author: ROBERT D. POTTER, Chief Judge.

text:
    UNITED STATES of America v. Michael David MOORE.
    No. C-CR-85-51.
    United States District Court, W.D. North Carolina, Charlotte Division.
    Nov. 27, 1985.

      Kenneth P. Andresen, Asst. U.S. Atty., Charlotte, N.C., for plaintiff.
    George V: Laughrun, II, Charlotte, N.C., for defendant.
   ORDER

ROBERT D. POTTER, Chief Judge.

INTRODUCTION

THIS MATTER is before the Court upon the Government’s Objection, filed November 1, 1985, to the Magistrate’s Memorandum and Recommendation, filed October 21, 1985, whereby she recommended that Defendant’s Motion to suppress certain evidence be allowed. The question before the Court is whether Defendant was illegally seized within the meaning of the fourth amendment where during an encounter with law enforcement officers the Defendant was told he would be on his way from their intended conversation as long as nothing was wrong.

The Court heard arguments of counsel on November 26, 1985 on this matter. The Defendant was represented by George V. Laughrun, II, Attorney at Law, and the Government was represented by Assistant United States Attorney Kenneth P. Andre-sen.

STATEMENT OF THE CASE

On May 9, 1985, Charlotte Vice officer Don R. Harkey and Special Agent Jack A. Davis were on duty as drug interdiction officers at the Charlotte Douglas International Airport. They were observing arrivals of Piedmont Flight # 80, a non-stop flight from Miami, Florida. Defendant deplaned the flight and was observed carrying a blue nylon bag. The officers attention was drawn to Defendant when, immediately upon deplaning, he stopped in an area away from other passengers, carefully opened the blue nylon bag and peered into it. Agent Davis admitted at the Magistrate’s hearing that Defendant could have been removing his ticket from the bag (Tr. 22-23), but at the scene, the officers concluded that Defendant was attempting to be secretive about its contents.

Agent Davis approached Defendant, displayed his credentials and said, “Excuse me, sir, may I talk with you?” Davis also introduced Officer Harkey who was standing five or six feet away, who likewise displayed his credentials. Both Davis and Harkey were in plain clothes. Davis told Defendant that he was not under arrest and that he and Harkey wanted Defendant’s cooperation and to talk to him for a minute. Defendant agreed to talk. Davis then said “the conversation [would] take a few minutes and in all probability, if there was nothing wrong, [Defendant would] be on his way right away.” (Tr. at 7, 9, 27, 47-48, 50-51.)

Then Davis asked to see Defendant’s plane ticket and Defendant produced a folder containing two tickets. Davis determined from looking at the tickets that Defendant had flown to Miami the day before, had paid cash for his ticket and was carrying no luggage other than the blue nylon bag. Davis asked for Defendant’s identification and while looking at the card Defendant produced, Defendant asked him, “What’s this all about?” Davis replied that he and Harkey were looking for narcotics coming through the airport. Defendant stated that he did not mess with drugs. (Tr. 7, 27, 47.)

The first names on Defendant’s identification card and plane ticket were different, but the officers did not consider that significant. The officers questioned Defendant about where he worked, where he was going and why he was going there. Davis was not satisfied with Defendant’s answers and believed Defendant was not telling the truth. Davis then asked Defendant if he would consent to a search of his person and bag. (Tr. 7, 24-27.) After Defendant agreed to the search, Davis asked if he wanted the search conducted in a more private place. The Defendant said he would, so the three men moved a short distance away to a construction area where they stood behind a plywood wall. Davis asked Defendant if Defendant was still willing to permit the searches and Defendant stated that he was. Davis opened the nylon bag, found approximately five grams of marijuana in a plastic bag inside and immediately advised the Defendant that he was under arrest for possession of marijuana. (Tr. 7-10, 28.)

Davis continued to search the bag and found a black notebook. As Davis was examining the notebook, Defendant leaned over to reach for it. Defendant’s movement dislodged a plastic bag filled with white powder which Defendant had been carrying under his vest and the bag fell into a nearby ashtray. After a brief scuffle, Defendant was subdued, handcuffed and advised that he was also under arrest for trafficking in cocaine. (Tr. 8, 29.)

After taking Defendant to the Narcotics Interdiction Unit office at the airport, Davis gave Defendant his Miranda warnings. Defendant indicated that he understood his rights and waived them by initialing and signing the Miranda form in the spaces provided. Defendant then made incriminating statements to the officers. (Tr. 11-14.)

The Defendant filed a Motion to suppress all evidence seized from his person and all statements made by the Defendant on the grounds that Defendant was illegally detained and his statements were not the product of a knowing and voluntary waiver of his Miranda warnings.

The Magistrate ruled that the evidence should be suppressed. She concluded that the initial encounter between the officers and Defendant was consensual; but, when Davis went on tell Defendant at the inception of the conversation that “the conversation [would] take a few minutes and, in all probability, if there was nothing wrong, he’d be on his way right away,” the consensual encounter was transformed into a seizure within the meaning of the fourth amendment. The Magistrate, citing United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), stated the general rule that a seizure occurs when the individual has “some objective reason to believe that [he] is not free to end the conversation and proceed on his way.” (M/R 6-7.)

The. Magistrate inferred that Davis’ statement was that the Defendant would not be “on his way” until the two officers confronting him determined whether there was something wrong. This provided the Defendant, concluded the Magistrate, with an objective basis to believe that he was not free to leave. The Magistrate found that Davis’ subsequent statement that he and Harkey were looking for drugs served to reinforce Defendant’s belief. (M/R 7.)

Further, the Magistrate ruled that since Defendant’s consent to search was given at a time when he was illegally seized, then the search was illegal and the fruits of the search were illegally obtained. See, Unit ed States v. Gooding, 695 F.2d 78, 84 (4th Cir.1982.) Since the marijuana was discovered during an illegal search, the resulting arrest was unlawful. Also, the subsequent inadvertent discovery of the cocaine while the Defendant was illegally detained was similarly tainted. The Magistrate reached the same conclusion with respect to the black notebook. (M/R 9.)

The Magistrate also concluded that Defendant’s incriminating statements given after his illegal arrest should also be suppressed. She reasoned that although Miranda warnings were given and understood, the taint of the illegal arrest nevertheless remained unpurged. (Citing Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982) (confession obtained through custodial interrogation after illegal arrest should be excluded unless interveneing events break causal connection so that confession is an act of free will).) (M/R 9.)

The Government contends that the Magistrate erred in her ruling under United States v. Mendenhall, supra. The Government argues that because the crucial comment made by Agent Davis that if nothing was wrong Defendant would be on his way quickly occurred after the Defendant had been told by Davis that he was not under arrest and after the Defendant had already consented to talk with the agents, the Mendenhall reasonable person test was satisfied. Nothing transpired, according to the Government, after the initial encounter, which the Magistrate found no fault with, to transform it into a seizure. The subsequent search of Defendant's bag which resulted in the discovery of the marijuana, and later the cocaine, was based on Defendant’s consent.

The Court is concerned that the officers may become overly zealous in their duties resulting in frequent and bothersome encounters with innocent persons already probably irritated with the rigors of a busy airport.

However, the officers’ initial encounter with this Defendant was found to be consensual by the Magistrate; and the Defendant did not raise that as an issue for the purposes of this appeal. Officers do not violate the fourth amendment where they merely approach an individual on the street or in another public place, by asking if the person is willing to answer some questions, or by putting some questions to the person if he is willing to listen. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (discussed infra).

APPLICABLE LAW

The United States Supreme Court, in United States v. Mendenhall, supra, set forth the basic test to determine whether a seizure within the meaning of the fourth amendment has occurred. “[A] person has been ‘seized’ within the meaning of the fourth amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id., 446 U.S. at 554, 100 S.Ct. at 1877. Mendenhall also involved an airport encounter in which two DEA officers approached the defendant after her deplaning an LA flight which had arrived in Detroit. The defendant fit certain characteristics of a drug courier profile as she was observed walking through the concourse. The DEA officers identified themselves as federal agents and asked the defendant to show them her identification and plane ticket. After discovering defendant’s driver’s license and ticket were in different names, the officers questioned her briefly about the discrepancy and how long she had been in California. The officers returned the license and ticket and asked the defendant to accompany them to the airport DEA office for more questioning. The defendant consented, and at the office, further consented to a search of her person and handbag even after the officer stated that she had the right to refuse to the search. Later, a female officer who arrived to conduct the search of defendant’s person, also asked if she consented, and the defendant responded that she did. When told that she would have to remove her clothing, the defendant stated that she had a plane to catch. The officer assured her that if she was carrying no narcotics there would be no problem. Id. at 547-49, 100 S.Ct. at 1873-74.

The Court, in holding that no seizure occurred when the agents approached her on the concourse and questioned her, stated that nothing in the record indicated that defendant had any objective reason to believe that she was not free to end the conversation in the concourse and go on her way. Id. at 555, 100 S.Ct. at 1877-78. Under the totality of all the circumstances, the defendant’s consent to go to the airport DEA office with the officers was held voluntary. The Court found that the defendant was not told that she had to go to the office, and neither threats nor any show of force were used. Id. at 557-8, 100 S.Ct. at 1878-79. The facts that defendant was a 22-year-old Negroe without having graduated from high school, and was accosted by white officers, were not decisive. Id.

The Court went on to state that its conclusion that no seizure occurred was not affected by the fact that the defendant was not expressly told that she was free to decline to cooperate with the officers’ inquiries because the voluntariness of her response did not depend on her having been so informed. Id. at 555, 100 S.Ct. at 1877-78.

The Court also set forth some examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, such as: the threatening presence of several officers, the display of a weapon, some physical touching, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. Id. at 554, 100 S.Ct. at 1877.

The Fifth Circuit Court of Appeals held in United States v. Berry, 670 F.2d 583 (5th Cir.1982) (Unit B) (en banc), that an airport stop based on a drug courier profile will be a seizure if “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id at 595, quoting United States v. Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. at 1877. In Berry, two DEA agents observed the defendants deplaning a flight from Miami to Atlanta. One of the officers was vaugely aware of having seen a photograph of one of the defendants, Berry. Berry stared at the agents while leaving the gate and at the baggage claim where he walked by the agents several times. Berry and the other defendant, Jabish, looked nervously at the agents while making their way down the concourse. The DEA agent approached Berry outside the terminal as Berry was taking luggage toward a taxi stand where Jabish was waiting. The agent identified himself and asked to talk with Berry, inquiring of his identify and travel plans. Berry gave a false name and stated that he was travelling alone. He handed over two tickets carrying the names of David and Joanne Sarver. When asked for more identification, he produced a driver’s license in the name of Dudley Berry. The agent recognized Berry as a man he had been told to watch. When Berry indicated that Jabish was with him, the agent motioned her to join them while the other agent simultaneously walked over to Jabish, may have touched her elbow, pointed to the other two men, and also asked her to join them. When the agent identified himself and asked Jabish her name, she responded that her name was Joanne Sarver. The agent informed her that Berry had admitted his true identity and asked if she wanted to change her answer. She did not reply, but appeared extremely nervous. The agent asked Berry and Jabish if they were carrying drugs and Berry responded they were not. The agent then asked Berry and Jabish to accompany him to the airport DEA office. Berry consented. On the way to the office, Berry asked whether they had violated any law. The agent told him that they had violated a Georgia law by falsely identifying themselves to police officers. He commented, however, that “there would be no problem” if a search revealed no drugs. The defendants consented to a search at the DEA office where they were both found to have been carrying cocaine. Id. at 587-89.

The court of appeals found that there was no seizure during the initial contact with Berry. The court noted that, although the agents stopped Berry’s progress on his way to a taxi stand, they merely identified themselves and asked if they could talk with him; there was no indication of coercion. Id. at 603. See Florida v. Royer, supra. The seizure of Berry occurred, according to the court, when Berry showed the agent his driver’s license and admitted that he was travelling with Jabish. By then, reasoned the court, the agent knew the defendants matched a drug courier profile, were hiding their joint travel and were travelling under aliases. He also had been told to watch for Dudley Berry. Thus, there existed a reasonable suspicion for the basis of a seizure of Berry. Id.

The court found that Jabish was seized when the agent came over to her, perhaps touching her on the elbow, pointing towards the other two men, while the agent with Berry was also motioning her to join them. The court stated that the “situation [appeared] closer to a command than to a request with which a reasonable person would believe he could freely comply or not.” Id. at 604. However, the agents were found to have had reasonable suspicion for Jabish’s seizure as well. Id.

The court in Berry pointed out that “the difference between voluntary, unintrusive communications between police and citizens and forced interrogation by police that is so intrusive as to be a seizure ... rests on fine distinctions in the degree of coercion police may use in an airport stop.” Id. at 595. The court emphasized that the very nature of airport stops may render them intimidaing and that careful attention should be given to nuances of tone and language, such as “whether a phrase was worded as an order or a question, whether a question was so peremptory as to be a command in all but punctuation____” Id. at 596. The court of appeals stated that the determination of whether a seizure occurred should focus on whether the circumstances reveal the presence of any coercion. Specific factors to be examined are whether the officer: (1) blocks the defendant’s path or intercepts him to prevent progress; (2) retains a ticket; (3) states that an individual is suspected of smuggling drugs; and (4) informs the defendant that an innocent person would cooperate with the police. Id. at 597. “Statements which intimate that an investigation has focused on a specific individual easily could induce a reasonable person to believe that failure to cooperate would lead only to a formal detention.” Id.

The court of appeals went on, however, to point out that even if the defendants were illegally detained because of a lack of reasonable suspicion or probable cause, the voluntary consent of the defendants was sufficient to remove the taint of an unlawful seizure. To purge any taint from an unlawful seizure, there must exist proof that the consent was voluntary and that it was not the product of the illegal detention. Id. at 604. See also, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979.) The factors to be considered are the temporal proximity of an illegal arrest and confession, intervening circumstances, and purpose and flagrancy of the official misconduct. Berry, supra at 605. The defendant’s voluntary consent to a search of the luggage at the airport DEA office eliminated any taint of unlawful arrest following the airport stop. The defendant’s consent was voluntary where, although close in time to the agent’s request to go to the office, there were substantial intervening circumstances in that the defendants were told that they could decline consent, could consult with an attorney, and defendants were allowed to consult with each other, notwithstanding the absence of Miranda warnings. Id. at 604-05.

Another case related to the issue is Florida v. Royer, supra, where the United States Supreme Court stated that police officers do not violate the fourth amendment by merely approaching an individual in a public place and asking if he is willing to answer some questions. In that case, the defendant purchased a plane ticket to New York City at Miami International Airport. The ticket was purchased under an assumed name which was also used on his luggage identification tags. When the defendant was proceeding to the concourse leading to the airline boarding area he was approached by two officers, who previously had observed the defendant and believed he fit a drug courier profile. The officers identified themselves and asked the defendant if he had a moment to talk with them and the defendant said he did. The officers asked to see defendant’s ticket and driver’s license which he produced. The driver’s license bore the name “Royer”, whereas the airline ticket and luggage identification tags carried the name “Holt.” Royer explained that the discrepency was due to a friend of his having made the reservation in the name of Holt. Around this time, the defendant became noticeably nervous. The officers then stated that they were narcotics investigaors and that they had reason to suspect him of transporting marijuana. Id., 460 U.S. at 493-494, 103 S.Ct. at 1321-22.

The officers did not return the defendant’s plane tickets or license but asked him to accompany them to a room near the concourse. The defendant did not orally respond but went with the officers. Without his consent, one of the officers retrieved the defendant’s luggage and brought it to the room. At the room, the defendant would not orally consent to a search of the luggage, but he did produce a key and unlocked one of his suitcases in which marijuana was found. As for his second suitcase, the defendant said he did not know the combination of the lock but that he did not object to its being opened. The officer pried the case open and found more marijuana whereupon the defendant was placed under arrest. Id. at 494-95, 103 S.Ct. at 1322-23.

The Court held that “when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way that he was free to depart,” the defendant was illegally seized under the fourth amendment. Id. at 501, 103 S.Ct. at 1326. Those circumstances amounted to “a show of official authority such that ‘a reasonable person would have believed he was not free to leave.’ ” Id. at 502, 103 S.Ct. at 1326, citing United States v. Mendenhall, supra.

The Court went on to state that had the officers returned the defendant’s license and ticket, and informed him that he was free to go, then they could have averted “any claim that the encounter was anything but a consensual matter from start to finish.” Id. at 504, 103 S.Ct. at 1328.

Nevertheless, the Court concluded that since the defendant was being illegally detained when he gave his consent to the search of the luggage, the consent was tainted by the illegality and ineffective to justify the search.

DISCUSSION

In consideration of the case law, this Court is now concerned with the question of whether a reasonable person would feel he was free to proceed on his way where he has been approached by two officers who ask to speak with him, identify themselves, state that he is not under arrest but that they just want to talk for a minute, and after the person consented, state that he would be on his way in a few minutes if nothing was wrong.

With that question in mind, a review of the relevant testimony at the pretrial hearing may be helpful.

Davis concluded shortly after Defendant deplaned that Defendant’s actions were significant in that he was arriving from a source city, Miami, and his actions were' those of somebody trying to be secretive about the contents of the bag. (Tr. 6.) Davis and Harkey followed Defendant and approached him, when Davis said “Excuse me sir, may I talk with you.” Davis then identified himself and introduced Harkey, who also identified himself. (Tr. 6.) Davis advised Defendant that he was not under arrest, but that they just wanted to talk to him for just a minute. (Tr. 6.) The Defendant said okay; Davis then advised him “that the conversation will take a few minutes and in all probability if there was nothing wrong, he’d be on his way right away.” (Tr. 7, 27.)

Three to five minutes transpired from the time of the initial encounter until the time that Defendant consented to the. searches. (Tr. 27.)

It is worth noting that on direct examination, Harkey stated upon Defendant’s initial encounter with Davis and while Davis identified himself and Harkey, that Harkey stood about five to six feet away. He was close enough to hear the conversation and “get involved if needed,” but far enough that “I wasn’t an immediate part of the conversation.” (Tr. 38.) Harkey stated that he never saw Davis touch Defendant and that he heard Davis tell Defendant “that he was not under arrest and that we appreciated his cooperation in this, and we would make this as quick as possible.” (Tr. 40.)

However, Harkey’s rendition of the facts indicates that he may have been somewhat unsure as to when exactly the comment of “as long as there’s no problem, you’ll be on your way,” occurred.

Q. Did you hear Agent Davis testify about his conversation with Mr. Moore and make a statement to the effect that he had told Mr. Moore he was not under arrest and if you’re not someone we’re interested in you’ll be on your way in a few moments? Do you recall that testimony?
A. Uh-huh, he said something to that effect, yes, ma’am.
Q. Do you recall that having occurred during this conversation with Mr. Moore?
A. Seems like he said something along that effect just about the time we started to step off — you know, to walk over there, that he just — you know, if this is something we’re not interested in, this will take just a moment, or something like that, yes, ma’am. It was something along that line.
Q. And that would have been right after Mr. Moore had given his first consent to search?
A. That was after he had given his first consent to search, and we were step-pin’ to walk across over about 50 feet to the area where the search was made.

(Tr. 47-48.)

The Court is of the opinion that in light of the case law and sequence in which words were used and exchanged during the initial encounter, that the transaction did not amount to an unlawful seizure.

Davis approached Defendant and said, “Excuse me sir, may I talk with you?” At that time Davis introduced Harkey who was standing about five or six feet away and both men showed Defendant their badges, Davis saying that he was an SBI agent and Harkey a Charlotte Police Officer. Davis advised Defendant that he was not under arrest, but that they just wanted to talk to him for a minute. Defendant said okay, or words to that effect. Davis then said that the conversation “will take a few minutes and in all probability, if there was nothing wrong, he’d be on his way right away.” (Tr. 6-7.)

In view of all the circumstances, it cannot be said that a reasonable person have believed he was not free to leave. There were no threats, displaying of weapons, touching, nor were there several officers. In fact, Harkey was standing about five or six feet away. There was no evidence that the officers blocked Defendant’s path or tried to prevent him from proceeding on his way. The officers did not have anything belonging to the Defendant, such as his driver’s license or airline ticket; and before the comment of “as long as nothing’s wrong” was made, had not said anything that might lead the Defendant to believe he was suspected of smuggling drugs. Nor did the officers say anything to the effect that an innocent person would cooperate with the police.

Instead, Davis stated that Defendant was not under arrest, but that they just wanted to talk for a minute. The Defendant consented to this much. But it is argued that the encounter was transformed into a seizure by the single statement of Davis that the conversation would take a few minutes and if there was nothing wrong, he would be on his way right away. The Court disagrees. There is no indication that the statement together with all the circumstances of the situation, appeared to be anything like a command with which a reasonable person would believe that he could not freely leave.

Thus, the Defendant’s Motion to suppress is DENIED.

The Clerk is directed to certify copies of this Order to defense counsel and the United States Attorney.


source: Caselaw Access Project

author: SWEET, District Judge.

license: Public Domain

text:
    METRO KANE IMPORTS, LTD., Plaintiff, v. FEDERATED DEPARTMENT STORES INC. d/b/a Bloomingdales Department Stores, the Conrans Stores, Inc., Hanover House, a division of the Horn & Hardart Companies, Inc. and Brookstone Company, Inc., Defendants.
    No. 85 Civ. 8306 (RWS).
    United States District Court, S.D. New York.
    Dec. 2, 1985.

      Kane, Dalsimer, Kane, Sullivan & Kurucz (John Kurucz, Ronald R. Santucci, Scott E. Thompson, New York City, of counsel), for plaintiff.

      Proskauer Rose Goetz & Mendelsohn (Jacob Imberman, Barry G. Felder, New York City, of counsel), for defendant Federated Dept. Stores, Inc.
    Cowan, Liebowitz & Latman (Elliot M. Schachner, New York City, of counsel), for defendant Hanover House.
    Kenyon & Kenyon (Robert D. Fier, New York City, of counsel), for defendant Brookstone Co., Inc.
   SWEET, District Judge.

Plaintiff Metro Kane Imports, Ltd. (“Metro Kane”) by order to show cause heard on October 25, 1985 introduced another chapter in its effort to protect its rights in the Mighty OJ, a mechanical orange juice squeezer in robotic form which has already received judicial scrutiny. Metro Kane now seeks a preliminary injunction against the continued sale of certain mechanical orange juice squeezers by defendants Bloomingdale’s Department Stores (“Bloomingdale’s”), Hanover House, a division of the Horn & Hardart Companies, Inc. (“Hanover House”), and Brook-stone Company, Inc. (“Brookstone”). Metro Kane has alleged irreparable injury arising out of the competing orange juice squeezers’ infringement upon its juicer’s protectible trade dress pursuant to section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), violation of New York common law, and the “Mold Statutes” of California, Michigan and Tennessee. By motion filed November 6, 1985, Bloomingdale’s, joined by the other defendants, has asserted that this action must be dismissed for lack of subject matter jurisdiction under the Lanham Act. For the reasons set forth below, Bloomingdale’s motion is denied, and Metro Kane’s motion is denied in part and granted in part.

1. Subject matter jurisdiction

Bloomingdale’s relies first on collateral estoppel. In Metro Kane Imports Ltd. v. Rowoco, Inc., 618 F.Supp. 273 (S.D.N.Y.1985), this court held that Metro Kane failed to demonstrate the existence of Secondary meaning with regard to its marketing of the “Mighty OJ” juicer and denied its federal claim for injunctive relief against Rowoco, Inc. (“Rowoco”), the importer of the item sold by Bloomingdale’s. Opinion at 4. This opinion resulted from a remand from the.Court of Appeals from an earlier denial of an injunction against Rowoco on a different basis. Since secondary meaning is an essential element of a Lanham Act claim, Metro Kane’s federal statutory claim was denied. There is no question that Metro Kane is the same party in both the earlier case and the present one, that the legal issue is identical, that it was resolved by a final judgment on the merits, and that there was an ample opportunity to litigate this issue in the first action. As such, the defendants have demonstrated each of the essential requirements of collateral estoppel. See Tole S.A. v. Miller, 530 F.Supp. 999, 1003 (S.D.N.Y.1981), aff'd mem. 697 F.2d 298 (2d Cir.1982).

However, an exception to collateral estoppel is recognized where an intervening factual change has altered the basis underlying the earlier legal conclusion. IB J. Moore, J. Lucas & T. Currier, Moore’s Federal Practice ¶ 0.448, at 836-37 (1984). See Miss Universe, Inc. v. Kidney Foundation of New York, Inc., 214 U.S.P.Q. (BNA) 199 (S.D.N.Y.1981) and Metro Kane asserts such a change. Metro Kane has indicated that it intends to offer consumer surveys supporting its claim of secondary meaning. Such surveys are generally regarded as the most probative evidence of secondary meaning.

While a relatively short period of time has expired since the previous litigation, there is no basis to hold that a party is precluded as a matter of law from demonstrating that secondary meaning can be acquired within a few months. Indeed, in this day of modern communications it is frequently the case that a particular product or name becomes familiar to many consumers overnight and the question of whether secondary meaning exists is dependent on a variety of factual questions and determinations. See Universal City Studios v. Nintendo Co., 578 F.Supp. 911, 925 (S.D.N.Y.1983), aff'd, 746 F.2d 112 (2d Cir.1984). See also J. McCarthy, Trademarks and Unfair Competition § 15:10 (1984).

The defendants’ reliance on GAF Corp. v. Eastman Kodak Co., 519 F.Supp. 1203, 1214 (S.D.N.Y.1981), is not persuasive since that case involved antitrust issues which do not necessarily have the temporal volatility of the Lanham Act issues presented here. Moreover, the GAF opinion applied collateral estoppel in deciding a motion for summary judgment after extensive discovery, whereas Bloomingdale’s here urges dismissal on the pleadings. In view of this, Metro Kane’s complaint cannot be dismissed on the basis of collateral estoppel.

The defendants urge a second ground to hold the Lanham Act claim insufficient as a matter of law. As explained by the Second Circuit, even if “use of the name has acquired secondary meaning, it could not prevent the use of that term by one whose use began before the secondary meaning was acquired.” Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1043 (2d Cir.1980). The Rowoco opinion established that no secondary meaning existed at the time of that determination and Bloomingdale’s has presented evidence of juicer sales prior to June 24, 1985. The affidavit of Glen Senk, a divisional merchandise manager, establishes that Bloomingdale’s has been advertising and selling the Rowoco juicer at least since the spring and summer of 1985, and sales by Bloomingdale’s are conceded by Metro Kane.

Thus, it is Bloomingdale’s position that Metro Kane is precluded on the basis of Saratoga Vichy, supra, from establishing its Lanham Act claim based on the existence of secondary meaning prior to the commencement of the allegedly infringing sales. Since neither Hanover House nor Brookstone has presented any evidence of sales before June 24, 1985, however, dismissal of the Lanham Act claim against them would be inappropriate on this basis.

However, Metro Kane has asserted that a colorable Lanham Act claim may be based on the theory that, where secondary meaning is “in the making” but not yet fully developed, a trademark or trade dress will be protected against intentional, deliberate attempts to capitalize on a distinctive product. While no previous ease has apparently relied solely upon secondary meaning in the making to establish a Lanham Act violation, this court has demonstrated a nodding acquaintance with the concept. See Loctite Corp. v. National Starch & Chemical, 516 F.Supp. 190, 210 (S.D.N.Y.1981); Orion Pictures Co. v. Dell Publishing Co., 471 F.Supp. 392, 396 (S.D.N.Y.1979); Blake Publishing Co. v. O’Quinan Studios, Inc., 202 U.S.P.Q. 848 (S.D.N.Y.1979); West & Co. v. Africa Institutes, 194 U.S.P.Q. 32 (S.D.N.Y.1976); Glamorene Products Corp. v. Boyle-Midway, Inc., 188 U.S.P.Q. 145 (S.D.N.Y.1975); National Lampoon, Inc. v. American Broadcasting Cos., Inc. 376 F.Supp. 733, 747 (S.D.N.Y.), aff'd, 497 F.2d 1343 (2d Cir. 1974).

There exists no controlling authority which holds that a Lanham Act claim based on secondary meaning in the making is without merit and some tacit support for the doctrine may be culled from the Second Circuit’s terse per curiam affirmance of the Honorable Charles L. Brieant’s opinion in the National Lampoon case which partially relied on the doctrine. There the court stated that “the judge justifiably found that the defendant ... had deliberately attempted to exploit National Lampoon’s well-known name and reputation.”

While secondary meaning in the making has received tacit approval, the doctrine is admittedly somewhat at odds with the affirmative requirement of secondary meaning found in the Saragota Vichy Spring opinion. See also Thompson Medical Co. v. Pfizer, Inc., 753 F.2d 208, 217 (2d Cir. 1985); 20th Century Wear, Inc. v. Sanmark-Stardust, Inc., 747 F.2d 81, 90 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1755, 84 L.Ed.2d 818 (1985). One distinguishing aspect is that Saratoga Vichy Spring considered the rights to the use of descriptive or geographical words and not, as is presented here, the right to a product’s trade dress. Since “secondary meaning was originally ... designed to limit the extent to which a manufacturer could monopolize words and symbols that are useful in describing products,” Perfect Fit Industries, Inc. v. Acme Quilting Co., 618 F.2d 950, 952 (2d Cir.1980), the requirement of secondary meaning is less important in “the realm of trade dress, because the possible varieties of advertising display and packaging are virtually endless.” Id. at 953. While the Perfect Fit opinion was addressing the necessity of secondary meaning under New York State law, its reasoning has relevance to federal copyright principles as well.

Secondary meaning in the making derives further support from the analogous “second comer” doctrine. This doctrine states that “[a] senior user in possession of a distinctive mark has a right not to have a second comer intentionally cause a likelihood of confusion between the two marks in an attempt to exploit the reputation of the senior user’s mark, since this would deprive the first user of control over its reputation and goodwill.” Thompson Medical Co., supra, 753 F.2d at 214. The dicta in Thompson Medical Co. suggests that the second comer doctrine has no independent significance apart from the typical Polaroid analysis of likelihood of confusion. Id. at 215. While it is true that “no single Polaroid factor is pre-eminent, nor can the presence or absence of one without analysis of the others, determine the outcome of an infringement suit,” id. at 214, evidence of a highly distinctive mark of the senior user together with proof of bad faith by the junior user strongly buttresses a finding of infringement. See id. at 218 & n. 16. See also Tomy Corp. v. P.G. Continental, Inc., 534 F.Supp. 595, 598-99 (S.D.N.Y.1982) (“plaintiffs must establish ... either that defendants intentionally copied their product, hoping to profit from the market plaintiffs had created; or that the particular color scheme plaintiffs had created ... has achieved secondary meaning”).

The conclusion reached here is that Metro Kane’s Lanham Act claim of “secondary meaning in the making” presents a viable federal question. The case law does not foreclose Metro Kane’s cause of action based on allegations that, by intentionally copying a product’s highly distinctive trade dress, Bloomingdale’s interfered with Metro Kane’s attempt to develop secondary meaning. At least it is not possible to conclude that Metro Kane’s federal cause of action against Bloomingdale’s is “wholly insubstantial and frivolous.” Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946); see Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S.Ct. 1372, 1378-79, 39 L.Ed.2d 577 (1974).

The affidavit of Riki Kane (“Kane”), president of Metro Kane, provides some evidence to support Metro Kane’s claim for relief under the doctrine of secondary meaning in the making. Kane asserts that during negotiation, in the spring of 1984, after prior purchases of the Mighty O-J by Bloomingdale’s and sales to its customers, Senk, the houseware buyer for Bloomingdale’s, warned her about the existence of identical but lower priced juicers from Taiwan and then proceeded to purchase the Taiwanese import from Rowoco in the fall of 1984. Kane further asserts that thereafter Bloomingdale’s sold another copy of the Mighty OJ and in July, 1985 Bloomingdale’s profited from the purchase and sale of large quantities of the Rowoco juicer at distressed prices.

Bloomingdale’s has countered Metro Kane’s evidence of intentional and deliberate copying by noting that September 19, 1985 was the first occasion on which this court reached the finding that the Rowoco juicer was unlawfully competing with the Metro Kane juicer. Before that time, Bloomingdale’s claims that it was proper to rely on this court’s October 2, 1984 opinion holding that Metro Kane had no protectible interest in its juicer despite the decision of the Second Circuit on February 15, 1985 reversing and remanding the district court holding. Since Metro Kane has alleged wrongful activities falling outside of the period between October 2, 1984 and February 15, 1985, its Lanham Act claim is not foreclosed on the pleadings by Bloomingdale’s claim of good faith which presents a factual issue.

Finally, Metro Kane’s claim that Bloomingdale’s has infringed upon its secondary meaning in the making is not subject to dismissal on the basis of collateral estoppel. One of the elements of such a claim is the intent of the defendant to capitalize on the distinctive quality of the plaintiff’s mark. See National Lampoon, supra, 376 F.Supp. at 747. The question of Bloomingdale’s intent was never an issue in the Rowoco litigation and no discovery, or findings were provided. Therefore, Metro Kane has properly stated its federal cause of action.

2. Preliminary injunctive relief

In the Second Circuit, a party seeking injunctive relief must show “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979).

Metro Kane has adequately demonstrated the likelihood of irreparable harm with regard to the actions of defendant Brookstone. As described in the Rowoco opinion, Metro Kane is predominantly a single product company and thus relies heavily on sales of the Mighty OJ juicer for its profitability. Infringing sales during the Christmas shopping season could seriously threaten the company’s business.

A preliminary examination of the allegedly infringing juicers reveals that the juicers sold by Brookstone are Virtually identical in appearance to the Mighty OJ juicer. While Brookstone has asserted that its distinctive store name, appearance, and display of boxes, eliminate any likelihood of confusion, this assertion does not significantly alter the present assessment of Metro Kane’s likelihood of success. As explained in the Rowoco opinion, such label-ling may be ineffective when a small distinctive item is casually considered by prospective consumers. Opinion at 5.

With regard to defendants Bloomingdale’s and Hanover House, there has been no demonstration of irreparable injury. Metro Kane and Hanover House have agreed to a preliminary injunction upon consent, which was to become effective only if this court has subject matter jurisdiction over the claim. Having made that affirmative determination, the court will approve the stipulation between Metro Kane and Hanover House. Bloomingdale’s has stated in the affidavit of Glen Senk that it has voluntarily withdrawn all Rowoco juicers from its stores and that the store will fill any future orders from catalogs by purchasing Metro Kane’s juicer at its regular wholesale price. Therefore, Metro Kane will not be harmed pending the resolution of this case. Since irreparable injury is an essential element of a motion for preliminary injunctive relief, no injunction will issue against Hanover House and Bloomingdale’s.

Further, the reasoning already set forth establishes the existence of a substantial question with respect to the federal claim, and the earlier opinion of this court has established the state claims under New York law and the mold statutes, thus meeting the second prong of the Jackson Dairy test.

The motion for a preliminary injunction against Brookstone will be granted and denied as to Hanover House and Bloomingdale’s. Submit order on notice.

IT IS SO ORDERED.

      . The Thompson Medical Co. opinion concluded that protection of an unregistered descriptive term, as opposed to a suggestive term, could not be granted absent a finding of secondary meaning. 753 F.2d at 215-17. Unfortunately, the general analysis of trade dress infringement does not include a distinction between "descriptive” and “suggestive" types of designs, but rather focuses on the distinction between "functional” and “design” features. See LeSportsac, Inc. v. K. Mart Corp., 754 F.2d 71, 75-78 (2d Cir. 1985). Given the state of flux in this area of the law it is possible that a highly distinctive design feature may be considered so “suggestive” that secondary meaning need not be proved. It is at least worth noting that none of the considerations for requiring secondary meaning which were emphasized in Thompson Medical Co., supra, 753 F.2d at 216, appear to be particularly important when evaluating the equity of protecting a product’s unique trade dress.


author: ASPEN, District Judge:

text:
    Vincent GOKA, Plaintiff, v. Paul BOBBITT, et al., Defendants.
    No. 84 C 1011.
    United States District Court, N.D. Illinois, E.D.
    Dec. 3, 1985.

      Daniel M. Harris, Mitchell D. Raup, Mayer, Brown & Platt, Chicago, 111., for plaintiff.
    Stephen G. Kehoe, Asst. Atty. Gen., Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

The plaintiff Vincent Goka (“Goka”), an inmate at the Stateville Correctional Center in Joliet, Illinois,' was allegedly struck in the eye with a broom handle by another inmate, Gregory Williams (“Williams”), on September 23, 1983. Plaintiff, acting pro se, sued several employees and officials who were at Stateville at the time of the incident, seeking damages under 42 U.S.C. § 1983. Now represented, plaintiff has moved to amend his complaint. The amended, four-count complaint makes no new factual allegations but does name two additional defendants and seeks to reassert a claim voluntarily dismissed against a third defendant. The amended complaint also asserts pendent state law negligence claims, not present in the original complaint, against all defendants.

Defendants oppose the amendment on substantive grounds. They ask that the amendment be denied or, in the alternative, granted, but that Counts II, III and IV be dismissed. Defendants claim that Count III states no constitutional claim under § 1983, and that Counts II and IV assert pendent state law negligence claims barred by the Eleventh Amendment. For the reasons stated below, Goka’s motion to amend his complaint is granted.

I. Facts

Now an inmate at the Graham Correctional Center in Hillsboro, Illinois, Goka was jailed at Stateville in 1983. Defendants Paul Bobbitt, Carl Jordan, Bobby Parker and Travis Wheaton were guards of various rank, all assigned to Unit B East, where Goka lived. Defendant Michael O’Leary was then assistant warden and Richard DeRobertis was warden at State-ville. Gregory Williams, a member of the “Vice Lords” gang, was an inmate assigned to a cell next to Goka’s in Unit B East.

Several times through the summer of 1983, Williams harassed, threatened and assaulted Goka. Goka reported these incidents orally and in writing to guards Bobbitt and Jordan and demanded protection. On September 23, 1983, when Goka was assigned to clean up the area near Williams’ cell, Williams left his cell (it was unlocked) and struck plaintiff in the eye with a broom handle. Until just before the incident, Williams had been assigned to clean-up duty and was allowed to keep a broom in his cell. At the time, a “tool control policy” was in force at Stateville. The policy prohibited the storage of tools and other such equipment anywhere other than a locked, designated storage area when not in use.

Goka alleges in Count I that Jordan and Bobbitt knew that Williams had the broom handle in his cell, despite the tool control policy and despite their awareness of Williams’ previous threats and assaults on Goka. They are allegedly subject to liability under § 1983 because of their intentional or reckless disregard for Goka’s safety. Count II also names Jordan and Bobbitt, alleging common law negligence. Counts III and IV name all defendants, including the supervisors, alleging violation of § 1983. Count III says that Stateville officials regularly let inmates keep brooms in their cells, even though the tool control policy forbade such laxness. The defendants allegedly knew or “recklessly failed to learn” that the tool control policy was not being enforced and, as such, recklessly disregarded the safety of Goka and others. Goka alleges that the failure to enforce the policy proximately caused his injury. Count IV states a claim based on common law negligence.

II. Sufficiency of the Eighth Amendment Claims

A prison inmate is entitled under the Eighth Amendment to be free from an unreasonable risk of harm inflicted by other inmates. Watts v. Laurent, 77A F.2d 168, 172 (7th Cir.1985); Little v. Walker, 552 F.2d 193, 197 (7th Cir.1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530 (1978); Larry v. Lane, No. 83 C 0660, slip op. at 2 (N.D.Ill. Nov. 2, 1983) (Aspen, J.). The cases defining the standard of official liability for inmate-on-inmate violence use slightly different rhetoric but articulate essentially the same standard: While it is impossible to provide a violence free climate in prison, and while mere inadvertence or negligence does not offend the Eighth Amendment, see, e.g., Watts, 77A F.2d at 172, a prisoner may recover where the “risk of ... assault was a serious problem of substantial dimensions,” Withers v. Levine, 615 F.2d 158, 161 (4th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980); see also Jones v. Diamond, 636 F.2d 1364, 1373 (5th Cir.1981), where there exists among the officials “deliberate indifference” to the safety of the inmate, Little v. Walker, 552 F.2d 193, 197 (7th Cir.1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 530 (1978), or where prison officials fail to take reasonable steps to prevent a “pervasive” risk of harm, Massey v. Smith, 555 F.Supp. 743, 747 (N.D.Ind. 1983).

Under any of the above formulations, it is clear that Counts I and III of the amended complaint state a § 1983 claim at least against defendants Bobbitt and Jordan. They knew of the risk Williams posed to Goka and of the tool control policy, yet they let Williams have a broom handle. These allegations, if proved, would constitute just the “callous indifference” to Goka’s safety that the Eighth Amendment protects against. See, e.g., Watts, 774 F.2d at 172 (failure to protect an inmate even on one occasion can be actionable if guard should have realized that attack was likely). However, the supervisory defendants argue that they did not know that an attack might occur. They say that Goka is trying to pin vicarious liability on them, which is forbidden under § 1983. We disagree.

The supervisors are correct that liability under § 1983 requires the showing of a direct, personal responsibility on their part for acts and omissions that deprived the inmate of his rights. Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982); Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981). That is, Goka must affirmatively link the supervisors’ acts or omissions to the conduct which caused the violation. See Rizzo v. Goode, 423 U.S. 362, 373-77, 96 S.Ct. 598, 605-07, 46 L.Ed.2d 561 (1976). In addition, the acts and omissions of the supervisors must have been intentional or reckless. See, e.g., Smith v. Rowe, 761 F.2d 360 (7th Cir.1985). Negligent acts are not sufficient to support liability under the Eighth Amendment. See, e.g., Watts v. Laurent, 744 F.2d at 172. Vie think that Goka’s allegations concerning the supervisors satisfy the above principles under the liberal federal pleading standards of Conley and Hishon.

The amended complaint alleges more than an isolated attack by one inmate on another. It alleges a systemic failure to enforce the tool control policy and a link between this failure and Goka’s injuries. It alleges that the supervisors either knew or “recklessly failed to learn about” this lax enforcement. These acts, if true, state a claim for relief, as they constituted “deliberate indifference” to inmate safety and created a climate where attacks were likely. Of course, it remains for Goka to prove these facts. If the supervisors actually knew of a systemic lapse in enforcement, they would be liable under the principles in the preceding paragraph. But Goka might have a harder time establishing what he calls a “reckless failure to learn” about the lack of enforcement. Unless attacks with tools had been happening a few times already, it is hard to see how the supervisors were reckless in “failing to learn” about the lapses of their underlings. Perhaps this omission was negligent, but that level of culpability does not rise to an Eighth Amendment violation. We need not delve further into this issue now. Given Goka’s allegation that the supervisors actually knew about the failure to enforce the tool control policy, we are satisfied that he has stated a claim against them.

In sum, then, defendants’ attack on the amended complaint as failing to state a claim is rejected.

III. Pendent State Law Negligence Claims in Counts II and IV

The second issue raised by the defendants is whether the state law negligence claims, appearing for the first time in the amended complaint, run afoul of the Eleventh Amendment. Defendants’ attack on these counts begins with the general principle that the Eleventh Amendment bars suits in federal court against a state by citizens of the same state. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). A suit can be characterized as one against the state if a judgment would “expend itself on the public treasury or domain, or interfere with the public administration,” or “restrain the government from acting or compel it to act.” Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). The “crucial” issue in this inquiry, as defendants have termed it, is whether the defendants are the equivalent of the state for Eleventh Amendment purposes. As defendants point out, if the state is the real party against whom relief is sought, see, e.g., Pennhurst State School & Hospital v. Halderman. 465 U.S. 89, 100-01, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984), then the Eleventh Amendment would force this Court to deny pendent jurisdiction over the state law negligence claims.

It is clear that the defendants in this case are not identical to the state for Eleventh Amendment purposes. The foundation for the defendants’ theory is that public funds will probably eventually satisfy any judgment against the defendants. If Goka wins, defendants will likely enjoy a right to indemnification under Ill.Rev.Stat. ch. 127, ¶ 1302(a) (1983). This statute guarantees that the state will defend and, if necessary, indemnify state employees in suits alleging “deprivation of a civil or constitutional right and arising out of any act or omission occurring within the scope of the employee’s state employment.” Id. If the employee’s misconduct is willful, wanton or intentional, or the misconduct was not within the scope of employment, the state is not obligated to defend, reimburse or indemnify the defendant. Given this proviso and the allegations of the complaint, it is by no means certain that the state will indemnify defendants. But even if we assume that the defendants qualify under the indemnity statutes, the theory that such indemnity makes the state the real party of interest in a suit against its employees is flawed and has been rejected by several courts. See Wilson v. Beebe, 770 F.2d 578, 588 (6th Cir.1985) (en banc); Rubacha v. Coler, 607 F.Supp. 477, 480-81 (N.D.Ill.1985) (Shadur, J.); McAdoo v. Lane, 564 F.Supp. 1215 (N.D.Ill.1983) (Marshall, J.), aff'd without opinion, 774 F.2d 1168 (7th Cir.1985). Judge Marshall succinctly stated the reasons in McAdoo:

Plaintiff seeks to hold defendants liable for their personal conduct only; no judgment is sought against the state. The Illinois indemnity statute does not alter this conclusion. The statute represents a voluntary decision by Illinois to indemnify defendants. If plaintiffs obtain a judgment against defendants, under the eleventh amendment that judgment will bind defendants only. The eleventh amendment requires only that nothing in this court’s judgment compel the state to pay the judgment. If defendants seek to compel the state to indemnify them, they will have to file a separate action in state court; nothing in our judgment would bind the state. Since the indemnity statute is enforceable against the state if at all in state court, and since our judgment will in no way compel the state to indemnify plaintiffs, this action is not against the state within the meaning of the eleventh amendment; it is brought only against named individuals and hence is not barred by the amendment. Every court to consider the effect of such indemnity statutes under the eleventh amendment has reached the same conclusion.

564 F.Supp. at 1219 (citations omitted). Judge Shadur expanded on this argument in Rubacha:

To hold otherwise would give the State carte blanche to provide a meaningless kind of paper protection — granting an “indemnification” that would, by its very existence, destroy the liability to which the indemnity purportedly extends. That would cost the State nothing, and it would unconscionably insulate State employees from all liability for their tortious and unconstitutional actions. After all, the Eleventh Amendment was designed to protect sovereign States, not individual citizens.

607 F.Supp. at 481; accord Wilson, 770 F.2d at 588. The logic of McAdoo applies to Goka’s state law claims as strongly as it did to the federal claims of that case. Rubacha, 607 F.Supp. at 481-82. Nothing in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 800, 79 L.Ed.2d 67 (1984), commands a contrary result. See Wilson, 770 F.2d at 588; Terry v. Burke, 589 F.Supp. 853, 855-56 (N.D.Ill.1984) (Marshall, J.); Rubacka, 607 F.Supp. at 481-82. In sum, we hold that the Eleventh Amendment does not bar Goka’s negligence claims.

We also reject defendants’ claim that Illinois’ own law of sovereign immunity confers exclusive jurisdiction of the negligence claims upon the Illinois Court of Claims. That act confers suits against the state to the Court of Claims. Ill.Rev.Stat. ch. 37, § 439.8 (1983). As we held earlier, this is a suit against state employees, not the state, since damages are only sought from them for their own negligence. This is proper under Illinois law as well as the Eleventh Amendment. See Hemphill v. Sayers, 552 F.Supp. 685, 688 (S.D.Ill.1982); cf. Bartholomew v. Crockett, 131 Ill.App.3d 456, 462, 86 Ill.Dec. 656, 660, 475 N.E.2d 1035, 1039 (1st Dist.1985); Madden v. Kuehn, 56 Ill.App.3d 997, 1000-01, 14 Ill.Dec. 852, 854-55, 372 N.E.2d 1131, 1133-34 (2d Dist.1978). As in the Eleventh Amendment context, the state cannot extend the mantle of sovereign immunity over an individual’s conduct by voluntarily indemnifying them.

Conclusion

Plaintiff has made a strong enough showing — to avoid dismissal of Count III— that defendants’ actions were made with reckless disregard for his safety. Also, the pendent negligence claims in Counts II and IV are not barred by the Eleventh Amendment. Permission to amend the complaint is therefore granted, and the de facto motion to dismiss Counts II, III and IV as amended is denied. It is so ordered.

      . The facts set forth below are those alleged in the proposed amended complaint. Where, as here, the defendant opposes amendment because of purported substantive deficiencies, the Court should evaluate the complaint under the familiar standards of Fed.R.Civ.P. 12(b)(6). 3 J. Moore, J.D. Lucas, Moore’s Federal Practice, § 15.08[4] (1985) at 15-109. Accordingly, below we take as true the complaint's allegations, Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir.1984). When we assess the sufficiency of the allegations, we cannot dismiss the amended complaint unless it appears that Goka can prove no set of facts in support of his claims which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

      . Goka alleges a violation of his Eighth and Fourteenth Amendment rights.

      . Indeed, defendants’ motion does not attack Count I, which names only Jordan and Bobbitt.

      . In these respects, defendants mistakenly rely upon United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir.1973), cert. denied sub nom., Gutierrez v. Dept. of Public Safety, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1976). In Miller the plaintiff alleged that the prison officials negligently let an inmate with a history of violence enter a room where baseball bats were stored. The violent inmate beat plaintiff with a bat, but the Court held that no Eighth Amendment claim was stated because the defendants were merely negligent. In this case, more than negligence is alleged, as defendants supposedly failed generally to enforce the tool control policy and knew of this failure. This failure created a climate where violence was likely and thus, if proved, constituted deliberate rather than merely careless indifference to inmate safety.

      . The Eleventh Amendment states:
      The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign state.
      Although the language of the amendment reaches only suits against a state brought by a citizen of another state, the Supreme Court has read the amendment to include a suit brought by a citizen against his own state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). This holding has been criticized, see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 125-26, 104 S.Ct. 900, 921-22, 79 L.Ed.2d 67 (1984) (Brennan, J., dissenting); Grove School v. Guardianship and Advocacy Comm’n, 596 F.Supp. 1361, 1367 n. 10 (N.D.Ill.1984) (Shadur, J.); Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U.Pa.L.Rev. 515, 538-40 (1978), and while the criticisms have some force, Hans still has the force of law and it binds this Court.

      . We have examined defendants’ remaining arguments and determined that they lack merit.