author: YOUNG, District Judge.

text:
    Rhonda Lee BIBBO, et al., Plaintiffs, v. James MULHERN and Massachusetts Bay Transportation Authority, Defendants. Richard E. PRUNEAU, Plaintiff, v. Frank DONAHUE, et al., Defendants.
    Civ. A. Nos. 84-1414-Y, 84-2047-Y.
    United States District Court, D. Massachusetts.
    Nov. 8, 1985.

      J. Albert Johnson, Johnson, Mee & May, Boston, Mass., for plaintiffs No. 84-1414-Y.
    Paul V. Buckley, Buckley, Haight, Muldoon, Jubinville & Gilligan, Milton, Mass., Sandra L. Hautanen, Warner & Stackpole, Boston, Mass., for defendants No. 84-1414-Y.
    Frank DiMaria, Law Offices of Robert Boudreau, East Pepperell, Mass., for plaintiffs No. 84-2047-Y.
    Alfred L. Daniels, Andover, Mass., Russell F. Conn, Burns & Levinson, Boston, Mass., Johnson, Gammon, Silverman, Harr Dalton, Byrne, Andover, Michael DeMarco, Murphy & Mitchell, Boston, Mass., for defendants No. 84-2047-Y.
   MEMORANDUM AND ORDER

YOUNG, District Judge.

These cases are before the Court on the motions for summary judgment by the individual and municipal defendants. Case No: 84-1414-Y (hereinafter the “Bibbo case”) arises out of the fatal shooting of Timothy Bibbo on May 28, 1982 by Officer James Mulhern of the Massachusetts Bay Transportation Authority (hereinafter the “Authority”) police. Plaintiff Rhonda Lee Bibbo brought suit under 42 U.S.C. § 1983 and state tort law on behalf of herself and her daughter, and as administratrix of her husband’s estate. Case No. 84-2047-Y (hereinafter the “Pruneau case”) arises out of the alleged beating of Richard Pruneau on July 5, 1981 by several officers of the Andover police force. Mr. Pruneau has brought suit under § 1983 along with various state tort causes of action. Jurisdiction exists in each case under 28 U.S.C. § 1343(3) and the pendent claim doctrine of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

Because the legal principles that animate the decisions on these motions are common to both cases, the Court has found it prudent and expedient to issue this joint memorandum and order.

I. Factual Background

Viewing the record that is now before the Court in the light most favorable to the party opposing the motion, and indulging all inferences favorable to that party, Emery v. Merrimack Valley Wood Products, Inc., 701 F.2d 985, 986 (1st Cir.1983), the following facts could reasonably be found in each case.

A. The Bibbo Case

On May 27, 1982 Officer James Mulhern of the Authority police worked his scheduled shift from 3:30 p.m. to 11:30 p.m. Officer Mulhern then proceeded to the Maverick Square subway station in East Boston where he was scheduled to work a “painter’s detail” from 12:00 a.m. to 6:00 a.m. the morning of May 28th. Officer Mulhern’s duties at the Maverick Station were to patrol the area while an Authority paint crew was working, and to protect the crew and the van out of which they worked.

At about 2:30 a.m. Officer Mulhern saw plaintiff’s decedent, Timothy Bibbo, and Louis Sorrentino try to enter Joey D’s, a Maverick Square establishment. According to Sorrentino, he and Bibbo were looking for a place to go to the bathroom. After finding Joey D’s locked, Sorrentino and Bibbo walked towards the area of the Maverick Square station, specifically towards the painters’ van that was parked next to the station. Again according to Sorrentino, their purpose was to find a convenient spot to urinate. Officer Mulhern observed them walking towards the van.

What happened next is in great dispute. Officer Mulhern claims that after observing Sorrentino break into the passenger side door of the van, he radioed the Authority dispatcher for assistance and proceeded towards the van. At the van he identified himself as a police officer and told Sorrentino he was under arrest. At that point, according to this version of the events, Sorrentino attacked Officer Mulhern, punching him, kicking him and stabbing him in the eye with a broken bottle. In the meantime, Bibbo and at least one other person had joined Sorrentino and had wrestled Officer Mulhern to the ground. Officer Mulhern then felt Sorrentino attempt to pull his gun out of the holster, but was able to draw the gun himself. As Officer Mulhern drew his weapon he saw Bibbo standing over him about to hit him with his service baton. In self defense Officer Mulhern fired four times at Bibbo. One shot struck him in the back, killing him.

Mrs. Bibbo’s witnesses, Sorrentino and one Sheila Smith, present a much different picture of the night of May 28, 1982. According to this version of events, Sorrentino and Bibbo were only fooling around with the ladders on the side of the van, doing “pull ups” and so on. Officer Mulhern then approached them from behind and, without warning, pushed Sorrentino to the ground and began assaulting Bibbo. When Sorrentino pleaded with Mulhern to let Bibbo go, he allegedly respondéd, “I am going to kill you next.” At the time, Sorrentino did not know Mulhern was a police officer because Mulhern was wearing a black windbreaker which bore no police insignia. Sorrentino then called for help to one of his friends waiting in a car, and tackled Mulhern in an effort to aid Bibbo. While wrestling with Mulhern on the ground, Sorrentino’s elbow bumped the officer’s gun. Realizing that their assailant was armed, Bibbo, Sorrentino, and a friend who had joined them, began to run down the street away from the station. Officer Mulhern then got off the ground, positioned himself in a crouched position with both hands out in front of him holding his pistol, and fired his weapon four times.

Timothy Bibbo was found lying 106 paces from the scene of the initial altercation with a gunshot wound in the left side of his back. Officer Mulhern was treated at a hospital for a concussion, facial and head lacerations, contusions and bruises.

B. The Pruneau Case

On July 4, 1981 Richard Pruneau hosted a family barbeque at his home in Andover, Massachusetts. Mr. Pruneau admits to drinking five beers throughout the day, but claims that he was not affected by his consumption of alcohol. At about 11:45 p.m. Mr. Pruneau’s brother Dennis left the party with his wife and children for their home in Manchester, New Hampshire. Approximately fifteen minutes later Dennis returned to Mr. Pruneau’s home complaining of car trouble and asking for tools and assistance. Mr. Pruneau, his brother Dennis, and a friend named Paul Murphy then drove back to the disabled automobile. The three opened the hood and attempted to repair the problem. While working on the car they used tools which made slight tapping noises, and occasionally touched the horn mechanism, resulting in a few short blasts from the horn.

At this point Officer Frank Donahue drove up to the scene. After stopping his car and opening his door Donahue yelled, “What is with the f_ horn?” Pruneau replied that he was fixing the car and that if Donahue was not there to help he should get out of there. According to Pruneau, Donahue then told him that he would “teach me a lesson.”

A short time later, as Mr. Pruneau was attempting to walk home, Andover police cruisers arrived with their lights flashing. As Officers Arthur Rickey and Donald Patullo got out of one of the cars, Pruneau began walking towards them. At that moment Mr. Pruneau heard Officer Donahue say “That is the son of a bitch,” and then Donahue tackled Pruneau. Mr. Pruneau asked the other officers to help him get Donahue off him, not knowing at the time that Donahue was a policeman. A scuffle ensued and Officers Rickey and Patullo wrestled Pruneau to the hood of the cruiser, handcuffing him in a way he claims caused great pain, and placing him under arrest. During this time Officers Burke and Sunderland, who were aware of what was transpiring, prevented Paul Murphy and Dennis Pruneau from going to aid the plaintiff.

Pruneau was placed in the back seat of a police cruiser in which Officers Grant and Houlihan were in the front seat. Officer Donahue then came and sat next to Pruneau in the back seat. Telling him again that he would teach him a lesson, Donahue allegedly began to beat Pruneau about the head, chest, abdomen, and groin. Officer Grant responded to Pruneau’s pleas for help by asking, “What’s the matter Frank, can’t you shut the son of a bitch up?”

Officer Donahue replied, “I'll shut him up.”

Upon arriving at the Andover police station, Pruneau met Lieutenant Belbin, and Sergeant Mooers, the shift commander (described in the complaint as Raymond Morse). The other officers who had been at the scene of the arrest continued to verbally harass Mr. Pruneau, calling him a faggot and laughing at him. Donahue occasionally lunged at Pruneau in an apparent attempt to frighten him. Belbin and Mooers did nothing to prevent this verbal harassment. Upon learning that Pruneau was to be charged with disturbing the peace, Belbin is alleged to have said, “You guys better have something more on this guy.” Eventually Pruneau was charged with assault and battery by means of a dangerous weapon on a police officer, a charge as to which he later was acquitted.

After being released from custody Mr. Pruneau was treated for cuts on his wrists and chest, bruises on his arms, bruises and cuts along his stomach, and a bruise on his head. He also claims to be suffering psychological injury.

II. § 1983 Injuries

In any case brought under § 1983 alleging a denial of substantive due process the first inquiry must be “whether the plaintiff has been deprived of a right ‘secured by the constitution and laws’ ” of the United States. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). The question for the Court is whether the allegations of the complaint describe a “constitutional tort actionable under § 1983.” Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981). This question is separate and apart from any inquiry into whether there has been an invasion of some interest protected by state tort law. The decisions of the Supreme Court make clear that § 1983 is not to be read as simply a ‘font of tort law to be superimposed upon whatever systems may already be administered by the court.” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976); see also Baker v. McCollan, 443 U.S. at 146, 99 S.Ct. at 2695 (“§ 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort law principles”). This is true even though the wrong may have been committed by an official clearly acting under color of state law. Schiller v. Strangis, 540 F.Supp. 605, 616 (D.Mass.1982).

Where the plaintiff’s allegations are of improper and excessive use of force by the police in effecting an arrest, the inquiry into whether the allegations describe a constitutional tort focuses on the reasonableness of the “seizure” viewed under the totality of the circumstances. Tennessee v. Garner, — U.S. -, 105 S.Ct. 1694, 1700, 85 L.Ed.2d 1 (1985). Thus, while it is established in this circuit that “in appropriate circumstances, the use of excessive force or violence by law enforcement personnel violates the victim’s constitutional rights,” Landrigan v. City of Warwick, 628 F.2d 736, 741 (1st Cir.1980), it is also true that “not all unlawful force used by state law enforcement personnel rises to the level of a constitutional violations.” Meola v. Machado, 602 F.Supp. 3, 6 (D.Mass.1984). “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates [the Constitution].” Johnson v. Glick, 481 F.2d 1028, 1033, cert. denied sub nom., John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973); see also, City of Oklahoma City v. Tuttle, — U.S. -, 105 S.Ct. 2427, 2433 n. 4, 85 L.Ed.2d 791 (“This Court has never held that every instance of use of unreasonable force in effecting an arrest constitutes a violation of the Fourth Amendment.”).

The use by our Court of Appeals of the words “appropriate” and “excessive” makes clear that the determination whether the alleged conduct rises to the level of a constitutional tort involves an essentially ad hoc inquiry. In attempting to identify the proper “standard of severity of an intrusion required to establish a violation of the rights protected under the rubric of substantive due process,” Ramos v. Gallo, 596 F.Supp. 833, 838 (D.Mass.1984), this Court can find guidance from the insights of those who have earlier considered this problem. In an oft quoted discussion, Judge Friendly has said that:

In determining whether the constitutional line has been crossed, a court must look to such factors as the need for application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Johnson v. Glick, 481 F.2d at 1033. In addition, Judge Keeton has pointed out that the severity of the force used and the injury inflicted “are not to be viewed in isolation, rather are to be considered in relation to the need for the use of force and in light of the purpose for which the force was used.” Schiller v. Strangis, 540 F.Supp. at 617. Although the standard for determining whether the constitutional line has been crossed remains inherently vague, the relevant factors identified by Judges Friendly and Keeton provide the guidance necessary to determine, in the cases now before the Court, whether the injuries complained of are actionable under § 1983.

A. The Bibbo Case

Without expressing any opinion as to the credibility of the evidence, the Court rules that the evidence adduced by Mrs. Bibbo, viewed in the light most favorable to her, undoubtedly could support a finding that Timothy Bibbo’s constitutional rights have been violated. The testimony of Sorrentino and Smith suggests a situation in which force, although unneeded, was wantonly applied. To deprive a man of his life under such circumstances plainly violates rights secured by the Fourth and Fourteenth Amendments.

The only potential issue as to the validity of Mr. Bibbo’s claim is whether it survives his death. Although the statute itself is silent as to survival actions, the Court should apply the state rules on the right to survivorship to the extent they are not inconsistent with the federal policies underlying § 1983. Brazier v. Cherry, 293 F.2d 401, 405 (5th Cir.1961), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Bell v. City of Milwaukee, 746 F.2d 1205, 1234 (7th Cir.1984); see also, Jones v. Hildenbrant, 432 U.S. 183, 190, 97 S.Ct. 2283, 2287, 53 L.Ed.2d 209 (1977) (White, J. dissenting). Under Massachusetts law, Mr. Bibbo’s claims would survive his death and are properly brought by his administratrix. See Mass.Gen.Laws ch. 229 § 2. This same analysis establishes that the claims by Mrs. Bibbo on behalf of herself and her daughter, for the wrongful death of a husband and a father, describe conduct actionable under § 1983.

B. The Pruneau Case

Mr. Pruneau alleges that the individual officers violated his constitutional rights in the following ways:

1) The physical beating of Pruneau by Officer Donahue, and the brutality attendant the arrest by Officers Rickey and Patullo.
2) The failure of the other officers at the scene of the arrest to prevent this physical assault.
3) The verbal harassment and threats by the officers at the police station.
4) The failure of Officers Belbin and Mooers to prevent the verbal harassment at the police station.

It is useful to distinguish between Pruneau’s claims of physical abuse and verbal harassment. The Court has no difficulty finding that, viewed in the light most favorable to Mr. Pruneau, the evidence adduced tends to show brutal conduct that, if proven, would be actionable under § 1983. Although Mr. Pruneau’s injuries do not appear to be severe or permanent, they must be considered in light of the purpose and the need for the force applied. The trier of fact could find that Mr. Pruneau was punished for showing what was, in Officer Donahue’s mind, too little respect for the law. There are controverted facts regarding whether there was any need for force at all in this situation. Thus, the claims against Officer Donahue amount to “substantially more than a bare case of unprivileged interference with interests protected under state tort law,” Schiller v. Strangis, 540 F.Supp. at 617, and as such are cognizable as constitutional torts under § 1983.

The claims against the other officers present at the scene, based on their failure to prevent the beating, stand on a similar footing. Quite aside from the question of whether an officer is under a duty to come to the aid of one who is suffering abuse at the hands of a fellow officer, Ware v. Reed, 709 F.2d 345, 353 (5th Cir. 1983); Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir.1972), Mr. Pruneau alleges here that Donahue’s colleagues actively or implicitly encouraged the illegal use of force. The disputed issues of fact surrounding this question alone are enough to overcome these defendants’ motions for summary judgment.

The claims of verbal abuse and harassment present a somewhat thornier problem. Certainly being humiliated, denigrated and frightened by the local police is an experience nobody should have to endure. Under most circumstances such behavior by the police likely is actionable under state tort law. The Fourteenth Amendment does not protect against all intrusions on one’s peace of mind, however. Despicable and wrongful as it may have been, the verbal abuse of Mr. Pruneau in the station house, falling short of physical force as it did, was not the kind of conduct for which the due process clause provides redress, and instead a remedy must be sought under state tort law.

Mr. Pruneau’s claim against Sergeant Mooers is based solely on the fact that, “some of the time” Pruneau was being verbally harassed at the station house, Mooers was present and failed to prevent the harassment from continuing. Pruneau admits in his deposition that Mooers did not strike or assault him in any way. Given that the Court has previously ruled that the verbal abuse at the police station did not cause any injury cognizable under § 1983, then by the same reasoning Sergeant Mooers is not liable under § 1983 for his failure to prevent the harassment.

Were it not for one fact, this same analysis would apply to Lieutenant Belbin, who also did not personally participate in the use of physical force. But there is one additional allegation facing Belbin. In his answers to Officer Donahue’s interrogatories, Mr. Pruneau alleges that Belbin told the arresting officers that “you guys better have something more on this guy [than simply a disturbing the peace charge].” While this statement is equivocal at best, on the present record the finder of fact could warrantably infer from this statement that Belbin was suggesting that the other officers should fabricate charges against Pruneau in order to cover up their illegal behavior. When a police officer fraudulently charges a citizen, and forces that citizen to stand trial for crimes of which the officer knows he is innocent, that officer’s conduct most certainly offends all that is meant by “due process of law.” Cf. Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir.1980) (we “assume without deciding that such an object [conspiracy to cover up police brutality], sufficiently advanced, could have amounted to an actionable deprivation of federally protected rights.”) In a very real sense the officer’s corrupt scheme can scar the citizen as much as would ever be possible with the fist or billyclub. Such conduct is especially egregious when one in a supervisory position encourages those who would look to him for guidance to participate in such a lawless plan. For this reason the Court rules that Mr. Pruneau should have the opportunity to prove at trial that Lieutenant Belbin and other officers participated in a plan to file charges they knew to be false and unfounded.

III. Good Faith Immunity Under § 1983

While the law does not permit or condone the unlawful use of force by the police, neither does it require of them perfection, nor cool and detached reflection when the situation does not permit. Towards this end the courts have long recognized a good faith immunity for police conduct that, although unlawful, was not unreasonable under the circumstances. See e.g., Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). The obvious purpose of such an immunity is to give officers the freedom to exercise the discretion necessary to a proper discharge of their duties without undue fear of incurring personal liability. The Supreme Court’s most recent formulation of the good faith immunity standard is set out in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). There the Court said that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818, 102 S.Ct. at 2738. Although Harlow involved the liability of Presidential aides, the First Circuit has adopted the objective test of Harlow as the correct approach in § 1983 cases involving police officers. Briggs v. Malley, 748 F.2d 715, 718 (1st Cir.1984) cert. granted, — U.S. -, 105 S.Ct. 2654, 86 L.Ed.2d 271 (1985); Voutour v. Vitale, 761 F.2d 812, 818 (1st Cir.1985).

In the Bibbo case Officer Mulhern asserts that he is entitled to a finding that his conduct was, as matter of law, shielded from liability under the good faith immunity doctrine. In so asserting he relies heavily on Floyd v. Farrel, 765 F.2d 1 (1st Cir.1985), just recently decided by our Court of Appeals. Officer Mulhern’s reliance is misplaced.

In Floyd, a New Hampshire state trooper arrested the plaintiff for receiving stolen property. The trooper had stopped the plaintiff for driving with a broken headlight, but later learned that the car was stolen and that there was a warrant out for the arrest of the plaintiff’s father in connection with the theft. The trooper also determined that the plaintiff was on parole. When asked whether he knew the car was stolen, the plaintiff replied that his father “probably dumped it in New Hampshire. It was getting too hot.” At that point the plaintiff was arrested and jailed. After a court found no probable cause for a felony charge, the plaintiff pleaded guilty to the offense of driving without a license and was released. The plaintiff then brought suit under § 1983 alleging that the arresting officer had no probable cause for arrest. The district court denied the trooper’s motion for summary judgment holding that “the issue of qualified immunity is almost universally one which presents a question of fact to be determined by the trier of fact.” The Court of Appeals reversed, finding that the district court’s statement was in error, and holding that an officer’s “qualified immunity is pierced only if there clearly is no probable cause at the time the arrest was made.” 765 F.2d at 5-6.

Borrowing from the language of Floyd, Officer Mulhern asserts that “the defense of qualified immunity is pierced only if there clearly were no grounds to act as the defendant did.” The Court simply cannot accept this as a correct statement of the law. To suggest that because an arresting officer is immune so long as there is no clear absence of probable cause to arrest, mandates that an officer who fires his weapon is immune unless there clearly is no reason to shoot, makes an intellectual leap that ignores the significant differences between being arrested and being shot.

The fact of the matter is that there are disputed issues of fact as to what information was available to Officer Mulhern when he fired his gun, and as to whether another officer having the same information Mulhern had would reasonably have come to the conclusion that deadly force was required. Accordingly, this is not a case where summary judgment would be appropriate on the grounds of good faith immunity.

IV. Municipal Liability

In the seminal case of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that while local governing bodies are “persons,” and therefore can be sued directly under § 1983, such bodies “cannot be held liable under § 1983 on a respondeat superior theory.” 436 U.S. at 691, 98 S.Ct. at 2036. Instead, liability against municipalities should be imposed only when a governmental policy or custom “is responsible for a deprivation of rights protected by the Constitution.” 436 U.S. at 690 and 694, 98 S.Ct. at 2035 and 2037. Since Monell the Court has emphasized that the “subjects or causes to be subjected” language of the statute requires that the governmental policy must be so tied to the challenged acts that it can be said to be the “moving force of the constitutional violation.” Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981); see also, City of Oklahoma City v. Tuttle, — U.S. -, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985) (“at the very least there must be an affirmative link between the policy and the particular constitutional violation alleged.”). Thus, a plaintiff who seeks to hold a municipality liable under § 1983 must prove “(1) a policy (2) of the city’s policymaker (3) that caused (4) the plaintiff to be subjected to a deprivation of constitutional right.” Grandstaff v. City of Borger, Tx., 767 F.2d 161 (5th Cir.1985); cf. Forand v. O’Brien, 602 F.Supp. 1182, 1185 (D.Mass.1985).

Last term in Tuttle, the Supreme Court had occasion to discuss the amount of proof necessary to satisfy the Monell standard. In Tuttle the respondent’s decedent had been shot to death by an Oklahoma City police officer. She brought suit against the officer and the city under § 1983 alleging, inter alia, that the city was responsible for the death because it had inadequately trained its officers. The district court instructed the jury on the theory that the jury could “infer” a policy of inadequate training from “a single unusually excessive use of force.” The court of appeals upheld the verdict. 105 S.Ct. at 2435.

The Supreme Court reversed, the plurality opinion holding that “proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing unconstitutional municipal policy.” 105 S.Ct. at 2436. Because the “policy” in question there, inadequate training, was not itself unconstitutional, the plurality went on to say that “where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the ‘policy’ and the constitutional deprivation.” 105 S.Ct. at 2436 (footnotes omitted).

A. The Bibbo Case

Most of Mrs. Bibbo’s claims against the Authority are unfounded. For example, Mrs. Bibbo argues that the Authority supported, condoned or acquiesced in a policy of allowing excessive police violence by promulgating Rule 10 of the Authority’s Rules and Regulations. Rule 10 requires that when a disturbance occurs a patrolman “shall proceed as quickly as possible to the scene of a disturbance ... and take whatever action is deemed necessary.” According to Mrs. Bibbo, this rule amounts to deliberate indifference by the Authority to the civil rights of the citizens of Massachusetts. The theory apparently is that the rule encourages recklessness. The Court disagrees, and rules that, as matter of law, the policy embodied in Rule 10 violated no constitutional rights of the plaintiffs. Indeed, a rule which required anything less than rapid response to developing trouble would be far more likely to implicate the civil rights of the citizenry than does Rule 10.

Similarly without substance is the charge that the Authority has been grossly negligent in training its police officers. The record is completely lacking of any evidence which suggests that the Authority deviated from accepted standards of training. Officer Mulhern received basic police training at the Boston Police Academy shortly before beginning his employment with the Authority police in 1974. He received firearms training during his basic police training, and continually on an annual or biennial basis through the time of the events in question here. In fact, he had qualified as a sharpshooter at a firearms training class approximately a month before the shooting. Prior to the time of the shooting Officer Mulhern had received specialized training in criminal law, self-defense, patrol proceedings, and powers of arrest. Officer Mulhern’s training rests in sharp contrast to that of the officer in Voutour v. Vitale, 761 F.2d at 820, where the court denied the town’s motion for summary judgment. There the town had not provided the officer with either basic police training or firearms training prior to the time of the challenged shooting. This Court is prepared to say that, on the record before it, the training of Officer Mulhern, as matter of law, was not grossly negligent.

Two of Mrs. Bibbo’s claims do give the Court pause, however. The first is that the Authority’s policy of “allowing officers to work back to back shifts, without rest and without being properly checked for fatigue” constitutes gross negligence and deliberate indifference to the rights of Massachusetts citizens. This claim apparently is one of first impression. It does not stretch the imagination too far to believe that Officer Mulhern might have reacted differently had he not already worked ten hours. There certainly is a possibility that the policy of allowing double shifts contributed in some way to Timothy Bibbo’s death. A mere possibility is not the appropriate standard for imposing liability against the Authority, however. Under Tuttle there must be “considerably more proof than the single incident ... to establish ... the requisite fault on the part of the municipality.”' 105 S.Ct. at 2436. Here, that proof, or evidence that the plaintiff could provide such proof -at trial, is missing. There is no evidence of other incidents of brutality by Authority police, much less that such brutality was caused by fatigue. Moreover, Mrs. Bibbo has adduced no evidence that scheduling double shifts deviates from any recognized standard of care for municipal police departments. On this particular record, therefore, the Court rules that, as matter of law, the policy of allowing double shifts is not shown to violate the Bibbos’ constitutional rights.

The other significant allegation made by Mrs. Bibbo is that the Authority’s policy on the use of deadly force in apprehending a fleeing suspect is unconstitutional. As a preliminary matter, the Court notes that there appears to be a disputed issue of fact as to exactly what was the Authority’s policy. Mrs. Bibbo proffers a document she identifies as Rule 15 of the Authority’s Rules and Regulations. This rule allows an officer to use deadly force:

To apprehend perpetrators who, in the course of their crime threatened the use of deadly force, or if the officer believes there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if his apprehension is delayed, (emphasis added).

The Authority, on the other hand, submits a document entitled “Rules and Regulations — Deadly Force.” According to this document the use of deadly force is permitted only:

To apprehend a fleeing felon when the officer knows, as a virtual certainty, (1) that the suspect has committed a felony during the commission of which he inflicted or threatened to inflict deadly force upon the victim, and (2) that there is substantial risk that the felon in question will cause death or great bodily injury if his apprehension is delayed.

Pursuant to its duty to view the evidence in the light most favorable to the non-moving party, the Court will assume that Rule 15 as proffered by Mrs. Bibbo is the correct statement of Authority policy. This is more favorable to her because Rule 15, by its use of the disjunctive “or” instead of the conjunctive “and,” expands the range of situations where the use of deadly force by Authority officers is permissible.

The Supreme Court addressed the constitutionality of using deadly force to apprehend a fleeing felon in Tennessee v. Garner, — U.S. -, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). In Garner the plaintiff’s decedent was shot and killed as he fled the scene of a night burglary. At the time the officer fired the fatal shot he was “reasonably sure” that the suspect was unarmed. The officer called out “Halt. Police,” and when the suspect began to scale a fence to escape, the officer shot him. The officer was acting pursuant to a Tennessee statute and police department policy. The statute provided that “if after notice of intention to arrest the defendant, he either flees or forcibly resists, the officer may use all the necessary means to effect the arrest.” 105 S.Ct. at 1698. The police policy was “slightly more restrictive.” 105 S.Ct. at 1698. The father brought suit under § 1983. The Supreme Court granted certiorari to consider the constitutionality of the Tennessee statute.

The Supreme Court began its discussion by noting that “the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” 105 S.Ct. at 1699. The Court then held that although the Tennessee statute was not unconstitutional on its face, it was unconstitutional insofar as it authorized the use of deadly force against a fleeing felon who “poses no immediate threat to the officer and no threat to others.” 105 S.Ct. at 1701. This holding was based on the Court’s balancing of the nature and quality of the “seizure” against the governmental interest in apprehending the suspect. The Court concluded that unless the officer had “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others,” the balance weighs against the use of deadly force. 105 S.Ct. at 1701. Where there is probable cause to believe the suspect poses such a threat, however, then “deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” 105 S.Ct. at 1701 (emphasis added).

As far as it goes, the Authority’s Rule 15 fits within the Garner guidelines. The rule permits the use of deadly force against a fleeing suspect who either has threatened or used force in the commission of a crime, or is likely to cause death or serious bodily harm if he is not immediately apprehended. Deadly force is constitutional in both of these situations under the letter and spirit of Garner. The problem is that Rule 15 may not go far enough in that it does not require an officer to first order the fleeing suspect to halt. The Garner court indicated, in the language emphasized above, that a verbal warning should be given before deadly force is used. Other than this one line, however, the Supreme Court did not devote any discussion to the need for a warning. Nonetheless, the overall reasoning of the opinion suggests that giving the requisite warning is a significant factor in judging the reasonableness of the use of deadly force. Early in the opinion Justice White noted that not only is the intrusiveness to the individual of a seizure by means of deadly force “unmatched,” but such a seizure is also self defeating to the government’s interest because it often ensures that the criminal justice system will not be set in motion. 105 S.Ct. at 1700. Given that both the individual’s and the government’s interest is better served if deadly force is avoided, it seems likely that the Supreme Court intended the warning requirement to be an essential factor in judging the constitutionality of the use of deadly force. The constitution requires that deadly force be used as a last resort. Accordingly, this Court is not prepared to rule that Rule 15 was constitutional as matter of law.

That said, it should be noted that Mrs. Bibbo’s § 1983 claim against the Authority is far from proved. The Authority can be held liable only if Rule 15 is causally related to Timothy Bibbo’s death in a constitutionally impermissible way. Thus, for example, if the finder of fact determines that it would not have been feasible for Officer Mulhern to give a warning under the circumstances, then the failure of Rule 15 to require a warning where feasible would not be the “moving force” behind any injury. Similarly, if Officer Mulhern was acting in violation of Rule 15 at the time he shot Bibbo, then too the Authority would not be liable.

B. The Pruneau Case

Mr. Pruneau’s suit was brought against the Andover Selectmen in their individual and official capacities. A review of the record makes clear, however, that the only plausible basis of liability against any of the selectmen is in their official capacity. None of them personally participated in the alleged civil rights violations, and all have submitted affidavits, which are uncontroverted, that they have no role in directly supervising the Andover police force or any of its employees.

Because “official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent,” Monell, 436 U.S. at 690, 98 S.Ct. at 2035, the Supreme Court has held that a judgment against a public servant in his official capacity imposes liability on the city itself. Brandon v. Holt, — U.S. -, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985). The logical extension of this principle is that official capacity claims brought under § 1983 should be judged by the same standards that would be applicable had the suit been brought directly against the public fisc. Scarpa v. Murphy, 624 F.Supp. 33, 36 (D.Mass.1985) (“it makes sense to say that a person sued in his official capacity can be found liable only if the municipality could also be found liable.”). That standard, of course, is the Monell standard discussed above.

The record before this Court is wholly devoid of any evidence which would tend to show that a custom or policy of the Town of Andover is causally related to any injury Mr. Pruneau may have suffered. In his brief, Pruneau argues that a genuine issue of fact to be resolved is whether the Andover Board of Selectmen failed properly to supervise and train the police officers in the town. The Court disagrees. Although the Court views the evidence presented in the light most favorable to Mr. Pruneau, he cannot survive a motion for summary judgment on bare allegations. He has an affirmative duty to adduce some evidence which supports his claim of a factual dispute. Massaro v. Vernitron Corp., 559 F.Supp. 1068, 1073 (D.Mass.1983). Here the only competent evidence Mr. Pruneau presents concerning the alleged deficiencies in training and supervision is a statement in his answers to interrogatories that he received no response from the Selectmen when he complained about the beating. Other than that, Mr. Pruneau appears to rest his claim against the town on the evidence of the beating itself. As such, he has not nearly provided the amount of proof required by Tuttle. Assuming arguendo that inadequate training can meet the “policy” requirement of Monell, such a policy would not itself be unconstitutional. Therefore, Tuttle requires “considerably more proof than a single incident.” 105 S.Ct. at 2436. Accordingly, the motion of the Selectmen will be allowed as to the § 1983 claims.

V. State Tort Claims

In their briefs and at oral argument the parties devoted themselves solely to the federal constitutional issues raised by the motions. The Court rules that as to those parties whose motions are denied as to the § 1983 claims, for virtually the same reasons as are applicable to the federal claims there exist genuine issues of material fact as to the state law claims as well.

That leaves only the question of the state law claims against Sergeant Mooers and the Andover Selectmen, whose motions on the federal claims are allowed. As long as the federal claims were present, jurisdiction over these state claims properly existed under the doctrine of pendent claim jurisdiction. Allowing the motions for summary judgment as to these litigants changes all that. It is the settled rule in this Circuit that in a non-diversity case where pendent state claims are joined with the federal cause of action, “if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed.” United Mine Workers v. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139; Clark v. Taylor, 710 F.2d 4, 12 (1st Cir.1983); see also, Strachman v. Palmer, 177 F.2d 427, 431-434 (1st Cir.1949) (Magruder, J. concurring). Likewise, Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 270 (1976) compels a ruling that this is not an appropriate case for exercising pendent party jurisdiction over these defendants. Therefore, the state law claims against these defendants will be dismissed as beyond the Court’s jurisdiction.

YI.

In accordance with the foregoing discussion it is ORDERED:

1) In the Bibbo case, the motion for summary judgment of the Massachusetts Bay Transportation Authority will be allowed as to Counts XXI, XXIII, and XXV (the § 1983 claims), except insofar as those counts allege that the Authority’s policy on deadly force violated the Bibbos’ constitutional rights. All other motions are denied.

2) In the Pruneau case, the motions for summary judgment of the Andover Selectmen and Officer Mooers as to Federal claims are allowed, and the State claims against these defendants are dismissed. All other motions are denied.

      . Plaintiffs in both cases also allege violations of §§ 1985 and 1986. In neither case, however, is there any allegation of a class based invidiously discriminatory motive. Therefore, these claims are without merit. Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).

      . In reciting the facts of a case for the purposes of a motion for summary judgment the Court expresses no opinion as to the ability of either party to prove such facts at trial, or as to the credibility of the evidence.

      . A distinction must always be made between claimed denials of procedural due process and substantive due process. Holland v. Breen, No. 85-1050-Y slip op. at 5 (D.Mass. October 30, 1985). In the former case the Court focuses on the adequacy of alternative state remedies, while in the latter case the Court's inquiry is into the nature of the injury. If the injury is one that appropriately can be described as a constitutional tort, then the existence of the alternative state remedy becomes irrelevant (see discussion below), and the federal court will adjudicate the claim.

      . The First Circuit has upheld jury instructions based on Judge Friendly’s opinion in Johnson. The court noted, however, that the charge was "open to criticism on the ground that it did not expressly require a finding that the force used was shocking or violative of universal standards of decency.” Furtado v. Bishop, 604 F.2d 80, 95 (1st Cir.1979), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980).

      . Municipal liability is discussed in Part IV below.

      . The Court should not be understood to hold that under no circumstances will verbal abuse or harassment violate the Civil Rights Act. For example, abuse that was racially motivated or continued over an extended period of time might well involve a constitutional tort.

      . The parties agree that the Authority is a political subdivision of the states. See Mass.Gen. Laws ch. 161A § 2.

      . In addition, Selectmen Dalton's affidavit represents that he was not elected until after the events in question here. For this reason his motion for summary judgment will be allowed as to all counts.

      . Pruneau also claims that he was told by the Federal Bureau of Investigation that the And-over police were under investigation for similar acts of brutality. Such testimony is inadmissible hearsay, Fed.R.Evid. 801 and 802, and not to be considered by a court on a motion for summary judgment. Fed.R.Civ.P. 56(e).

      . The Supreme Court expressly reserved opinion on this question in Tuttle. 105 S.Ct; at 2436 n. 7.

      . Aldinger involved a pendent state claim against the county in a § 1983 action against county officials. The case was submitted on the pleadings alone and was decided before Monell. Thus, there may now be room for an exception to the Aldinger rule in a case where a substantial federal claim is dismissed at or shortly before trial. The Pruneau case clearly is not such a case, however, and this Court reserves opinion on this issue for another day.


source: Caselaw Access Project

author: EDELSTEIN, District Judge:

license: Public Domain

text:
    Frank PASCARIELLO, Plaintiff, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, Defendant.
    No. 84 Civ. 8288 (DNE).
    United States District Court, S.D. New York.
    Nov. 8, 1985.

      Davison F. Moore, Poughkeepsie, New York (Jonathan E. Symer, of counsel), for plaintiff.
    Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. (Neal S. Mann, Sp. Asst. U.S. Atty., New York City, of counsel), for defendant.
   OPINION AND ORDER

EDELSTEIN, District Judge:

Plaintiff brought this action under sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (“Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), appealing a final decision of the Secretary of Health and Human Services (“Secretary”), which denied plaintiff’s applications for disability insurance benefits and Supplemental Security Income (“SSI”) benefits. Plaintiff has moved, and defendant has cross moved, for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). This case is hereby remanded for further consideration.

BACKGROUND

Plaintiff, who was born March 25, 1951 [TR. 9], alleges that he was disabled as a result of injuries received on November 3, 1978, when a chimney fell on him while he was working as a roofer [TR. 10]. Specifically, plaintiff claims that as a result of residual trauma stemming from these injuries, including incontinence and subjective complaints of pain, he is incapable of performing sedentary work, and, thus, disabled within the meaning of the Act. Plaintiff’s Memorandum of Law at 10-11.

Although plaintiff has completed tenth grade, he reads at a mid-elementary school level. [TR. 9]. While he has worked at a variety of jobs from 1967-1979, his social security earnings record indicates that he was unemployed much more than he was employed. [TR. 10]. During this period, he held such jobs as supermarket cashier and stock clerk; oil lubrication man and tire changer at a Sears automotive department; extruder in a plastics factory, eventually operating four machines and supervising another; gas station attendant at a full service gas station; machine operator at Slatz Federal Bearing; and as a roofer. [TR. 10].

On November 3, 1978, while working as a roofer, he was injured when a chimney fell on him. Upon hospitalization, he underwent surgery for multiple trauma, including torn mesocolon, avulsion of seromuscular layer of rectosigmoid colon and hemoperitonium. There was severe contusion of the urinary bladder. There were multiple fractures of the pelvis with displacement of the pubis symphisis and left hemipelvis. Although discharged on December 6, 1978, plaintiff’s urinary symptoms had not completely cleared up and he was ambulatory with the aid of crutches. [TR. 135].

Plaintiff relies on the reports of his treating physician, Dr. Kanaar, dated April 30, 1980 [TR. 144-146]; July 25, 1983 [TR. 147-148] and November 5, 1983 [TR. 149-150]. Dr. Kanaar, upon his initial examination diagnosed the plaintiff as suffering from “[c]hronic left sacroilliac strain following a fractured pelvis with displacement.” [TR. 146]. Additionally, he noted the plaintiff had a learning disability and a history of emotional instability that negatively impacted on his capacity for rehabilitation. [TR. 146].

On July 25, 1983, Dr. Kanaar wrote that while plaintiff was 100% disabled, as of that date, plaintiff had refused corrective surgery, commenting that such refusal was not unreasonable. Dr. Kanaar based this determination on the fact that plaintiff unexpectedly lost his daughter twelve hours after heart surgery, and the effect of this loss was to shake plaintiffs confidence in the medical profession. [TR. 147-148].

Finally, on November 5, 1983, Dr. Kanaar reported that the plaintiffs “[symptoms and signs of left sacroiliac instability and stress incontinence persist.” [TR. 149]. He determined the plaintiff to be totally and permanently disabled as a result of the failure of conservative treatment measures, coupled with plaintiffs refusal to submit to corrective surgery, intense pain, incontinence, illiteracy and mental retardation. [TR. 149].

Plaintiff further relies on the report of consulting psychologist Dr. Thomsen who noted that the plaintiff had trouble remaining seated for fifteen minutes [TR. 159]; the report of Dr. Josephy, who diagnosed him as incontinent [TR. 166]; and the testimony of the vocational expert, Mr. Weatherford, who stated that either the inability to concentrate due to pain or the necessity to regularly leave the work station due to incontinence would significantly reduce the number of possible jobs available to the plaintiff. [TR. 68].

Plaintiff contends that the Secretary's detemination that plaintiff is not permanently disabled is not supported by substantial evidence in that the Administrative Law Judge (“ALJ”) failed to give proper weight to the testimony of the treating physician. Additionally, plaintiff maintains that the ALJ did not properly consider the plaintiffs testimony concerning his subjective pain and incontinence and failed to give proper weight to the testimony of the vocational expert. Plaintiffs Memorandum of Law at 10-11.

Defendant contends that the findings of the ALJ are supported by substantial evidence and hence binding on this court.

As to the plaintiffs allegation of disability due to physical impairment, the Secretary contends that treating physician Kanaar’s findings are contradicted by those of consulting physician Dr. Worrell who found: (1) the plaintiff’s gait was within normal limits; and (2) the plaintiff had unrestricted straight leg raising and only slightly restricted lumbroscaral movement. Based on these findings, Dr. Worrel only recommended against prolonged walking or standing and lifting more than 20 pounds. [TR. 154-155].

Defendant argues that Dr. Kanaar’s finds are also contradicted by the report of consulting physician Dr. Greenwald, who, while finding a marked deformity of the pubis symphysis, concluded “[n]o definite acute changes are appreciated.” [TR. 156]. The Secretary argues that Dr. Kanaar’s findings are further contradicted by the report of consulting psychologist Dr. Thomsen. Using the Wechsler Adult Intelligence Scale-Revised (WAIS-R), Dr. Thomsen found the plaintiff’s intelligence to be within the low-normal range. Additionally, Dr. Thomsen determined plaintiffs reading ability to be at mid-elementary school level. [TR. 159].

As to the question of plaintiff’s subjective pain, the Secretary contends that the AU’s decision is both supported by Dr. Worrell’s failure to find percussion pain in the vicinity of the lumbrosacral junction [TR. 154] and the AU’s own determination based on the plaintiff’s demeanor. [TR. 15],

The Secretary further maintains that there is substantial evidence supporting the AU’s determination that plaintiff’s alleged incontinence does not require a finding of disability under the act. Such evidence includes plaintiff’s failure to undergo corrective surgery, his inconsistent testimony concerning the use of an incontinence product and the ALJ’s observation of the plaintiff during the hearing. [TR. 15].

DISCUSSION

To establish his disability within the meaning of the act, plaintiff has the burden of establishing that he is unable to engage in substantial gainful activity by reason of a physical or mental impairment that can be expected to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d), 1382c(a)(3)(a); see Parker v. Harris, 626 F.2d 225, 230, 231 (2d Cir. 1980).

In Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982), the Second Circuit set forth a five step test to evaluate claims of disability:

First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or méntal ability to do basic work activities. If the claimant suffers such an impair- . ment, the third inquiry is whether, based solely on the medical evidence, the claimant has an impairment which is listed in Appendix I of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work the claimant could perform.

The burden is on the plaintiff to prove steps one through four and on the Secretary to prove step five. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984).

The decision of the ALJ will be upheld as long as it is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla. It means relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).

Here, the parties accept that plaintiff has met his burden of showing that his condition satisfies steps one, two and four. However, plaintiff contends that the ALJ’s determination that work exists that is within the plaintiff’s capacity is not supported by substantial evidence.

In assessing a claim of disability, the Secretary must consider objective and subjective factors, including: (1) objective medical facts; (2) diagnosis or medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by the claimant or other witnesses; and (4) the claimant’s educational background, age, and work experience. Bluvband 730 F.2d at 891; Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir.1983).

Plaintiff argues that the ALJ failed to accord proper weight to the assessment of treating physician Dr. Kanaar that plaintiff was totally disabled. In evaluating the medical evidence, the Secretary is to give greater weight to the findings of the treating physician over that of consulting physicians. This is not to suggest that the AU cannot credit the evaluations of consulting physicans over that of the treating ones, however, to do so correct procedures must be followed. See Bluvband, 730 F.2d at 893, 894.

When evaluating the evidence presented by a treating physican, the AU is to follow a specific analytic framework: (1) the AU should see whether the treating physician has determined that the claimant is disabled; (2) he should then examine the record for conflicting evidence; and (3) upon finding conflicting evidence, he should compare the probative value of the conflicting evidence with that of the treating physician. In making this comparison, the AU should accord greater weight to the physician who has been seeing the claimant on a regular basis than that of the consulting physician who has merely seen the claimant on a single occasion. Id. at 893.

Here, the AU correctly followed this analytic framework. He determined that the treating physician had found the claimant disabled [TR. 15]. Then the AU examined the record and found significant conflicting evidence: regarding Dr. Kanaar’s allegation of physical disablility, the AU found it contradicted by the report of Dr. Worrell, [TR. 12]; as regards Dr. Kanaar’s allegation of illiteracy and mental retardation, he found it contradicted in the report of Dr. Thomsen, [TR. 15]; in the claimant’s work history and in the claimant’s demean- or during the hearing [TR. 12]. Where, as here, the analysis uncovers contradictory evidence, the resolution of the conflict is the province of the AU and not this court. Richardson v. Perales, 402 U.S. at 399, 91 S.Ct. at 1426. Here, the AU considered both evidence contradicting the treating physician’s medical report presented by the consulting physician and evidence contradicting the treating physicians assessment of plaintiff as “illiterate and mentally retarded,” derived from standardized testing administered by the psychological consultant. [TR. 8]. In the face of such proper analysis of the evidence, this court can not say that the treating physican’s assessment was not accorded sufficient weight by the AU. See Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir.1983).

Plaintiff further contends that the AU failed to give proper consideration to the plaintiff’s complaints of subjective pain, placing improper emphasis upon his own observation of plaintiff during the hearing.

The claimant is correct in asserting that subjective statements of the individual as to pain or other symptoms, along with objective medical evidence, must be considered in making a disability determination. 42 U.S.C. § 423(d)(5). But, where, after weighing the objective medical evidence in the record, the claimant’s demean- or, and other indicia of credibility, the AU decides to discredit plaintiff’s claim of severe and disabling pain, that decision is supported by substantial evidence. Marcus v. Califano, 615 F.2d 23 (2d Cir.1979). In the instant case, evidence of residual trauma was contradicted by clinical testing that failed to reveal a susceptibility to percussion pain in the region in question. In light of such contradictory objective medical evidence, it can not be said that the AU gave improper weight to his observations. As, “[t]he credibility of witnesses is a matter within the sole province of the hearing examiner to determine, and where, as here, there is evidence to support the examiner’s determination, it would be improper for a reviewing court to parse the cold record for a different result.” Deyo v. Weinberger, 406 F.Supp. 968, 974 (S.D.N.Y.1975).

Finally, plaintiff maintains that the AU failed to properly consider the impact of plaintiff’s alleged incontinence on possible employment. Here, the AU disregarded the medical evidence of a rigid bladder neck and the diagnosis of Dr. Josephy of incontinence, by reliance on the fact that the plaintiff refused corrective surgery, his observation of plaintiff’s demeanor, plaintiff’s statements that he would occasionally drive his car and plaintiff’s inconsistent testimony concerning the use of an incontinence product.

A claimant’s decision not to undergo a corrective process is not sufficient grounds to deny disability where there is a good reason for such refusal, as, “a claimant’s or beneficiary’s fear of surgery may be so intense and unrelenting that it is, in effect, a contraindication to surgery.” SSR 82-59 [Mar. 1982-Feb. 1983 Transfer Binder] Unemp.Ins.Rptr. (CCH) ¶ 14,359 at 2499-57. In light of plaintiff’s loss of his daughter twelve hours after surgery, Dr. Kanaar advised that plaintiff’s reluctance to undergo further surgery had a reasonable basis. Thus, this refusal cannot be said to provide substantial evidence as to contradict the opinion of plaintiffs urologist Dr. Josephy that plaintiff suffers from incontinence. [TR. 166].

Nor does the AU’s observation of plaintiff's demeanor carry such weight. While demeanor is strongly probative in weighing subjective testimony, such as that concerning pain, the presence or absence of incontinence is objective. The mere fortuity that plaintiff did not lose control over his bladder during the course of the hearing should not be found to outweigh the uneontradicted medical evidence. See Bluvband, 730 F.2d at 895.

While plaintiff testified that he would accompany his wife on weekly shopping trips, he further testified that he was frequently forced to return to his car due to soiled clothes. [TR. 37]. Thus, his testimony is not inconsistent with his claim of disabling incontinence.

Finally, AU’s conclusion that disabling impact of plaintiff’s alleged incontinence might be wholly remedied by use of an incontinence product is unsupported in the record. Mr. Weatherford, the vocational expert, testified that if the claimant had to absent his work station at regular intervals to relieve urinary problems it would be questionable if he could maintain the productivity level required in the sedentary work suitable for plaintiff [TR. 68]. The AU made no inquiry as to whether the necessity of changing soiled undershields would have a similar effect.

In consideration of the foregoing, this court finds that the AU’s determination that the plaintiff’s alleged incontinence would not have disabling impact on his capacity for gainful employment is not supported by substantial evidence. To sustain such a determination, the AU must ascertain: (1) whether plaintiff’s rigid bladder neck is medically sufficient to support a diagnosis of incontinence; and (2) whether the negative impact on plaintiff’s productivity resulting from such incontinence is remediable by use of an incontinence product.

CONCLUSION

The decision of the Secretary, that plaintiff’s alleged incontinence does not constitute a severe impairment, is not supported by substantial evidence. This case is therefore remanded for further consideration of:

(1) whether plaintiff’s rigid bladder neck supports a diagnosis of incontinence; and

(2) whether the negative impact on plaintiff’s productivity resulting from such incontinence is remediable by use of an incontinence product.

SO ORDERED.


author: HUDSPETH, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Cesar ONTIVEROS-LUCERO and Jose Marquez-Salvidrez, Defendants.
    No. EP-85-CR-144.
    United States District Court, W.D. Texas, El Paso Division.
    Nov. 8, 1985.

      Joseph W. Galenski, Asst. U.S. Atty., El Paso, Tex., for plaintiff.
    Robert R. Harris, El Paso, Tex., for Cesar Ontiveros-Lucero.
   ORDER REGARDING DEFENDANT’S MOTION FOR LEAVE TO TAKE DEPOSITION

HUDSPETH, District Judge.

Defendants Cesar Ontiveros-Lucero and Jose Marquez-Salvidrez are charged by indictment with importing heroin, possessing heroin, and conspiracy between January 25, 1982 and February 10, 1982. Both Ontiveros and Marquez are citizens of Mexico. Although agents of the Drug Enforcement Administration filed a complaint against Ontiveros in March 1982, they were not able to effect his arrest until August 1985 when he was found in El Paso, Texas. Marquez has never been arrested on these charges, and is presently incarcerated in Juarez, Mexico. Ontiveros has filed a motion pursuant to Rule 15, Federal Rules of Criminal Procedure, for leave of Court to take the deposition of his codefendant for use as evidence in his upcoming trial. He has attached to his motion a statement, purportedly signed by Jose Marquez-Salvidrez, which states that “Cesar Ontiveros was not involved in those transactions for which he and I are indicted as codefendants.” The Government opposes Ontiveros’ motion for leave to take the deposition of his codefendant.

Rule 15(a), Federal Rules of Criminal Procedure, provides in pertinent part as follows:

“Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the Court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition____”

The rule in its present form was adopted in 1975, and it permits either party in a criminal case to take the deposition of an important witness under certain very limited circumstances. First, the moving party may take only the deposition of his “own” witness, for use in evidence at trial, not for discovery. Second, exceptional circumstances must be present which cause the taking of the deposition to be “in the interest of justice.” Third, court approval must be obtained in advance. See 2 Wright & Miller, Federal Practice and Procedure, Section 241 (West 1982). Although our law still maintains its strong preference for live testimony rather than depositions, this rule recognizes that extraordinary circumstances may exist in which the deposition of a prospective witness should be taken. 2 Wright & Miller, Federal Practice and Procedure, supra. In the instant case, it is the Defendant who seeks leave of Court to take the deposition of a prospective witness. The Court must determine whether he has shown the requisite exceptional circumstances, and whether any of the Government’s objections to the taking of the deposition are valid.

In order to obtain leave of Court to take the deposition of a prospective witness, a Defendant must, of course, show that the anticipated testimony would be material to some defense. 2 Wright & Miller, Federal Practice and Procedure, supra and cases cited at page 6. The Defendant in this case has carried that burden. The prospective witness whom he seeks to depose is his alleged coconspirator with regard to the criminal transactions charged in the indictment. Exculpatory testimony from a codefendant would clearly be material, although the jury would be called upon to judge its credibility. Furthermore, it is not possible for the Defendant to call the witness to testify in person at his trial. The record shows that Marquez is incarcerated in the Federal Penitentiary in Juarez, Mexico, where he is serving a sentence of his own.

The Government argues strenuously that Marquez’ location outside the United States and outside the jurisdiction of this Court would give him free reign to commit perjury, and that no sanctions would be available if he did so. Similar arguments have recently been rejected by the courts that considered them. United States v. Wilson, 601 F.2d 95 (3rd Cir.1979); United States v. Gonzalez, 488 F.2d 833, 838 (2nd Cir. 1973). As Professor Wright has stated, “Modern notions of competency are based on the judgment that the need for all available evidence outweighs the apprehension of perjury.” 2 Wright & Miller, Federal Practice and Procedure, supra at page 7.

The Government also argues that, since the Defendant cannot be taken to Mexico to be present at the deposition of the witness, his right of confrontation under the Sixth Amendment would be violated. No problem exists, however, if the Defendant chooses to waive his right of confrontation. See Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Kemp v. Government of Canal Zone, 167 F.2d 938, 940 (5th Cir.1948). In the instant case, the Defendant’s attorney has represented that the Defendant will waive in writing his right to confrontation.

Rule 15(d), Federal Rules of Criminal Procedure, provides that the deposition of a party defendant may not be taken without his consent. The witness whom Ontiveros seeks to depose, to wit: Jose Marquez-Salvidrez, is a party defendant in this case, although he is not physically available to be prosecuted. In light of this provision of the rule, Marquez’ deposition cannot be taken unless he gives his formal consent. United States v. Cassese, 622 F.2d 26 (2nd Cir.1980). Furthermore, appropriate safeguards should be provided against the giving of an uninformed or coerced consent. The Court finds that such safeguards are available through the easy means of appointing an attorney to represent Marquez in this case. Since he is a Defendant in a pending case, he is entitled to representation by counsel as is every other defendant. The United States Magistrate can appoint the Federal Public Defender to represent Marquez, and the Public Defender assigned to the case can advise and counsel with Marquez before any deposition is taken. If his consent is given, it must be given in writing and signed by his attorney as well as by himself.

In light of the foregoing discussion, the following orders should be entered:

It is ORDERED that the Defendant’s motion to take the deposition of Jose Marquez-Salvidrez pursuant to Rule 15(a), Federal Rules of Criminal Procedure, be, and it is hereby, GRANTED. Defense counsel shall proceed to make arrangements for the deposition at the Federal Penitentiary in Juarez, Mexico, and give reasonable notice of the date and time thereof to the Assistant United States Attorney.

It is further ORDERED that Defendant Cesar Ontiveros-Lucero file with the District Clerk’s office a written waiver of his Sixth Amendment right of confrontation not less than twenty-four (24) hours prior to the taking of the deposition.

It is further ORDERED that the United States Magistrate appoint the Federal Public Defender to represent the witness and codefendant, Jose Marquez Salvidrez, in the above-styled and numbered cause.

It is further ORDERED that Marquez’ attorney be given the opportunity to confer with him prior to the taking of any deposition, and that Marquez give his consent in writing to be deposed prior to the taking of the deposition. In the absence of such consent, the deposition shall not take place, and the attorneys are to report this fact to the Court.

It is further ORDERED that, if the deposition of Marquez is taken, the transcript of his deposition testimony be filed without delay and a copy furnished to the Court for review prior to trial.


author: GLEN M. WILLIAMS, District Judge.

text:
    Calvin MALLORY, Plaintiff, v. INGERSOLL-RAND COMPANY, Defendant.
    Civ. A. No. 84-0203-A.
    United States District Court, W.D. Virginia, Abingdon Division.
    Nov. 12, 1985.
    Charlie R. Jessee, Lebanon, Va., for plaintiff.
    R.A. Vinyard, Abingdon, Va., and J. Alan Lips, Taft, Stettinius & Hollister, Cincinnati, Ohio, for defendant.
   MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

The plaintiff, Calvin Mallory, instituted this action in state court seeking relief for the alleged breach of contract by the defendant, Ingersoll-Rand Company. The contractual obligations at issue allegedly arose out of a collective-bargaining agreement between defendant and the International Union, United Mine Workers of America, Local No. 1737. Defendant timely petitioned this court for removal of the action, contending that the action arises under § 301 of the Labor Management Relations Act of 1947, and thus gives this court original jurisdiction. The action is now before the court on plaintiffs motion to remand to state court based on this court’s alleged lack of subject matter jurisdiction and on defendant’s motion to dismiss based on plaintiff’s alleged failure to state a claim upon which relief can be granted.

I.

Plaintiff’s original complaint was filed on May 9, 1984 in the Circuit Court of Tazewell County, Virginia. As stated in count one of the complaint plaintiff was an employee of the defendant and as such was an intended beneficiary of a collective-bargaining agreement entered into on or about July 25, 1979 between defendant and plaintiff’s union, Local 1737 of the United Mine Workers of America. (A copy of the agreement was attached to the complaint as plaintiff’s exhibit # 1.). On or about October 19, 1979, however, plaintiff became permanently and totally disabled and was forced to terminate his active employment with defendant. He then alleges that pursuant to the terms of the agreement he was entitled to a fixed monthly sum in long-term disability benefits for the duration of his disability or until he reached retirement age or died, that subsequent to the termination of his employment with defendant he applied for such benefits through defendant’s disability ' insurance carrier and that he received the fixed monthly sum from April 1, 1980 to April 11, 1981. In addition, plaintiff was approved for social security disability income benefits on or about April 1, 1980. On or about April 10, 1981, plaintiff goes on to allege, defendant’s insurance carrier notified him that an overpayment of long-term benefits from April 12, 1980 to April 11, 1981 had been made “based on an alleged integration provision in the long-term disability insurance policy, which stated that long-term disability benefits will be reduced by disability income payable under any government plan as a result of disability.” Consequently, plaintiff’s long-term disability benefits were reduced by the amount he received in monthly social security disability benefits and he was “forced” to repay defendant’s insurance carrier the amount of the stated overpayment. Plaintiff then alleges' that these events constitute a breach of the collective-bargaining agreement by defendant. In count two of the complaint plaintiff alleges that pursuant to the terms of the agreement he was also entitled to a certain sum in monthly pension benefits, that he applied for such benefits and that defendant “unjustly withheld” these benefits from him ón and after October 19, 1979. In count three of the complaint plaintiff further alleges that under the provisions .of the agreement he was entitled to certain medical insurance coverage by defendant, but on or about November 10, 1982 defendant notified him that this insurance would be terminated effective December 1, 1982, constituting a breach of contract by defendant. Finally, in count four of the complaint plaintiff alleges that pursuant to the terms of the agreement he was entitled to life insurance coverage by defendant, however defendant had terminated and refused to reinstate this coverage, which also constitutes a breach of contract by defendant.

On June 1, 1984 defendant filed its petition for removal with this court followed twenty-six days later by its first motion to dismiss. In the petition for removal defendant contends that the action as one for breach of a collective-bargaining agreement arises under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and thus within the court’s original jurisdiction. Defendant’s contention in its first motion to dismiss is that plaintiff had failed to allege exhaustion of the grievance and arbitration procedure established by the collective-bargaining agreement and that, in addition, counts one and two of plaintiff’s complaint were barred by the applicable Virginia statute of limitations.

On August 3, 1984 plaintiff filed an amended complaint. Under count one he adds to the allegations of his original complaint that it was on and after May 11, 1981 that defendant “failed and refused” to pay the long-term disability benefits to which he was allegedly entitled by reducing these benefits in the amount of his social security disability benefits. Under each of his four counts he also adds that he timely sought to resolve the respective alleged breaches of contract pursuant to the terms of the collective-bargaining agreement “regarding resolution of desputes,” but that his union, Local 1737, “arbitrarily, discriminatorily, and in bad faith refused to process or otherwise handle [his] grievance against [defendant,” which “constituted a breach of the [u]nion’s duty of fair representation to [him].”

Subsequently, plaintiff and defendant filed their respective motions that are now before the court. In its motion to dismiss plaintiff’s amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) defendant contends that all counts therein are time-barred, arguing in its supporting memorandum that while the amended complaint meets plaintiff’s obligation to allege exhaustion of the contractual grievance procedures it renders squarely applicable the six month statute of limitations set forth in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). Plaintiff, on the other hand, contends in his motion to remand the action back to state court that § 301 does not confer original jurisdiction in a suit by an employee against his employer.

The parties have submitted both briefs in support of their respective motions and in opposition to the other’s motion, so the case is now ripe for decision. The issues raised are (1) whether the action arises under § 301 of the Labor Management Relations Act, (2) if so, whether the action is governed by the six month statute of limitations under § 10(b) of the National Labor Relations Act and (3) if the six month limitations period is applicable, whether the statute was nevertheless tolled, rendering the action timely.

II.

Section 301 of the LMRA states:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

29 U.S.C. § 185(a). An action covered by § 301 is governed by federal substantive law, Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), and as such is subject to removal to federal court under 28 U.S.C. § 1441, Avco v. Aero Lodge, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). Moreover, it is well established that a suit brought by an individual employee against his employer for breach of a collective-bargaining agreement is among the class of cases that falls within the purview of § 301. Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981); DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983).

In the present action plaintiff plainly alleges under each count of his amended complaint that defendant breached the collective-bargaining agreement of which he was an alleged beneficiary. Plaintiff nevertheless argues that this court “is presented only with a private suit by an employee against his employer” such that the relationship of the parties to the agreement is not in issue, nor are the federal policies underlying § 301 involved. Plaintiff thus goes on to contend that the suit should be remanded to state court in order for him to pursue his action as a breach of contract action under state law. The Supreme Court, however, has made clear § 301’s pre-emptive effect. In explaining its Avco decision in Franchise Tax Board of California v. Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1982), for example, the Court states that in Avco it affirmed

that the petitioner’s action ‘arose under’ § 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law. The necessary ground of decision was that the pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301.

Just last term the Court reaffirmed this position in Allis-Chalmers Corp. v. Lueck, — U.S. -, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). As in the case at bar, the respondent/employee in Lueck brought an action in state court against his employer over his employer’s handling of his disability claim, which was filed under a plan that was part of a collective-bargaining agreement between his employer and his union. The Wisconsin Supreme Court had held that the employee’s suit did not arise under § 301 out of a violation of a labor contract, but rather constituted an independent tort claim of bad faith. Id. at -, 105 S.Ct. at 1908. In reversing the state court, the Lueck Court explained that

questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort.

Id. at -, 105 S.Ct. at 1911. The Court concluded:

The right that Lueck asserts is rooted in contract, and the bad-faith claim he brings could have been pleaded as a contract claim under § 301. Unless federal law governs that claim, the meaning of the health and disability-benefit provisions of the labor agreement would be subject to varying interpretations, and the congressional goal of a unified federal body of labor-contract law would be subverted.
... We ... hold that when resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim ... or dismissed as pre-empted by federal labor-contract law [as where the plaintiff failed to make use of the grievance procedure established in the collective-bargaining agreement].

Id. at -, -, 105 S.Ct. at 1916. It is therefore clear in the present case that plaintiff’s claim does arise under § 301, giving this court jurisdiction over the action.

Moving then to the second issue here presented, the court finds that the action is squarely within the six month statute of limitations of NLRA § 10(b) as provided in DelCostello, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476. Although plaintiff does not name his union as a defendant in his amended complaint, he does allege, as previously stated, that the union acted in such an arbitratory and discriminatory way in refusing to process his grievance as to constitute a breach of the union’s duty of fair representation. As the Court explained in DelCostello, where an employee brings suit against his employer for breach of a collective-bargaining agreement but has not exhausted his grievance through the procedures provided in the agreement because his union has breached its duty of fair representation, the employee may bring suit against both the employer and the union.

Such a suit, as a formal matter, comprises two causes of action. The suit against the employer rests on § 301, since the employee is alleging a breach of the collective-bargaining agreement. The suit against the union is one for breach of the union’s duty of fair representation, which is implied under the scheme of the National Labor Relations Act. ‘Yet the two claims are inextricably interdependent. “To prevail against either the company or the Union employee-plaintiffs must not only show that [the employer’s alleged breach of contract] was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union.” ’ The employee may, if he chooses, sue one defendant and not the other; but the case he must prove is the same whether he sues one, the other, or both. The suit is thus not a straight-forward breach-of-contract suit under § 301 ... but a hybrid § 301/fair representation claim, amounting to ‘a direct challenge to “the private settlement of disputes under the collective-bargaining agreement.” ’ (Citations omitted.).

Id. at 164, 165, 103 S.Ct. at 2290-2291. The Court then goes on to adopt the six month limitations period set out in NLRA § 10(b) for such actions, viewing this period more suitable than any alternative period under state law in light of the policies of federal labor law. Id. at 169-171, 103 S.Ct. at 2292-2294.

Plaintiff argues, however, that even if his action is governed by the six month limitations period the period was tolled to within six months from the time he filed his original complaint in state court. In making this argument, plaintiff relies on Jarnigan v. Teamsters Local 519, 548 F.Supp. 25 (E.D.Tenn.1982), in which the court held in a § 301 action that the § 10(b) limitation period was tolled from the time the plaintiff/employee filed her grievance pursuant to the collective-bargaining agreement procedure until her grievance was rejected by her employer. From this holding plaintiff deduces that the statute of limitations never began to run on his breach of contract action since defendant never filed a final rejection or settlement of his grievances and never informed him, he goes on to argue, that his grievances were not being processed. But the very fact that the plaintiff’s grievance in Jarnigan was processed, at least initially, under the established grievance procedure is why the court there deemed the statute tolled as long as the process continued and why the case is inapplicable to the case at bar, where plaintiff alleges that his union refused to even take his grievances to his employer.

The basis of plaintiff’s tolling argument was rejected in Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299 (7th Cir.1983). There a discharged employee brought a hybrid § 301/breach of fair representation action for her alleged wrongful discharge. Although her action was brought some eighteen months after the alleged contract violation, she contended that the statute of limitations did not bar her claim because the union refused to process her grievance and did not inform her as to the status of her request for her grievance to be filed. In rejecting plaintiff’s contention that her action was timely, the Metz court stated:

... Both parties note the general rule that the limitations period begins to run ‘when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation.’ Hungerford v. United States, 307 F.2d 99, 102 (9th Cir. 1962)____ This case falls within the ‘should have discovered prong’ of the Hungerford rule. At some point prior to six months preceding the time this action was brought, the appellant, in the exercise of reasonable diligence, should have discovered the acts constituting the alleged violation.

715 at 304. The court goes on to explain that following her discharge on January 15, 1981 plaintiff notified her union, but the union failed to file a grievance within the five-day limitation under the collective-bargaining agreement. Furthermore, the evidence was uncontested that the union took no action at all from May 5, 1981 until June 23, 1982 when the action was brought, resulting in almost seven months of union inactivity preceding the six month statutory period. The court thus concluded:

At some point prior to the six month statutory period, the appellant should have realized that the union was taking no action on her behalf. The appellant cannot be allowed to sit back and claim a lack of notice in light of circumstances such as these.

Id.

Based on the Metz decision, this court is of the opinion that the present plaintiff’s action is likewise time-barred. Plaintiff’s amended complaint clearly shows that some eighteen to thirty-six months passed between the time of the alleged breaches of contract by defendant under counts one through four and the time he filed this action. Under the terms of the grievance precedure involved, all parties concerned were under a duty to settle plaintiff’s grievances “at the earliest practicable time.” (Plaintiff’s amended complaint, exhibit # 1, 5). Since plaintiff sought his union’s assistance in processing his claim, he should have realized at some point during the twelve to thirty month period prior to the six month period preceding the commencement of this suit that the union was taking no action in his behalf when it failed to initiate a meeting between union committeemen and management as required under step lb of the procedure. Plaintiff does not allege that he was misled by his union as to its position concerning his grievances, but rather that it simply refused, in bad faith, to “process or otherwise handle” them. Even if the union did not notify plaintiff of its decision not to follow up on his claims, as the Metz court stated:

To say ... that the running of the statute of limitations will be postponed indefinitely until actual notification is received from the Union or the employer, would be contrary to the policy of prompt resolution. Lack of notification would leave claims unresolved indefinitely and leave the procedure open to all of the vices which statutes of limitations were intended to eliminate.

715 F.2d at 304. Thus, under the circumstances here presented, the court is constrained to conclude that plaintiff’s action is barred by the six month statute of limitations of NLRA § 10(b).

III.

In conclusion, based on the reasons set forth above, the court denies plaintiff’s motion to remand this action back to state court and hereby grants defendant’s motion to dismiss plaintiff’s action for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).

The Clerk is directed to send certified copies of this Memorandum Opinion to counsel of record.

      . In count four plaintiff alleges that his life insurance coverage was terminated but fails to specify the date of its termination. Because the collective-bargaining agreement incorporating the terms here at issue expired July 25, 1982, the termination of plaintiffs life insurance could have occurred no later than that date, some twenty-two months prior to the filing of this action.

      . Step lb provides:

        Between the aggrieved party, union representation, and plant management. If the grievance is not adjusted to the grievant’s satisfaction by his foreman, a request shall be given to the appropriate superintendent requesting a meeting. Management shall give a decision to the Union Committeemen who presented the grievance within two (2) working days after a fact finding meeting of Union and Company representatives.