of Broadmoor to provide Chevron with the costs of defense against its own negligent acts. Since the pleadings alleged only Chevron’s negligence, Broadmoor had no duty to defend and is not obliged to reimburse Chevron the costs it incurred in its defense.”

750 F.2d at 434.

Applying this reasoning to the case at bar it is apparent that the same result should be reached. The only claims against Columbia, either for direct damages or contribution are for Columbia’s own negligence. As we held previously, Columbia cannot be indemnified for their own negligence. 596 F.Supp. at 431. This is clearly against public policy. LSA-R.S. 9:2780. Likewise, requiring Consolidated to defend Columbia for its own negligence is equally against public policy. Id.; 596 F.Supp. at 431. To paraphrase Sullen, since the pleadings allege only Columbia’s negligence, Consolidated has no duty to indemnify or defend Columbia, and is not obliged to reimburse Columbia for the costs incurred in its defense. Counsel for Consolidated shall submit an appropriate judgment within fifteen days of the signed date of this Ruling.

       All other claims in this case have been settled. Any argument that no negligence was finally or legally proved on the part of Columbia ergo indemnity is owed is not well taken. "Whether a party is obliged to tender a defense to another party depends entirely upon the allegations in the precipitating pleadings." Sullen, supra, at 433 and cases cited therein, (emphasis added). A final determination is not necessary.


author: WEXLER, District Judge.

text:
    Mark FARRELL, Plaintiff, v. Anthony A. MIKLAS, Shield 3757, Individually and as a state trooper of the New York State Police Dept.; “John Doe”, whose real name and badge # are unknown, individually and as a police officer of the New York State Police Dept., Defendants.
    No. CV 84-2543.
    United States District Court, E.D. New York.
    March 28, 1985.
    Mitchell Gittin, Brentwood, N.Y., for plaintiff.
    Robert Abrams, Atty. Gen., State of N.Y. by Dewey Lee, Asst. Atty. Gen., Mineola, N.Y., for defendant Miklas.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

This is an action brought under 42 U.S.C. § 1983. Defendant has moved to dismiss on the ground that the complaint fails to state a claim for relief under that statute as interpreted by the Supreme Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

I. FACTS

Defendant Miklas is a state trooper employed by the New York State Police Department.

Plaintiff makes the following allegations, which for the limited purpose of deciding this motion we will regard as true. On June 12, 1983, an unidentified state trooper shouted at the people in a parking lot, ordering them to move their cars. Plaintiff, who was seated in a vehicle, moved the vehicle. Plaintiff was then arrested for operating a vehicle while intoxicated. Plaintiff was then handcuffed to a chair. Plaintiff asked why he had been arrested. Defendant Miklas told plaintiff to “shut up”, and pretended to be preparing to punch plaintiff. Plaintiff asked Miklas if Miklas was going to hit him. Miklas used abusive language, grabbed plaintiff by the ears, and banged the back of plaintiff’s head against a soda vending machine several times. Miklas walked out of the room. Out of frustration, plaintiff swung the chair to which he was shackled. Miklas returned, threw plaintiff to the ground, and stepped on plaintiff’s neck, causing plaintiff to be unable to breathe. Another state trooper, defendant “John Doe”, joined in the attack on plaintiff. Both continued to stomp on plaintiff. Plaintiff was then handcuffed to a hook on the floor. Plaintiff was asked to take a breathalyzer test, but refused. Plaintiff was taken to a hospital, x-rayed, and had a cast put on his broken arm. Miklas swore to an accusatory instrument charging plaintiff with violation of N.Y. Vehicle & Traffic Law § 1192(2) and (3), which prohibits operation of a motor vehicle by a person who is intoxicated or who has .10 of one per centum by weight of alcohol in his blood. Miklas knew that the accusation was false, and acted with malice. The case was subsequently dismissed by court order.

II. DISCUSSION

A. Case Law

In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court held that a prisoner’s loss of property, allegedly caused by the random unauthorized negligent failure of prison personnel to follow normal procedures for the receipt of mail packages, did not give rise to a claim for relief under 42 U.S.C. § 1983, given the existence of adequate state law tort remedies. The Court reasoned that, although the complaint properly alleged or could be construed as properly alleging that the defendant prison officials deprived plaintiff of property through action under color of state law, the alleged deprivation did not occur without due process, since (1) the state could not have provided any pre-deprivation process, given the fact that the deprivation resulted from random unauthorized acts rather than from established state procedures, and (2) the state did provide an adequate post-deprivation tort law remedy.

In Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), the Court held that the termination of an employment discrimination claim, arising from the state’s failure to convene a hearing in timely fashion, constituted a taking of property without due process, notwithstanding the fact that the claimant could arguably have sued the state under state tort law for damages arising from the state’s negligence in failing to convene a hearing. The Court emphasized that Logan, unlike Parratt, involved an established state procedure rather than a random unauthorized act by a state employee.

In Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Court held that an alleged intentional unauthorized deprivation of a prisoner’s property by a prison guard did not give rise to a claim for relief under 42 U.S.C. § 1983, given the existence of adequate post-deprivation state tort law remedies, on the ground that Parratt applies to intentional as well as negligent random unauthorized deprivations of property.

In Conway v. Village of Mount Kisco, 758 F.2d 46, 48 (2d Cir. 1985), the Court stated that “in both Hudson and Parratt the [Supreme] Court carefully limits its holding to special situations involving deprivations of property”. The Second Circuit therefore refused to apply the Parratt and Hudson doctrines to an action for malicious prosecution.

The instant case involves alleged deprivations of liberty rather than property. Consequently, we are compelled by the Conway decision to hold that the instant complaint states a claim for relief under 42 U.S.C. § 1983, notwithstanding the fact that plaintiff has not alleged that the state could have prevented the alleged actions by defendants, and notwithstanding the possibility that there may exist adequate post-deprivation remedies under state law. The motion to dismiss will therefore be denied.

B. Analysis

Although, as we have held, we are compelled by the Conway decision to deny the motion to dismiss, we will nevertheless set forth the reasoning which we would have applied in the absence of the Conway decision.

This Court has previously held that Parratt is applicable to random unauthorized deprivations of liberty as well as property. Smith v. Village of Garden City, 592 F.Supp. 637, 640 (E.D.N.Y.1984); Holmes v. Ward, 566 F.Supp. 863, 865 (E.D.N.Y.1983). Accord, Thibodeaux v. Bordelon, 740 F.2d 329 (5th Cir.1984); Augustine v. Doe, 740 F.2d 322 (5th Cir.1984); Daniels v. Williams, 720 F.2d 792 (4th Cir.1983); Haygood v. Younger, 718 F.2d 1472 (9th Cir.1983). However, there is a good deal of authority for the proposition that Parratt is inapplicable to “alleged violations of substantive constitutional proscriptions applicable to the states because of incorporation into the due process clause of the fourteenth amendment”, see e.g., Thibodeaux, supra, at 333; Augustine, supra, at 325. In order to determine the validity of this latter proposition, it will be necessary for us to inquire into the distinction between substantive and procedural due process.

As we understand, .the “substantive” component of the Due Process Clause of the Fourteenth Amendment places limits upon the ability of a state to establish a policy of inflicting certain types of harms upon persons after certain facts concerning such persons have been established. By contrast, the “procedural” component of the Due Process Clause of the Fourteenth Amendment places limits upon the methods by which a state can go about determining whether a given set of factual allegations concerning a person is in fact true, in circumstances where the factual allegations would (if found to be true) lead to the infliction of certain types of harms upon the person pursuant to the substantive policy of the state. For example, when a state declares a particular act to constitute a crime, or declares that a particular crime is subject to a particular punishment, the state is creating substantive policy, and must act consistently with the substantive component of the Due Process Clause. By contrast, when the state establishes rules of evidence or methods of jury selection, the state is creating procedural policy, and must act consistently with the procedural component of the Due Process Clause. Under this view, whether a state action is “substantive” or “procedural” is in no way dependent upon whether the state action is alleged to be violative of the provisions of the Bill of Rights insofar as they are made applicable to the states by the Due Process Clause, or whether the state action is rather alleged to be violative of the Due Process Clause simpliciter. For example, a state court which enjoins allegedly false advertising without adequate notice and hearing is engaging in a violation of procedural due process, notwithstanding the fact that its action may be violative of the First Amendment.

The notion that Parratt is inapplicable to deprivations of rights secured by the Bill of Rights finds some support in the Parratt opinion. The Court noted that, whereas earlier Supreme Court cases discussing 42 U.S.C. § 1983 had dealt with alleged deprivations of rights secured by the Fourth and Eighth Amendments, the plaintiff in Parratt “refers to no other right, privilege, or immunity secured by the Constitution or federal laws other than the Due Process Clause of the Fourteenth Amendment simpliciter.’’ 451 U.S. at 536, 101 S.Ct. at 1913. However, the Court did not explicitly state that Parratt is inapplicable to Bill of Rights cases.

The view that Parratt is inapplicable to violations of substantive due process finds support in the concurring opinion of Justice Blackmun (joined by Justice White), 451 U.S. at 545-546, 101 S.Ct. at 1918, and the concurring opinion of Justice Powell, 451 U.S. at 552-553, 101 S.Ct. at 1921-1922. See also Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 3208 n. 4, 82 L.Ed.2d 393 (Stevens, J., concurring in part and dissenting in part, joined by Brennan, J.; Marshall, J.; Blackmun, J.) (1984).

Notwithstanding implications to the contrary in the Parratt majority opinion, we think there is nothing in the logic of the opinion which prevents its applicability to cases dealing with alleged violations of the Bill of Rights. The opinion holds that a “deprivation without due process” within the meaning of the Due Process Clause of the Fourteenth Amendment does not occur if (1) the state could not practically have provided pre-deprivation process, and (2) the state provides adequate post-deprivation process. The opinion thus turns upon an interpretation of the wording of the Due Process Clause. Nothing in the logic of this analysis justifies drawing a distinction between those deprivations of life, liberty and property prohibited by specific provisions of the Bill of Rights as incorporated in the Due Process Clause, and other deprivations of life, liberty and property prohibited by the Due Process Clause.

Similarly, the logic of the Parratt opinion does not justify the view that Parratt is inapplicable to violations of substantive due process. In fact, Parratt itself may be classified as a “substantive due process” case at least as easily as it may be classified as a “procedural due process” case. In Parratt neither the state nor its employees at any point acted on the assumption that plaintiff had in fact committed acts justifying the deprivation of plaintiff’s property. Indeed, neither the state nor its employees acted on any assumption whatsoever; plaintiff alleged merely that the state’s employees had been negligent. It is quite possible to argue that mere negligence does not even constitute a “deprivation”, much less a “deprivation without due process”. 451 U.S. at 544-545, 101 S.Ct. at 1917 (Stewart, J., concurring in the result). If, however, one accepts the view of the majority opinion that a negligent act may constitute a “deprivation”, and that the Due Process Clause requires that the state pay compensation for negligent deprivations of property caused by state action, then one is annunciating a principle of substantive law. See 451 U.S. at 546-554, 101 S.Ct. at 1918-1922 (Powell, J., concurring in the result).

By the same token, Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) involved substantive due process. There, plaintiff alleged that a prison guard had intentionally destroyed plaintiff’s noncontraband personal property. Here again, there was no suggestion that the guard acted on the assumption that plaintiff had in fact committed acts justifying the deprivation of plaintiff’s noncontraband property. If, as plaintiff alleged, the guard destroyed plaintiff’s noncontraband property for no just reason, then the guard acted on an invalid substantive policy of destroying property without reason, albeit a policy not approved by the state. Whereas in Parratt a plausible argument could be made that a state could adopt a substantive policy of not providing for compensation for losses caused by the negligence of state actors, in Hudson there was no doubt that the alleged substantive policy of deliberate destruction of property without reason was one which a state itself could not constitutionally adopt in the absence of provisions for compensation. The issue in Hudson was whether the alleged unauthorized random intentional implementation of such a substantive policy by a state employee was enough, in and of itself, to make out a claim for relief under 42 U.S.C. § 1983, or whether the existence of adequate post-deprivation remedies would defeat such a claim for relief. A highly plausible argument (which we would agree with) could be made that the existence of post-deprivation remedies should not defeat a claim for relief against the guard, whose personal moral culpability ought in no way be mitigated by the fortuitous existence of post-deprivation remedies provided by a third party, the state. The Court, however, rested its decision upon the inability of the state to provide pre-deprivation process, and the willingness of the state to provide post-deprivation remedies. Hudson thus turns not upon the nature of the injury inflicted by the guard, but rather upon the degree of culpability or lack thereof on the part of the state. Consequently, the notion that Parratt and Hudson do not apply when the alleged injury is one which the state could not inflict under any circumstances regardless of the amount of process provided, is, we think, erroneous. Hudson itself involved an injury inflicted by a guard which the state could not legally have inflicted had it possessed the same factual assumptions as the guard, regardless of the amount of process provided. Parratt itself involved an injury negligently inflicted which, according to the majority, the state could not refuse to compensate regardless of the process provided. The Supreme Court found that claims for relief could be barred in Parratt and Hudson, not because the alleged injuries were of a kind that the state could lawfully inflict if sufficient process was provided, but rather because the willingness of the state to provide process to determine whether the alleged injuries were in fact inflicted and to provide compensation if the injuries were in fact inflicted would (in the absence of the ability of the state to prevent the initial infliction of the injury through official policy) serve to reduce the degree of state culpability below that required for a violation of the Due Process Clause and a claim for relief under 42 U.S.C. § 1983.

For the above reasons, we would have held (were we not precluded by Conway) that, pursuant to Parratt v. Taylor, supra, and Hudson v. Palmer, supra, a claim for relief does not lie under 42 U.S.C. § 1983 where (1) the state could not practically have provided pre-deprivation process, due to the fact that the alleged deprivation occurred as a result of a random unauthorized act by a state employee rather than as a result of an established state policy, or the state for some other reason could not have provided pre-deprivation process, and (2) the state does provide an adequate post-deprivation remedy, regardless of whether the alleged deprivation is of life, liberty, or property, and regardless of whether the alleged deprivation violates the substantive or the procedural component of the Due Process Clause of the Fourteenth Amendment, and regardless of whether the alleged deprivation violates a specific provision of the Bill of Rights. While we disagree with the Hudson decision, we believe that this is its logical consequence.

There is an additional reason why we would hold (were we not precluded by Conway ) that the malicious prosecution claim here does not state a claim for relief under 42 U.S.C. § 1983. Even leaving aside the random unauthorized nature of the alleged institution of a malicious prosecution in this case, it must be borne in mind that a criminal prosecution must begin somewhere and that it is impossible that every stage of a prosecution should be preceded by some form of process. Consequently, it is impractical for the state to provide process prior to the institution of a prosecution. Consequently, where, as here, there is an adequate state law post-deprivation remedy for malicious prosecution, an action for malicious prosecution should not lie under 42 U.S.C. § 1983. Smith v. Village of Garden City, 592 F.Supp. 637, 640 (E.D.N.Y.1984).

III. ELEVENTH AMENDMENT

One final note is in order. The complaint purports to sue defendants not only in their individual capacities, but also in their capacities as state troopers. The Supreme Court has recently held that a suit for damages against a person in his official capacity ordinarily constitutes a suit against the government entity the person works for, for damages. Brandon v. Holt, — U.S. -, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985). In the instant case, plaintiffs motion papers make clear that he does not seek damages from the state. The attempt to sue defendants “as state troopers” appears to have been a mere rhetorical flourish, since defendants control no assets separate from their individual assets by virtue of their positions as state troopers. An attempt to sue the state for damages would appear barred by the Eleventh Amendment. Since plaintiff has made clear that he is not attempting such a suit, we need not address the Eleventh Amendment issue.

IV. CONCLUSION

Defendants’ motion to dismiss is denied.

SO ORDERED.


author: THOMAS F. HOGAN, District Judge.

text:
    Do Sun PARK, M.D., Plaintiff, v. Joan T. ZATCHUK, M.D., et al., Defendants.
    Civ. A. No. 83-3412.
    United States District Court, District of Columbia.
    March 28, 1985.
    Gregory A. Cotter, Washington, D.C., for plaintiff.
    Richard A. Stanley, Asst. U.S. Atty., Washington, D.C., for defendants.
   MEMORANDUM OPINION AND ORDER

THOMAS F. HOGAN, District Judge.

Plaintiff was a medical doctor in active duty service with the United States Army from 1978 until 1983, and served as a resident in the Otolaryngology Clinic at Walter Reed Army Medical Center (“Walter Reed”) from July 1981 until October 1982. In March 1983, after reviewing plaintiff’s official Army file, Walter Reed precluded plaintiff from practicing medicine at Walter Reed. Likewise, after reviewing plaintiff’s official Army file, the United States Army Medical Department Personnel Support Agency discharged plaintiff from the military service, effective October 5, 1983, based on its finding that the plaintiff had failed to meet the minimal requirements for a medical doctor.

The defendants were also medical doctors in active duty service with the United States Army during the period of plaintiff’s residency at Walter Reed, and served as plaintiff’s supervisors in the Otolaryngology clinic. On numerous occasions, defendant Zatchuk criticized plaintiff’s performance in the residency program by making statements to other medical personnel at Walter Reed, and by placing memoranda in plaintiff’s personnel file. Complaint at ¶¶ 5-9, 12-15; Defendant’s Statement of Material Facts as to Which There is No Genuine Dispute (hereinafter Defendant’s Undisputed Facts) at If 6. Likewise, on March 17, 1982 defendant Davis wrote a letter to defendant Zatchuk unfavorably evaluating plaintiff’s medical performance. Complaint at 1110; Defendant’s Undisputed Facts at H 7. Finally, in November, 1982 all three defendants prepared and signed an Officer Evaluation Report concerning plaintiff’s performance in the residency program for the period from May 9 to October 16, 1982, which criticized plaintiff’s professional competence and conduct.

Plaintiff initiated this action against all of the defendants in their individual capacity alleging that the defendants libeled and slandered him and invaded his privacy in rendering the oral and written evaluations outlined above critical of his performance as a medical doctor. This case is presently before the Court on defendant’s motion to dismiss, or in the alternative for summary judgment.

Under Rule 56 of the Federal Rules of Civil Procedure, a grant of summary judgment is appropriate where there are no disputed issues of material fact and the moving party is entitled to summary judgment as a matter of law. Upon consideration of defendant’s motion, plaintiff’s opposition, and the undisputed facts of this case, this Court concludes that the defendants are absolutely immune from the common law torts alleged by the plaintiff. Accordingly, summary judgment for the defendants must be granted.

Discussion

In Barr v. Mateo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), the Supreme Court held that a federal official exercising discretion within the “outer perimeter” of his authority enjoys the privilege of absolute immunity from common law torts. Id. at 575, 79 S.Ct. at 1341. See also Butz v. Economou, 438 U.S. 478, 488, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (false and damaging publication issued within scope of official’s authority not actionable despite allegation of malice).

In resisting application of the Barr doctrine to this action, the plaintiff essentially raises two points: (1) that the defendants were not acting within the scope of their authority in making the critical evaluations of the plaintiff, and (2) that the defendants’ activity is identical to discretion exercised by non-governmental medical officials and therefore is not entitled to the privilege of absolute immunity.

With respect to his argument that the written and oral evaluations of plaintiff’s performance were not the result of the defendants’ proper exercise of their authority, plaintiff essentially argues that more was required of the defendants than critical conclusions concerning the plaintiff. Instead, plaintiff argues that the defendants’ authority to supervise plaintiff in the residency program required the defendants to engage in meaningful communication and counseling with the plaintiff to endeavor to correct perceived deficiencies, and that plaintiff never received such feedback and direction from the plaintiff. Finally, plaintiff asserts that written evaluations of his performance were not required to be placed in his personnel folder until the conclusion of his training, with the exception of his annual Officer Evaluation Report, unless to support a recommendation of adverse action.

This Court cannot accept plaintiff’s argument, however, that the defendants’ obligation to engage in constructive evaluations and communications with the plaintiff rendered their critical evaluations improper. Clearly, it was the responsibility of the defendants to monitor the performance of the plaintiff as well as all participants in the residency program. Deposition of Daniel B. Kimball, M.D. (hereinafter Kimball Deposition) at 42. Nothing prohibited the defendants from fulfilling that responsibility by maintaining written records. Kim-ball Deposition at 36-37. Moreover, the issue in this litigation is not whether the plaintiff’s removal from the Walter Reed program, and ultimately from the Army, was unwarranted in that the plaintiff was not given an opportunity to identify and correct his problems, but rather whether defendants had the authority to evaluate plaintiff’s performance. Indeed this Court must agree with defendants’ observation that on this point the plaintiff has confused content with context. Evaluations of the plaintiff were clearly within the scope of defendants’ authority, indeed were mandated, and nothing prescribed the manner in which that authority was to be exercised.

Finally, plaintiff argues that because the function of evaluating medical residents is identical whether the residency program is in a federal institution or a private medical facility, the discretion exercised by the defendants here is not the type of “governmental policy” discretion that the absolute immunity privilege of Barr v. Mateo, supra, was meant to protect. Instead, the plaintiff argues that under Barr absolute immunity was meant to apply only to federal officials performing functions for which there is no comparable organization in the private sector.

This Court, however, cannot so broadly construe the exceptions that have been recognized to the absolute immunity doctrine. The consideration is not whether comparable functions exist in the governmental and private sector, but whether the purposes of the absolute immunity doctrine, namely, to allow the unfettered operation of government, will be fostered by application of the privilege. For example, in Henderson v. Bluemink, 511 F.2d 399 (D.C. Cir.1974), the plaintiff alleged that an Army doctor negligently diagnosed and treated his illness. Id. at 402. The Court rejected the Army doctor’s claim of absolute immunity, finding that the discretion exercised by the defendant was purely medical rather than governmental. Id. at 403. In doing so, the Court noted:

For those acts which the doctors performed in an administrative capacity—and thus heavily fraught with discretion—we agree that immunity should attach. We must part company with the court, however, where acts of a strictly medical nature are concerned.

Id. at 403 n. 24.

Therefore, virtually all discretionary administrative decisions by federal officials, regardless of whether they occur within a uniquely governmental area such as the legislative branch, or a federal institution with parallels in the private sector, such as a military hospital, are entitled to the privilege of unfettered decisionmaking. This Circuit has recognized this to be especially true with respect to the evaluation of federal employees:

The strong governmental interest in having a frank and honest assessment of federal employee work performance is absolutely essential to the proper rendering of federal services to our citizens. A supervisor’s candid evaluation promotes efficient government by enabling an agency to identify and reward truly outstanding performance and to identify and correct, and on occasion dispense with, performance that is unsatisfactory. The judgment might be distorted if their immunity from damages arising from that decision was less than complete.

Lawrence v. Acree, 665 F.2d 1319, 1327 (D.C. Cir.1981) (citation omitted).

Moreover, even if there was merit to plaintiff’s argument that all governmental functions with direct parallels in the private sector are not absolutely immune from liability for common law torts, it would not be persuasive here. Although all medical students participating in residency programs surely undergo evaluations by their supervisors which may impact on their futures as medical professionals, the evaluations performed by the defendants here had a military purpose distinct from their medical purpose. All of the critiques of the plaintiff played an integral role in the Officer Evaluation Report used to review all servicemen on an annual basis. Kimball Deposition at 37-38. All of the reports at issue, therefore, served the uniquely governmental purpose of documenting the plaintiff’s performance as an aid to later decisionmaking concerning his military career, whether they would have been decisions concerning assignments, training, promotion or discharge. Id. at 37-42. Consequently, the discretion exercised by the defendants was instrumental in ensuring the competency of members of this nation’s armed forces.

Therefore, for the reasons set forth above, defendants’ motion for summary judgment must be granted. An order consistent with the terms of this opinion shall be issued.

      . Defendant Zatchuk served as Chief of the Otolaryngology Clinic during the period of plaintiff's residency at Walter Reed. Defendants Davis and Hall were staff physicians.

      . Defendants also argued that they were shielded in this action by the doctrine of intra-military immunity where an individual is barred from recovering for injuries "incident to military service." Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed.2d 152 (1950). In light of this Court’s holding that the doctrine of absolute immunity is dispositive of plaintiff's claims, defendant’s arguments under the doctrine of intra-military immunity need not be addressed.

      . The defendants earlier filed a motion to dismiss, or alternatively for summary judgment, as their initial response to plaintiff's complaint, prior to conducting any discovery. By Order dated June 18, 1984, this Court denied that motion without prejudice and permitted plaintiff limited discovery on the issue of defendants’ immunity. Thereafter, the plaintiff deposed Daniel B. Kimball, M.D., Chief of Professional Services at Walter Reed. Because this Court has reviewed Dr. Kimball’s deposition in considering defendants’ renewed motion, that motion shall be treated under F.R.C.P. 56 as one for summary judgment, in accordance with F.R. C.P. 12(b)(6).

      . In Barr the Court held that the Acting Director of the Office of Rent Stabilization was not liable for defamation as the result of issuing a press release indicating that the respondents, employees of the agency, would be suspended for allegedly improper activities. Barr, 360 U.S. at 574, 79 S.Ct. at 1341.

      . In recognizing the privilege of absolute immunity in Barr, the Court stated "[O]fficials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties." Barr, 360 U.S. at 571, 79 S.Ct. at 1339.