author: CASTAGNA, District Judge.

text:
    Jon R. SWOAGER, Plaintiff, v. The CREDIT BUREAU OF GREATER ST. PETERSBURG, FLORIDA, Defendant.
    No. 83-1190-Civ-T-15.
    United States District Court, M.D. Florida, Tampa Division.
    April 15, 1985.

      Stephen F. Hanlon, Levine, Freedman, Hirsch & Levinson, Tampa, Fla., for plaintiff.
    Keith A. Ringelspaugh, St. Petersburg, Fla., for defendant.
   ORDER

CASTAGNA, District Judge.

The Court has for consideration the status of the above-styled case, which presents as matters of first impression novel issues of law concerning the proper application of the Consumer Credit Reporting Act, 15 U.S.C. § 1681 et seq. Although this controversy is presently set for non-jury trial in September of this year, the parties have now filed cross motions for summary judgment on the issue of liability. The mere filing of cross motions does not necessarily mandate the entry of summary judgment unless the Court in fact finds an absence of genuine issues of material fact. See Joplin v. Bias, 631 F.2d 1235, 1237 (5th Cir.1980). There are no such factual disputes in this case.

The relevant facts before the Court indicate that in 1982, the defendant prepared a consumer’s credit report on the plaintiff, Jon Swoager. That report, which contained two entries on the advice of Ford Motor Credit Company (FMCC) indicating that it had repossessed two Ford vehicles from the plaintiff, was distributed to the defendant’s customers. Upon learning of these two entries, the plaintiff notified the defendant by letter that there was a dispute as to those entries, that FMCC had never “repossessed” any vehicle from him, and that he wished to have his statement of dispute affixed to any future credit reports. Upon receiving the plaintiff’s letter, the defendant’s employees contacted FMCC’s representative and FMCC’s attorney. Both sources indicated that the plaintiff had guaranteed two vehicles owned by Commercial Pest Control, Inc., each having been repossessed. FMCC then again requested that the repossessions be listed on the Swoager’s consumer’s credit report, and the defendant complied. The plaintiff’s letter was added to his consumer file, and the consumer credit report reflected the disputed status of the FMCC entries.

The instant controversy ensued. The plaintiff contends that the defendant violated the Consumer Credit Reporting Act (CCRA), 15 U.S.C. § 1681, et seq., by failing to follow “reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom a consumer report relates.” See id. § 16816(b). The plaintiff also contends the defendant willfully failed to comply with § 1681i, which sets forth dispute resolution procedures and reinvestigation duties when a consumer challenges the accuracy of a credit report.

The plaintiff’s claim brings into play two sections of the CCRA and seems to bootstrap the “maximum possible accuracy” provision of § 1681e(b) onto the dispute resolution and reinvestigation provisions of § 1681i. Therefore, the first matter for the Court’s determination is whether § 1681e(b) and § 1681i should be read together to create a claim for failure to maintain reasonable procedures to achieve maximum possible accuracy in relation to reinvestigation and dispute resolution procedures. This uncertainty has recently been recognized elsewhere but not resolved. See Stewart v. Credit Bureau, Inc., 734 F.2d 47, 55 n. 13 (D.C.Cir.1984). The parties here have briefed the issue at the Court’s request. The statutory scheme set forth in the CCRA provides a distinct regulatory framework dealing with reinvestigation procedures and corrections once the credit bureau has been notified of the grievance. See § 1681i. This provision instructs the consumer to notify the agency of his dispute. The agency is then obligated to reinvestigate the disputed entries and to remove or correct any inaccurate or unverifiable entries. The consumer, if still not satisfied, may add a statement of dispute to his file. Section 1681e(b), in contrast, by its language appears to be aimed at insuring accuracy in the preparation of the consumer’s credit report. Noncompliance with each of these provisions, as with failure to comply with any requirement imposed under the Act, may be remedied separately through §§ 1681n and o. See Hauser v. Equifax, Inc., 602 F.2d 811, 817 (8th Cir.1979) (implying that a claim for violation of § 1681i lies for negligent or willful failure to reinvestigate or correct an inaccuracy, but finding insufficient evidence in that case to go to the jury). This Court therefore finds no rationale to justify the creation of an implied, and essentially redundant, statutory duty of “maximum possible accuracy” on reinvestigation and dispute resolution procedures through § 1681e(b), when a parallel duty to delete inaccuracies already exists through § 1681i.

Admittedly, the standard of conduct imposed under § 1681i is lower than the standard of conduct imposed under § 1681e(b). Cf. 15 U.S.C. § 1681i (duty to reinvestigate and to delete information found to be inaccurate or no longer varifiable) with 15 U.S.C. § 1681e(b) (duty to follow reasonable procedures to assure maximum possible accuracy). But it must be remembered that § 1681i also provides the consumer with the opportunity to place a statement in his credit file which will put potential creditors on alert as to the disputed nature of the claim. In contrast, where the only information available to the creditor is that initially compiled by the credit bureau, it is essential that the compilation procedures utilized ensure maximum possible accuracy. To that extent, the functions of § 1681e(b) and § 1681i are dissimilar, and it would be incongruous to engraft the maximum accuracy dictates of the former into the context of reinvestigation and grievance procedures covered by the latter.

With this background for reference, the plaintiffs claims must be viewed as follows: a § 1681e(b) claim as to the accuracy of the initial compiled consumer credit report, and a § 1681i claim as to the reinvestigation undertaken in response to his complaint.

Concerning the first claim, the § 1681e(b) claim, the statute requires only that the defendant follow “reasonable procedures” to assure the “maximum possible accuracy” of the reported credit information. “The standard of conduct by which the trier of fact must judge the adequacy of agency procedures is what a reasonably prudent person would do under the circumstances.” Thompson v. San Antonio Retail Merchants Ass’n., 682 F.2d 509, 513 (5th Cir.1982).

The plaintiff has simply presented no evidence indicating that the defendant’s initial reliance on the information provided by FMCC was not reasonable. Even assuming that FMCC’s characterization of the credit reference as a repossession was incorrect, nothing in this record suggests that the defendant at that point had reason to know something was amiss. To require the defendant, under these facts, to substantiate the repossession information provided by FMCC would impose a duty of further investigation on the credit reporting agency as to virtually each and every adverse piece of credit information it receives. This burden simply outweighs any benefit that might be achieved. See Koropoulos v. Credit Bureau, Inc., 734 F.2d 37, 42 (D.C.Cir.1984), quoting, Alexander v. Moore & Assoc., Inc., 553 F.Supp. 948, 952 (D.Haw.1982), where the court stated:

Under this approach, the court, in determining whether a violation of 1681e(b) has occurred, would weigh the potential that the information will create a misleading impression against the availability of more accurate [or complete] information and the burden of proving such information.

Here, the defendant initially directly contacted the creditor, a procedure that was entirely reasonable, and there is no evidence of other inconsistencies or discrepancies that readily appeared from the face of the credit file. Therefore, the burden of further investigation on the agency would be so oppressive as to outweigh the harm it would be intended to protect against. The Court consequently finds no § 1681e(b) violation here.

As to the plaintiff’s second claim, the § 1681i claim, that statute imposes two duties: a duty to reinvestigate and a duty to delete information that is found to be incorrect or that can no longer be verified. There is no dispute that the defendant’s employees undertook reinvestigation procedures. As to the veracity of the repossession designation, the record is also undisputed that upon reinvestigation the employees were told by FMCC that the plaintiff was a guarantor of the autos, but that FMCC wanted to show the repossession as to the plaintiff. The defendant’s contention essentially boils down to the argument that because it was unclear as to plaintiff’s status, it was justified in following the creditor’s designation.

The Court is not persuaded. Merely reporting whatever information the creditor furnished was not reasonable, especially where the defendant knew of the impending dispute between the plaintiff and FMCC. The court in Bryant v. TRW, Inc., 689 F.2d 72, 77 (6th Cir.1982) reached a similar conclusion. The Bryant court observed that where the agency knew of the dispute between the consumer and the creditors, and where the consumer had complained about the report, merely making two telephone calls to the creditors to check their credit reports was not a reasonable procedure to ensure maximum possible accuracy. Id. at 79.

The instant case, unlike Bryant, is not a § 1681e(b) case requiring maximum accuracy. Nevertheless, by analogy it is clear that knowledge of a dispute between the consumer and the creditor may affect the credit reporting agency’s ability to rely upon the information received from the creditor upon reinvestigation. Here, the point is not that further reinvestigation beyond the two phone calls to FMCC had to be undertaken, but rather that the reinvestigation resulted in additional information that cast doubt upon the initial accuracy of the two Ford entries. Therefore, it simply became unreasonable to rely solely upon FMCC’s representatives, who obviously had a biased viewpoint, to verify the plaintiff’s classification in the repossession category. The agency itself clearly bears at least some burden of evaluation, see McPhee v. Chilton Corp., 468 F.Supp. 494, 496 (D.Conn.1978), and § 1681i requires deletion of information found to be “inaccurate” or that can “no longer be verified.” At a minimum, the reinvestigation here revealed that the repossession classification could no longer be verified; more likely, however, it revealed that that information was simply incorrect. The Court therefore concludes that the defendant violated § 1681i in failing to delete or correct the two FMCC credit entries.

As a defense to this action, the defendant has argued that the disputed FMCC entries were in fact accurate and that the plaintiff therefore has no actionable claim under the CCRA. See, e.g., Austin v. BankAmerica Service Corp., 419 F.Supp. 730, 732 (N.D.Ga.1974) (holding accuracy to be an absolute defense under the CCRA). In the well-reasoned opinion of Alexander v. Moore & Assoc., Inc., 553 F.Supp. 948, 952-53 (D.Haw.1982), however, Judge Fong recognized that a technical truth, in essence, can be as misleading as an outright untruth were it paints an incomplete picture. As he observed:

I do not believe that the statute can be read as narrowly as the defendants propose, notwithstanding indications to the contrary by other districts. The statute does not require that a consumer reporting agency follow reasonable procedures to assure simply that the consumer report be “accurate,” but to assure “maximum possible accuracy.” Otherwise, it would seem that a consumer reporting agency could report that a person was “involved” in a credit card scam, and without regard to this section fail to report that he was in fact one of the victims of the scam. This result cannot have been contemplated under the Act.

Id. at 952. Based upon such reasoning, this Court has no difficulty in finding that the FMCC entries were sufficiently “inaccurate” or “unverifiable” to bring the strictures of § 1681i into play. Those Ford entries at best are misleading to the point of inaccuracy in that they fail to distinguish between the plaintiff’s status as a guarantor as opposed to a direct obligor on the vehicles, and at worst are outright incorrect in that the vehicles were not “repossessed” from the plaintiff at all. Finally, defense counsel candidly admits that the plaintiff’s legal status under the guarantee is unclear. The defendant’s brief states:

We are uncertain at this time what the distinctions of law are as to whether the guaranty above places Plaintiff in a category such as can be described as one who has a repossession against him or whether he is in default of payment of debt out of which the repossession resulted.

This significant admission merely bolsters the Court’s finding as to the unverifiability of the FMCC credit entries.

As to the damages recoverable for this § 1681i violation, the Court notes that § 1681n imposes civil liability for “willful noncompliance” with any requirement under the CCRA, while § 1681o imposes liability for “negligent noncompliance.” There is simply no evidence of willful activity on the defendant’s part here. Therefore, in briefing damages, plaintiff will be entitled to only actual damages, if any, and attorneys’ fees as set forth in § I68I0, but no punitive damages. Accordingly, it is

ORDERED:

1. Plaintiff’s Motion for Summary Judgment is GRANTED as to liability only concerning his § 1681i claim.

2. The parties are to meet on or before April 26, 1985, in an effort to stipulate to damages and attorneys’ fees. If no agreement can be reached, the plaintiff shall brief these issues on or before May 10, 1985, and the defendant shall have to and including May 20, 1985 to respond. The parties shall clearly indicate in their submissions whether trial on the damages issue will be required.

3. The defendant’s Motion to Dismiss First Amended Complaint is DENIED.

      . That provision provides:
      Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.

      . This section provides in part at subsection (a): If the completeness or accuracy of any item of information contained in his file is disputed by a consumer, and such dispute is directly conveyed to the consumer reporting agency by the consumer, the consumer reporting agency shall within a reasonable period of time reinvestigate and record the current status of that information unless it has reasonable grounds to believe that the dispute by the consumer is frivolous or irrelevant. If after such reinvestigation such information is found to be inaccurate or can no longer be verified, the consumer reporting agency shall promptly delete such information.

      . See Deposition of Jo Pratter, Consumer Relations Supervisor of the defendant, at 30, 34; Deposition of Barbara Ann Sumstad, Consumer Relations Counselor of the defendant, at 10-12. The Court recognizes that both of these depositions contain potentially inadmissible hearsay on this point. Nevertheless, neither party has objected to the consideration of the testimony, and the Court considers it competent evidence in that the parties' statements of the facts are entirely consistent with that testimony.

      . Assuming arguendo a contrary result on the § 1681e(b) issue as to reinvestigation procedures, the Court would reach this same result. As set forth above, the Court views the standard of conduct under § 168 li to be slightly lower than under § 1681e(b). It necessarily follows that the failure to correct inaccuracies upon reinvestigation also constitutes a failure to follow reasonable procedures to assure maximum possible accuracy. Furthermore, independent evaluation of the reinvestigation undertaken here, for the reasons stated in the text of the opinion, exposes the unreasonableness of those procedures.

      . The defendant argues for the application of the accuracy defense without differentiation between the § 1681e(b) claims and the § 1681i claim. The Court finds no reason why this defense, where applicable, should not apply to the latter actions as well as the former, although the caselaw cited by the defendant seems to reference the defense in terms of § 1681e(b). Section 1681Í involves the question of accuracy, just as § 1681e(b) does, but merely from the converse perspective of seeking to eradicate inaccuracy, rather than to promote accuracy.

      . The defendant makes much of the fact that the guarantee is currently the subject of state court litigation and attempts to argue that if the plaintiff is ultimately found liable on that guarantee, its report will be accurate and immunized from suit. This sort of after-the-fact ratification, however, has nothing to do with the veracity of the two repossession entries when they were made. Even if the plaintiff loses the state court suit, it is not clear that the defendant would be accurate in classifying the vehicles as repossessed against the plaintiff himself.

      . The defendant's Supplement Brief In Support Of The Motion For Summary Judgment states that it “probably should have attempted to dispose of this case on an earlier motion to dismiss because there are no allegations in the original complaint nor in the First Amended Complaint that the Plaintiffs credit was turned down .by anyone as a result of the disputed credit record.” Even assuming actual damages to be a prerequisite under CCRA for recovery, humiliation and mental distress do constitute recoverable elements of damage under the Act, notwithstanding the absence of out-of-pocket damages. Thompson v. San Antonio Retail Merchants Ass’n, 682 F.2d 509, 513 (5th Cir.1982). Humiliation and mental distress were alleged in the amended complaint, and this Order undertakes no findings as to damages. The defendant, therefore, is not precluded from pursuing this argument from the standpoint of a failure of proof at the damages hearing to be conducted later.


source: Caselaw Access Project

author: HILLMAN, District Judge.

license: Public Domain

text:
    Herbert NEWHOUSE, Jr., Plaintiff, v. Charles V. PROBERT, Doreen Ketchum, Donald A. Davis, Sandra Farr and Lawrence Magilner, jointly and severally, Defendants. and Charles V. PROBERT, Defendant and Cross-Plaintiff, v. Herbert NEWHOUSE, Jr., Robert D. Spoilstra, Michigan Bell Telephone, a Michigan corporation, and J.L.T. Land Company, a Michigan corporation, Cross-Defendants.
    No. G83-1364 CA.
    United States District Court, W.D. Michigan, S.D.
    April 15, 1985.

      Herbert Newhouse, Jr., in pro. per.
    Ronald F. Fischer, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., John A. Smietanka, U.S. Atty. by Daniel Laville, Grand Rapids, Mich., for Ketchum & Davis.
    Varnum, Ridderings, Schmidt & Howlett, Grand Rapids, Mich., for Michigan Bell Tele. Co.
    Scott F. Pierce, Grand Rapids, Mich., for J.L.T. Land Co.
    Charles V. Probert, Wyoming, Mich., for Probert & Magilner.
   OPINION RE PENDING MOTIONS

HILLMAN, District Judge.

This is a civil rights action brought by plaintiff, pro se, against several federal officials and private citizens. Jurisdiction is based upon the United States Constitution, 28 U.S.C. § 1331 and 42 U.S.C. § 1983. Plaintiff alleges that the named defendants, along with as yet unnamed state law enforcement officials, violated plaintiff’s constitutional rights in the course of gathering information for a federal criminal tax prosecution. Plaintiff seeks declaratory and injunctive relief, money damages, costs and attorney fees.

This matter is presently before the court pursuant to the federal defendants’ motion to dismiss or for summary judgment, to strike the Declaration of Scott F. Pierce, and for an award of attorney fees. Also before the court is defendant Charles Probert’s motion to set aside entry of default, and the motions of Michigan Bell Telephone Co. and J.L.T. Land Company to strike defendant Probert’s cross-complaint.

I.

Federal Defendants’ Motion to Dismiss or for Summary Judgment to Strike the Declaration of Scott F. Pierce, and for Attorney Fees

Plaintiff has brought suit against two federal officials, Don Davis, Assistant United States Attorney, and Doreen Ketchum, Special Agent for the Internal Revenue Service (“IRS”). Plaintiff alleges that defendants Davis and Ketchum, acting in concert with Charles Probert, who was then plaintiff’s attorney, violated plaintiff’s constitutional rights by intercepting privileged communications between plaintiff and Probert, and by engaging in covert data gathering, including opening his private mail and searching his private documents.

The federal officials have filed a motion to dismiss or for summary judgment. Because the court has considered matters outside the pleadings, the motion will be treated as one for summary judgment pursuant to Fed.R.Civ.P. 12(a) and 56.

On a motion for summary judgment, the moving party bears the burden of showing conclusively that no genuine issue of material fact exists. Smith v. Hudson, 600 F.2d 60 (6th Cir.1979); Tee-Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193 (6th Cir.1974); Fed.R.Civ.P. 56(a). In determining whether issues of fact exist, “the inferences to be drawn from the underlying facts contained in the [affidavits, attached exhibits, and depositions] must be viewed in a light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). A court may not resolve disputed questions of fact in a summary judgment decision, and if a disputed question of fact remains, the district court should deny the motion, and proceed to trial. United States v. Articles of Device, 527 F.2d 1008, 1011 (6th Cir.1976).

The federal defendants argue that they are entitled to summary judgment on the basis of sovereign immunity, official immunity, and for failure to state a claim upon which relief can be granted. Plaintiff, on the other hand, argues that he has stated a valid cause of action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). For the reasons set forth below, defendants’ motion for summary judgment is granted.

In general, “[t]he United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Unless sovereign immunity has been waived or does not apply, it bars equitable as well as legal remedies against the United States. Jaffee v. United States, 592 F.2d 712, 717, n. 10 (3d Cir.1979).

In the instant case, plaintiff has not sued the United States, but rather employees of the Department of Justice and the IRS. Plaintiff, however, cannot avoid the doctrine of sovereign immunity by naming individual employees as defendants if the United States remains the real party in interest. The court must go beyond the nominal defendants to determine whether the suit is in effect one against the sovereign, and therefore barred by the doctrine of sovereign immunity. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 687, 69 S.Ct. 1457, 1460, 93 L.Ed. 1628 (1948). Generally, a suit against a federal employee will be deemed a suit against the sovereign if “ ‘the judgment would expend itself on the public treasury or domain or interfere with the public administration,’ or if the effect of the judgment would be ‘to restrain the government from acting, or to compel it to act.’ ” Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963) (citations omitted).

Here plaintiff seeks money damages, as well as injunctive and declaratory relief. The Supreme Court has held that money damages are available where suit is brought against a federal official, in his individual capacity, for violations of plaintiff’s constitutional rights. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The doctrine of sovereign immunity is not a bar to such an action since the judgment need not be satisfied by the public treasury. Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). See also Garcia v. United States, 538 F.Supp. 814, 816 (S.D.Tex.1982). Plaintiff’s complaint appears to allege liability against defendants Davis and Ketchum only in their individual capacities. Thus, plaintiff has stated a Bivens -type action for damages against the federal officials.

Although plaintiff’s claim for money damages is not barred by the doctrine of sovereign immunity, the federal defendants are nevertheless shielded from liability by the doctrine of official immunity if they were acting within the scope of their lawful authority. Butz v. Economou, 438 U.S. 478, 489-90, 98 S.Ct. 2894, 2902, 57 L.Ed.2d 895 (1978). With respect to defendant Davis, the government argues this immunity is absolute. In Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Supreme Court held that absolute immunity encompasses all prosecutorial functions “intimately associated with the judicial phase of the criminal process.” Id. at 430, 96 S.Ct. at 994. Although the Court did not define the boundaries of its holding, subsequent cases have limited absolute prosecutorial immunity to quasi-judicial conduct, and have applied qualified immunity to investigatory or administrative conduct. See Windsor v. The Tennessean, 719 F.2d 155, 165 (6th Cir.1983).

In the instant case, plaintiff alleges that defendant Davis intercepted privileged communications, opened his private mail, and searched his private documents. Davis’ affidavit, on the other hand, states “he was assigned the task of presenting evidence to the grand jury,” and all actions taken “were related to the grand jury investigation.” If, as this affidavit strongly implies, defendant Davis’ only conduct involved presenting evidence to /the grand jury, he would be entitled to absolute immunity. Henderson v. Fisher, 631 F.2d 1115 (3d Cir.1980). The affidavit, however, is ambiguous on this point, and leaves open the possibility that Davis authorized investigative activity in connection with his task of presenting evidence to the grand jury. Such conduct would not be entitled to absolute immunity. Marrero v. City of Hialeah, 625 F.2d 499, 504-05 (5th Cir.1980) (quoting Imbler v. Pachtman, 424 U.S. at 424, 96 S.Ct. at 992). Therefore, construing the pleadings in the light most favorable to the plaintiff, the court concludes that defendant Davis, like defendant Ketchum, is entitled only to qualified immunity.

The standard for qualified immunity was recently refined in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In Harlow, the Supreme Court held that federal officials performing discretionary functions are shielded from liability for civil damages if “their conduct does not violate clearly established constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738.

In applying this standard, the court is mindful of the Supreme Court’s admonition to apply to allegations of pro se complaints “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). However, plaintiff is not entitled to get to the jury on the basis of the allegations in his complaint, “coupled with the hope that something may be developed at trial____” First National Bank of Arizona v. City Service Co., 391 U.S. 253, 289-90, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968). According to Fed.R.Civ.P. 56(e):

“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

In R.E. Cruise Inc. v. Bruggeman, 508 F.2d 415 (6th Cir.1975) (per curiam), the Sixth Circuit interpreted Rule 56(e) as permitting summary judgment where the facts alleged in the complaint were directly contravened in the affidavits supporting defendants’ motion for summary judgment, and where the plaintiff’s version of the facts was not presented in any deposition, affidavit or other document on file, except the pleadings. Moreover, the Supreme Court has stressed the need to pierce the pleadings in lawsuits, such as the instant one, where a complaint drafted in “constitutional colors” can subject federal officials to prolonged litigation. In Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), the Court stated:

“Insubstantial [Bivens] lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading____ [D]amage suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based upon the defense of immunity. In responding to such a motion, plaintiffs may not play dog in the manager; and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits.”

Id. at 507-08, 98 S.Ct. at 2911-12. (citations omitted).

In the instant case, both federal defendants supported their motion for summary judgment with affidavits stating:

“At no time did I, or anyone associated with me to my knowledge, employ any type of illegal overt or covert techniques to collect data about the plaintiff or intercept privileged communications between the plaintiff and his attorney. Neither I nor anyone to my knowledge employed techniques such as opening the plaintiffs private mail nor illegally, or without proper authority, rifled his private papers and documents.
With regard to each action undertaken by me relevant to the investigation of Mr. Newhouse, I am of the firm belief that each action was necessary and incident to my duties, and I believed and continue to believe in good faith, that each such action was lawful and within the scope of my duties and authority----”

These affidavits directly controvert plaintiffs allegations that defendants Davis and Ketchum conspired to violate plaintiffs constitutional rights. The only rebutting evidence submitted by plaintiff is the declaration of Scott F. Pierce. This declaration, however, does not meet the requirements of Rule 56(e). Rule 56(e) provides in pertinent part that “supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein____” Here, the declaration states “that it is intentionally incomplete.” In addition, the declarant admits that the information is “not first hand,” and is merely “believed to be true given the sources and the duplication of sources.” Such a declaration, based entirely upon hearsay evidence, is insufficient under Rule 56(e) to create a genuine issue of material fact, and should be stricken. Clemente v. Farrell Lines, Inc., 465 F.Supp. 728, 731 (E.D.N.Y.1979); Carey v. Beans, 500 F.Supp. 580 (E.D.Pa.1980), aff'd. 659 F.2d 1065 (3d Cir.1981); Wright, Miller & Kane, Federal Practice and Procedure, § 2738. Thus, defendants’ affidavits stand unrebutted, and demonstrate that defendants did not “violate clearly established constitutional rights of which a reasonable person would have known.” Accordingly, firm application of the Federal Rules of Civil Procedure requires that defendants’ motion for summary judgment be granted as to plaintiff’s claim for money damages.

With respect to plaintiff’s claims for specific relief, the 1976 amendments to section 702 of the Administrative Procedure Act, 5 U.S.C. § 702, eliminated the immunity defense in virtually all actions for non-monetary relief against a United States agency or officer acting in an official capacity or under color of legal authority. Clark v. Library of Congress, 750 F.2d 89, 102 (D.C.Cir.1984); Warin v. Director, Dept. of the Treasury, 672 F.2d 590, 592 (6th Cir.1892). Thus, sovereign immunity presents no obstacle to plaintiff’s claim for specific relief. The amendment to section 702, however, does not mean that all actions in which sovereign immunity formerly would have required dismissal now will be decided on the merits. Sea-Land Service, Inc. v. Alaska R.R., 659 F.2d 243, 245 (D.C.Cir.1981), cert. denied, 455 U.S. 919, 102 S.Ct. 1274, 71 L.Ed.2d 459 (1982). By its own terms, section 702 does not affect “the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground.” Here, the record shows that plaintiff is not entitled to the relief requested. A request for specific relief is addressed to the discretion of the trial court. Castro v. Beecher, 386 F.Supp. 1281 (D.Mass.1975). Permanent injunctive relief is an extraordinary remedy which should be granted sparingly and only for compelling reasons. Wong v. Nelson, 549 F.Supp. 895, 896 (D.Colo.1982). Such relief is not available to prevent hypothetical injuries feared as liable to occur at some indefinite time in the future. Connecticut v. Massachusetts, 282 U.S. 660, 674, 51 S.Ct. 286, 291, 75 L.Ed. 602 (1930). “The injury complained of must be of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Ashland Oil, Inc. v. F.T.C., 409 F.Supp. 297, 307 (D.D.C.1976).

Here, the defendants’ affidavits state unequivocally that plaintiff never was the subject of a conspiracy to gather information illegally in violation of his constitutional rights. Also, it is not likely that plaintiff will be the subject of a covert investigation in the future, since he is presently incarcerated in the state prison in Jackson, Michigan. Thus, plaintiff has not shown, and cannot show, that injunctive relief is necessary to prevent imminent and irreparable harm. Nor is declaratory relief appropriate, since the federal officials’ conduct was within their lawful authority. Accordingly, defendants’ motion for summary judgment is likewise granted as to plaintiff’s claim for specific relief.

The government also argues that it is entitled to an award of reasonable attorney fees incurred in defending this action on the grounds that plaintiff’s suit was filed in bad faith. Since the government has not stated the amount of attorney fees it is seeking, the court will defer ruling on this matter until such time as defendants document their request for attorney fees. This will also give plaintiff an additional opportunity to address the merits of the motion.

II.

Defendant Probert’s Motion to Set Aside Entry of Default

Defendant Charles Probert has filed a motion to set aside the entry of default pursuant to Fed.R.Civ.P. 55(c). Rule 55(c) provides that “for good cause shown the Court may set aside an entry of default____” In determining whether defendant has shown good cause, the court must consider three factors: (1) whether setting aside the default would prejudice the plaintiff; (2) whether defendant has asserted a meritorious defense; and (3) defendant’s culpability in allowing the default. Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir.1982); United Coin Meter Co. v. Seaboard Coastline R.R., 705 F.2d 839, 844-45 (6th Cir.1983).

In the instant case, each of these factors points to granting relief under Rule 55(c). First, because defendant’s answer was filed within 30 days of service of the complaint, there is no evidence that plaintiff’s ability to succeed on the merits was prejudiced by defendant’s failure to file a timely answer. Moreover, a mere delay in satisfying plaintiff’s claim, if he should ultimately succeed at trial, is not sufficient prejudice to require denial of a motion to set aside default. Keegal v. Key West & Caribbean Trading Company, Inc., 627 F.2d 372, 374 (D.C.Cir.1980).

Second, defendant’s answer, which was accepted for filing by the Clerk of the Court, presents a potentially meritorious defense. To succeed on his section 1983 claim, plaintiff must show that Probert was acting under color of state law. The complaint alleges that Probert was acting as a part-time prosecutor during the relevant time period. Defendant’s answer, however, denies this allegation. If, in fact, Probert was not acting under color of state law as a county prosecutor, he has a viable defense to plaintiffs section 1983 action which should be heard on the merits.

Finally, the default was not the result of culpable conduct. The record shows that the federal defendants requested, and were granted, an enlargement of time in which to respond to the complaint. Probert’s affidavit states that he assumed that he, too, had additional time in which to respond to the complaint. While Probert’s assumption was incorrect, it appears that his failure to file a timely answer was inadvertent, not willful.

For all these reasons, defendant has shown good cause exists to set aside the entry of default. Accordingly, defendant’s motion to set aside the entry of default is granted.

III.

Defendant Michigan Bell Telephone Co. and J.L.T. Land Company, Inc.’s Motion to Strike Charles Probert’s “Cross-Complaint ”

Finally, Michigan Bell Telephone Co. and J.L.T. Land Company, Inc., have moved to strike Defendant Probert’s “cross-complaint.” Defendant Probert filed what is captioned as a “cross-complaint” on December 22, 1984. At that time, the cross-defendants were not parties to this action, and, therefore, the cross-complaint is actually a third-party complaint subject to the requirements of Fed.R.Civ.P. 14(a). See Wright & Miller, Federal Practice and Procedure, § 1431, p. 163. That rule provides:

“Third Party Practice.
(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him____ Any party may move to strike the third-party claim or for its severance or separate trial____”

Here, at the time Probert filed his third-party complaint, he was in default for failing to file a timely answer. The third-party defendants argue, therefore, that the third-party complaint is improper, since Charles Probert is not a defending party within the meaning of Rule 14(a). I agree. According to Moore’s Federal Practice, ¶ 55.03[2], “ ‘When a party is in default ... the party himself has lost his standing in court, cannot appear in any way, cannot adduce any evidence, and cannot be heard at the final hearing.’ ” (quoting Clifton v. Tomb, 21 F.2d 893, 897 (4th Cir.1927)). Thus, a default having been entered against him, Probert did not have standing to file a third-party complaint. Accordingly, the cross-defendants’ motion to strike the improper third-party complaint is granted.

CONCLUSION

In conclusion, the motions of the federal defendants to dismiss or for summary judgment, and to strike the declaration of Scott Pierce are granted. Plaintiff’s claims against Don Davis and Doreen Ketchum are dismissed. The federal defendants’ motion for attorney fees is deferred until such time as defendants document their request. Defendant Probert’s motion to set aside entry of default is granted. The motion to strike defendant Probert’s “cross-complaint” is granted.

      . To the extent plaintiff alleges non-constitutional common law tort violations, there is absolute immunity for the federal defendants’ conduct. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Granger v. Marek, 583 F.2d 781, 782 (6th Cir.1978).

      . Pursuant to 28 U.S.C. § 1746, unsworn declarations under penalty of perjury, such as Mr. Pierce's, are to be given the same effect as affidavits.

      . Section 702 provides in pertinent part:
      "An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party."


author: MUNSON, Chief Judge.

text:
    UNITED STATES of America, v. Ivan T. PRESLAR, II, a/k/a Ivan T. Preslar, Timberline Stoves Northeast, Inc., Robert M. Weichert, Adirondack Wood Stove Works, Inc., Timberline East, Defendants.
    No. 84-CR-139.
    United States District Court, N.D. New York.
    April 17, 1985.
    Frederick J. Scullin, Jr., U.S. Atty., N.D. N.Y., Syracuse, N.Y., for U.S.; William H. Pease, Asst. U.S. Atty., Syracuse, N.Y., of counsel.
    DeFrancisco, Menkin & Brunetti, Syracuse, N.Y. for defendant Ivan T. Preslar; John A. DeFrancisco, Syracuse, N.Y., of counsel.
    Emil M. Rossi, Syracuse, N.Y., for defendant Robert M. Weichert.
   MEMORANDUM-DECISION AND ORDER

MUNSON, Chief Judge.

On October 19, 1984, a federal grand jury returned a seven count indictment against the above-named defendants, charging them variously with bankruptcy fraud and related offenses in violation of 18 U.S.C. § 152. More specifically, the Government alleges that defendants Preslar and Weichert engaged in a criminal conspiracy to conceal the assets of a bankrupt corporation by transferring its inventory, cash and other property to a separate and distinct solvent corporation. All of the overt acts contained in the indictment are alleged to have occurred between August 1, 1981 and October 1, 1981.

Presently before the court are motions by both defendants to dismiss the indictment on the ground that their prosecution is barred by the Government’s constitutionally impermissible delay in bringing the instant charges. See Rule 12, Fed.R. Crim.P. Additionally, defendant Preslar has moved pursuant to Rule 12 to dismiss the indictment “in the interests of justice” on the ground that his prosecution by the Government violates an express plea agreement between the defendant and the United States Attorney’s Office. In the alternative, defendant Preslar seeks suppression of any and all evidence disclosed to the Government pursuant to the alleged plea arrangement, on the grounds of “coercion, deceit and fraud” on the part of the United States Attorney. See Rules 12 and 41(f), Fed.R.Crim.P. Finally, in the event that this court finds that defendant Preslar was an agent of the Government and that he acted in accordance with the terms of an express plea agreement, defendant Weichert seeks suppression of any and all evidence obtained as a result thereof in violation of his right to counsel guaranteed under the sixth amendment to the Constitution of the United States.

An evidentiary hearing was held to resolve the factual issues raised by the present motions on February 8 and 11, 1985. After considering the record, the testimony and demeanor of the witnesses, the exhibits, the arguments of the parties and the applicable law, the court hereby denies the defendants’ motion to dismiss for impermissible pre-indictment delay. However, based upon the totality of circumstances concerning the conduct of the United States Attorney’s Office vis-a-vis defendant Preslar, the court finds that: (1) an express plea agreement existed effective December 1, 1981; (2) that the present indictment is wholly inconsistent with said agreement; and, accordingly, (3) that the only remedy available is dismissal of the present indictment against defendant Preslar. This disposition has no effect on the indictment as it relates to defendant Weichert. Additionally, the court finds no factual support for Weichert’s claim that his sixth amendment right to counsel was violated and accordingly his motion to suppress is denied.

I. Pre-indictment delay

It is well established that a defendant’s primary protection against having to face stale criminal charges is the applicable statute of limitations. United States v. Manon, 404 U.S. 307, 322-323, 92 S.Ct. 455, 464-465, 30 L.Ed.2d 468 (1971); United States v. Vispi, 545 F.2d 328, 331 (2d Cir.1976). It is, however, equally well established that the due process clause of the fifth amendment does have a limited role to play in protecting against pre-indictment delay that violates “fundamental conceptions” of justice. See e.g., United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). Such a due process violation is established only if a defendant is able to demonstrate that the pre-indictment delay caused substantial prejudice to his right to a fair trial and that such delay was the result of improper conduct on the part of the Government. See United States v. Marion, 404 U.S. at 324, 92 S.Ct. at 465; United States v. Tana, 589 F.2d 82, 87 (2d Cir.1978); United States v. Mejias, 552 F.2d 435, 443 (2d Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977). Moreover, the burden of establishing these necessary elements rests with the defendant; proof of such harm must be definite rather than speculative. United States v. Swacker, 628 F.2d 1250, 1254 (9th Cir.1980); United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir.), cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979).

In the present case the court concludes that both defendants have failed to establish that this prosecution will violate these fundamental conceptions of justice. The defendants have simply failed to come forward with any evidence tending to show actual prejudice or proof that the pre-indictment delay was an intentional stratagem designed to give the Government a tactical advantage.

Defendant Preslar, the only witness at the hearing who testified regarding preindictment delay, stated that by virtue of almost four years having passed since the occurrence of the acts alleged in the indictment, he has been severely prejudiced in that “his memory has severely faded.” He claims that substantial prejudice has been shown because the memories of “material witnesses” who might aid the defense in this case are similarly diminished. The law is clear, however, that a showing that memories have dimmed because of passage of time does not establish substantial prejudice giving rise to a due process violation. See e.g., United States v. Snyder, 668 F.2d 686, 689 (2d Cir.1982); see also United States v. Ruggiero, 726 F.2d 913, 925 (2d Cir.1984). Moreover, the defendants’ bald assertions regarding diminished memories of potential witnesses are wholly speculative and, thus, fall short of the proof of actual prejudice required by Marion.

The defendants’ claim of actual prejudice resulting from the unavailability of certain “material” witnesses is similarly without foundation. Although defendant Preslar testified in the abstract that some of these potential witnesses might give exculpatory testimony tending to legitimize the allegedly unlawful transactions referred to in the indictment, he failed to offer any specific factual information to substantiate this claim. Additionally, the defendants failed to establish that such information is not otherwise available. Finally, the defendants have also failed to show that these witnesses are in fact “unavailable”. Thus, no actual prejudice has been established sufficient to warrant a finding of impermissible pre-indictment delay. United States v. Marion, 404 U.S. at 324, 92 S.Ct. at 465.

Because the defendants have failed to show either actual prejudice to the conduct of their defense, or that the Government intentionally delayed to gain some tactical advantage in the case, the defendants’ motion to dismiss on the basis of pre-indictment delay must be denied.

II. The Alleged Plea Agreement

A. The Contention of the Parties

Defendant Preslar claims that the present indictment must be dismissed against him “in the interests of justice” because the Government has breached a prior plea arrangement wherein the defendant agreed to cooperate in an ongoing bankruptcy fraud investigation. In exchange for such cooperation, which included assisting the Government in gathering incriminating evidence against defendant Weichert and turning over voluminous corporate records, Preslar alleges that the Government promised him that he would be permitted to plead guilty to one count of bankruptcy fraud with a maximum sentence of five years imprisonment. Preslar further alleges that the sentence was to run concurrently with his state court sentence of the same length. Preslar also claims that the Government agreed to secure that his sentence would be served in a Federal, as opposed to a State, correctional facility.

Pursuant to the terms of the plea arrangement defendant contends that he properly turned over to the United States Attorney’s Office “all of his books, records and other papers” relative to the ongoing criminal investigation of the target corporations. Preslar further alleges that he disclosed to representatives of the United States Attorney’s office and the Federal Bureau of Investigation additional information highly incriminating to himself, defendant Weichert and the target corporations. The defendant claims that he fully complied with the terms of the plea arrangement and that it violates conceptions of fundamental fairness to allow the Government to now renege on its promises. Specifically, the defendant claims that he has already completed serving his extensive state court sentence and he should not now have to face federal charges which, had the Government complied with the terms of the plea agreement, would already have been resolved.

Throughout this proceeding the Government has contended that either (1) no express plea agreement was ever reached, or (2)' the agreement was expressly contingent upon the defendant’s full, truthful and complete cooperation. The Government alleges that such cooperation was never fully given by the defendant. Additionally, the Government claims that the documentary evidence surrendered by the defendant constitutes corporate business records which were in no way constitutionally privileged and which could have been obtained by grand jury subpoena. The Government thus argues that the defendant has not been prejudiced by disclosing this information.

B. The Standard for Dismissal

The controversy before the court falls within “the broad category of cases of which Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), is the most prominent, i.e., those in which [a] defendant [has] sought to hold the Government to promises made during the course of plea negotiations which precede the institution of prosecution.” United States v. Lieber, 473 F.Supp. 884, 890 (E.D.N.Y.1979). In Santobello, the Supreme Court ennunciated the general rule that:

The disposition of ... criminal charges by agreement between [a] prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice. Properly administered, it must be encouraged. [However], [t]his phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.

Id. 404 U.S. at 260, 92 S.Ct. at 497; see also United States v. Puma, 521 F.Supp. 258 (E.D.N.Y.1981); Palermo v. Warden, 545 F.2d 286, 295 (2d Cir.1976). The court in Santobello specifically recognized the power of a trial court to either dismiss an indictment for a breach of such agreement or to order specific performance of the agreement. The rationale for according such extraordinary relief is that the Government “should not be allowed simply to renege in its promises.” See United States v. Carter, 454 F.2d 426 (4th Cir.1972) (en banc); Mabry v. Johnson, — U.S. -, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984); United States v. Lieber, 473 F.Supp. at 894-95.

It should be noted, however, that while most of the cases in this area arise in the context of a defendant actually pleading guilty to a specific charge upon the Government’s promise “to take or not take” some course of action, United States v. Lieber, supra, 473 F.Supp. at 894, other courts, by analogy, have imposed similar remedies where the Government violates the terms of express promises made in connection with the negotiation of plea arrangements. See e.g., United States v. Lieber, 473 F.Supp. at 890; United States v. Carter, 454 F.2d at 426. Such is the situation in the instant case.

The general principles that have been developed in this area were aptly stated in Carter:

[W]e conclude that if [a] promise was made to defendant [by the Government] ... and defendant relied upon it in incriminating himself ..., the Government should be held to abide by its terms____ [Moreover], ‘if, after having utilized its discretion to strike bargains with potential defendants, the Government seeks to avoid these arrangements by using the courts, its decision so to do will come under scrutiny. If it further appears that the defendant, to his prejudice, performed his part of the agreement while the Government did not, the indictment may be dismissed.’

454 F.2d at 427-428, quoting United States v. Paiva, 294 F.Supp. 742, 747 (D.D.C.1969) (emphasis added). Similarly, in Palermo v. Warden, Green Haven State Prison, 545 F.2d 286 (2d Cir.1976), cert. denied, 431 U.S. 911, 97 S.Ct. 2166, 53 L.Ed.2d 221 (1977), the Second Circuit flatly stated that ‘‘Santobello requires relief where the prosecutor fails to fulfill promises within his power made in negotiating a plea bargain.” Id. at 295. Thus, absent compelling mitigating circumstances, “[w]hen the United States Government gives its word ... to [make] an agreement with one of its citizens, the Government must be held to that agreement and [must] keep its promises.” United States v. Phillips Petroleum Co., 435 F.Supp. 662, 640 (N.D.Okl.1977).

C. The Evidentiary Hearing

The evidentiary hearing conducted in this case clearly established that an express agreement was reached and that the Government, by bringing the present indictment against defendant Preslar, has breached that agreement.

Defendant Preslar testified that in November of 1981 his then attorney, John S. Kenny, advised him that he had been contacted by representatives of the United States Attorney’s Office regarding an ongoing criminal investigation into an alleged bankruptcy fraud implicating the defendant. On the advice of counsel, Preslar agreed to meet with the Government to discuss the pendency of the investigation and the defendant’s possible cooperation in furthering the investigation. On December 1, 1981, representatives of the Government, including Assistant U.S. Attorney Joseph A. Pavone and then Assistant U.S. Attorney Gregory A. West, met with Mr. Kenny and Preslar to discuss the ongoing criminal investigation. Preslar testified that during this meeting Mr. West proposed that in return for the defendant’s substantial cooperation in the investigation of defendant Weichert and the Timberline Energy Corporation, he would be permitted to plead guilty to a one-count indictment for bankruptcy fraud with a maximum sentence of five years, such sentence to run concurrently with whatever state court sentence the defendant would receive on his unrelated state charge. Additionally, Preslar testified that the Government agreed to attempt to arrange that his sentence be served in a Federal, as opposed to a State, correctional facility.

Mr. Kenny fully corroborated this testimony. He testified that his understanding of the agreement was that in exchange for providing the Government with testimony and documentary evidence tending to implicate defendant Weichert, Preslar would be allowed to plead guilty to one count of bankruptcy fraud with a maximum penalty exposure of five years. He further indicated that he advised his client to accept the “deal”, and, to the best of his knowledge, the defendant fully complied with the terms of the agreement.

Mr. Kenny specifically noted that defendant Preslar fully revealed the terms of the alleged bankruptcy fraud and also produced all relevant corporate records tending to implicate the target corporations. Mr. Kenny indicated that to the best of his recollection, Preslar revealed in meticulous detail the circumstances of the criminal conspiracy. According to Mr. Kenny, based upon Preslar’s full and complete disclosures, he was sure “that a deal had in fact” been consummated. Indeed, Mr. Kenny indicated that he felt there was no further need for him to attend any additional meetings between the defendant and the Government because the plea agreement had already been negotiated and agreed upon.

With the exception of Assistant U.S. Attorney John J. McCann, the Government witnesses who testified at the hearing substantially supported the testimony of both defendant Preslar and attorney John Kenny. Indeed, Mr. West, who was primarily assigned to the case in the early fall of 1981, recited virtually identical terms to those propounded by Preslar. Mr. West testified that Mr. Kenny was contacted in early November, 1981 to discuss the possibility of Preslar cooperating in the investigation in exchange for a favorable plea disposition. Mr. West testified that he proposed that if Preslar agreed to provide testimony and corporate records implicating Weichert in the alleged bankruptcy fraud, and such information tended to be both truthful and probative of Weichert’s guilt, the defendant would be allowed to plead guilty to one count of bankruptcy fraud with a maximum potential period of incarceration of five years.

Mr. West also testified that his “understanding” of the agreement was that it was contingent, i.e., if any of the conditions were unfulfilled, the Government had an absolute right to rescind the agreement. Thus, Mr. West believed that the agreement between the parties would be absolutely binding unless Preslar was either untruthful or failed to provide probative evidence implicating Weichert. If either of these conditions precedent were not satisfied, the Government reserved the right to revoke the agreement.

The Government now claims, almost four years after the fact, that defendant Preslar was not truthful and that the information he provided was nominal in terms of securing the present indictment. Despite the extensive documentary evidence submitted to the Government, and despite the meticulous and detailed revelations proffered by the defendant, the Government has taken the position that the defendant provided no meaningful information probative of Weichert’s guilt. Moreover, the Government asserts, primarily through the testimony of Assistant U.S. Attorney John McCann, that throughout the period of negotiations Preslar was untruthful. On both of these bases, the Government claims that it had an absolute right to renege on the promises it made in December of 1981.

Based upon the testimony herein examined, the court finds that an express agreement was reached between defendant Preslar and the Government, that the defendant substantially complied with the agreement, and that the Government may not now renege on the agreement. The court finds that the Government has failed to establish either that Preslar was untruthful or that he failed to provide “substantial information” tending to implicate Weichert. It is interesting to note that Mr. McCann, who testified that Preslar was a “pathological liar” who provided no credible testimony and could not be trusted, failed to disclose a single factual instance of an untruth told by Preslar. Although some information provided by Preslar was not initially corroborated by the Government, no information was ever shown to be false. Indeed, based upon the testimony at the hearing relative to the indictment in this case, it is clear that virtually every alleged unlawful act contained therein was a product of information provided by the defendant, at least in the first instance. Ironically, assuming that the Government is correct in claiming that the defendant was untruthful, the logical extension of its claim is that there is no credible factual support for the present indictment. Virtually everything that the defendant disclosed to the Government relating to the alleged bankruptcy fraud is now incorporated in the indictment. Thus, if the information provided by the defendant is wholly unture, then based upon the Government’s position the present indictment should never have been brought.

The Government simply cannot have it both ways. The fact that it brought the present indictment based in large part upon Preslar’s full and complete disclosures, precludes it from now asserting that the defendant failed to provide probative and truthful information. Moreover, inasmuch as the agreement expressly called for a one-count charge with a maximum sentence to run concurrently with the defendant’s state court sentence, such sentence already having been served, the only remedy available is dismissal of the present indictment against Preslar. Specific enforcement is the only remedy which will comport with due process and fundamental fairness. This court’s ruling, of course, in no way effects the present indictment as it relates to defendant Weichert.

Accordingly, the present indictment is hereby dismissed as against defendant Preslar.

III. Defendant Weichert’s Motion to Suppress

Relying upon United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1979) and the so-called derivative evidence rule, defendant Weichert seeks suppression of any evidence obtained by defendant Preslar while he was an agent of the United States Government and obtained after Weichert retained counsel in this case.

The hearing in this matter revealed absolutely no evidence indicating that defendant Preslar or any agent of Government contacted defendant Weichert outside the presence of counsel. Accordingly, the defendant’s motion to suppress on the basis of a “potential” sixth amendment violation is hereby denied.

It is so Ordered.

      . During the hearing conducted in this case, defendant Weichert orally moved to dismiss the indictment or alternatively for suppression for the alleged failure of the United States to notify the defendant that he was a "target" of an ongoing criminal investigation prior to subpoenaing him before a federal grand jury in 1982. In its post-hearing submission, the Government has asserted that the defendant has no right to raise this issue at the present time as no notice that this question would be explored was given prior to the hearing. Counsel for the defendant concedes that the issue was not raised in the defendant’s moving papers but argues that "all parties nevertheless had a full and fair opportunity” to litigate the question at the hearing. The court agrees with the Government that it is entitled to a full and fair opportunity to examine witnesses and to develop facts relevant to this question. The defendant's motion is thus denied without prejudice and with leave to renew.

      . Based upon this disposition, the court need not address defendant Preslar’s motion to suppress.

      . On March 30, 1985 Preslar was released from custody at the Auburn Correctional Facility, having completed his State court imposed term of incarceration. Preslar pleaded guilty in 1981 to a single count of assault in the second degree and received a sentence of three and one-half years.

      . Indeed, despite Mr. McCann’s characterization of Preslar as a pathological liar, in March of 1983 he had enough faith in his credibility to direct agents of the F.B.I. to question him further regarding the events surrounding the alleged bankruptcy fraud. Special Agent Hamilton testified that he visited Preslar in prison at Mr. McCann’s behest in March of 1983, and that Preslar provided the identical information he had previously provided in the Fall of 1981.


author: SHADUR, District Judge.

text:
    Herman HARDESTY, Plaintiff, v. GENERAL FOODS CORPORATION, et al., Defendants.
    No. 85 C 3627.
    United States District Court, N.D. Illinois, E.D.
    April 18, 1985.

      Lew J. Campione, French Rogers Kezelis & Kominiarek, P.C., Chicago, Ill., for plaintiff.
    Larry Evans, Anesi, Ozmon, Lewin & Assoc. Ltd., Chicago, Ill., for defendants.
   MEMORANDUM ORDER

SHADUR, District Judge.

General Foods Corporation (“General Foods”) and Entenmann’s, Inc. (“Entenmann’s”) have just filed a petition for removal of this action from the Circuit Court of Cook County. Because General Foods and Entenmann’s have asserted they received service of the summons and complaint March 15 and because they petitioned for removal April 15, removal was accomplished on the thirtieth and last day permitted by 28 U.S.C. § 1446(b).

What General Foods and Entenmann’s have failed to do, however, is to comply with the requirements of Section 1446(a), under which all defendants must join in or consent to the removal petition. Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 272 (7th Cir.1982). There are limited exceptions to that requirement (see, e.g., Mason v. IBM, 543 F.Supp. 444, 445-46 & n. 1 (M.D.N.C.1982)), but General Foods and Entenmann’s are totally silent on the applicability of any of those exceptions. Nor has this Court heard independently from the other two defendants (Dairy Equipment Co., a division of DEC International, Inc. and Heil Co.) reflecting their joinder in or consent to removal.

As this Court said in Romashko v. Avco Corp., 553 F.Supp. 391, 392 (N.D.Ill.1983):

It is defendant’s burden under the removal statute (28 U.S.C. § 1446(a)) to explain affirmatively the absence of co-defendants in the petition for removal, and failure to set out such an explanation renders the removal petition defective. Northern Illinois Gas, 676 F.2d at 273; P.P. Farmers’ Elevator Co. v. Farmers Elevator Mutual Ins. Co., 395 F.2d 546, 548 (7th Cir.1968); 1A Moore’s Federal Practice ¶ 0.168[3.-4], at 458-59.

At this point Section 1446(b)’s 30-day limitation has passed, and amendment to the petition in an effort to cure the defect would be improper. Mason, 543 F.Supp. at 446.

Accordingly this Court finds this case to have been “removed improvidently” (Section 1447(c)) and sua sponte remands this action to the Circuit Court of Cook County. General Foods and Entenmann’s are ordered to pay any costs and disbursements that may have been incurred by reason of the removal.

      . All further citations to the statute’s subsections will simply take the form "Section 1446 — .”

      . Though Northern Illinois Gas, 676 F.2d at 273 permitted curing of a removal petition that had failed to allege a non-joining defendant was purely a nominal party, that concept would not extend to the unexplained non-joinder of substantive defendants such as those involved here.


text:
    Anita JONES, Plaintiff, v. CITY OF CHICAGO, Defendant. Gloria PADILLA, Plaintiff, v. CITY OF CHICAGO, Defendant.
    Nos. 82 C 2943, 82 C 6390.
    United States District Court, N.D. Illinois, E.D.
    April 23, 1985.
    Stephen Seliger, Joseph M. Burns, Jacobs Burns Sugarman & Orlove, Chicago, for plaintiff.
    James D. Montgomery, Corp. Counsel, Jonathan P. Siner, Sr. Atty.-Supervisor, Sharon A. Zogas, Asst. Corp. Counsel, Chicago, for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Anita Jones (“Jones”) and Gloria Padilla (“Padilla”) have separately sued the City of Chicago (“City”) for damages, arising from alleged sexual assaults by Dr. Luis D’Avis during the course of his gynecological examinations of the two women at a City Department of Health (“Department”) facility. City now moves under Fed.R.Civ.P. (“Rule”) 56 for summary judgment in each case. For the reasons stated in this memorandum opinion and order, both City’s motions are granted.

Basic Facts Underlying Plaintiffs’ Claims

On June 11,1981 Jones went to a Department facility for a gynecological examination. During the course of that examination Dr. D’Avis, a City employee at the facility, sexually assaulted her. Jones reported the incident later that same day and City began an investigation. Dr. D’Avis was permitted to continue his practice during the investigation. On November 13, 1981 City’s investigative agency (which is wholly independent of Department) found Jones’s charges “not sustained.” On March 1, 1982 Dr. D’Avis sexually assaulted Padilla during a gynecological examination.

Contentions of the Parties

Plaintiffs argue City’s liability for Dr. D’Avis’ actions arises from City’s failure to:

1. institute a formal policy either (a) requiring the presence of a female nurse or attendant at gynecological examinations by male physicians or (b) at least informing patients of their right to request such a chaperon;
2. “monitor” physician practices to determine why certain physicians did not permit nurses to chaperon gynecological examinations; and
3. conduct a proper investigation of complaints against Dr. D’Avis and take disciplinary action against him.

City responds:

1. Its policies with respect to chaperonage were consistent with prevailing and accepted medical practice.
2. Its investigation of the Jones incident was thorough.
3. Jones’s complaint was the first ever received by City against any physician alleging sexual misconduct.

Parties’ Submissions on the Current Motions

1. Standard Medical Practice Concerning Chaperons

City has tendered three affidavits to prove no medical community standard requires the presence of a female chaperon during gynecological examinations by male physicians:

(a) Dr. Ervin E. Nichols, Director of Practice Activities and member of the Committee on Gynecologic Practice (the “Committee”) at the American College of Obstetrics and Gynecology (the “College”) in Washington, D.C., states no such medical community standard has existed within the past 20 years (Aff. ¶ 5). Although the College has never had a formal policy regarding chaperons, the Committee has addressed the question directly. Its conclusion, consistent with Dr. Nichols’ own opinion, was that the presence or absence of a chaperon should be “at the individual option of the physician and after questioning the patient as to her desires” (Aff. ¶ 3). In fact •Dr. Nichols’ 1981 opinion (given in response to a specific inquiry from the editors of the AMA Journal) was that the question whether a chaperon should be present at all such examinations would have been answered “yes, with possible exceptions” 30 years earlier, but that the answer in 1981 was simply “no” (Aff. ¶ 4). As he then said (id,.):
In general, at the first visit, particularly with a teenager, an attendant may be desirable. This holds true even if the physician is a woman. The teenager may wish to have a hand to hold.
(b) Dr. Robert Bouer, Chairman of the Department of Obstetrics and Gynecology of St. Joseph’s Hospital in Chicago, says there is currently no medical community standard in the Chicago area requiring chaperons (Aff. ¶ 3). No such standard has existed for at least 20 years (Aff. ¶ 4).
(c) Dr. Donald R. Dye, Department’s Director of Maternal and Infant Care from 1973 until 1982, says for at least the past 25 years there has been no medical community standard in the Chicago area requiring chaperons except (1) for a teenager’s first examination and (2) when a patient specifically requests a chaperon.

Plaintiffs have sought to rebut that affidavit testimony by reference to several items:

1. Dr. Dye, in his capacity as Director of Women’s Health, wrote a memorandum (Pl.Ex.C) to Medical Deputy Commissioner Dr. David McNutt one month after the Jones incident. Dr. Dye there urged adoption of a policy requiring chaperons at pelvic examinations in City’s facilities. Nowhere in the memorandum does Dr. Dye even suggest chaperons are required by medical community standards. In part the memorandum summarizes the practices at five Chicago area facilities and the recommendations of the Standards of Obstetric and Gynecological Care (1974). Again, despite plaintiffs’ puzzling assertion to the contrary (Mem. 8), those summaries reflect that neither any of the identified institutions nor the treatise requires the presence of a chaperon as a matter of course.
2. Plaintiffs’ Mem. 9-10 quotes (without providing a copy or page reference) T.H. Green, Gynecology — Essentials of Clinical Practice (1977):
A nurse or other female attendant should always be present for the physical examination if the gynecologist is male.
3. Plaintiffs’ Mem. 10 cites (a) an article by a fourth year medical student (S. Clyman, Why Do We Chaperone the Female Pelvic Exam?, 54 Del.Med.J. 105 (1982)) for the proposition that “almost all male physicians call in a nurse or other female attendant to chaperone their pelvic examinations” and (b) another article (Registered Nurse A. Burgess, Physician Sexual Misconduct and Patients’ Responses, 138 AmerJ. Psychiatry 1335 (1981)) for the concept “that females have been sexually abused by physicians during these exams and often feel powerless to stop the physician.”

2. Practice as to Chaperons at City Facilities

Throughout the period relevant to these actions City had no policy of requiring a chaperon to be present at every pelvic examination (Slutsky Dep. 98). Rather a nurse was always assigned to be available should the physician or patient require assistance (Izenstark Aff. ¶ 3; Izenstark Dep. 69; Hairston Dep. 12).

Each of the testifying physicians and administrators negated any requirement of a chaperon (Muriel Dep. 34-35; Slutsky Dep. 98; D’Avis Dep. 40). Nor was any physician aware of a policy requiring him to inform patients they had a right to have a chaperon present (Muriel Dep. 34-35; Dye Dep. 55; Levinson Dep. 24-25). Each physician understood it was up to him to decide whether a chaperon was necessary (Slutsky Dep. 78-79; Muriel Dep. 34-35; Dye Dep. 53-55; D’Avis Dep. 40), although they uniformly indicated they honored patients’ requests to have chaperons (Muriel Dep. 34-35; Dye Dep. 53; D’Avis Dep. 40). Nurses generally left it to the physicians to call them into the examining room (Hairston Dep. 16; Mycyk Dep. 6-7), and one nurse said if a doctor indicated he did not want a nurse present, the nurse “wouldn’t insist” (Mycyk Dep. 5).

3. Complaints of Physician Misconduct Before the Jones Incident

Dr. Dye testified he had received no complaints of “inappropriate” sexual contact or behavior by any of the City’s doctors before the Jones complaint (Dep. 11). He had received complaints of “rough treatment, harsh doctor, rough doctor, mouthy doctor,” such as giving a rough (although proper) pelvic exam, failing to wear gloves or making rude comments (Dep. 11-12). Indeed the only complaints Dr. Dye had received with any arguably sexual overtones involved such possibly suggestive comments as “Do you do anything besides have babies?” (Dep. 13).

Similarly, Health Commissioner Dr. Hugo Muriel testified Jones’ complaint was the first comparable one he had ever received (Dep. 129). Muriel’s initial account of his conversation with Dr. Dye after the Jones complaint seemed to contradict Dr. Dye’s testimony (Dep. 31-32):

A. And he [Dye] said, “Well, we always hear those kinds of complaints. Those are matters that we probably sit down with the patient and the doctor, and perhaps in most instances we resolve that.” Or he indicated that it’s not rare in public clinics or private clinics to have these sorts of complaints.
Q. Complaints — When we say these sorts of complaints, complaints by women that male personnel are making sexual advances?
A. Right.
Q. Or exhibits certain aggressive sexual conduct with respect to them during an examination or during a consultation?
A. I think so.

But Muriel later clarified that account, confirming Dr. Dye’s deposition testimony as to his never having received a complaint of sexual advances before Jones’s charge (Dep. 132-33):

THE WITNESS: Dr. Die [sic] indicated during our meeting, if I recollect well, that we never had any complaints; but we were talking in general in the medical practice. And he was referring to — I guess I didn’t make it clear. He was referring to that there are complaints in cases that are brought to court by patients against medical doctors or health personnel. That’s I believe what I meant to it doesn’t read clearly here.
Q. All right. Now, let me specifically ask you, to your knowledge, has the Department either acquired directly or through Dr. Die or anyone else, has the Department of Health ever received any complaints before the Anita Jones incident of doctors engaging in improper sexual conduct towards patients?
A. He indicated that they never had any complaints of this nature of sexual—
Q. All right my question is—
A. —advances.
Q. My question is just a yes or no, whether it’s to your personal knowledge or whether you received that information from anyone else, are you aware of any complaints of that kind before the Anita Jones incident in the Department of Health?
A. No.

Westtown Clinic Director Steve Ochoa testified he could not recall receiving any complaints before the Jones incident of physicians “talking dirty,” “being inappropriate” or “making sexual moves against” patients (Dep. 20). Coordinator of Health Administration Review Richard Dymowski also said the Jones complaint was the first on record charging sexual misconduct by a City physician (Dymowski Aff.).

4. Investigation of Jones Incident

Shortly after the alleged June 11, 1981 assault by Dr. D’Avis, Jones complained to clinic personnel and dictated a statement describing the incident (Pl.Ex.F). Within a day or two a copy of her statement was sent to Dr. Herbert Slutsky, Department’s personnel director (Slutsky Dep. 33). On June 15 Drs. Slutsky and Muriel met with Dr. D’Avis, who denied Jones’s allegations and agreed to take a lie detector test (Slutsky Dep. 52-53, 56-57, 60).

Next day Dr. Slutsky met with Department Deputy Commissioner Terry Hocin, who recommended turning investigation of the Jones incident over to City’s Office of Municipal Investigations (“OMI”) because of Dr. Muriel’s friendship with Dr. D’Avis (Hocin Dep. 21-22). In the meantime Department arranged to have Dr. D’Avis take a polygraph examination (Pl.Ex.J) and to have sworn statements taken from Jones and several nurses (Pl.Exs.H, I). Results of the polygraph examination were favorable to Dr. D’Avis (Pl.Ex.J).

On July 31, 1981 OMI received the Jones complaint and began its investigation (Maurer Aff. ¶ 4). That complaint was the first of its kind ever received by OMI (id. ¶ 5). OMI conducted an extensive investigation: numerous interviews; review of depositions, the polygraph results and other documentation assembled by Department; and background investigation of Dr. D’Avis (attachments to Maurer Aff.). On November 13, 1981 OMI determined Jones’s charges were “not sustained.” During the OMI investigation the State’s Attorney’s office had also reviewed the incident but declined to prosecute (Attachment 18 to Maurer Aff.).

While the investigation was pending, Department permitted Dr. D’Avis to continue his normal medical practice. Although Department considered requiring Dr. D’Avis to have female chaperons present during pelvic examinations, it decided not to do so. It was recommended to Dr. D’Avis that he follow such a practice, but the decision was still left with him as with all other doctors (Slutsky Dep. 105).

5. Post-Jones Complaints Against Dr. D’Avis

Padilla was assaulted March 1, 1982 (but she did not report it until August 10, 1982) (Pl.Ex. P). After the Padilla incident other patients lodged some complaints (involving alleged comments, not conduct of a sexual nature) against Dr. D’Avis, but the situation before March 1 is of course the relevant period.

On that score, nursing supervisor Barbara Izenstark began working at the West-town Clinic (site of the Padilla assault) in about October 1981 (Izenstark Dep. 31), four months after the Jones incident. “Several months” after she arrived at the clinic, she became aware of some complaints that patients felt uncomfortable with Dr. D’Avis because he “talked dirty” to them (id. at 27-28, 30). Izenstark had some difficulty in her deposition pinning down dates, but it was in April 1982 (after the Padilla incident had occurred but before Mrs. Padilla had said anything about it to Department personnel) that she decided the complaints against Dr. D’Avis were serious enough to warrant compiling written statements from patients. Two such statements were taken April 14 and April 22 (Pl.Exs. N, P).

Although Izenstark was fairly certain there had been at least some complaints to nurses before March 1982 (Dep. 48), she apparently took no action before mid-April to bring the complaints to the attention of any of Dr. D’Avis’ superiors. At that time she had a conversation with Dr. D’Avis’ supervisor Dr. Sophie Levinson.

On April 23 Drs. Levinson and Izenstark, together with Mr. Ochoa, met with Dr. D’Avis and confronted him with the recent complaints (Pl.Ex.Q). Dr. Levinson instituted a policy requiring all Dr. D’Avis’ future pelvic exams to be chaperoned (id.). Izenstark then ordered her nurses to chaperon Dr. D’Avis’ exams regardless of his wishes (Pl.Ex. 0 at 3). Finally, when Padilla reported her March 1 assault in August, Dr. Muriel referred the matter to OMI once again for investigation (Pl.Ex.R). One week later Dr. D’Avis resigned (Pl.Ex. 5), and in October OMI closed its file for lack of jurisdiction (Pl.Ex.T).

Standards of Municipal Liability under Section 1983

As this Court said in the Opinion, 580 F.Supp. at 405:

Absent some formally promulgated standard of conduct (such as an ordinance or administrative regulation), a Section 1983 cause of action against a municipality must be grounded on some direct municipal act or omission or some municipal policy, custom or practice that in either event proximately caused the employee tortfeasor to inflict the harm on the plaintiff.

Negligence may be enough to support a Section 1983 claim for supervisory omissions causally related to the direct wrongdoing of subordinates (McKinnon v. City of Berwyn, 750 F.2d 1383, 1391 (7th Cir.1984)), but Lenard v. Argento, 699 F.2d 874, 885 (7th Cir.1983) emphasized a municipality can be held liable for such omissions “only when there is an extremely high degree of culpability for inaction.” Lenard, id. at 885-86 approved Second Circuit decisions holding liability for failure to supervise may be grounded only on “gross negligence” or “deliberate indifference” to the plaintiff’s constitutional rights.

Lenard, id. also suggested (citing Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.1980)) such a high degree of culpability cannot be proved except by a pattern of constitutionally offensive acts, in the face of which municipal officials have refused or failed to take remedial action. Other courts too have required plaintiffs to show a pattern of offensive conduct rather than a single isolated incident. McLelland v. Facteau, 610 F.2d 693, 697 (10th Cir.1980); see Means v. City of Chicago, 535 F.Supp. 455, 459 (N.D.Ill.1982) and cases there cited.

In all candor, it is simply wrong for courts to insist on a pattern of misconduct as an invariable precondition to municipal liability. Proximate cause is the key — and as elsewhere in the law, that means a proximate cause, not the proximate cause. Of course municipal ignoring of a series of offenses (say beatings of citizens by policemen) can be viewed as a proximate cause of the next similar offense. But it is equally obvious that with some kinds of conduct, municipal liability could follow from the first offense by a municipal employee. To pose an extreme example, suppose a city opted to arm all its policemen with hairtrigger automatic pistols rather than ordinary handguns. Surely a factfinder' could rationally find that municipal conduct was a (not the) proximate cause of the first subsequent killing by a trigger-happy officer. In Lenard language, the municipality would have shown an “extremely high degree of culpability,” even though only one of its employees had been guilty of misconduct.

But the “pattern” cases do teach a lesson important for this case: No municipality may be held liable for its indifference to the mere possibility of a constitutional deprivation. Rather the plaintiff must show the municipality was aware either of actual deprivations or of such a strong likelihood of imminent (though unrealized) deprivations that any reasonable person would have taken preventive measures. McLelland, 610 F.2d at 697.

City’s Liability for the Jones Assault

By those standards City cannot be held liable for Dr. D’Avis’ assault on Jones. City’s conduct before that incident was neither “gross negligence” nor “deliberate indifference.” By all accounts, Dr. D’Avis’ assault on Jones was the first of its type ever brought to City’s attention. Neither Department Commissioner Dr. Muriel, Department recordkeeper Dymowski nor clinic director Ochoa was aware of any prior complaints of sexual misconduct against City physicians. Similarly, Women’s Health Services Director Dr. Dye had never been made aware of a complaint of sexual misconduct beyond an assertedly suggestive comment. Clearly no prior conduct had alerted City to any degree of probability of the Jones assault.

Nor, given the evidence, need this Court decide whether City’s failure to require chaperons during pelvic examinations, had it been in contravention of medical community standards, could render City liable for the Jones assault. Every affidavit indicates City’s chaperon policy was consistent with that of the Chicago medical community. No admissible evidence tendered by plaintiffs leads to a contrary inference.

Plaintiffs argue City departed from medical community standards by failing to require physicians to inquire whether patients desired chaperons. Once again, such a departure (if it existed) would not rise to the level of culpability required for City’s Section 1983 liability. Moreover there is nothing to indicate physicians failed to make such inquiries as a matter of course — or more to the point, that City was aware of any such failure. Indeed Dr. Nichols’ affidavit, sought to be relied on so heavily by plaintiffs, reflected the inquiry as to chaperons would most appropriately be made by the nurse or aide who prepares the patient for her examination. Nothing in the record indicates nurses failed to make such inquiries or were not expected to do so.

Finally, all the foregoing analysis makes clear City cannot possibly be found liable for a failure to “monitor” or investigate male physicians who chose not to have chaperons present during their examinations. As Dr. Nichols’ affidavit reflects, such a choice may be the result of legitimate concerns of either the physician or his patient. That choice cannot by any stretch be said to put City on notice — at peril of Section 1983 liability — of the material likelihood of a sexual assault.

City’s Liability for the Padilla Assault

All that distinguishes the Padilla claim from the Jones claim is that City was aware of Jones’s charges against Dr. D’Avis before the Padilla assault. No City official then knew of any other complaints of misconduct against Dr. D’Avis. City’s actions or omissions before March 1 must be measured in light of Department’s internal investigation (including the polygraph examination favorable to D’Avis), the November 13 OMI finding of “not sustained” and the knowledge the State’s Attorney’s office had reviewed the D’Avis file and declined to prosecute.

Under the standards already discussed, the issue is whether City’s failure to discipline Dr. D’Avis or to require chaperons during his pelvic examinations, in light of its knowledge of the Jones incident, constituted gross negligence or deliberate indifference to Padilla’s constitutional rights. Though requiring a chaperon would (at least in retrospect) have been prudent, and though such a requirement would have prevented the Padilla assault, City’s failure to mandate chaperonage does not subject it to Section 1983 liability.

It is undisputed Dr. D’Avis had an unblemished record before the Jones incident. Dr. Muriel, a fellow Bolivian and social acquaintance, had known Dr. D’Avis for many years. When Dr. D’Avis vehemently denied Jones’s charge and submitted to a lie detector test with favorable results, the officials were faced with the word of a colleague against the word of a patient. Given their association with Dr. D’Avis, the obvious vulnerability of any doctor to such charges and the apparent clearing of Dr. D’Avis by the polygraph, the officials (and hence City) cannot reasonably be faulted for having resolved any doubts in favor of Dr. D’Avis.

That is not to say City’s officials did not take the charges seriously. They conducted an extensive internal investigation and then turned the case over to OMI for an independent investigation. Their actions cannot be deemed to have encouraged Dr. D’Avis or to have acquiesced in his misconduct. Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.1980).

Nearly nine months elapsed between the Jones charges and the Padilla incident. So far as City’s officials knew, Dr. D’Avis had comported himself in a professional and perfectly acceptable manner during that period. More than three months before the Padilla episode the OMI Investigative Summary had found the Jones charges “not sustained.”

Under those circumstances the Section 1983 standards for City immediately before the Padilla assault are not to be distinguished from those before Jones’s charges. It is all too easy to second-guess what City should have done in retrospect, but that is not the Section 1983 test. City's failure to require chaperons in March 1982 cannot be deemed “grossly negligent” or “deliberately indifferent” to the constitutional rights of a patient in Padilla’s position.

Conclusion

There is no genuine issue of material fact in either case. City cannot in any sense be deemed culpable with respect to the Jones incident. Even if it could be viewed as negligent as to Padilla (a questionable conclusion in all events), any such shortcoming does not even approach the level required to render City liable under Section 1983. City is entitled to a judgment as a matter of law in each case. These actions are dismissed with prejudice.

      . Plaintiffs originally sued Dr. D’Avis as well, but this Court dismissed the claims against him in the "Opinion,” 580 F.Supp. 403 (N.D.Ill.1984).

      . Rule 56 imposes on the party moving for summary judgment the burden of establishing the lack of a genuine issue of material fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). For that purpose the court must, in viewing the evidence, draw all reasonable inferences in the light most favorable to the nonmovants — here, Jones and Padilla. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984). Throughout this opinion the recitals of facts adhere to those principles. Most significantly, though both women and Dr. D'Avis are still litigating in the Circuit Court of Cook County the issue whether any sexual assaults took place, this opinion assumes they did.

      . Although plaintiffs originally also charged City with improper training of physicians, they have apparently dropped that charge. At least it has not been argued in response to City’s argument on that issue, so it will be considered as waived.

      . Dr. Herbert Slutsky, personnel director for Department, also testified to the identical effect at his deposition (Dep. 98).

      . From that statement it is obvious the focus, as perceived by Dr. Nichols, was not on preventing sexual misconduct by the doctor but rather on easing the patient’s apprehensions about the nature of the examination.

      . Plaintiffs also argue Title X guidelines applicable to Department require chaperons. But those guidelines, which are stated as a recommendation and not a requirement in any event, do not purport to establish (nor do they necessarily reflect) medical community standards. Parenthetically, because Department received no Title X funds during the period in which the Jones and Padilla assaults occurred (Green Aff.), those guidelines (even had they mandated chaperons, as they did not) were not binding on City.

      . Although Dr. Dye's curriculum vitae and affidavit list his title as Director of Maternal and Infant Care, most of the testimony referred to him as Director of Women’s Health.

      . In the same way, neither Brown Dep. 12 nor Slutsky Dep. 78-79, both cited by plaintiffs, says any institution in Chicago required chaperons as a matter of course.

      . Clyman began his article by asserting that practice as a fact, but without offering any source or support for his statement. Interestingly, the thrust of his argument thereafter is that the primary purpose of such a practice should be the patient’s comfort, rather than the alternative goal of protecting the doctor against false allegations of misconduct. According to Clyman, the latter purpose should logically extend to requiring chaperonage for any examination of any part of the body of a partially or wholly disrobed female patient by a male doctor — or for examination of a male patient by a woman doctor. What Clyman does not specify as a reason for the practice is protecting the patient against actual doctor misconduct.

      . Plaintiffs’ Memorandum states misleadingly that other complaints about Dr. D’Avis emerged in 1981. • That is not at all a fair reading of Izenstark’s testimony, which certainly places the first of such complaints in 1982. As n. 18 reflects, plaintiffs owed it to this Court to be more accurate in their factual presentation.

      . Early in her deposition Izenstark could not pinpoint the time of her first oral report to Dr. Levinson (Dep. 53-54), but later she said their conversation was in mid-April (id. at 110-11).

      . Dr. D’Avis said (and still says) his resignation was occasioned by the opportunity to improve his medical practice elsewhere. Consistently with the principles described in n. 2, this Court does not credit that reason, instead attributing the resignation to the problems arising from the assault charges. That does not affect the result here.

      . Means was written in the context of a pleading motion — one to dismiss under Rule 12(b)(6) —rather than a summary judgment motion like the current ones, when all the facts are in. Just last week our Court of Appeals specifically rejected the Means approach to Rule 12(b)(6) motions (one shared by this Court, as expressed in several published opinions and a large number of bench rulings). Strauss v. City of Chicago, 760 F.2d 765 (7th Cir.1985). Strauss is not readily defensible, except perhaps as an indefensible (though human) reaction to the high volume of ultimately unsuccessful Section 1983 cases with which federal courts (and City) are burdened. See, for an early discussion by this Court of what it views as the better solution, Thompson v. Village of Evergreen Park, 503 F.Supp. 251 (N.D.Ill.1980). But whichever side of the Strauss-Means fray one occupies does not impact the present cases, which deal with ultimate proof rather than initial pleading.

      . Rule 56(e), which requires all summary judgment submissions to be admissible in evidence, bars consideration of the purely hearsay statements in the book and articles cited by plaintiffs. Moreover, none of those documents speaks to the relevant medical community standards here in Chicago, as do City's submissions. And in fact plaintiffs’ own submissions show no such requirement as plaintiffs urge is part of medical standards generally.

      . This line of analysis is not inconsistent with City’s burden, on these motions, to demonstrate there were no genuine issues of material fact. Once the City had properly supported its motion (as it did), Rule 56(e) shifted the burden to plaintiffs to present specific facts supported by affidavits or other admissible evidence showing such a genuine issue. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.1983). Where as here plaintiffs have failed to meet that burden, they bear the risk of any gaps in the record.

      . As n. 9 indicates, that is also the thesis of the Clyman article advanced by plaintiffs.

      . Indeed, Dr. Muriel's quick transmittal of the Padilla file to OMI (Pl.Ex.R) and Dr. D’Avis’ prompt resignation (Pl.Ex.S) (see n. 11) negate any inference that City officials acquiesced in Dr. D’Avis’ misdeeds or that Dr. D’Avis felt secure in engaging in them.

      . Plaintiffs’ Memorandum (citing to Pl.Ex.M) refers to OMI’s finding as having issued in March 1982. But Exhibit M did not reflect the date of OMI's finding, but rather the date OMI wrote a letter to Dr: D’Avis about the matter. OMI’s report itself is specifically dated November 13, 1981, and Dr. Slutsky’s affidavit states Department received the report at that time. At least equally significant, Paragraph 10 of City’s “statement of material facts as to which there is no genuine issue” (filed in compliance with this District Court’s General Rule 12(e)) specified the November 13 date, and defendants' response under General Rule 12(e) identified that paragraph as one of the undisputed group of facts. This is not the only instance in which Plaintiffs’ Memorandum was unfaithful to the record, either directly or by some degree of mischaracterization of the facts.