author: ELLEN B. BURNS, District Judge.

text:
    Sharon MADDEN, Administratrix of the Estate of Brian Madden v. CITY OF MERIDEN, et al.
    Civ. No. N-84-41.
    United States District Court, D. Connecticut.
    Feb. 8, 1985.

      Theodore E. Skowronski, Skowronski & Skowronski, Derby, Conn., for plaintiff.
    Marjorie Howes-Drake, Corp. Counsel, City of Meriden, Meriden, Conn., Arnold J. Bai, Karen L. Karpie, Thomas M. Germain, Bai, Pollock & Dunnigan, Bridgeport, Conn., for defendants.
   RULING ON OBJECTION TO MAGISTRATE’S DENIAL OF DEFENDANTS’ MOTION TO DISMISS

ELLEN B. BURNS, District Judge.

Plaintiff Sharon Madden, as administratrix of her son Brian’s estate, brought this action against the City of Meriden and two of its police officers. She alleges that the City of Meriden (City) and the two officers, Elliot Michelson and Greg Kosienski, deprived Brian of his constitutional rights by brutally beating him after his arrest, and, by their deliberate indifference to his serious physical injuries and impaired mental health, failed to prevent him from hanging himself while in custody at the Meriden police station.

The complaint is in four counts. The first count purports to state a Section 1983 claim against all defendants, the City and the individual police officers, for their deliberate indifference to Brian Madden’s physical and psychological condition while confined at the police department, indifference which assertedly resulted in Brian’s suicide. The plaintiff alleges that the City is liable for Brian’s death because it (1) failed to properly train defendants Michelson and Kosienski to recognize the risk of self-injury presented by individuals like Brian, and (2) failed to promulgate regulations and procedures to assure the safety of pretrial detainees known to be mentally ill and presenting a risk of self-injury. The second count alleges a Section 1983 claim against the individual officers who allegedly beat and seriously injured Brian. The third count seeks to hold the City liable for the beating, asserting that the assault was part of a “pattern or course of conduct” which the City knew about and condoned. The fourth count alleges a Section 1985 conspiracy among all the defendants to deprive Brian Madden of his constitutional rights.

The defendants moved to dismiss all but the second count of the complaint for failure to state a claim upon which relief could be granted. This motion was referred to a magistrate pursuant to Rule 3 of Local Rules for United States Magistrates. The magistrate ruled that the defendants’ motion should be granted in part and denied in part. He dismissed the third count against the City as being drawn too generally, and failing to satisfy the pleading requirements of Monell v. Department of Social Services of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The fourth count was also dismissed because it is vague, superfluous and omits an essential element of § 1985. See e.g., Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977). The magistrate denied defendants’ motion to dismiss the first count against the individual or city defendants.

Defendants filed a timely objection to the magistrate’s ruling and this court has conducted a de novo review. Rule 2 of Local Rules for United States Magistrates. Finding that the magistrate correctly denied the defendants’ motion to dismiss the suicide count against both the City and the individual police officers, the magistrate’s ruling is approved and adopted for the reasons stated therein and for the additional reasons discussed below.

I. Facts

For the purposes of deciding this motion to dismiss the facts will be accepted as set out in the complaint. Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980) (per curiam). Absent sufficient reason to impose stricter pleading requirements, no count should be dismissed unless “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spaulding, _ U.S. _, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984).

The complaint alleges the following facts. Brian Madden, age 18, was receiving inpatient psychiatric treatment at Saint Mary’s Hospital in Waterbury, Connecticut, when he was taken into custody by the defendants Michelson and Kosienski. The officers knew that Brian was suffering serious psychological and emotional impairments. They also knew that Brian had previously attempted self-injury. Nevertheless, they took him from the hospital and brought him to the police station. Although they had knowledge of Brian Madden’s severely diminished mental condition, the complaint claims that defendants Michelson and Kosienski brutally beat Brian while he was in the custody of the Meriden Police Department. As a result of this beating, Brian suffered a severely fractured skull, a massive and disabling concussion, hematomas and substantial bruising of the brain, severe emotional shock, great distress, trauma, pain and suffering. Rather than obtaining the necessary medical and psychiatric treatment for him, the defendants placed Brian Madden, alone, in a locked jail cell. No one could observe him because the television monitoring system was not operating. Nor was there an audio monitoring system. Although the defendants knew that Brian had previously attempted suicide, they failed to remove from him objects with which he could injure himself. They also failed to remove from the cell objects which could be used to inflict self-injury. The cell design and conditions themselves were such as to facilitate death by hanging. Tragically, Brian Madden, who had just received traumatic injuries to his brain, and who was already in a severely depressed mental condition, hanged himself. The defendants failed to observe or discover that Brian had attempted to hang himself. They also failed to take appropriate steps to prevent his death after he was discovered hanging in his cell.

II. The Constitutional Deprivation

In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court held that only “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain ... proscribed by the Eighth Amendment.” Id. at 104, 97 S.Ct. at 291 (citation omitted).

The plaintiff asserts that the defendants’ actions constituted deliberate indifference to Brian Madden’s needs and constitutional rights, depriving him of the right to be free of cruel and unusual punishment secured by the Eighth and Fourteenth Amendments.

The defendants assert that plaintiff’s claim must be dismissed because she has failed to show any violation of an interest protected by the Constitution. The defendants correctly assert that the Eighth Amendment does not apply to Brian Madden because he was a pretrial detainee. The Eighth Amendment’s protection against “cruel and unusual punishment” applies only to prisoners incarcerated as a result of a criminal conviction. Ingraham v. Wright, 430 U.S. 651, 668-671, 97 S.Ct. 1401, 1410-1412, 51 L.Ed.2d 711 (1977). Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1872 n. 16, 60 L.Ed.2d 447 (1979). However Brian Madden had an equivalent substantive right under the due process clause of the Fourteenth Amendment which protects pretrial detainees from “punishment” prior to an adjudication of guilt. Bell, supra, at 535 n. 16, 99 S.Ct. at 1872 n. 16. The due process rights of a pretrial detainee under the Fourteenth Amendment are at least as great as the Eighth Amendment protections available to a convicted prisoner. Revere v. Massachusetts General Hospital, 463 U.S. 239, _, 103 S.Ct. 2979, 2981, 77 L.Ed.2d 605 (1983). The Second Circuit, in accordance with the directive of the Supreme Court, has held that “a detainee is entitled to protection from cruel and unusual punishment as a matter of due process ...” Rhem v. Malcolm, 507 F.2d 333, 337 (2d Cir.1974). Therefore, Eighth Amendment standards can be used by analogy to determine the minimum substantive rights of a pretrial detainee under the due process clause of the Fourteenth Amendment. See Norris v. Frame, 585 F.2d 1183, 1186-87 (3d Cir.1978); see also Patzig v. O’Neil, 577 F.2d 841, 847 (3d Cir.1978).

The magistrate ruled that the first count alleged facts sufficient to state a claimed violation of the Eighth Amendment. The court agrees that that count, viewed as a whole, does indeed allege sufficient facts to establish such a claim. Brian, taken from a hospital where he was receiving psychiatric treatment, was brutually beaten and severely injured. Rather than receiving medical treatment for these injuries, Brian was confined in a jail cell without adequate surveillance, and without the removal of implements enabling him to take his own life. All of this was done with knowledge of Brian’s past tendency toward suicide. These facts are sufficient to establish an Eighth Amendment violation. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Guglielmoni v. Alexander, 583 F.Supp. 821 (D.Conn.1984) (summary judgment denied in § 1983 case where record permitted inference that prison officials had notice of prisoner’s suicidal tendencies and did not take reasonable steps to provide treatment or prevent suicide). Such conduct, which would be a deprivation of Brian’s Eighth Amendment rights had he been confined after an adjudication of guilt, Estelle v. Gamble, supra, was certainly a deprivation of his Fourteenth Amendment right to liberty when confined as a pre-trial detainee. See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

III. The Due Process Violation

A. Parratt v. Taylor

The defendants concede that the alleged actions of the defendants may have deprived Brian Madden of a life, liberty, or property interest. They argue, however, that the due process clause of the Fourteenth Amendment does not protect against every deprivation of a life, liberty, or property interest, but only such deprivations as are without “due process of law”. Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 1914, 68 L.Ed.2d 420 (1981), Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979).

The defendants assert that, under the principles of Parratt, the availability of an adequate post-deprivation remedy under state law provides plaintiff’s decedent with the due process of law secured to him by the Fourteenth Amendment and that Connecticut provides an adequate post-deprivation remedy for any deprivation of an interest of plaintiff’s decedent through its common law tort procedures. They point out that, in fact, plaintiff has brought an action against defendants, Madden v. Meriden, et al, Docket No. CV 82-0063328S, which is presently pending in the Superior Court for the District of New Haven at Waterbury, to recover against the defendants under state law.

In Parratt v. Taylor, supra, the plaintiff alleged that he was deprived of property without due process of law when prison officials negligently lost a hobby kit worth $23.50 that the plaintiff had ordered through the mail. The Supreme Court agreed that the plaintiff had been deprived of property within the meaning of the Fourteenth Amendment, Parratt, supra, 451 U.S., at 536-537, 101 S.Ct. at 1913-1914, reasoning that, because a pre-deprivation hearing is not feasible when deprivations of property are effected through random and unauthorized conduct of a state employee, the availability of an adequate post-deprivation remedy under state law negates the contention that the deprivation is without due process of law. Id. at 540-44, 101 S.Ct. at 1915-17. In reaching this conclusion, however, the court indicated that the availability of a post-deprivation remedy would not apply to alleged violations of substantive constitutional rights. Justice Rehnquist, writing for the majority in Parratt stated:

“[The plaintiff’s] claims differ from the claims which were before us in Monroe v. Pape, [365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)], which involved violations of the Fourth Amendment, and the claims presented in Estelle v. Gamble, 429 U.S. 97 [97 S.Ct. 285, 50 L.Ed.2d 251] (1976), which involved alleged violations of the Eighth Amendment. Both of these Amendments have been held applicable to the states by virtue of the Fourteenth Amendment. [The plaintiff] here 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.”

Id. at 536, 101 S.Ct. at 1913.

In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the plaintiff alleged that municipal police officers violated his rights under the Fourth Amendment. The Court explicitly rejected the defendant’s argument that because state law proscribed the defendant’s conduct, the plaintiff could not recover under § 1983. The Monroe court stated:

It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.

Id. at 183, 81 S.Ct. at 482.

Although Parratt dealt with negligent actions on the part of state officials, in Hudson v. Palmer, _ U.S. _, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Court extended the reasoning of Parratt to apply to intentional as well as negligent deprivations of property. The court stated:

We can discern no logical distinction between negligent and intentional deprivations of property insofar as the ‘practicability’ of affording post-deprivation process is concerned____ Accordingly, we

conclude that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.

Id. at _, 104 S.Ct. at 3203-3204.

The Court carefully limited its holding and discussion to procedural due process. Justice Stevens, concurring in this part of the opinion with three other justices, stated:

I do not understand the Court’s holding to apply to conduct that violates a substantive constitutional right — actions governmental officials may not take no matter what procedural protections accompany them ... or to cases in which it is contended that the established prison procedures themselves create an unusual risk that prisoners will be unjustifiably deprived of their property.

Id. at _ n. 4, 104 S.Ct. at 3208 n. 4 (citations omitted).

However, the Court has not squarely faced whether Parratt should apply to deprivations of life or liberty. In concurring with the plurality in Parratt, Justices Blackmun and White made clear their understanding that the decision did not apply to deprivations of life or liberty.

The district courts and circuit courts that have addressed the issue have split on the question whether Parratt applies to deprivations of life or liberty interests. Some circuits have held that Parratt does apply to deprivations of life or liberty interests. See e.g. Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir.1981), aff'd. on other grounds sub. nom., Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983), (under Parratt, plaintiff must show that post-deprivation tort remedies under Arizona law were deficient in order to state a valid Section 1983 claim for intentional assault and battery); Thibodeaux v. Bordelon, 740 F.2d 329 (5th Cir.1984), (“Just as there is no reason to distinguish intentional from negligent deprivations, there is no reason to distinguish between liberty interests and property interests” Id. at 336-337); Gilmere v. City of Atlanta, 737 F.2d 894 (11th Cir.1984) (gross negligence not a violation of a constitutional right where post-deprivation remedies satisfied due process clause of the Fourteenth Amendment; Parratt applicable to intentional deprivations of liberty); Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir.1983) (negligent deprivation of life does not give rise to deprivation of due process if state remedy available; gross negligence not standard for Section 1983), cert. denied _ U.S. _, 104 S.Ct. 1325, 79 L.Ed.2d 720 (1984) (see White, J. dissenting from the denial of certiorari); State Bank of St. Charles v. Camic, 712 F.2d 1140 (7th Cir.1983) (claim based on Fourteenth Amendment was precluded on ground that Illinois wrongful death statute may provide recovery for one who sues on behalf of estate of person who committed suicide; Eighth Amendment right to be protected from suicide was not abrogated by officers who took reasonable precautions which precluded finding of deliberate indifference.) cert. denied _ U.S. _. 104 S.Ct. 491, 78 L.Ed.2d 686 (1983). Meshkov v. Abington Township, 517 F.Supp. 1280, 1284 (E.D.Pa.1981); Dodd v. City of Norwich, _ F.Supp. _ No. H-82-590, memorandum of decision (Blumenfeld, J.), (D.C.Conn. Sept. 13, 1984) (plaintiff’s decedent shot while being handcuffed had adequate remedy under Connecticut negligence laws; gross negligence not sufficient to establish violation of plaintiff’s decedent’s constitutional rights). Contra, Wilson v. Beebe, 743 F.2d 342, 348 (6th Cir.1984) (Parratt not applicable to deprivations of life or liberty interests.)

Assuming, arguendo, that Parratt may apply when there is a deprivation of life or liberty without procedural due process, cf. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (tort remedy adequate for in-school corporal punishment), the Court’s approval of Monroe v. Pape, supra, indicates that Parratt would not apply to the violation of a substantive constitutional right. See Wilson v. Beebe, supra, at 350. (“As Parratt v. Taylor and other cases have shown, not every tort committed under color of law is a constitutional question. However, where the tort committed violates a substantive due process right and shocks the conscience of the court, section 1983 liability may also be found ...”); Augustine v. Doe, 740 F.2d 322 (5th Cir.1984) (Parratt inapplicable to alleged violations of substantive rights, citing cases, Id. at 326). See also, Schiller v. Strangis, 540 F.Supp. 605 (D.Mass.1982). Therefore, it becomes necessary to examine the complaint to determine if a substantive due process violation is alleged.

B. Procedural v. Substantive Due Process

Unlike procedural due process, which permits a state to deprive a person of life, liberty or property when it provides a procedural remedy, substantive due process imposes limits on what a state may do regardless of what process is provided. See Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952). It is a source of rights which may not be taken away under any circumstances. Thus, the availability of a state remedy would not bar a section 1983 action to vindicate the violation of a substantive constitutional right. Monroe v. Pape, supra. See Barnier v. Szentmiklosi, 565 F.Supp. 869 (E.D.Mich.1983). See also Brandon v. Allen, 719 F.2d 151 (6th Cir.1983) (plaintiff who alleged his constitutional rights were violated by assault and battery committed by police officer had substantive due process right to enjoy the security of life and limb which stated a claim under Section 1983), reversed on other grounds, _ U.S. _, 105 S.Ct. 873, 83 L.Ed.2d 878 (1984).

In Rochin v. California, supra, Justice Frankfurter seemed to establish a standard that conduct that “shocks the conscience” or “offends the community’s sense of fair play and decency” is prohibited by the due process clause of the Fourteenth Amendment. In Rochin, the court explained the underlying theory of substantive due process:

Regard for the requirements of the due process clause “inescapably imposes upon this court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses” Malinski v. New York, 324 U.S. 401, 416-417 [65 S.Ct. 781, 788-789, 89 L.Ed. 1029] (1945). These standards of justice are not authoritatively formulated anywhere as though they were specifics. Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cardozo twice wrote for the Court, are “so rooted in the traditions and conscience of oúr people as to be ranked as fundamental”, Snyder v. Massachusetts, 291 U.S. 97, 105 [54 S.Ct. 330, 332, 78 L.Ed. 674] (1934), or are “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 [58 S.Ct. 149, 152, 82 L.Ed. 288] (1937).

Rochin, supra, 342 U.S., at 169, 72 S.Ct. at 208.

Because the line dividing “procedural due process” from “substantive due process” is not always clear, it may be difficult in some cases to determine which is the proper characterization of the plaintiff’s claim. A difficulty in deciding this issue arises from the lack of clarity in precedents concerning what standards courts should use in evaluating these types of Fourteenth Amendment claims. It may be argued that not every violation of an individual’s bodily security and freedom (even though under color of state law) invades rights protected by the Fourteenth Amendment. See e.g. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) (false imprisonment under state law not a violation of the Fourteenth Amendment); see also, Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (defamation under state law not a violation of the Fourteenth Amendment). These cases imply some minimum standard of severity of the violation of bodily security and freedom as a prerequisite to the conclusion that a violation of the Fourteenth Amendment has occurred.

This is in accordance with the line of cases in our own Second Circuit. In Johnson v. Glick, 481 F.2d 1028 (2d Cir.1973), the court articulated a set of factors to help determine when a substantive constitutional violation has occurred. Referring to the Rochin “conduct that shocks the conscience” test, Judge Friendly noted that, although it is not one that can be applied by a computer, the standard gains added content from other language in the Rochin opinion. The acts must do more than “offend some fastidious squeamishness or private sentimentalism about com-batting crime too energetically”; they must be such as “to offend even hardened sensibilities,” or constitute force that is “brutal” and “offensive to human dignity;” Johnson v. Glick, supra, at 1033 n. 6. Judge Friendly, in words frequently quoted from his opinion, wrote:

Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights. In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Id. at 1033.

The allegations in the case before the court arguably allege facts that shock the conscience. The second count alleges that plaintiff’s decedent, Brian Madden, while in the custody of the Meriden police, was brutally beaten. The beating is characterized as willful, wanton, deliberate, malicious, and without any legal justification. As a result of the beating, Brian Madden suffered the following injuries: a severely fractured skull, a massive and disabling concussion, hematomas and substantial bruising of the brain, severe emotional shock, and great distress, trauma, pain and suffering. Thereafter, according to the first count of the complaint, Brian Madden was placed alone in a jail cell, with deliberate indifference to his medical needs, and with actual knowledge of his psychological problems and previous attempts at self-injury, was allowed to hang himself. The court finds the allegations of the beating and suicide counts to be so closely related in both time and substance as to be a part of the same res gestae. Taking this view, and taking the allegations of the complaint as true, Hughes v. Rowe, supra, the first count of the complaint is sufficient to state a § 1983 claim under the Fourteenth Amendment against both defendant Michelson and defendant Kosienski. The magistrate conceded that a more developed evidentiary record might show that defendants’ actions did not violate Brian Madden’s constitutional rights, see, e.g., State Bank of St. Charles v. Camic, 712 F.2d 1140 (7th Cir.1983), cert. denied, _ U.S. _, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983), but it cannot be said on the very face of the complaint that plaintiff could prove no set of facts that would entitle her to relief against the individual defendants. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102-103, 2 L.Ed.2d 80 (1957).

IV. Municipal Liability for the Suicide

The defendants have also challenged the magistrate’s denial of the City of Meriden’s motion to dismiss the first count with respect to the City. The City asserts that the first count fails to state a claim of municipal liability under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691-92, 98 S.Ct. 2018, 2036-37. The court agrees with the magistrate that the first count successfully alleges a Monell claim.

Although Monell teaches that a municipality cannot be liable for the acts of its agents under a theory of respondeat superior, the municipality may be liable for its own acts or omissions which amount to a “deliberate indifference” to a person’s constitutional rights. See Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979). The first count alleges acts or omissions of sufficient specificity to hold the City liable under § 1983. The City is alleged to have failed to provide training to its police officers to deal with suicidal detainees; that it failed to provide regulations and procedures to assure the safety of detainees with known histories of self-injury; and that it failed to maintain prison monitoring equipment in operating condition. These are all specific and readily verifiable charges which, if true, would allow a finding that the City was grossly negligent or showed a deliberate indifference to the constitutional rights of severely emotionally impaired detainees. The first count therefore successfully states a § 1983 claim against the City of Meriden.

It is also apparent that the reasoning of Parratt v. Taylor does not apply to bar the § 1988 claim against the City. As was noted by Justice Stevens in his concurring opinion in Hudson v. Palmer, _ U.S. at _, n. 4, 104 S.Ct. at 3208, n. 4, Parratt does not apply when established procedures themselves create a substantial risk of a constitutional deprivation. Parratt should be properly limited to those situations in which the deprivation occurs as the result of a random or unauthorized act which precludes the availability of a predeprivation remedy. 451 U.S. at 541, 101 S.Ct. at 1916; Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Holmes v. Ward, 566 F.Supp. 863 (E.D.N.Y.1983). See also Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Furthermore, the complaint against the City of Meriden is directed toward actions taken in its governmental rather than ministerial capacity. The City is immune from suit for its actions in carrying out the ordinary functions of government. Conn.Gen.Stat. § 7-465. Therefore, there is no post-deprivation remedy available against the City in state court. The lack of a post-deprivation remedy makes the reasoning of Parratt inapplicable to the § 1983 claim against the City.

CONCLUSION

For the reasons stated in the magistrate’s ruling, and for the additional reasons set forth above, the magistrate’s ruling is approved, affirmed, and adopted. Defendants’ motion to dismiss is denied as to the complaint’s first count and granted as to the third and fourth counts.

As the court concluded in Augustine v. Doe, 740 F.2d 322, 329 (5th Cir.1984), “Parratt v. Taylor is not a magic wand that can make any § 1983 action resembling a tort suit disappear into thin air. Parratt applies only when the plaintiff alleges a deprivation of procedural due process; it is irrelevant when the plaintiff has alleged some substantive constitutional proscription.”

The defendants’ objection is accordingly overruled and the magistrate’s ruling is adopted.

SO ORDERED.

      . In Meshkov, the plaintiff brought a civil rights action against the defendants for allegedly allowing his son to hang himself in a detention cell. The court held that the complaint failed to allege a cause of action under the due process clause of the Fourteenth Amendment in light of the fact that the complaint alleged only that defendants were negligent. There was no allegation that the police officers’ actions in not monitoring the plaintiff’s son or not being able to revive him after they found him hanging were intentional, that they were deliberately indifferent to the needs of the plaintiff's son, or that there were any policies which were employed or acquiesced in by the defendants which showed a deliberate indifference to the needs of the plaintiffs son, and there was no allegation that the police officers who took the plaintiffs son to jail directly caused the hanging. Id. at 1284-85.

      . In State Bank of St. Charles v. Camic, an administrator brought a § 1983 action on behalf of individual who committed suicide in a city jail. The court granted summary judgment for all the defendants, the City and the individual police officers. This case is distinguishable on the facts from the circumstances which caused the death of Brian Madden. In Camic the defendants had no knowledge that plaintiffs decedent was a suicide risk, and none that he was an unusually high suicide risk. Also defendants in Camic took reasonable precautions to guard against self-infliction of harm by removing dangerous objects from plaintiffs decedent. The Seventh Circuit held in Camic that the existence of a state remedy did not foreclose a § 1983 action alleging a deprivation of a substantive constitutional guarantee.

      . The magistrate also was correct in his ruling that plaintiffs third count failed to adequately allege a § 1983 claim. Unlike the first count, the third count contains vague and conclusory “pattern or course of conduct” language. This claim does not make out a claim similar to the well supported and clearly focused claim of deliberate indifference that was permitted in Owens v. Haas, supra. Rather, the claim is of the unsupported “boilerplate” variety rejected by this court in Smith v. Ambrogio, 456 F.Supp. 1130 (D.Conn.1978).


source: Caselaw Access Project

author: SCHWARZER, District Judge.

license: Public Domain

text:
    Edward M. HALL, Plaintiff, v. Margaret HECKLER, Secretary of Health & Human Services, Defendant.
    No. C-84-2932-WWS.
    United States District Court, N.D. California.
    Feb. 11, 1985.

      Kim Malcheski, San Francisco, Cal., for plaintiff.
    Sandra L. Willis, Asst. U.S. Atty., San Francisco, Cal., for defendant.
   MEMORANDUM OF OPINION AND ORDER

SCHWARZER, District Judge.

INTRODUCTION

This is an appeal pursuant to 42 U.S.C. § 405(g) from a final decision of the Secretary of Health and Human Services denying plaintiff Edward M. Hall disability and supplemental security income (“SSI”) benefits. Plaintiff claims he is disabled by gout, degenerative joint disease, chronic obstructive pulmonary disease and alcoholism. The administrative law judge (“AU”) concluded that plaintiff’s impairments were not severe and denied benefits. This case is before the Court on cross-motions for summary judgment. In the alternative, plaintiff requests remand of the matter to the Secretary.

I. BACKGROUND OF THE CLAIM

Plaintiff filed an application for disability insurance and SSI benefits on June 23, 1982, alleging disability beginning May 1, 1982, due to gout and dizzy spells. Upon the Secretary’s denial of these applications, plaintiff filed a Request for Reconsideration which resulted in denial of benefits on Reconsideration. Plaintiff then requested a hearing before an AU, which was held on July 18, 1983. On December 29, 1983, the AU who conducted the hearing issued a decision finding that plaintiff did not have impairments sufficiently, “severe” to be considered disabling under the Act and regulations. Plaintiff filed a Request for Review by the Social Security Appeals Council on February 22, 1984. The Appeals Council denied review on April 15, 1984. The decision of the AU denying disability and SSI benefits thus became the final decision of the Secretary. Plaintiff commenced this action for review of the Secretary’s decision pursuant to 42 U.S.C. § 405(g) on August 20, 1984.

II. EVIDENCE PRESENTED TO THE AU

The AU reviewed medical reports from three doctors. Dr. Bruce Thompson treated plaintiff from approximately May, 1982, to February, 1983. Dr. Marvin Grieff examined plaintiff at the government’s request on August 11, 1982. Dr. W.L. Bentley treated plaintiff most recently, having first examined plaintiff in approximately February, 1983.

Plaintiff was 58 years old at the time of the hearing and has a high school education. He has worked at various times as a welder, maintenance mechanic and machinist rigger. His most recent job was as a forklift operator on a seasonal basis with a cannery. The last season in which he worked ended in September, 1981. At that time, plaintiff complained of gout, back pain, dizziness and shortness of breath.

Dr. Bruce Thompson diagnosed plaintiff as having chronic obstructive pulmonary disease, gout, rectal diverticulosis, ethanolosis, chronic bronchitis and degenerative joint disease with post trauma arthalgia in the left elbow. On June 2, 1982, an ECG was interpreted as “probably normal”; a chest x-ray revealed no acute cardiopulmonary disease or secondary signs to suggest chronic obstructive pulmonary disease, and a barium enema on June 7, 1982, revealed diverticulosis coli. Examination findings on December 15, 1982, showed mild tenderness over the left elbow extending from the elbow into the forearm. Dr. Thompson also noted a slight decrease in range of motion in the metacarpal joints of both hands. Cardiopulmonary examination was within normal limits. A chest examination showed no indication of acute pathology. Percussion was within normal limits and equal bilaterally, and no acute changes in the chest were distinguished. Balance, gait and coordination were within normal limits. Dr. Thompson also stated that plaintiff had been repeatedly advised on withdrawal from alcohol.

A consultative internal medical examination was performed on August 11, 1982, by a Board-certified internist, Dr. Marvin Grieff. The report showed that plaintiff described dyspnea on exertion with episodes of wheezing almost every day. Plaintiff smoked two packs of cigarettes per day. He stated that he could walk two blocks and climb a flight of stairs before experiencing shortness of breath. He had no orthopnea, paroxysmal nocturnal dypsnea or peripheral edema. Dr. Grieff reported that physical findings indicated no significant abnormalities except for some rhonehi bilaterally. Plaintiff had an onset of intermittent swelling, pain and redness of the joints of the knees, feet and hands in 1975. He has been maintained on medication for gout with flare-ups of gout noted approximately every two months, lasting several days at a time. Dr. Grieff described deformity of the thumbs, particularly at the interphalangeal joints and greater on the left, and with great toes, greater on the right. Plaintiff was able to make a fist, had near normal grip strength, and was able to approximate the thumb to various digits. While plaintiff complained of low back pain on the left without radiation approximately once a month with bending and lifting activities, the physical examination did not define any limitation of motion, malalignment, spasm or neurological deficits. Plaintiff’s untreated blood pressure was 150/102, and Dr. Grieff stated that there had been no end organ complications or catastrophic vascular occlusive episodes. The pulmonary function study indicated a moderate obstructive abnormality; however, the post-bronchodilator study, with optimal performance by the patient, showed only a mild obstructive abnormality.

Plaintiff was followed by Dr. W.L. Bentley for chronic obstructive pulmonary disease, gout, alcoholism and degenerative joint disease. On July 13, 1983, Dr. Bentley completed a Functional Capacities Evaluation form indicating plaintiff would be capable of light and sedentary work as defined at 20 C.F.R. § 404.1567(b). Although there is no laboratory or clinical evidence in the record accounting for such restrictions, Dr. Bentley reported that plaintiff was limited to six hours of sitting, three hours of standing, and four hours of walking per day. Plaintiff could frequently bend and occasionally squat, crawl, climb, and reach above the shoulder. Dr. Bentley believed plaintiff could lift up to 20 pounds. He was restricted from moving machinery, heights, noise, and dusts.

Plaintiff testified that he finished high school and worked as a fork lift operator until 1981. At that time he was laid off from his seasonal work, but simultaneously developed problems lifting and experienced back pain and breathing problems. He thought he could lift 10-15 pounds, walk four blocks and sit and stand for about one hour before experiencing pain. Plaintiff stated that he took aspirin twice a day at one point for his back pain and said he later also took codeine. He testified to problems with gout and swelling twice a week and exhibited definite swelling and joint deformity of the large toé of the right foot at the hearing. He had not been hospitalized in the past year. He stated that while he drank quite a bit in the past, he had cut back because of admonitions from his doctor and now drank approximately one pint every few days for relaxation and to take away pain. He denied drinking as much as the doctors indicated. He testified that he was able to do his own laundry and shopping and came to the hearing on the bus. He told the AU that he had a few friends and left the house almost every day. He used a cane occasionally. He does not use a back brace.

III. THE AU’S DECISION

The AU found that the plaintiff did not have any impairments which significantly limit his ability to perform basic work-related functions. Therefore, he concluded that plaintiff does not have a “severe” impairment under 20 C.F.R. §§ 404.1520(c) and § 416.920(e).

IV. EVALUATION OF THE AU’S DECISION

Plaintiff asserts that the Secretary’s decision should be reversed, or, in the alternative, remanded. First, plaintiff challenges the validity of the regulations upon which the AU relied in denying disability and SSI benefits to plaintiff. Alternatively, plaintiff argues that even if the regulation is construed as valid, it was nevertheless invalid as applied by the Secretary. Second, plaintiff argues that Social Security Ruling 82-55, referred to by the AU, is void under the Administrative Procedures Act, the Freedom of Information Act, and the Fifth Amendment. Third, plaintiff argues that the Secretary’s decision is not supported by substantial evidence. He contends that the AU erred in rejecting the opinion of Dr. Bentley and failing to consider plaintiff’s subjective complaints of pain.

A. Validity of the Severity Regulation

The Secretary, in denying plaintiff’s claim, found that he did not have a “severe” impairment within the meaning of Agency regulations, 20 C.F.R. §§ 404.-1520(c) (disability claims) and 416.921(c) (SSI claims). Plaintiff contends that these regulations are inconsistent with the Social Security Act in permitting the Secretary to deny disability benefits on the basis of medical evidence alone without considering vocational factors of age, education and work experience.

1.

Under 42 U.S.C. § 423(d)(1)(A) and 1382e(a)(3)(A), an individual shall be considered disabled if he is unable

to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

A physical or mental impairment is defined in 42 U.S.C. § 423(d)(3) and 1382c(a)(3)(C):

[A] “physical or mental impairment” is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

In 1967, the Social Security Act was amended to add the following language for purposes of applying the definition of disability:

[A]n individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B)

The Secretary is authorized to establish rules and regulations, consistent with the Act, governing the determination of disability claims. Pursuant to this authority, the Secretary established a five-step procedure for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520 and 416.-920. The steps were summarized in Goodermote v. Secretary of Health, Education and Welfare, 690 F.2d 5, 6-7 (1st Cir.1982) as follows:

First, is the claimant currently employed? If he is, the claimant is automatically considered not disabled.
Second, does the claimant have a sevére impairment? A severe impairment means an impairment which “significantly limits his or her physical or mental capacity to perform basic work-related functions.” If a claimant does not have an impairment of at least this degree of severity, the claimant is automatically considered not disabled.
Third, does the claimant have an impairment equivalent to a specific list of impairments contained in the regulations’ Appendix 1? If the claimant has an impairment of so serious a degree of severity, the claimant is automatically found disabled.
These first three tests are “threshold” tests____ If, however, his ability to perform work-related functions is impaired significantly (test 2) but there is no “Appendix 1” impairment (test 3), the SSA goes on to ask the fourth question:
Fourth, does the claimant’s impairment prevent him from performing work of the sort he has done in the past? If not, he is not disabled. If so, the agency asks the fifth question.
Fifth, does the claimant’s impairment prevent him from performing other work of the sort found in the economy? If so, he is disabled; if not, he is not disabled. See, also, Chico v. Schweiker, 710 F.2d 947, 951 (2d Cir.1983).

In this case, the AU determined at ■ the second step that plaintiff did not have a “severe” impairment on the relevant date and was therefore not entitled to disability or SSI benefits.

The second step is based on the “severity” regulation which determines whether a claimant’s impairment is sufficiently severe to allow consideration of the next steps of the procedure. This regulation provides:

(c). You must have a severe impairment. If you do not have any impairments) which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education and work experience ____
20 C.F.R. §§ 404.1520(c), 416.920(c).

“Basic work activities” are defined as including the ability to walk, stand, sit, lift, push, pull, reach, carry, handle, see, hear, speak, understand simple instruction, remember simple instruction, and to use judgment. 20 C.F.R. §§ 404.1521(b) and 416.921(b). Plaintiff attacks the regulation on the ground that it allows the Secretary to consider the “severity” of an impairment without considering the vocational prospects of the individual, contending that this is inconsistent with the statute.

Plaintiff’s argument reflects a misreading of the statutory provisions. The basic statutory definition of disability speaks of “an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted and can be expected to last for a continuous period of not less than 12 months.” (emphasis added.) 42 U.S.C. 423(d)(1)(A). It makes no reference to vocational factors.

As pointed out above, in 1967, the statutory definition was amended by adding language providing that an individual would be considered under a disability:

only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) and 1382c(a)(3)(B).

The legislative history accompanying the amendment establishes that Congress intended to restrict eligibility for disability benefits. The report of the Senate Committee on Finance discussed the erosion of the disability definition in 42 U.S.C. § 423(d)(1)(A) and the resulting increase in the number of persons considered disabled within that definition. S.Rep. No. 744, 90th Cong., 1st Sess. (1967) reprinted in 1967 U.S.Code Cong. & Ad.News, 2834, 2880. That erosion was due to a variety of factors including greater awareness of the availability of disability benefits, improved methods of developing evidence of disability, more effective ways of assessing the total impact of an individual’s impairment on his ability to work, and, significantly, judicial interpretations of the definition which enlarged its scope beyond what Congress originally had intended. Id. at 2880-2882.

To remedy the situation, the definition of disability was revised “to provide guidelines to re-emphasize the predominant importance of medical factors in the disability determination.” Id. at 2882. The Committee report stated:

The original provision was designed to provide disability insurance benefits to workers who are so severely disabled that they are unable to engage in any substantial gainful activity. The bill would provide that such an individual would be disabled only if it is shorn that he has a severe medically determinable physical or mental impairment or impairments; that if, despite his impairment or impairments, an individual still can do his previous work, he is not under a disability; and that if, considering the severity of his impairment together with his age, education, and experience, he has the ability to engage in some other type of substantial gainful work that exists in the national economy even though he can no longer do his previous work, he also is not under a disability____
Id. (Emphasis added)

Reflecting Congress’s intent to limit the number of persons eligible for benefits, the statute establishes three levels of eligibility that each claimant must meet: first, a claimant must have a severe physical or mental impairment; second, a claimant must be unable to return to his prior employment; and third, the claimant’s impairment must prevent him, considering his age, education and work experience, from performing any other substantial gainful work existing in the national economy.

The regulations at 20 C.F.R. §§ 404.1520 and 416.920, implement the statutory scheme. Sections 404.1520(c), (d) and 416.-920(c), (d) establish a threshold test for disability determinations that focuses on medically determinable impairments. Sections 404.1520(e), (f) and 416.920(e), (f) reflect the statute’s intent that the severe impairment be of such a degree that the claimant cannot perform past work or, in light of vocational factors, any other work in the national economy.

The interpretation of the statute as requiring a threshold severity test is confirmed by the Act’s most recent legislative history. The 1984 Social Security Disability Benefits Reform Act, Pub.L. No. 98-460, 98 Stat. 1794 (1984), provides, in part, that the Secretary must consider the combined effect of all of an individual’s impairments in determining disability. The Senate Finance Committee Report explained the purpose of the 1984 amendment as follows:

In adopting this amendment, the Committee wishes to emphasize that the new .rule is to be applied in accordance with the existing sequential evaluation process and is not to be interpreted as authorizing a departure from that process. As the Committee stated in its report on the 1967 amendments, an individual is to be considered eligible “only if it is shown that he has a severe medically determinable physical or mental impairment or impairments.” The amendment requires the Secretary to determine first, on a strictly medical basis and without regard to vocational factors, whether the individual’s impairments, considered in combination, are medically severe. If they are not, the claim must be disallowed. (emphasis added.)
S.Rep. No. 466, 98th Cong., 2d Sess. 22 (1984).

The House Ways and Means Committee, considering the same amendment, stated:

The committee believes that in the interests of reasonable administrative flexibility and efficiency, a determination that a person is not disabled may be based on a judgment that the person has no impairment, or that the impairment or combination of impairments are slight enough to warrant a presumption that the person’s work ability is not seriously affected. The current “sequential evaluation process” allows such a determination, and the committee does not wish to eliminate or seriously impair use of that process.
H.R.Rep. No. 432, 98th Cong., 2d Sess. 43 (1984).

And when the amendment went to conference, the report of the conferees again approved the sequential evaluation process, including use of the severity regulation, as follows:

The conferees also believe that in the interests of reasonable administrative flexibility and efficiency, a determination that an individual is not disabled may be based on a judgment that an individual has no impairment, or that the medical severity of his impairment or combination of impairments is slight enough to warrant a presumption, even without a full evaluation of vocational factors, that the individual’s ability to perform [substantial gainful activity] is not seriously affected. The current “sequential evaluation process” allows such a determination and the conferees do not intend to either eliminate or impair the use of that process.
H.Conf.Rep. No. 98-1039, 98th Cong., 2d Sess. 30 (1984), U.S.Code Cong. & Admin. News 1984, 3038, 3088.

Thus the statutory language, particularly when read in the light of its history, plainly establishes the validity of the severity regulation.

2.

The Court is aware that a number of district courts have recently issued decisions finding the severity regulation to be invalid under the statute. For the most part those decisions ignore the legislative history previously discussed. And none address the key to the proper interpretation of the statute, i.e. that the reference to vocational factors occurs not in § 423(d)(1)(A) which contains the definition of disability but in the 1967 amendment § 423(d)(2)(A) which limits eligibility. The statute does not require vocational factors to be considered in determining whether a person has a medically determinable impairment which renders him unable to engage in any substantial gainful work. These factors become relevant only under subsection (2)(A) which provides, in effect, that even if a person meets the standard of subsection (1)(A), he may be considered disabled only if his impairment is so severe that considering his age, education and work experience he cannot engage in any substantial gainful work. The plain and unambiguous import of that language is to preclude a disability determination in the case of a person who, though otherwise disabled, may, because of the favorable impact of vocational factors such as age, education or work experience, nevertheless be able to engage in some gainful employment. An automobile mechanic, for example, although disabled from performing his customary work, will not be eligible if, by reason of age, education and work experience, he has the ability, say, to do bookkeeping. Under the statute, therefore, the Secretary is required to consider vocational factors only against a claim, not in support of it. Cf. Johnson v. Heckler, 593 F.Supp. 375, 379 (N.D.Ill.E.D.1984).

With due respect, the Court finds itself unable to follow the decision of the Eastern District of California in Smith v. Heckler, 595 F.Supp. 1178 (1984). In this Court’s view, Smith and the decisions it relies on misread the statute by finding in it a requirement (nowhere stated) that the Secretary must consider vocational factors in determining whether a disability exists.

Specifically Smith held, following Hundrieser v. Heckler, 582 F.Supp. 1231, 1237 (N.D.Ill.1984), that “[n]othing in this basic statutory definition of disability suggests that claimants have to prove that they suffer from a ‘severe’ impairment in order to qualify as disabled.” Yet, that is precisely the purpose and effect of the 1967 amendment in subsection (2)(A). That it means what it says is confirmed by the legislative history previously quoted.

Smith also relied on decisions in this and other circuits that a claimant establishes a prima facie case of disability by showing a physical or mental impairment that prevents past relevant work. It reasons that application of the severity regulation may deny a claimant the opportunity to make a prima facie case based on inability to do past work. The burden shifting rule applied in those decisions does not, however, address the question of the Secretary’s statutory authority to impose a threshold severity test, nor could it inhibit the exercise of that authority to the extent the statute confers it. See also, Anderson v. Schweiker, 651 F.2d 306, 309 (5th Cir.1981), recognizing that the severity test is not inconsistent with the burden shifting rule:

The claimant bears the burden of proving a severe impairment that makes him unable to pursue his customary employment. Once he does so, however, the burden shifts to the Secretary to prove that the claimant can perform another type of substantial gainful employment.

A variation of the reasoning in Smith is found in Johnson v. Heckler, supra, where the court held that by substituting “basic work activities” in the second step for “previous work,” the severity regulation imposes a burden of proof in excess of that provided for by the statute which, according to the court, provides that a claimant to make a prima facie case need only show that an impairment prevents him from doing his previous work. Id., 593 F.Supp. at 380. This Court finds nothing in the statute defining a prima facie case. Subsection (2)(A) simply states that disability shall be determined only if the impairment is so severe that the claimant “is not only unable to do his previous work but cannot ... engage in any other substantial gainful work...” It is difficult to see how Congress could have been more explicit in requiring a finding of inability to engage in work activities generally, not only previous work.

In Dixon v. Heckler, 589 F.Supp. 1494 (S.D.N.Y.1984), the court, in holding the severity regulation invalid, relied on the difference between the relevant statutory definitions of disability for widows and widowers and that for workers. The provision applicable to widows and widowers is found in § 423(d)(2)(B), immediately following that applicable to workers quoted at p. 1173, supra. It bars a finding of disability “unless ... [the] physical ... impairments are of a level of severity ... deemed to be sufficient to preclude ... any gainful activity.” The court reasoned that Congress’ omission of the vocational factors in this subsection (B) supports the argument that vocational factors were to be taken into account in evaluating workers under subsection (A).

One likely explanation for the omission of vocational factors in subsection (B) is that it applies principally to widows many of whom (at least in the perception of Congress) would have no vocational history. As a class they are distinguishable from insured workers in that respect.

In any event, the omission of the vocational factors does not support the argument for invalidity if, as previously discussed, the effect of that language in subsection (2)(A) is to tighten, rather than to ease, the test for eligibility.

Some courts have dealt with the severity regulation by construing it narrowly, permitting it only to have a de minimus effect. See Brady v. Heckler, 724 F.2d 914 (11th Cir.1984); McCullough v. Heckler, 583 F.Supp. 934 (N.D.Ill.1984); Hundrieser v. Heckler, 582 F.Supp. 1231 (N.D.Ill.1984). Plaintiff also makes this argument, contending that even if the regulation is valid, it should be applied so as to exclude only “slight impairments” from further consideration. In Brady v. Heckler, the court determined that an impairment can be considered non-severe only if it has such a minimal effect on the claimant that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education, or work experience. 724 F.2d at 920. Such an interpretation is contrary to the plain language of the regulation. (See pp. 1173-1174, supra) The regulation does not describe non-severe impairments in terms of de minimus effect.

The regulation does not define the term “significant.” Several courts have given it its commonly accepted meanings, among which are, according to Webster’s Dictionary (2d. International Unabridged Ed.1948), “having a meaning” and “deserving to be considered.” See Trafton v. Heckler, 575 F.Supp. 742, 743, 745 (D.Maine 1983); Moore v. Heckler, 575 F.Supp. 180, 184 (D.Maine 1983); Jones v. Schweiker, 551 F.Supp. 205, 208 (D.Md.1982). It does not follow, as some courts have argued, that an impairment which does not significantly limit physical or mental ability to perform basic work activities is necessarily one which has only a minimal effect on ability. By focusing on the opposite ends of the spectrum, those courts have ignored the range of impairments falling into the range between severe and de minimus.

Moreover, such an interpretation conflicts with Social Security Ruling 82-55 which provides directions to Agency personnel for the application of the severity regulation. That ruling contains a list of 20 impairments that serve to illustrate the level of severity intended by the statute and regulations. The listed impairments for the most part are not of a de minimus nature.

3.

Congress granted broad authority to the Secretary to adopt regulations to carry out the provisions of the Social Security Act. Section 405(a) provides:

The Secretary shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder. the Court attributed a greater significance to the Secretary’s regulation:

The manner in which a court should approach the determination of the validity of regulations adopted pursuant to the authority contained in the Social Security Act was considered and discussed by the Eighth Circuit in McCoy v. Schweiker, 683 F.2d 1138, 1144-45 (8th Cir.1982) (en banc) which involved the validity of the Secretary’s Guidelines for disability determination. The reasoning of that opinion is squarely applicable here:

In Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977), the Supreme Court had before it the question of the validity of a regulation prescribing precise numerical standards for determining when the father of a needy child is unemployed. Eligibility for benefits payable to dependent children under Title IV of the Social Security Act, 42 U.S.C. §§ 601 et seq., turned on this definition. The statute, 42 U.S.C. § 607(a), said that whether a father is unemployed (that is, how much he is working) should be “determined in accordance with standards prescribed by the Secretary.” In the course of an opinion upholding the challenged regulation, the Supreme Court noted first that “[o]rdinarily, administrative interpretations of statutory terms are given important but not controlling significance.” 432 U.S. at 424, 97 S.Ct. at 2405. In the case before it, however,
"... Congress in § 407(a) expressly delegated to the Secretary the power to prescribe standards for determining what constitutes ‘unemployment’ for purposes of AFDC-UF eligibility. In a situation of this kind, Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term. In exercising that responsibility, the Secretary adopts regulations with legislative effect. A reviewing court is not free to set aside those regulations simply because it would have interpreted the statute in a different manner.
The regulation at issue in this case is therefore entitled to more than mere deference or weight. It can be set aside only if the Secretary exceeded his statutory authority or if the regulation is ‘arbitrary, capricious,' an abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. §§ 706(2)(A), (C).”
432 U.S; at 425-26, 97 S.Ct. at 2405-06 (footnotes and citation omitted).

To the same effect are Herweg v. Ray, 455 U.S. 265, 272, 102 S.Ct. 1059, 1065, 71 L.Ed.2d 137 (1982), and Schweiker v. Gray Panthers, 453 U.S. 34, 44, 101 S.Ct. 2633, 2640, 69 L.Ed.2d 460 (1981). In the course of an opinion upholding a regulation of the Secretary under Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seq. (Medicaid), the Court said in Herweg, 455 U.S. at 274, 102 S.Ct. at 1066:

“In view of Congress’ explicit delegation of authority to give substance to the meaning of ‘available’ [the statutory term in question], the Secretary’s definition of the term is ‘entitled to more than mere deference or weight.’ Schweiker v. Gray Panthers, supra, [453 U.S.] at [44, 101 S.Ct. at 2640,] quoting Batterton v. Francis, 432 U.S. 416, 426 [97 S.Ct. at 2406] (1977). Because Congress has entrusted the primary responsibility of interpreting a statutory term to the Secretary rather than to the courts, his definition is entitled to ‘legislative effect’ Schweiker v. Gray Panthers, supra
The Supreme Court has thus admonished us in strong terms that in the case of legislative, substantive regulations promulgated with express congressional authority, the Secretary of Health and Human Services, not the courts, is the primary interpreter of the statute. The language of 42 U.S.C. § 405(a), the statute invoked to authorize the Guidelines in question here, is different from that of the authorizing statutes in Herweg, Gray Panthers, and Batterton, but it is hardly less emphatic in the power delegated to the Secretary. We therefore approach our task mindful that those attacking the Guidelines must make a strong case of inconsistency with the statute if they are to succeed, (emphasis added)

Plaintiff has failed to make a case of inconsistency with the statute, let alone a strong case.

B. SSR 82-55

The Social Security Administration promulgated Social Security Ruling (SSR) 82-55 “to enunciate the policy regarding non-severe impairments and to provide examples of impairments that are not severe.” In this case, the AU relied on an- example in SSR 82-55 to determine that plaintiff’s impairment of degenerative joint disease is not severe. Specifically, the Ruling states that “[o]steoarthritis corroborated by x-ray findings, with symptoms of pain and stiffness of lumbar or cervical spine or major joints, and minimal abnormal findings on physical examination” is not severe. The AU concluded that in plaintiff’s case, “the medical evidence is not even as strong as the example provided.”

Plaintiff challenges the AU’s use of SSR 82-55 on the ground that the ruling is a substantive ruling promulgated in violation of the Administrative Procedures Act, the Freedom of Information Act and the Fifth Amendment.

1. Administrative Procedures Act

Plaintiff argues that SSR 82-55 is a substantive rule which was not promulgated in accordance with the public notice and hearing requirements of § 553(b) of the Administrative Procedures Act (“APA”). The Secretary argues that SSR 82-55 is an interpretive, not a substantive rule, and is therefore exempt from the public notice provisions of the APA. Section 553(b) of the APA provides:

Except when notice or hearing is required by statute, this subsection does not apply — (A) to interpretive rules, general statements of policy, or rules of agency organization, practice or procedure____

The distinction between interpretive rules and substantive rules is marked by a bright line. It was described in Gibson Wine Co. v. Snyder, 194 F.2d 329, 331-32 (D.C.Cir.1952) as follows:

[S]ubstantive rules or legislative rules are those which create law ..., whereas interpretive rules are statements as to what the administrative officer thinks the regulation means.

In this case, the Court is of the view that the law was “created” by the severity regulation. SSR 82-55 merely states what the Secretary thinks it means in the form of guidelines; it does not add anything to the underlying regulation. It may be true that the enumeration of specific examples of non-severe impairments enhances the impact or effectiveness of the severity regulation but that is not a factor which bears on whether or not it is interpretative. Rivera v. Becerra, 714 F.2d 887, 890 (9th Cir.1983).

Plaintiffs reliance on Herron v. Heckler, 576 F.Supp. 218 (N.D.Ca.1983), is misplaced. In that case, limitations on eligibility for Supplemental Security Income contained in the Social Security Administration claims manual were held to be substantive rather than interpretive. The court reasoned that those limitations “do not simply set forth the Secretary’s opinion as to what the governing statute and regulations ‘mean’; they create precise, objective limitations where none existed before. The claims manual provisions contain language not found in the governing statute and regulations____” Id. at 231.

2. Freedom of Information Act

Plaintiff argues that the Secretary’s failure to publish SSR 82-55 in the Federal Register violates § 552(a)(1)(D) of the Freedom of Information Act (“FOIA”) which provides:

Each agency shall separately state and currently publish in the Federal Register ... substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency____

For the reasons previously stated, SSR 82-55 must be considered to be an interpretive rule, not a substantive rule. The Ninth Circuit held in Anderson v. Butz, 550 F.2d 459, 463 (9th Cir.1977), that an agency is not required to publish any administrative directive which is “only a clarification or explanation of existing law or regulations.” 5 U.S.C. § 552(a)(2) requires availability for public inspection or publication and sale of “those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register....” SSR 82-55 was published and is for sale to the public.

3. Fifth Amendment

Finally, plaintiff argues that the Secretary’s failure to comply with the APA in promulgating SSR 82-55 and the AU’s reliance upon such a ruling violatés his Fifth Amendment right to due process. As discussed above, the interpretative nature of SSR 82-55 renders it exempt from the hearing and notice requirements of the APA.

C. Substantial Evidence

Plaintiff claims that there is not substantial evidence to support the AU’s finding that plaintiff’s impairments were not severe. Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lewin v. Schweiker, 654 F.2d 631, 633 (9th Cir.1981), quoting Cox v. Califano, 587 F.2d 988, 989-990 (9th Cir.1978). The AU may draw inferences logically flowing from the evidence and need not substitute the judgment of any expert witness for his own. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). In determining whether there is substantial evidence to support the AU’s findings, the court must look to the record as a whole, Cox v. Califano, 587 F.2d at 990, but resolution of factual conflict and the drawing of all reasonable inferences is the responsibility of the ALJ, and not the court. Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir.1971).

As discussed in Section IV A, supra at p. 1173, 20 C.F.R. §§ 404.1520 and 416.920 require the AU to consider a disability claim in the five step sequence outlined in the regulations. In this case, the AU arrived at step 2 and found that plaintiff did not have a severe impairment, and thus was not disabled. The AU terminated further consideration of the claim.

A non-severe impairment is defined in §§ 404.1521(a) and 416.916(a) as an impairment which “does not significantly limit ... physical or mental abilities to do basic work activities.” Basic work activities are defined in §§ 404.1521(b) and 416.920(b) as “abilities and aptitudes necessary to do most jobs,” and include the ability to walk, stand, sit, lift, push, pull, reach, carry, handle, see, hear, speak, understand simple instruction, remember simple instruction, and to use judgment. Id.

Plaintiff argues that his impairments significantly limit his ability to perform basic work activities. He contends that he is unable to walk or climb stairs without shortness of breath. He is limited in his ability to stand for a significant length of time because of his gout and arthritis. These impairments also significantly restrict his capacity to perform all but the most basic hand movements. Plaintiff asserts that his physical capacities are further limited by his back pain, hypertension, alcoholism and chronic bronchitis.

A review of the record demonstrates that there was substantial evidence to support the ALJ’s finding of nondisability. None of the medical evidence indicates that plaintiff would be unable to perform basic work activities. While disagreeing with his conclusion, the ALJ noted that Dr. Bentley, the only physician to render an opinion on plaintiff’s work ability, reported that plaintiff is capable of performing light and sedentary work which might involve frequent lifting of objects up to 10 pounds or less and occasional lifting of objects up to 20 pounds. The AU, drawing inferences from the other medical evidence presented and from the record as a whole, concluded that plaintiffs work activities are not so restricted.

Dr. Grieff noted that plaintiff had his first onset of intermittent swelling and pain of the joints of the knees, feet and hands in 1975, with flare-ups of gout noted approximately every two months, lasting several days at a time. The doctor reported that plaintiff’s condition is controlled with medication. The record indicated that plaintiff worked in jobs such as a forklift operator and machinist rigger between 1975 and 1981 while suffering from this condition. He stopped working in 1981 because he was laid off at the end of the season, not because of an incident of gout. Dr. Bentley opined that plaintiff is only occasionally limited in fine manipulation, grasping, pushing, pulling and the operating of foot controls. Dr. Grieff noted further that “while the claimant complained of low back pain on the left without radiation, approximately once a month with bending and lifting activities, the physical examination did not define any limitation of motion, malalignment, spasm or neurological deficits.” Dr. Grieff reported that plaintiff has a normal range of motion without apparent pain and has straight leg raising to 90 degrees without distress. Dr. Bentley reported that plaintiff can bend frequently. Dr. Thompson determined that plaintiff’s balance, gait and coordination were within normal limits.

Regarding the deformity in plaintiffs thumbs, the AU noted that plaintiff has near normal grip strength and there is no evidence to indicate that he could not use his hands to work. The pulmonary function report revealed only moderate abnormalities. Plaintiff is presently receiving no medication for hypertension and there is no end organ damage. Plaintiff himself disputed the doctors’ finding of excessive alcohol consumption.

Plaintiff argues that the AU erred in summarily rejecting Dr. Bentley’s opinion that plaintiff is capable only of sedentary work. The AU stated that “while Dr. Bentley indicates that claimant would be limited to sedentary work, it does not appear that there are sufficient objective signs and findings to support this conclusion.” Plaintiff contends that the opinion of Dr. Bentley was supported by substantial evidence. As stated previously, the opinion of Dr. Bentley is not inconsistent with the AU’s finding of nondisability. Moreover, the AU was within his perogative when he decided, based upon the entire record and upon his observations, to reject the opinion of Dr. Bentley. Sample v. Schweiker, 694 F.2d at 643. Contrary to plaintiff’s assertion, the AU did not “summarily” reject the opinion; he stated his reasons for doing so and discussed the countervailing evidence. In rendering his decision, it is the AU’s function to resolve any conflicts created by the evidence. Richardson v. Perales, 402 U.S. 389, 399, 91 S.Ct. 1420, 1426, 28 L.Ed.2d 842 (1971); Booz v. Secretary of Health and Human Services, 734 F.2d 1378 (9th Cir.1984). Moreover, the opinion of Dr. Bentley was conclusory, supported by no objective data. Dr. Grieff, on the other hand, examined plaintiff and provided a detailed report of his clinical and laboratory findings. He conducted a pulmonary function study and x-rayed plaintiff’s thumbs. The reports of Dr. Thompson, a treating physician, are equally detailed and accompanied by results of laboratory tests and special studies.

Plaintiff also argues that the AU failed to consider the plaintiff’s subjective complaints of pain resulting from his gout and arthritis. This assertion is not supported by the record. The AU referred to plaintiff’s testimony that he can walk four blocks and sit for about an hour before experiencing pain. He noted that plaintiff complained of gout and swelling twice a week and exhibited swelling of the right foot at the hearing. The AU also noted that plaintiff receives medication for this condition and is not inhibited in his activities. Plaintiff does his own laundry and shopping and leaves the house almost every day. It is for the AU to determine whether the subjective experience of pain is disabling, in light of all medical, personal and behavioral evidence. Laffoon v. Califano, 558 F.2d 253, 255 (5th Cir.1977). Here, the ALJ evaluated plaintiff’s complaints of pain with due regard for credibility and the medical evidence of impairment. There is no basis in this record for the Court to set aside the ALJ’s conclusion that plaintiff’s pain is not so severe that he is unable to work.

VI. DISPOSITION

The Secretary’s conclusion that plaintiff is not disabled is supported by substantial evidence. Accordingly, defendant’s motion for summary judgment is granted, and plaintiff’s motion is denied.

IT IS SO ORDERED.

      . The concept of "disability" was added by a 1954 amendment to the Act preserving the insurance rights of individuals totally disabled prior to retirement. Disability was defined in pertinent part as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be long-continued and indefinite duration.” P.L. 761 § 106(d), 68 Stat. 1052, 1080. Two years later Congress enacted disability insurance coverage, incorporating the 1954 definition of disability. P.L. 84-880 § 103(a), 70 Stat. 807, 815. In 1965 the duration requirement was liberalized, but the language defining the nature of the impairment has never been changed. The Senate Finance Committee, in its discussion of the 1967 amendments, stated “The original provision § 42 U.S.C. § 423(d)(1)(A) was designed to provide disability insurance benefits to workers who are so severely disabled that they are unable to engage in any substantial activity.” (emphasis added.) S.Rep. No. 744, 90th Cong., 1st Sess. (1967) reprinted in 1967 U.S.Code Cong. & Ad.News, 2834, 2882.

      . No court of appeals has yet addressed the issue. Delgado v. Heckler, 722 F.2d 570, 574 (9th Cir.1983), merely contains a passing comment without analysis or discussion that the invalidity argument presents a "very troublesome contention.” In Chico v. Schweiker, 710 F.2d 947, 953 (2d Cir.1983), the court characterized the matter as "a close question” but did not resolve it. However, in Wallschlaeger v. Schweiker, 705 F.2d 191 (7th Cir.1983), the court of appeals discussed and upheld the application of the severity regulation to the claim before it without raising any question as to its validity. See also Goodermote v. Secretary, 690 F.2d 5, 7 (1st Cir.1982).

      . Thus if the statute read that a person may be considered disabled “only if his ... impairments aré so severe that he can engage in no substantial gainful work,” the Secretary arguably would be precluded from considering vocational factors, such as training and experience, in determining that a person disabled from doing certain types of work is nevertheless capable of doing other work. The inclusion of the reference to these factors in the 1967 amendment therefore tends to narrow rather than enlarge eligibility by enlarging, rather than restricting, the Secretary’s discretion. That is the interpretation the Senate Committee gave the language in 1967. (See excerpt quoted at p. 1175, supra )


author: CAFFREY, Chief Judge.

text:
    Ernest J. FORAND, Jr., Plaintiff, v. William O’BRIEN, Jr., et al, Defendants.
    Civ. A. No. 84-994-C.
    United States District Court, D. Massachusetts.
    Feb. 12, 1985.

      Stephen E. Sehoepfer, Boston, Mass., for plaintiff.
    Edward P. Reardon, Reardon & Reardon, Worcester, Mass., for defendant W.H. O’Brien, Jr.
    Orlando F. de Abreu, City Sol., Taunton, Mass., for defendants Renaud and City of Taunton.
    Talbot T. Tweedy, Taunton, Mass., for defendant Roger J. Renaud, Jr.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a civil action brought by the administrator of the estate of Ernest J. Forand, Jr., pursuant to 42 U.S.C. § 1983. The defendants are William H. O’Brien (“O’Brien”), a Taunton Police Officer, Roger J. Renaud, Jr. (“Renaud”), Taunton Chief of Police, and the City of Taunton (“City”). The plaintiff alleges, inter alia, that Ernest J. Forand, Jr. was shot and killed by Officer O’Brien, thereby depriving him of rights protected by the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the Constitution. Plaintiff further alleges that Renaud and the City are liable under § 1983 by reason of their recklessness and gross negligence in failing to provide adequate training to police officers under their control and supervision, and their adoption of an “official policy or custom of condoning and acquiescing in acts of unlawful violence ... depriving citizens of their constitutional rights____” The complaint also sets forth pendent state law tort claims against the three defendants. The matter is now before the Court on defendants’ motions for summary judgment.

The facts set forth in the complaint are as follows. Officer O’Brien, on duty as a Taunton Police Officer was summoned by radio to the Taunton Eagles Soccer club (“Soccer Club”) at approximately 2:24 a.m. on the morning of August 18, 1982. Upon arrival at the Soccer Club, O’Brien was directed to the rear of the Soccer Club by another Police Officer. O’Brien illuminated the rear door of the Soccer Club with his flashlight, drew his revolver, saw Forand and then deliberately shot him. The bullet struck Forand in the front of his neck, pierced his right lung, and exited from his back, causing fatal injuries.

In support of his motion, defendant O’Brien has submitted an affidavit which relates the facts somewhat differently than plaintiff’s version. O’Brien states that he was notified of a breaking and entering in progress at the Soccer Club, and that he immediately proceeded to that location. Upon arrival Officer Curran told him to watch the rear of the Soccer Club because Curran believed that suspects were still inside the building. While in position at the rear of the Soccer Club, O’Brien heard the sound of a door opening. He illuminated the doorway with his flashlight and observed a white male just inside the door, which was slightly ajar. Not knowing whether this person was armed, O’Brien unholstered his revolver, keeping it at his side. The door then flew open, the person pushed O’Brien back and ran off. O’Brien saw that this person was unarmed and attempted to holster his revolver as he pursued him. While running, O’Brien stumbled and began to fall forward. Instinctively, he reached forward with both hands to break the fall. The revolver, still in O’Brien’s left hand, discharged.

In opposition to the motions for summary judgment, the plaintiff has submitted several affidavits. Those portions of the affidavits which satisfy the personal knowledge requirement of Rule 56 are as follows. George Katsas, M.D., states that he performed an autopsy on the body of Ernest J. Forand, Jr., and determined that the cause of death was a gunshot wound which entered the body in the front of the neck and exited through the back. These findings are corroborated by the affidavit of William Duke, a State Police Officer specially trained in the analysis of gunshot wounds. James T. McGuiness, a Massachusetts State Police Officer who investigated the shooting, states in his affidavit that he observed Officer O’Brien after the shooting, and that there were no dirt or scuffs on O’Brien’s uniform or hands at that time. He further states that the area where O’Brien allegedly fell is lower than the area where Forand was shot (and where blood was found). McGuiness also states that the revolver carried by O’Brien cannot be discharged without the application of force to the trigger.

Summary judgment is appropriate where there “is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R. Civ.P. 56. When deciding a motion for summary judgment a court should draw all inferences from the record favorably to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Because of the different legal issues involved, it is useful to consider defendant O’Brien’s motion separately from the motions of Chief Renaud and the City of Taunton.

DEFENDANT O’BRIEN

The affidavits submitted by the plaintiff state facts from which inferences favorable to the plaintiff may be drawn. The absence of scuff marks on O’Brien’s shoes or uniform may raise an inference that he did not stumble and fall. The location of the entrance and exit wounds in Forand’s body casts further doubt upon O’Brien’s version of the incident, as does the description of the topography of the area and the statement that O’Brien’s firearm could not discharge without pressure to the trigger. The cumulative effect of plaintiff’s affidavits is to create a substantial question of fact as to whether Ernest Forand was shot accidentally or intentionally. I rule that there is a genuine issue of material fact which precludes a grant of summary judgment for defendant O’Brien. Because of this issue of fact, it is unnecessary to reach the question of whether a negligent shooting under these circumstances would be a constitutional deprivation cognizable under § 1983.

DEFENDANTS RENAUD AND CITY OF TAUNTON

That portion of the case which concerns Chief Renaud and the City necessitates inquiry into the extent of supervisory liability under § 1983. There is no respondeat superior liability under § 1983: “a municipality cannot be held liable solely because it employs a tortfeasor.” Monell v. New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). However, where a constitutional injury is inflicted by an employee pursuant to “a government’s policy or custom” the governmental entity is responsible. Id. at 694, 98 S.Ct. at 2037. In other words, unless the municipality in some way causes its employee to violate the plaintiffs constitutional rights, no recovery may be had under § 1983. Id. at 692, 98 S.Ct. at 2036.

The circumstances of this case present a question as to the type of acts or omissions necessary to provide the requisite causal link between the municipality and the injury. The plaintiff argues two theories: (1) that Renaud and the City were grossly negligent in failing to provide adequate training, and (2) that Renaud and the City had adopted an official policy or custom of condoning and acquiescing in unconstitutional acts of violence.

Plaintiff’s “gross negligence” theory relies on a line of cases beginning with Leite v. City of Providence, 463 F.Supp. 585 (D.R.I.1978). Accord Popow v. City or Margate, 476 F.Supp. 1237 (D.N.J.1979); Tuttle v. City of Oklahoma, 728 F.2d 456 (10th Cir.1984). In Leite, the plaintiff alleged that five unidentified Providence, Rhode Island police officers verbally and physically assaulted him, and that the City of Providence was “negligent in hiring, training, continuing to employee and/or failing to discipline and/or supervise its employees.” 463 F.Supp. at 588. The Leite court acknowledged that mere negligence by supervisory officials would not support § 1983 liability, and that the prevailing view was that a plaintiff must prove “the adoption of [some] plan or policy by [the municipality] — express or otherwise— showing their authorization or approval of such misconduct.” Id. at 590, citing Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). See also Delaney v. Dias, 415 F.Supp. 1351, 1354 (D.Mass.1976). The court then followed its analysis one step further, saying that citizens need not endure a “pattern” of past police misconduct before a § 1983 action can be brought:

“If a municipality completely fails to train its police force, or trains its officers in a reckless or grossly negligent manner so that future police misconduct is almost inevitable, the municipality exhibits a deliberate indifference to the resulting violations of a citizens constitutional rights. In such a case, the municipality may fairly be termed as acquiescing in and implicitly authorizing such violations.”

Id.

Leite has, however, been criticized as an unwarranted expansion of municipal liability. Gilmere v. City of Atlanta, 737 F.2d 894, 904 (11th Cir.1984), Edmunds v. Dillin, 485 F.Supp. 722, 727 (N.D. Ohio 1980). In Gilmere, the Court of Appeals for the eleventh circuit refused to accept the “gross negligence” or “deliberate indifference” standard, preferring a narrow interpretation of the “policy or custom” rule developed in Monell. The Gilmere court went on to say that the “deliberate indifference” language used in Leite described the standard for Eighth Amendment violations only and was inappropriately applied to a due process claim by the Leite court. Id. at 904; c.f. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Court of Appeals concluded that occasional acts of untrained policemen are not policy or custom within the contemplation of Monell. Id. at 904.

The Court of Appeals for the First Circuit has not spoken directly to this issue. However, in a recent case involving the question of a police chief’s liability under § 1983, the Court reviewed the Leite standard and remarked: “We do not think that the standard of liability of a prison official (reckless or callous indifference) can be applied writ large to other state officials.” Gero v. Henault, 740 F.2d 78 (1st Cir.1984).

The plaintiffs second theory for imposing liability upon the City of Taunton turns principally upon a question of fact, i.e. whether the City has acquiesced in, or condoned prior acts of violence by its officers. In support of their motions for summary judgment, the various defendants have submitted deposition materials which purport to show that there have been no police shootings in Taunton since 1952, and that the City Clerk has searched the City records from 1979 to present and found no indication of any relevant civil litigation pending against the City.

The plaintiff, on the other hand, has submitted deposition materials which indicate that there have been complaints of excessive force against Taunton officers, and that a citizen attempted to obtain a criminal complaint against Officer O’Brien in the States District Court.

These facts, although of questionable probative value in this context, do raise an inference concerning the adequacy of the investigative and disciplinary policies of the police department. Furthermore, I note that the materials submitted by the defendants fall short of that which would be required to rebut the plaintiff’s allegations. Not all unconstitutional acts of violence involve shootings, nor do they necessarily result in litigation. Therefore, I rule that the defendants have not met their burden to prove that there is no genuine issue of material fact regarding the City’s alleged policy of condoning or acquiescing in unconstitutional acts of violence.

In light of this ruling, and in the interest of judicial economy, I decline to grant summary judgment on that portion of plaintiff’s claim which deals with “gross negligence” and “deliberate indifference” in failure to train. Because the governing law is unsettled in the First Circuit, it is preferable to let the jury evaluate the evidence supporting this theory along with the rest of the case.

This does not, however, imply any conclusion that the facts alleged by the plaintiff meet even the Leite standard. Rather, the Court recognizes that questions of negligence and/or gross negligence are generally not suitable for disposition on summary judgment. 6 J. Moore & J. Wilker, Moore’s Federal Practice ¶ 56.17[42], Therefore, defendants Renaud and City of Taunton’s motions should be denied.

Order accordingly.