author: BAKER, Chief Judge.

text:
    Walter L. McCALVIN, Plaintiff, v. James W. FAIRMAN, Defendant.
    No. 81-2240.
    United States District Court, C.D. Illinois, Danville Division.
    Feb. 25, 1985.

      Walter L. McCalvin, Jr., pro se.
    William G. Sullivan, Asst. Atty. Gen., Chicago, III, for defendant.
   ORDER

BAKER, Chief Judge.

The plaintiff, Walter L. McCalvin, Jr., currently a resident of the Menard Correctional Center, brought this action under 42 U.S.C. § 1983 for the alleged deprivation of his constitutional rights. On August 29, 1984, the defendant moved this court for summary judgment. On September 27, 1984, the plaintiff responded to the defendant’s motion for summary judgment, stating in an affidavit that there remained in the case genuine issues of material fact. On October 16, 1984, the defendant replied to the plaintiff’s response to the defendant’s motion for summary judgment; on October 19, 1984, the plaintiff, by affidavit, responded to the defendant’s reply of October 16, 1984.

The plaintiff has alleged he was denied transfer to the Medium Security Unit (MSU) at the Pontiac Correctional Center from his then residence in Pontiac’s maximum security facility, in violation of his Fourteenth Amendment right to equal protection and due process. The defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure as to both the plaintiff’s claims of denial of due process and denial of equal protection of the law.

I.

McCalvin, a resident of the maximum security facility at the Pontiac Correctional Center at the time in question, sought transfer to the MSU pursuant to Administrative Directive (A.D.) 6.51k of the Illinois Department of Corrections, which provides the procedure and criteria for the transferring of residents to the MSU. (See Appendix.) Under the directive, if an inmate is eligible for placement in the MSU he may apply for such placement to the Institutional Assignment Committee. If the Assignment Committee approves the inmate’s request, the application must be reviewed and approved by either the Warden of Pontiac Correctional Center for inmates or the Transfer Coordinator for inmates residing in institutions other than Pontiac.

On June 3, 1980, McCalvin was considered for placement in the MSU at Pontiac by the Assignment Committee, pursuant to McCalvin’s request for transfer. His transfer was denied by the Assignment Committee because of the length of his maximum sentence and because of his “escape history”; Warden Fairman concurred in the disapproval of his request for transfer. On December 9, 1980, McCalvin was again considered for transfer to the MSU by the Assignment Committee, and his request was denied because of the length of his maximum sentence; Warden Fairman concurred in the denial. On April 6, 1981, McCalvin’s renewed application for transfer to the MSU was again considered by the Assignment Committee, and was again rejected because of the length of McCalvin’s maximum sentence; Warden Fairman again concurred in the disapproval on April 21, 1981.

McCalvin has alleged that he was denied transfer to the MSU at Pontiac in violation of his Fourteenth Amendment rights to equal protection and due process because other prisoners with longer sentences than his have been transferred to the SMU, and that his requests for transfer were arbitrarily and capriciously decided. McCalvin further alleges that the defendant denied his transfer request in retaliation for his legal activities; and that while the plaintiff has met all the requirements for transfer to the MSU, his requests have been consistently denied for erroneous reasons.

II.

The Fourteenth Amendment prohibits a state from depriving a person of life, liberty, or property without due process of law. In order to determine if a state has violated a person’s due process liberty right, two inquiries must be made: a liberty interest within the meaning of the clause must be identified, and the degree of process due a person before their liberty interest may be deprived must be ascertained. See Shango v. Jurich, 681 F.2d 1091, 1097 (7th Cir.1982).

When a person has been subject to a constitutionally valid criminal conviction, his right to liberty is sufficiently extinguished so that a state may confine him in any one of its prison facilities. Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). See Harris v. McDonald, 737 F.2d 662, 664 (7th Cir.1984). The Court in Meachum stated that

[confinement in any of the State’s institutions is within the normal limits or range of custody which the conviction has authorized the State to impose. That life in one prison is more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisonor is transferred to the institution with the more severe rules.

Meachum, 427 U.S. at 225, 96 S.Ct. at 2538. The constitution, therefore, does not mandate any form of procedural formalities that must accompany decisions by a state to place a prisoner in any particular facility, or to transfer a prisoner from one institution to another. See Harris, 737 F.2d at 664.

State statutes, practices or duly promulgated prison regulations, however, may create liberty interests which come under the protection of the Due Process Clause of the Fourteenth Amendment. See Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980); Shango, 681 F.2d at 1097; Harris, 737 F.2d at 664. If state statutes or prison regulations condition transfer on the occurrence of specific events, a liberty interest is created. Meachum, 427 U.S. at 226-27, 96 S.Ct. at 2539-40; Harris, 737 F.2d at 664. A regulation providing a procedural right, however, does not create any protectible liberty interest where there is discretion granted to the prison officials implementing the procedure which is not substantially restricted. See Shango, 681 F.2d at 1101; Chavis v. Rowe, 643 F.2d 1281, 1290 (7th Cir.1981), cert. denied 454 U.S. 907, 102 S.Ct. 415, 70 L.Ed.2d 225 (1981).

In Chavis v. Rowe, the Seventh Circuit held that Administrative Regulation (A.R.) 819 of the Illinois Department of Corrections, the transfer regulation at issue in that case, created no justifiable expectation that a resident will not be transferred absent the occurrence of specified events. Chavis, 643 F.2d at 1290. In Shango, the Court of Appeals stated again that the transfer regulation A.R. 819 placed no limitations on prison officials’ imfettered discretion to transfer a resident “for whatever reason or for no reason at all.” Shango, 681 F.2d at 1100. In Harris v. McDonald, the Seventh Circuit examined the affect of the Supreme Court decision in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), upon the circuit’s interpretation of the transfer regulation A.R. 819. In Hewitt, the Court found that a prison regulation governing transfer from the general prison population to administrative segregation could create a protected liberty interest where there was explicit, mandatory language in the regulation requiring that certain procedures be employed and that administrative segregation should not occur absent specified substantive predicates. Hewitt v. Helms, 459 U.S. at 471-72, 103 S.Ct. at 871-72. The Seventh Circuit found that, while A.R. 819 does contain language that is “explicitly mandatory,” the regulation did not promise that the transfer will not occur absent specific substantive predicates. Harris, 737 F.2d at 665.

Administrative Directive (A.D.) 6.51k of the Illinois Department of Corrections establishes the criteria and procedures for the transferring of residents to the MSU at the Pontiac Correctional Center. If an inmate is eligible for MSU placement under the criteria laid out in A.D. 6.51k, he must apply for transfer to the Institutional Assignment Committee. The Assignment Committee may approve or disapprove an eligible inmate’s application; if the committee approves it, the application must be reviewed and approved by either the Warden of Pontiac Correctional Center for inmates residing at Pontiac, or by the Transfer Coordinator for inmates residing in institutions other than Pontiac.

A.D. 6.51k does contain explicit, mandatory language which would compel the employment of the hearing procedures for an eligible resident; the directive, however, does not mandate that a transfer will occur where there are specific substantive predicates. There is no restriction on the Assignment Committee’s discretion nor on the Warden’s or Transfer Coordinator’s discretion in approving or disapproving an inmates transfer application. Hewitt and Harris, therefore, require the finding that A.D. 6.51k does not create a liberty interest protected by the Due Process Clause.

As the plaintiff McCalvin has no protected liberty interest under the Constitution nor under A.D. 6.51k in being placed in the MSU at Pontiac, the defendant is granted summary judgment as to the plaintiff’s procedural due process claim.

III.

McCalvin alleges that he was denied his transfer requests while other inmates with similar institutional backgrounds were allowed to transfer to the MSU. The plaintiff also avers that the defendant has consistently denied the plaintiff placement in the MSU in retaliation for his legal activities on behalf of other inmates and himself and the defendant thereby violated his right to equal protection of the laws. The defendant claims that the plaintiff has not pled any facts which raise an inference of retaliation argument, and, therefore, summary judgment should be entered in favor of the defendant and against the plaintiff.

Equal protection does not require absolute equality or precisely equal advantages. French v. Heyne, 547 F.2d 994, 997 (7th Cir.1976) citing Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). Equal protection does require, however, that the state not purposely discriminate against those who are entitled to be treated in the same manner as other similarly situated persons. See Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944); Shango, 681 F.2d at 1104. In order to prove such a violation of equal protection, a plaintiff must show an intentional or purposeful discrimination in the administration of the state classification. See Snowden, 321 U.S. at 8, 64 S.Ct. at 401; Bloomenthal v. Lavelle, 614 F.2d 1139, 1141 (7th Cir.1980).

A mere inconsistency in prison management does not in itself constitute a cognizable equal protection claim. Durso v. Rowe, 579 F.2d 1365, 1372 (7th Cir.1978), cert. denied 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979); Stringer v. Rowe, 616 F.2d 993, 998 (7th Cir.1980). The plaintiff McCalvin, however, has alleged that the disparate treatment between himself and those who were granted transfers to the MSU at Pontiac was a result of his activities as a jailhouse lawyer. It is impermissible to deny a transfer request in retaliation for a prisoner’s exercise of a protected right even if the denial, when done for another reason, would have been proper. See Shango, 681 F.2d at 1103; Buise v. Hudkins, 584 F.2d 223, 229 (7th Cir.1978), cert. denied 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979).

This court has already found that McCalvin did not have a due process interest in transferring to the MSU at Pontiac. The plaintiff, however, while he may not have a due process interest in the transfer, does have a constitutional interest or expectation in not being punished for the exercise of activity protected under the constitution. See Buise, 584 F.2d at 230. See also Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977) (“Even though he [the school teacher] could have been discharged for no reason whatever, and had no constitutional right to a hearing prior to the decision not to rehire him, ... he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms.”)

The question whether a denial of transfer based on plaintiff’s legal activities is actionable depends upon whether such jailhouse lawyering is a constitutionally protected activity. McCalvin has alleged that the denial of his transfer was based on his legal activities on behalf of himself and others. While jailhouse activities on behalf of others may be a protected activity, depending upon the circumstances in each case, see Buise, 584 F.2d at 230-31 and authorities cited, it is well-established that McCalvin’s right to participate in legal activities for himself is a protected activity. See Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 748, 21 L.Ed.2d 718 (1969); Crowder v. Lash, 687 F.2d 996, 1004 (7th Cir.1982); Bonner v. Coughlin, 517 F.2d 1311, 1320 (7th Cir.1975), cert. denied 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978); Adams v. Carlson, 488 F.2d 619, 632-34 (7th Cir.1973); Sigafus v. Brown, 416 F.2d 105, 107 (7th Cir.1969).

In order to create a question of fact, an adverse party responding to a summary judgment motion must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983) cert. denied, — U.S. —, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). The “mere possibility” that a factual dispute may exist, without more, is an insufficient basis upon which to justify denial of a motion for summary judgment. Posey, 702 F.2d at 106.

McCalvin has submitted to the court two affidavits filed September 27, 1984, and October 19, 1984, respectively, in which the plaintiff alleges that there is a genuine issue of material fact as to whether the defendant allowed the denial of plaintiff’s transfer requests in retaliation for the plaintiff’s legal activities.

In Labatt v. Twomey, 513 F.2d 641 (7th Cir.1975), prisoner Black made an allegation in his affidavit that he and his fellow plaintiffs were discriminatorily excluded from the early selective release from the deadlock because the plaintiffs had exercised their First Amendment right to criticize the defendant Warden and his prison administration. The Court of Appeals held that the affidavits before the district court had raised questions of fact as to whether such prisoner and his fellow plaintiff prisoners were arbitrarily excluded from the selective process of releases because of exercise of their First Amendment right to criticize the prison’s administration, and therefore summary judgment was precluded. Id. at 649.

In Woods v. Aldworth, 561 F.Supp. 891 (N.D.Ill.1983), the district court held that affidavits submitted by the prisoner plaintiff stating that his mail never reached his cell and affidavit by chief of the mail room stating that the mail left the mail office and that established procedures for handling mail were not complied with, raised a genuine issue of material fact as to the plaintiff’s claim of violation of his civil rights for non-delivery of his mail, and, therefore, precluded the granting of summary judgment. Id. at 894.

In the case at bar, the court finds that the plaintiff in his affidavit has sufficiently raised a genuine issue of material fact as to his claim for denial of equal protection. The defendant’s motion for summary judgment as to the plaintiff’s claim of violation of his right to equal protection is denied.

IT IS THEREFORE ORDERED that the defendant’s motion for summary judgment as to the plaintiff’s due process claim is granted.

IT IS FURTHER ORDERED that the defendant’s motion for summary judgment as to the plaintiff’s equal protection claim is denied.

Defendant’s motion for summary judgment is granted in part and denied in part. IT IS SO ORDERED.

APPENDIX

Administrative Directive 6.51k (effective November 26, 1979) of the Illinois Department of Corrections, Adult Division: Transfer to the Pontiac Correctional Center Medium Security Unit.

POLICY:

1. Residents who are in medium security, minimum security with supervision, or minimum security classification are eligible for transfer to this facility. Further, any resident with a history of escape from any correctional facility within the past five years shall not be placed at the Medium Security Unit.

2. A resident must be in “A” grade status.

3. A resident serving an indeterminate sentence shall have no mcertore than five years remaining until his date of parole eligibility, mandatory supervised release, or statutory parole. A resident serving a determinate sentence shall have no more than five years remaining until his projected release date.

4. Preference shall be given to residents from the Northern section of the state.

5. A resident with a history of active gang membership, or gang leadership, those who have been personally involved in any serious institutional disturbance, and those who have a previous history of possession of dangerous contraband, such as weapons, drugs, or alcoholic beverages, shall normally be excluded from transfer. Exceptions can be made to the criteria on an individual basis when a considerable period of time has elapsed since the resident exhibited such behavior and the resident’s subsequent institutional adjustment has indicated the unlikelihood of the reoccurrences of any such behavior.

6. A resident with a history of pressuring other residents and residents who have generalized protective custody needs shall not be placed at this facility.

7. Residents with severe disabling medical problems or who require extensive or prolonged medical treatment shall not be considered for placement at this facility.

PROCEDURE:

Residents recently admitted to a Reception and Classification Unit who meet all of the above criteria, shall have a Program Considerations Report prepared by a Reception and Classification Unit counselor. This report, along with at least four copies of the transfer order, shall be referred to the Transfer Coordinator for final review and approval.

Residents who are already assigned to the Pontiac Correctional Center and desire to be transferred to the Medium Security Unit at the Pontiac Correctional Center and meet the above criteria, shall submit an application for transfer to the Institutional Assignment Committee. If the Committee recommends in favor of the transfer, this application will be reviewed and approved by the Warden at the Pontiac Correctional Center and need not be approved by the Transfer Coordinator. Residents presently confined to some facility other than the Pontiac Correctional Center and desire a transfer to the Medium Security Unit at the Pontiac Correctional Center and meet the above criteria, shall submit an application for transfer to the Institutional Assignment Committee. If the Committee recommends in favor of the transfer, a Supplemental Program Considerations Report prepared by Clinical Services personnel, and appropriate transfer orders, shall be forwarded to the Transfer Coordinator for final review and approval. If a resident who is presently confined to some facility other than the Pontiac Correctional Center desires a transfer to the Pontiac Medium Security Unit and meets most, but not all, of the above criteria, a request may be submitted by the Warden for an exception to be made to the criteria. When requesting consideration for an exception, specific reasons must be provided as to why the resident would appear to be capable of making a satisfactor adjustment at the Medium Security Unit. Such a document is to accompany other transfer materials submitted to the Transfer Coordinator for final review and approval. Please note that transfers to the Medium Security Unit at the Pontiac Correctional Center will normally be made from the Pontiac Correctional Center, although transfers from other institutions will be considered.

      . It appears that McCalvin had applied at least once before this for transfer to the MSU at Pontiac. McCalvin’s counselor denied his request for transfer to the MSU on March 26, 1979, because McCalvin was not in "A" grade status; acting upon a grievance filed by McCalvin the Pontiac Inquiry Board found that McCalvin was, in fact, in "A" grade status, but nevertheless determined that he was “not an appropriate candidate" for the MSU, because McCalvin was serving time for escape, armed robbery, burglary, and a 75 to 125 year sentence for murder. See Pontiac Inquiry Board Findings and Recommendations, Exhibit B-4, Memorandum of Law in Support of Defendant’s Motion for Summary Judgment.

      . The plaintiff McCalvin is not alleging that he has any absolute right to be transferred to the MSU; in his complaint, McCalvin states "Plaintiff does not suggest that he has a right to medium security placement but he does possess a strong right and interest in being fairly considered and avoiding any arbitrary decisions.”

      . The procedures established by the regulations cannot in and of themselves be viewed as a liberty interest for Fourteenth Amendment analysis purposes. Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). See Shango, 681 F.2d at 1100; Harris, 737 F.2d at 665.

      . While the Hewitt and Harris cases concern situations where a prisoner was being transferred over his objection, the case at bar deals with a prisoner requesting a transfer and the request being denied. There can be no logical distinction between the two situations, however; if the Illinois Department of Corrections has unfettered discretion in transferring a prisoner from one institution to another, it must also have unfettered discretion in deciding to keep an inmate in a particular institution. As the Seventh Circuit noted in Shango, a prisoner has no constitutionally cognizable entitlement to be located in a particular cell within a prison or at a certain location in the state, for his liberty in that regard was extinguished by his lawful conviction. See Shango, 681 F.2d at 1098.

      . As the court finds there is no protected liberty interest, there is no need to examine the procedures employed by the Illinois Department of Corrections in the hearings given to the plaintiff under A.D. 6.51k.


source: Caselaw Access Project

author: LAFFITTE, District Judge.

license: Public Domain

text:
    Hipolito Rodriguez RODRIGUEZ, Plaintiff, v. Nicolas MUÑOZ, et al., Defendants.
    Civ. No. 83-1021 HL.
    United States District Court, D. Puerto Rico.
    Feb. 25, 1985.
    Jesús Hernández Sánchez, Santurce, P.R., for plaintiff.
    Sec. of Justice P.R. Edgardo Colón Arrarás, Atty. Fed. Lit. Div., San Juan, P.R., for defendants.
   ORDER

LAFFITTE, District Judge.

Plaintiff, a former Regional Director for the Humacao District of the Right to Work Administration (Administración del Derecho al Trabajo), filed suit in this Court alleging that he was discharged by defendant from his job with said Commonwealth agency because of his participation in political activities of his choice.

Defendant Nicolás Muñoz, former Executive Director of ADT, was sued in both his individual and official capacity. At trial, plaintiff moved to substitute his successor. The case was tried to a jury, who found for the plaintiff: The jury awarded plaintiff the sum of $60,000 as compensatory damages plus $40,000 in punitive damages.

In Ramos v. Secretario De Comercio, 112 DPR 514 (1982), in Clemente Gonzalez v. Departamento De La Vivienda, 83 JTS 101 (1983), and in Colon v. Cruv, 84 JTS 52 (1984), the Puerto Rico Supreme Court explicitly ruled that an employee of trust and confidence (“de confianza”) under the Puerto Rico Personnel Act, may not be discharged for political reasons, or political activities, unless the incumbent’s political affiliation is a legitimate factor to be considered for the effective performance of the public office involved. In adopting this rule, the Puerto Rico Supreme Court relied heavily on Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).

In Branti, which decision was based on the fundamental right of free association, the Federal Court [U.S. Supreme Court] deemed that “[i]f the First Amendment protects a public employee from discharge based on what he said, it must also’ protect him from discharge based on what he believes. Under this line of analysis, unless the government can demonstrate ‘an overriding interest’ of vital importance requiring that a person’s private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment.” [Id] at 515 [100 S.Ct. at 1293], Citing Elrod v. Burns, 427 U.S. 347 [96 S.Ct. 2673, 49 L.Ed.2d 547] (1976), the Court acknowledged that partisan affiliation could be an “acceptable requirement for some types of government employment”, and thus it concluded that “if an employee’s private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.” Based on the foregoing, the Court concluded:
‘In sum, the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. [445 U.S.] At 518 [100 S.Ct. at 1295].’ Ramos v. Srio. De Comercio, at 515-516.

Consequently, under both Puerto Rico and United States Constitutions, public employees of trust and confidence, like plaintiff herein, are constitutionally protected from political discrimination unless the. government affirmatively demonstrates that partisan politics or political affiliation is an appropriate requirement for the effective performance of the public office involved.

At footnote No. 3 of Ramos, supra, the Puerto Rico Supreme Court in rejecting discrimination in public employment for political preference or political ideas, as violative of Art. II, Section 1, 4 and 6, and of Article II, Section 7 of the Puerto Rico Constitution, noted:

Todos los empleados, aún los de confianza, gozan de protección contra el discrimen por razón de ideas políticas. En Báez Cancel v. Alcalde de Guaynabo, 100 DPR 982 (1972), expresamos: “La Sec. 1 del Art. II de la Constitución del Estado Libre Asociado prescribe en for-ma clara que ‘no podrá establecerse discrimen alguno por motivo de raza, color, ... ideas políticas o religiosas.’ La proscripción del discrimen es clara y terminante. Su texto no permite distinción alguna. Quiere decir lo que dice.” ...

We have quoted the original Spanish version of said opinion, as in the official Supreme Court translation the phrase “de confianza” appears inaccurately translated as “confidential.” It is crystal clear, however, that no distinction can be made, in the case of political discrimination, between the various classifications, except in certain exceptions where a particular political affiliation may be validly required to obtain and keep public office. But, as the Puerto Rico Supreme Court recognized in Ramos, supra, at 520, this is the exception and not the rule under the Puerto Rico Personnel Act.

Plaintiff sought, in addition to damages, reinstatement. This equitable relief is reserved to the Court. Upon a careful consideration of the evidence in this case and the equities involved, it is hereby ORDERED, ADJUDGED AND DECREED, that defendant’s successor in office, his agents, employees, and servants are hereby ordered to reinstate plaintiff to his former position of Regional Director, Humacao Region, in the Right to Work Administration, at the same salary and with the same fringe benefits he would be earning and receiving, but for his discharge. This potent equitable relief of reinstatement that the Court is providing herein should create an incentive for public officials, who may harbor doubts about the lawfulness of their intended action, to err on the side of protecting the constitutional rights of public servants.

IT IS SO ORDERED.

      . The evidence disclosed that plaintiff had formed a committee and attended a meeting outside working hours, at a neighborhood bar, to plan for his candidacy for Mayor of the municipality of Las Piedras. The evidence further disclosed defendant’s knowledge concerning plaintiffs activities and political aspirations.

      . A successor in office is automatically substituted under Fed.R.Civ.P. 25(d). Maria Santiago
        v. CRUV, 554 F.2d 1210, 1213 (1st Cir.1977); Torres v. Toledo, 586 F.2d 858 (1st Cir.1978).

      . It is worth noting that the Branti court recognized that: “It is equally clear that party affiliation is not necessarily relevant to every policy-making or confidential position." 445 U.S. at 518, 100 S.Ct. at 1295.


author: ORINDA D. EVANS, District Judge.

text:
    BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, et al. v. TOUCHE ROSS & CO., Certified Public Accountants, et al.
    Civ. No. C83-2794.
    United States District Court, N.D. Georgia, Atlanta Division.
    Feb. 25, 1985.
    Samuel J. Zusmann, Jr., Robert W. Patrick, Jesse H. Austin III, Atlanta, Ga., for Bank of America National Trust & Savings Association, Rhode Island Hospital Trust National Bank, NCNB National Bank of North Carolina, Crocker National Bank and American Express International Banking Corp.
    Thomas B. Metzloff, Atlanta, Ga., for Touche Ross & Co.
    Timothy Askew, Jr., Kevin B. Getzendanner, Atlanta, Ga., for Fredrick Blank, Louie Hansberger, Robert E. Minnear, Patrick G. Rooney and Edward P. Fitzgerald.
   ORDER

ORINDA D. EVANS, District Judge.

This case is before the court on Defendants’ motion for dismissal of Plaintiffs’ first amended and recast complaint under Federal Rule of Civil Procedure 12(b)(6) and for failure to comply with Rule 9(b) and on Defendants’ motion for oral argument.

Plaintiffs in this case are five banks (“the banks”) who provided financing for International Horizons, Inc., a manufacturer of language teaching systems. In 1979, the banks extended $60,000,000 in credit to International Horizons. As a prerequisite to execution of the credit agreement, International Horizons was required to provide audited financial statements and unqualified reports to the banks. Defendant Touche Ross, a firm of certified public accounts, was employed by International Horizons to prepare these statements and reports.

International Horizons filed for bankruptcy in early 1981. In October 1982, the banks entered into a settlement with International Horizons of their bankruptcy litigation. As part of that settlement, the banks released international Horizons from any claims or potential liability resulting from the financing agreement. After settlement, the banks were left with a loss of approximately 16.7 million dollars in unpaid loans and legal expenses.

In December, 1983, the banks filed this suit against Touche Ross and a number of the firm’s partners and employees (“the accountants”), seeking to recover treble the banks’ stated losses. The accountants now move for dismissal of the complaint, as amended, for failure to state a claim.

The banks contend that the accountants violated the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq., by engaging in a pattern of racketeering activity (multiple acts of wire and mail fraud related to the sending of false financial information) calculated to induce the banks to loan money to International Horizons.

In count one, the banks charge that the pattern of racketeering activity, i.e., the acts of wire and mail fraud, injured them because they were deceived into extending sixty million dollars in financing of which 16.7 million remains unpaid.

In count two, the banks charge that the accountants conspired with International Horizons to undertake the pattern of racketeering activity described in count one, causing a loss of 16.7 million dollars.

Both counts are premised upon alleged violation of § 1962(c) of RICO. This is a criminal statute which provides:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.

The complaint identifies International Horizons, Inc. as the “enterprise” for purposes of § 1962(c). As stated, the pattern of racketeering activity is alleged to consist of multiple acts of mail fraud and wire fraud. Count two is further based on § 1962(d) of RICO which provides:

It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section.

The basis for the banks’ treble damages claims in both counts lies in § 1964(c) of RICO which provides:

Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.

The accountants set forth five grounds for dismissal of the amended complaint: (1) that the banks have not met the standing requirements adopted by this court in Morosani v. First National Bank of Atlanta, 581 F.Supp. 945 (N.D.Ga.1984); (2) that the accountants have not been found guilty of the crimes charged as required by the Second Circuit in Sedima, S.P.R.L. v. Imrex Co., Inc., 741 F.2d 482 (2d Cir.1984); (3) that no unique RICO injury or “racketeering enterprise injury” has been shown; and (4) that the banks have not alleged sufficient facts establishing participation by the accountants in the conduct of International Horizons’ affairs. On each of these grounds, the accountants urge dismissal of the banks’ complaint for failure to state a claim. F.R.Civ.P. 12(b)(6). Finally, they contend that the complaint violates Federal Rule of Civil Procedure 9(b) in that it does not plead the elements of the RICO and fraud violations with sufficient particularity. Because the accountants’ first argument is meritorious, the court will not address the other arguments.

In the last several years a spate of treble damage suits based on claimed violation of § 1962(c) have resulted in numerous, disparate interpretations of that section. To date, the United States Supreme Court has not interpreted § 1962(c) in a civil context, and neither has the United States Court of Appeals for the Eleventh Circuit.

At this point, it would serve no useful purpose to discuss all of the possible meanings of § 1962(c) or to undertake analysis of conflicting district court and non-binding appellate decisions. In Morosani v. First National Bank of Atlanta, 581 F.Supp. 945 (N.D.Ga.1984), this court interpreted § 1962(c) in light of available authority. There having been no controlling interpretations of § 1962(c) rendered in the meantime, the court elects to incorporate in this order the principles discussed in Morosani and to apply these principles to the issues presented herein.

As more fully set forth in Morosani, treble damage suits under § 1964(c) based on a violation of § 1962(c) may arise in two different factual settings. These two factual settings are identified by looking to the particular social harms the legislation explicitly seeks to address, plus the requirement that plaintiffs’ injury link up with a recognized purpose served by the criminal statute.

In the first factual setting, the “person” referred to in § 1962(c) (who is the racketeer/defendant in the civil RICO action) manipulates the affairs of the enterprise by committing multiple criminal acts, i.e., a pattern of racketeering activity. These criminal acts have primary impact on the enterprise. However, the crimes have collateral impact — adverse economic impact — on others. These “others” are the civil RICO plaintiffs. The social harm is collateral economic harm flowing from unlawful manipulation of the enterprise’s affairs. This class of cases is what Congress had in mind when it referred, in the Congressional Statement of Findings and Purpose, Pub.L. No. 91-452, 84 Stat. 922 (1970), to organized crime’s propensity to “weaken the stability of the Nation’s economic system, harm innocent investors and competing organizations, interfere with free competition....” It is a class of cases where plaintiff’s injury is a consequence of the enterprise’s being “racketeer influenced.”

In the second class of cases, the “person” referred to in § 1962(c), i.e., the racketeer/defendant is one of those responsible for running the “enterprise.” In this instance the enterprise is a corrupt, or criminal, enterprise. The enterprise undertakes a pattern of racketeering activity, i.e., a pattern of criminal acts, which are directed at third party victims. The third party victims are the civil RICO plaintiffs. In this instance, the social harm addressed is the enhancement of power which presumptively occurs when multiple criminal acts are committed by a corrupt enterprise.

In both classes of cases involved in § 1962(c), the unique nature of the social evils described justifies making such conduct the basis of a separate, distinct crime.

The banks’ complaint herein does not set out the elements of a civil cause of action based on violation of § 1962(c). The complaint does not allege a course of conduct that fits within either the first or second class of cases described herein. Instead, it is a hybrid form. Thus, the banks’ complaint does not fall within the first class of cases discussed because they are not claiming injury collateral to International Horizons’ status as a racketeer influenced organization. On the contrary, they are alleging direct injury as the victims of criminal acts.

Neither are the banks alleging that they were the victims of a corrupt criminal enterprise directed by the accountants. The banks’ complaint, like that described in Morosani, fails to allege that the accountants were directing the affairs of the enterprise, or that the enterprise was criminal. Therefore, the pattern of conduct described in the banks’ complaint does not fit within the second class of cases either.

A civil RICO recovery based on the complaint’s allegations would serve no RICO purpose. The essential proof at trial would merely duplicate (but with a trebling of damages) that required in a common law fraud action. Although the banks’ complaint ritualistically alleges that International Horizons is an “enterprise,” it fails to allege that the claimed injury is connected with International Horizons’ status as an alleged “racketeer influenced” or “corrupt” organization. Because the banks’ broad interpretation of § 1962(c) renders it meaningless in relation to RICO’s stated purposes, the court rejects such interpretation.

Accordingly, Defendants’ motion to dismiss is GRANTED. Defendants’ motion for oral argument is DENIED. The Clerk shall enter judgment in favor of Defendants, with costs on Plaintiffs.

      . See, e.g., Sedima, S.P.R.L. v. Imrex Co., Inc., 741 F.2d 482 (2d Cir.1984) (criminal conviction is prerequisite to civil RICO claim); Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272 (7th Cir.1983) (no criminal conviction required); Haroco v. American National Bank, 747 F.2d 384 (7th Cir.1984) (civil RICO plaintiff need not allege or prove separate racketeering injury); Bankers Trust Co. v. Rhoades, 741 F.2d 511 (2d Cir.1984) (civil RICO cause of action requires distinct RICO injury); Bennett v. Berg, 685 F.2d 1053 (8th Cir.1982) ("enterprise" must be distinct from culpable "person”).

        . The Supreme Court has decided only two cases based on the RICO statute, both criminal: Russello v. United States, 464 U.S. 16, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983), and United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981).

      . The Eleventh Circuit has only considered one civil RICO matter, which was an interlocutory appeal in Morosani. The Court of Appeals held that the district court had improperly dismissed the complaint on the ground that the practice complained of was not "a recognized form of criminal activity.” Morosani v. First National Bank of Atlanta, 703 F.2d 1220 (11th Cir.1983). The Eleventh Circuit has decided a number of criminal RICO cases, including United States v. Hartley, 678 F.2d 961 (1982); United States v. Cagnina, 697 F.2d 915 (1983); United States v. Carter, 721 F.2d 1514 (1984); United States v. Zielie, 734 F.2d 1447 (1984).

      . The terms “person,” "enterprise,” “pattern of racketeering activity,” are all terms of art defined in RICO. See 18 U.S.C. § 1961(3), (4) and (5).

      . The racketeer and the enterprise may be the same person or entity. United States v. Hartley, 678 F.2d 961, 988 (11th Cir.1982).

      . The court is not required herein to address what difficulties, if any, flow from the fact that § 1962(c) has dual objectives. Neither was the court’s comment in Morosani, fn. 10, intended as a ruling on this matter, which was not before the court in Morosani.


author: WARRINER, District Judge.

text:
    SMITH-MOORE BODY CO. v. HEIL COMPANY.
    Civ. A. No. 84-0417-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Feb. 26, 1985.

      H. Audrey Ford, III, Browder, Russell, Morris & Butcher, Richmond, Va., for plaintiff.
    Rosewell Page, III, Kenneth J. Moran, McGuire, Woods & Battle, Richmond, Va., for defendant.
   OPINION

WARRINER, District Judge.

Presently before the Court is defendant’s Fed.R.Civ.P. 56(b) motion for summary judgment filed with this Court on 12 December 1984. Defendant on 12 December 1984 submitted one affidavit in support of the motion for summary judgment and subsequently on 25 January 1985 submitted additional exhibits in support of its motion. Plaintiff responded to defendant’s motion on 21 December 1984. On 26 December 1984 this Court granted defendant’s motion for an extension of time to file a rebuttal brief and on 26 December 1984 defendant filed a rebuttal brief. The matter is ripe for adjudication.

Plaintiff brought this diversity action alleging breach of contract, breach of express and implied warranties, and that it had a right of indemnity against defendant for a settlement that was effected by plaintiff with a Charlie B. Williams, Jr.

The facts upon which the Court bases its decision are not in dispute. Plaintiff is a Virginia corporation engaged in the business of installation and sales of truck bodies and truck parts. In 1973 plaintiff purchased a Heil lift hoist truck body from defendant, a Wisconsin corporation, and installed the truck body on a Chevrolet chassis that was provided by the City of Emporia. On 28 August 1980 Charles B. Williams, Jr., an employee of the City of Emporia, was injured while working about the Heil lift truck body. Plaintiffs Motion for Judgment at 3. On 13 August 1982 Mr. Williams filed suit against plaintiff and General Motors for “alleged defects in the design and manufacture of the Heil lift body as well as the breach of both implied and express warranties....” Id. On 18 January 1983 Mr. Williams submitted a bill of particulars to plaintiff alleging that the truck was fitted with a Heil lift hoist. Defendant’s Exhibit B. On 15 June 1983 Mr. Williams in an answer to interrogatories made reference to defects in the Heil lift. Plaintiff’s Memo in Opposition to Defendant’s Motion for Summary Judgment at 4. On 16 June 1983 plaintiff’s engineers examined the truck. Plaintiff’s Responses to Defendant’s Request for Admission at 3. On 10 November 1983 depositions taken of Mr. Williams’ experts revealed that at trial Mr. Williams intended to show that there was a design defect in the Heil lift truck body. Plaintiff’s Memo in Opposition to Defendant’s Motion for Summary Judgment at 4. In April of 1984 Williams and plaintiff reached a settlement. On 8 June 1984 plaintiff filed this motion for judgment in the Circuit Court of Richmond which was subsequently removed to this Court. Plaintiff’s Motion for Summary Judgment at 3.

I

BREACH OF EXPRESS AND IMPLIED WARRANTY CLAIMS

Defendant asserts that summary judgment is appropriate for the breach of contract and breaches of express and implied warranties because plaintiff failed to give notice of the alleged breaches within a reasonable time as required by Va.Code § 8.2-607(3)(a).

Va.Code § 8.2-607 provides, in pertinent part, “(3) where tender has been accepted (a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy....”

Plaintiff, citing Begley v. Jeep Corporation, 491 F.Supp. 63 (W.D.Va.1980), asserts that a determination of the reasonableness of the notice plaintiff gave defendant, as required by 8.2-607(3)(a), is a question of fact to be determined by the trier of fact. The plaintiff concedes that “the issue becomes a question of law appropriate for summary judgment only when the facts are undisputed and only one inference can be drawn as to reasonableness and timeliness of notice.” Begley, 491 F.Supp. at 65.

In the case at bar, the evidence is clear and the Court can, as a matter of law, determine whether or not plaintiff gave proper notice. See Begley, 491 F.Supp. at 65.

Plaintiff next contends that summary judgment is inappropriate as to the warranty claims because Va.Code § 8.2-607 was not intended to bar warranty claims such as those asserted in this case. In support of this position, plaintiff quotes a part of Official Comment 4 accompanying Va.Code § 8.2-607 which state that “the rule requiring notification is designed to defeat commercial bad faith, not to deprive a good faith consumer of his remedy.” Plaintiff contends that defendant has presented no evidence that Smith-Moore’s delay in filing the present action was motivated by commercial bad faith and therefore summary judgment should not be granted.

The first paragraph of Comment 4 more fully explains the notice requirement of § 8.2-607. That comment states:

The time of notification is to be determined by applying commercial standards to a merchant buyer. ‘A reasonable time’ for notification from a retail consumer is to be judged by different standards so that in his case it will be extended, for the rule of requiring notification is designed to defeat commercial bad faith, not to deprive a good faith consumer of his remedy.

Plaintiff cannot be said to be a “retail consumer.” That term contemplates that the purchaser buys the item for his own use rather than for resale in the course of his business. Therefore, the operative language in Comment 4 that applies to plaintiff, a merchant buyer, is that “notification is to be determined by applying commercial standards.” As will be developed later, a delay in giving notice of at least seven months does not constitute reasonable notice according to commercial standards.

Plaintiff next contends that numerous courts have also required a movent in Heil’s present position to establish prejudice in order to prevail. The only ease plaintiff cites for this proposition is Henrick v. Coats Co., 17 Mass.App. 976, 458 N.E.2d 773 (Mass.1984). As defendant points out in its rebuttal brief, Henrick requires a showing of prejudice because a Massachusetts statute specifically states “failure to give notice shall not bar recovery under this section unless the defendant proves that he was prejudiced.” Henrick, 458 N.E.2d at 775 (citing Mass.Gen.Laws ch. 106 § 2-318). Defendant has failed to cite any authority indicating, absent a specific statute requiring a showing of prejudice, that a defendant must show prejudice before plaintiff would be barred from recovering for failure to give reasonable notice.

Even assuming there was a prejudice requirement, there is ample evidence that defendant was in fact prejudiced by the delay in notice. As did Judge Williams in Begley, I find that defendant has been prejudiced because it has “been deprived of the opportunity (1) to investigate the claim in a timely manner; (2) to participate in settlement negotiations before full-scale litigation; and (3) to timely depose potential witnesses, whose memories have since been dimmed by time.” Begley at 66.

In December of 1983 and January of 1984 “the truck bedlift, hoist, and crane was dismantled, the lift, the hoist and crane placed on another truck chassis and the 1973 Chevrolet chassis was sold.” Affidavit of Tedd E. Povar. Defendant had no opportunity to investigate or inspect the allegedly defective equipment as installed.

Defendant was not notified of the settlement until two months after the settlement was reached. Defendant had no opportunity to participate in settlement negotiations.

The accident causing Mr. Williams’ injury occurred almost four years before plaintiff’s motion for judgment was filed and at least seven months after plaintiff, according to plaintiff, had reasonable notice that defendant’s equipment was implicated in the accident. This delay denied defendant the ability to timely depose potential witnesses whose memories surely have been dimmed by time.

Plaintiff next contends summary judgment is inappropriate for the breach of warranty claims because plaintiff gave notice within a reasonable time. Plaintiff contends that it “did not become aware of the precise allegations focusing upon design and warnings for which Heil was solely responsible until 15 June 1983 at the earliest and more likely 10 November 1983 when the expert depositions were taken;” therefore, according to plaintiff, the delay in filing the motion for judgment of either twelve months, accepting the 15 June 1983 date, or seven months, accepting the 10 November 1983 date, was not unreasonable as a matter of law.

Section 8.2-607 requires that plaintiff give notice to defendant within a reasonable time after he discovers or should have discovered the breach. Plaintiff in its motion for a judgment states that “Charles B. Williams, Jr. subsequently filed a civil lawsuit in the circuit court for the City of Richmond, ... against Smith-Moore and General Motors Corporation, claiming damages in the sum of $550,000 for alleged defects in the design and manufacture of the Heil lift body as well as the breach of both implied and express warranties by the defendant.” Plaintiffs Motion For Judgment of 8 June 1984. Plaintiff in its response to defendant’s motion, in referring to the suit instituted by Mr. Williams, stated that “there was never any proof or allegation in the case that the installation or delivery by Smith-Moore [of the Heil lift] was in any way defective or substandard.” It seems to this Court that if there was never any allegation against plaintiff that it erred in installing or delivering the Heil lift, then plaintiff would have to realize that a potential claim against Heil was extant because Heil would be the only other party that could have caused the injury.

Further, it is inconceivable to this Court that plaintiff would not, immediately after receiving notice of the motion for judgment filed by Mr. Williams on 13 August 1982, investigate the underlying transaction with the City of Emporia to determine exactly what equipment was alleged to be faulty, and that in investigating the transaction plaintiff would have determined a Heil lift was involved.

Certainly plaintiff should have discovered it had á claim for a breach of warranty against defendant when on 18 January 1983 Williams filed a bill of particulars alleging that the truck causing the injury was fitted with a Heil lift hoist. See Begley, 491 F.Supp. at 66 (Defendant was aware that plaintiff’s “products were involved and, therefore, that there was a potential warranty claim to be asserted against them”).

Plaintiff acknowledges that on 15 June 1983, in answer to interrogatories, Mr. Williams referred to opinions of experts concerning design defects and concedes at that time it may have become aware of the precise allegations focusing upon design and warnings for which Heil was solely responsible.

Plaintiff’s own experts examined the truck on 16 June 1983 and it would seem reasonable that shortly thereafter plaintiff would have discovered or should have discovered a potential claim for breach against Heil.

Plaintiff contends that the time to begin measuring whether notice of breach was given within a reasonable time should start to run on 10 November 1983 when plaintiff took the deposition of Mr. Williams’ expert. Plaintiff contends that “[s]uch notice only months after Smith-Moore learned from Williams’ experts of the specific allegations of defect revealing Heil’s exclusive responsibility cannot be considered so ‘unreasonable’ as to justify the dismissal of Smith-Moore’s warranty and contract claims.” Plaintiff’s Memorandum in Opposition to Motion for Summary Judgment at 8.

This Court disagrees with plaintiff's position. Even assuming that the 10 November 1983 date is the operative date, there is simply no reason for a delay of over seven months between the time plaintiff became aware of potential claims against defendant and the time that plaintiff gave notice to defendant in the form of motion for summary judgment. This Court finds that plaintiff, a merchant buyer, failed within a reasonable time after he discovered or should have discovered the breach to notify seller and plaintiff is therefore barred from the remedy for a breach. Accordingly, summary judgment will be GRANTED for defendant on the claims against defendant for breaches of warranty and contract.

II

INDEMNITY CLAIM

Defendant’s motion for summary judgment concerning the indemnity claim sets forth two grounds justifying summary judgment. Defendant first asserts that because Smith-Moore’s negligence was active, it is barred from asserting an indemnity claim against the Heil Company based on negligence. Smith-Moore contends that its actions could be classified only as passive negligence, if negligence at all, which does not constitute a bar to the indemnity claim. The determination of whether plaintiff’s actions could be characterized as active or passive negligence may be a question of fact that could best be determined at trial; however, because this Court determines that defendant’s second contention, that this action is barred by the applicable statute of limitations, justifies the grant of summary judgment, it is not necessary to determine whether plaintiff’s actions were active or passive.

Defendant contends that for plaintiff to recover indemnity it is essential that Mr. Williams, as the injured party, have a cause of action against defendant. Defendant cites Va.Code § 8.01-243(a) for the proposition that because the statute of limitations ran two years after the injury occurred, Mr. Williams had no cause of action against defendant at the time suit was filed in this action.

In support of its position defendant cites Rambone v. Critzer, 548 F.Supp. 660 (W.D.Va.1982). The issue before Judge Michael in Rambone was “whether the running of the statute of limitations on any claim that a plaintiff may have against a third party defendant should have any effect on defendant’s right to implead.” Id. at 663. Judge Michael determined that “because of the bar of the statute of limitations, the injured person did not have an enforceable cause of action against the party from whom contribution is sought” and, therefore, third-party plaintiff was similarly barred in his claim against third party defendant.

Rambone was decided by Judge Michael apparently without the parties making him aware of Nationwide Mutual Insurance Co. v. Jewel Tea Co., 202 Va. 527, 118 S.E.2d 646 (1961), a case decided by the Supreme Court of Virginia in 1961. In Jewel Tea the Virginia Supreme Court held that there was no merit to the assertion that a claim was barred by the statute of limitations because the injured party did not have an enforceable cause of action against the party against whom indemnity was sought. The court stated that the right of contribution “is given by statute and arises when, and only when, one tortfeasor has paid a claim for which they are both liable. The right of action arises upon payment or discharge of the obligation, and it is then that the statute of limitations begins to run.” 202 Va. 527, 531-32, 118 S.E.2d 646, 699.

If the holdings in Rambone and Jewel Tea were all that I could look to concerning an interpretation of Virginia law, I would have to follow Jewel Tea and would unequivocally state that that statute of limitations does not commence until payment and, therefore, this claim would be timely. But statutes of limitations are creatures of the legislature, not the courts, and this Court must look to acts of the legislature to determine what statutes of limitations are applicable in the present legal and factual situation.

Rambone was decided in 1982. In 1983 the General Assembly added Section I to Va.Code § 8.01-229. Section I provides:

When an action is commenced within a period of thirty days prior to the expiration of the limitation period for commencement thereof and the defending party or parties desire to institute an action as third-party plaintiff against one or more persons not party to the original action, the running of the period of limitation against such action shall be suspended as to such new party for a period of sixty days from the expiration of the applicable limitation period.

Subsection I would be wholly superfluous if Jewel Tea correctly stated the law and it is wholly apt if Rambone states the law. Indeed, being curious of the chronological juxtaposition of the 1983 amendment to the 1982 Rambone decision, I queried Judge Michael to determine whether he was aware of any connection. He stated that Section I was introduced by his former seatmate in the Senate, Senator William F. Parkerson, Jr., in direct response to the Rambone decision. It was introduced in an effort to remove perceived inequities which would arise when an original plaintiff, as here, delayed to the last days of the limits applicable to his claim to file suit.

Since subsection I only makes sense if the holding in Rambone correctly states the law in Virginia and since the specifications of limits on actions is legislative, I am driven to the conclusion that the General Assembly has accepted Rambone as correctly stating this law and it is for that reason that I determine it is a law.

I am buttressed in this belief by the fact that Judge Michael, building on Rambone, decided Carickhoff v. Badger-Northland, Inc., 562 F.Supp. 160 (W.D.Va.1983). In Carickhoff Judge Michael was asked to determine whether a statute concerning release of joint tortfeasors could be applied retroactively. The issue in the Carickhoff decision arises only if Rambone correctly states the law in Virginia. While the Ram-bone underpinnings in Carickhoff were not discussed, the holding in Carickhoff which arises only if Rambone is the law, was accepted by the Supreme Court of Virginia as a correct understanding of the law in Shiflett v. Eller, 228 Va. 115, 319 S.E.2d 750 (1984) (J. Compton). What is important is that the Supreme Court did not take exception to Rambone on the basis of Jewel Tea, but instead placed its imprimatur on Carickhoff.

Because Mr. Williams would be barred by the statute of limitations contained in Va.Code § 8.01-243(a) from filing suit against defendant at the time plaintiff filed suit against defendant, plaintiffs claim for indemnity is also barred by that statute of limitations. Summary judgment shall be GRANTED;

And it is so ORDERED.

      . Although in the complaint plaintiff alleges a breach of contract, there are no specific allegations in plaintiffs motion for judgment that plaintiff was suing for a refund of the purchase price or claiming that the item delivered differed from that ordered. It must, therefore, be assumed that the contract that was allegedly breached is the warranty contract. Accordingly, the Court will consider that whatever contract claim is asserted is subsumed in the breach of warranty claim.


author: CAFFREY, Chief Judge.

text:
    Dennis DOMEGAN, Petitioner, v. Michael V. FAIR, et al., Respondents.
    Civ. A. No. 84-1097-C.
    United States District Court, D. Massachusetts.
    Feb. 27, 1985.

      Dennis Domegan, pro se, and James L. Sultan, Boston, Mass., for petitioner.

      Herbert C. Hanson, Sp. Asst. Atty. Gen., Dept, of Correction, William D. Luzier, Asst. Atty. Gen., Boston, Mass., for respondents.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a petition for a writ of habeas corpus brought by Massachusetts state prisoner Dennis J. Domegan. Petitioner contends that he was unconstitutionally deprived of good time credits by the prison disciplinary board at M.C.I., Walpole, where he is incarcerated. The matter is now before the Court on respondents’ motion to dismiss for failure to state a claim upon which relief can be granted. Fed.R. Civ.P. 12(b)(6).

The petition alleges that at Domegan’s hearing before the disciplinary board, the board denied his requests that witnesses be permitted to testify on his behalf, and that he be allowed to examine and present prison records and reports relating to the disciplinary offenses with which he was charged. The board found petitioner guilty as charged on all counts; and Commissioner of Corrections Michael Fair subsequently revoked 150 of petitioner’s good time days as punishment for his offenses. Petitioner asserts that the actions of the board at his disciplinary hearing violated his right to due process of law, and he therefore asks this Court to reinstate his lost good time credits.

Respondents, for their part, maintain that petitioner has chosen the wrong legal mechanism by which to bring his claim before this Court. They contend that petitioner is challenging not the validity or duration of his confinement, which are proper subjects for a habeas corpus petition, but rather the conditions of his confinement, which are matters best addressed through a civil rights action under 42 U.S.C. § 1983. Respondents further assert that, even if a petition for a writ of habeas corpus is proper in this case, Domegan’s claim should be dismissed because he failed to exhaust his state remedies before bringing his petition before this Court, as required by 28 U.S.C. § 2254.

I rule that respondents’ contentions with respect to these two issues are merit-less. The United States Supreme Court has explicitly held not only that the federal habeas corpus statute provides a remedy for the unconstitutional revocation of a prisoner’s good time credits, but also that this statute constitutes an inmate’s exclusive means of relief from such a deprivation of liberty. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Because the relief which Mr. Domegan seeks is the reinstatement of his good time credits, his petition for a writ of habeas corpus is proper.

Furthermore, Domegan’s petition cannot be summarily dismissed for failure to exhaust state remedies. The provisions of 28 U.S.C. § 2254(b) and (c), which require a state prisoner to exhaust state remedies before bringing a federal habeas corpus action, are “limited in their application to those state remedies still open to the habeas applicant at the time he filed his application in federal court.” Humphrey v. Cady, 405 U.S. 504, 516, 92 S.Ct. 1048, 1055, 31 L.Ed.2d 394 (1972).

In this case, petitioner had no further state remedies available to him at the time he made his application to this Court. Although Domegan originally brought a habeas corpus action in Norfolk County Superior Court, that petition was dismissed on November 2, 1982, and he failed to appeal that dismissal. By the time Domegan filed his petition with this Court in April of 1984, he had lost not only his right to appeal the decision of the Superior Court, but also the opportunity to seek an extension of time in which to file an appeal. Mass.R.App.P. 4, 14(b); Giacobbe v. First Coolidge Corp., 367 Mass. 309, 317, 325 N.E.2d 922 (1975).

In the situation presented here, where a prisoner’s state remedies were no longer available at the time he filed his federal habeas petition, a federal district court may dismiss the petition without regard for its merits only if the Court first determines that the “habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures ...” Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963) (emphasis added).

I rule that petitioner’s failure to pursue his state habeas appeal was not the result of a decision involving the kind of understanding and knowledge contemplated by Fay v. Noia. Apparently, Domegan was not represented by counsel at any time during the state court proceedings, although the Superior Court docket reveals that he did file a motion requesting that counsel be appointed for him. Furthermore, petitioner asserts that he was unaware of his right of appeal because he had never before filed an action in state court. These factors tend to show that petitioner’s failure to prosecute an appeal was not intended to be a mere tactical shortcut to federal court. See Montgomery v. Hopper, 488 F.2d 877 (5th Cir.1973). I therefore rule that petitioner’s claims should not be dismissed for failure to exhaust state remedies.

The final issue which this Court must consider is whether the petition, on its face, sets forth a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Respondents cannot, and do not, contend that petitioner was entitled to no due process whatsoever prior to the revocation of his good time credits. Instead, respondents maintain that petitioner’s allegations, taken as true, simply do not make out a denial of the elements of due process to which petitioner was entitled.

The United States Supreme Court has recognized that a state prisoner possesses a constitutionally protected liberty interest in the good time credits which he has earned, if such credits accrue pursuant to a statutory scheme and cannot be revoked except as punishment for misconduct. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). Because Massachusetts state prisoners are awarded good time credits in accordance with such a statutory plan, M.G.L. c. 127 § 129, an inmate cannot be deprived of earned credits without first being given a hearing at which certain procedures, guaranteeing minimal due process, are observed. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935.

Among the limited constitutional safeguards to which a prisoner facing deprivation of good time credits is entitled is the right to be heard by an impartial tribunal. Id. at 571, 94 S.Ct. at 2982. An inmate also has the right to call witnesses and present documentary evidence, when allowing him to do so would “not be unduly hazardous to institutional safety or correctional goals.” Id. at 566, 94 S.Ct. at 2979. Because of the extraordinary difficulties inherent in prison management, however, prison officials must be accorded considerable discretion in determining whether the presentation of certain testimony or documents may jeopardize the orderly administration of the institution. Id. Furthermore, a disciplinary committee is not required to state its reasons for refusing to permit the submission of particular evidence. Id.; Baxter v. Palmigiano, 425 U.S. 308, 321, 96 S.Ct. 1551, 1559, 47 L.Ed.2d 810 (1976).

In view of the restricted nature of due process in a prison setting, the Court of Appeals for the First Circuit has held that, to state a claim which will survive a 12(b)(6) motion:

it is not sufficient merely to allege that complainant’s requests to call witnesses or submit written statements at a prison disciplinary hearing were denied, even if it is additionally alleged that the disciplinary board did not express its reasons for the denial. To state a valid claim, it must be alleged that the inmate’s requests were denied for reasons not having to do with institutional security or correctional goals, and that the prison officials, in ruling as they did, clearly abused their considerable discretion in such matters. (Citations omitted.) Moreover, these allegations must be backed up with enough supportive facts to outline the elements of the pleader’s claim.

Hurney v. Carver, 602 F.2d 993, 995 (1st Cir.1979).

An inmate is therefore under a heavy burden to show that a disciplinary board’s refusal to accede to his evidentiary requests resulted from improper motives. Devaney v. Hall, 509 F.Supp. 497, 500 (D.Mass.1981). I rule that Domegan has failed to sustain this burden. According to the allegations of the petition, the chairman of the disciplinary board informed Domegan that inmate Michael Parenti would not be permitted to testify on Domegan’s behalf because, the chairman stated, the “[s]ecurity of the I.D.U. Unit superceeds the request for ... [Parenti’s] physical presence.” Although he asserts that this denial of his request to call a witness was arbitrary, capricious, and indicative of the chairman’s lack of impartiality, petitioner alleges no facts which support these conclusory allegations.

Domegan further contends that the board violated his right to due process by refusing to allow him to examine and present certain use of force reports, incident reports, and the log book from the I.D.U. Unit. Petitioner’s claim is untenable. This Court has found no legal precedent for the proposition that an inmate subject to disciplinary proceedings has any right to discovery.

The petitioner also alleges, however, that the chairman reviewed relevant entries in the I.D.U. log book prior to the hearing thereby violating a Department of Correction regulation which states, in part: “[a]ll evidence considered by the disciplinary board shall be presented in the presence of the inmate....” 103 C.M.R. 430.-14(3). Domegan contends that the chairman’s disregard for this prison rule is, in itself, a denial of due process. The failure of the board to comply with its own regulation would constitute a denial of due process if the regulation were mandated by the Constitution or federal law. See United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). Under Wolff, however, an inmate’s right “to have full access to all evidence ... [is] left to the discretion of state prison officials.” Langton v. Berman, 667 F.2d 231, 235 (1st Cir.1981) (citing Wolff v. McDonnell, 418 U.S. at 567-69, 94 S.Ct. at 2980-81). Although petitioner asserts that the board’s refusal to produce prison records amounted to an abuse of its discretion, he alleges no facts which sustain his contention.

For the reasons set forth above, I rule that respondent’s motion to dismiss the petition for a writ of habeas corpus should be allowed.

Order accordingly.

      . 28 U.S.C. § 2254 provides in pertinent part:
      (b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
      (c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.


author: MENTZ, District Judge.

text:
    Gary ORGERON v. MINE SAFETY APPLIANCES COMPANY, et al.
    Civ. A. No. 81-2699.
    United States District Court, E.D. Louisiana.
    Feb. 27, 1985.

      Joseph M. Bruno, Bruno, Bruno & Blouin, New Orleans, La., for plaintiff.
    Craig R. Nelson, Christina Fay, Hulse, Nelson & Wanek, New Orleans, La., for defendants.
   MEMORANDUM OPINION

MENTZ, District Judge.

The defendant, E.D. Bullard, filed a motion for summary judgment on the plaintiff’s claim that he contracted silicosis due to the negligence of the defendant. On October 17, 1984, the Court heard oral argument on the summary judgment motion and at that time denied the motion on the basis that insufficient evidence had been presented that plaintiff’s claim had prescribed. Then, Bullard filed a motion for reconsideration of its motion for summary judgment. At the hearing on January 9, 1985, the Court took the motion filed on behalf of Bullard under submission. The Court has now considered the memoranda, the pleadings, exhibits and the affidavits submitted in this matter and, based on the record and the law, concludes that its original ruling was in error and that defendant Bullard’s motion should be granted.

I. FACTUAL BACKGROUND

Although the factual setting in this case is not complex, some facts are in dispute and the date of occurrence of certain events are crucial to the determination of whether plaintiff’s action has prescribed. They are recounted here, as must be done, with all factual inferences resolved in the non-movant’s favor. Casey Enterprises, Inc. v. American Hardware Mutual Insurance Co., 655 F.2d 598, 602 (5th Cir. 1981); C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727 (2d Ed.1983). Plaintiff was employed as a “roustabout” by Camcraft, Inc. from March 23rd, 1976 to June 20th, 1980. During his employment with Camcraft, he would at times engage in sandblasting, painting and general cleaning as the job required.

On June 4th, 1980, plaintiff visited Dr. Villemerette at the Avenue “C” Clinic at which time x-rays were taken of the plaintiffs chest. The x-rays indicated that plaintiff had “low grade chronic lung changes, bilaterally”. (See October 25, 1984 Deposition of Dr. Fitzgerald, pp. 7-8). Subsequently, on June 12th, 1980, plaintiff consulted Dr. Fitzgerald at the Avenue “C” Clinic for a hand injury. Dr. Fitzgerald gave plaintiff two notes to give to his employer. The first note, referring to his hand injury, stated he could not work. Dr. Fitzgerald’s second note dated 6-12-80 and written on a medical prescription note pad stated that

The above patient [Gary Orgeron] has early changes of chronic lung disease on chest x-ray. I feel he should work in a clean air area from now on.

(See note marked as defendant’s Exhibit B-2). Dr. Fitzgerald testified by deposition that he only would have given this second note to plaintiff if plaintiff had so requested it. (See Dr. Fitzgerald’s deposition pp. 15-16).

Plaintiff saw Dr. Fitzgerald again the next day to redress his hand injury at which time the doctor wrote a third note on a medical prescription note pad, dated 6-13-80, stating that

The above patient [Gary Orgeron] has low grade chronic lung changes on x-ray. This is probably caused by exposure to sandblasting dust. This is not contagious.

(See note marked as defendant’s Exhibit B-3; emphasis added). Subsequent thereto, on June 19th, 1980 through June 25th, 1980, plaintiff was admitted to West Jefferson General Hospital for extensive testing and evaluation. At that time he was under treatment by Dr. Morton Brown, a pulmonary specialist. Immediately upon his discharge from the hospital on June 25, 1980, Mr. Orgeron was informed by his employers at Camcraft, Inc. that, if he could not sandblast at all, there was no paid position for him. (See September 10, 1984 deposition of Gary Orgeron, pp. 57-60).

Soon after Camcraft informed Mr. Orgeron that he no longer had a job, plaintiff hired Joseph M. Bruno, attorney at law, to act on his behalf to obtain workmen’s compensation benefits. By demand letter, dated July 2nd, 1980, Bruno advised Camcraft that he represented Orgeron “with reference to his claim for workmen’s compensation benefits arising out of his contraction of the occupational disease — silicosis”. (Emphasis added). Dr. Brown informed the plaintiff on July 12, 1980 that his condition was caused by an occupational disease known as silicosis. (See January 15, 1985 affidavit of Dr. Brown). Then, on July 6, 1981, plaintiff filed his suit against the defendants.

On the basis of this record, the defendant contends that plaintiff’s action has prescribed on two grounds: (1) that the plaintiff had constructive knowledge of his lung condition in June 1980 but did not file his action until July 6, 1981; and further, (2) that plaintiff’s attorney, Joseph Bruno, had at least constructive knowledge of plaintiff’s condition on July 2, 1980, which knowledge is imputed to the plaintiff, but failed to file plaintiff’s action within the one year prescriptive period. The Court will review the claims of the defendant. But first, the Court will set the legal standard against which defendant’s claim must be tested.

II. CONSTRUCTIVE KNOWLEDGE EXISTED MORE THAN ONE YEAR PRIOR TO FILING OF SUIT

Louisiana Civil Code Article 3492 (formerly Articles 3536 and 3537) clearly states that tort actions are subject to a one year prescriptive period. The prescriptive period commences to run when the plaintiff has either actual knowledge or at least constructive knowledge. In other words, prescription begins to run when the plaintiff actually becomes aware of information such as would simply “excite the attention” of a reasonable person and “put him on inquiry”. Moreover, in Louisiana, even constructive notice is sufficient to toll the prescriptive period of one year. See Louisiana Civil Code Article 3492. As the Louisiana Supreme Court stated in Cartwright v. Chrysler Corporation, 255 La. 597, 232 So.2d 285, 287 (1970), “... it is not necessary that the party have actual knowledge of the conditions as long as there is ‘constructive notice.’ ” Further, the Court defined constructive notice to be

whatever notice is enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead and such information and knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription.

232 So.2d at 287; See also Bennett v. General Motors Corp., 420 So.2d 531, 537 (La. App. 2nd Cir.1982); Nivens v. Signal Oil & Gas Co., Inc., 520 F.2d 1019, 1023 (5th Cir.1975); Breaux v. Aetna Casualty & Surety Co., 272 F.Supp. 668, 672 (E.D.La. 1967); Coates v. Fibreboard Corp., 583 F.Supp. 504, 506 (M.D.La.1984); Woessner v. Johns-Manville Sales Corp., 576 F.Supp. 596, 599 (E.D.La.1984).

Further, in Yarbrough v. Louisiana Cement Company, Inc., 370 So.2d 602 (La. App. 4th Cir.1979), writ denied 373 So.2d 531 (La.1979), Mr. Yarbrough brought suit to recover for pulmonary difficulties allegedly caused by defendants’ various business operations that exposed plaintiff to noxious substances while he was at work. The Louisiana Fourth Circuit found that more than one year had lapsed from the occurrence (ceasing work and removed from a work related condition) and the filing of the action. 307 So.2d at 602. The evidence indicated that the plaintiff had consulted his doctor in 1972 complaining of shortness of breath and pulmonary difficulties, and thereafter during the course of his employment he made a number of complaints to his employers concerning the environment of his place of employment. Further, plaintiff consulted the same doctor on January 16, 1974 with the complaint of shortness of breath and on that occasion he informed the doctor that he worked in a dusty environment and that he was having trouble breathing. The Court concluded that the

... evidence preponderates that the plaintiff’s knowledge of pulmonary problems and the symptoms arising from exposure to noxious elements at various times during his working hours was sufficient to begin the running of the prescriptive period, although he may not have known of the precise effect it had on him.

370 So.2d at 604. The plaintiff ceased work on August 1, 1974 and filed his suit in tort on December 4, 1975. The Fourth Circuit held that this action had prescribed. See also Duhon v. Saloom, 323 So.2d 202 (La.App. 3rd Cir.1975); Marcel v. Hospital Corp. of the Sisters of St. Joseph, 322 So.2d 302 (La.App. 1st Cir.1975); Lasseigne v. Earl K. Long Hospital, 316 So.2d 761 (La.App. 1st Cir.1975).

In the case at bar, the plaintiff visited the Avenue “C” Clinic on three separate occasions in June 1980. It is not clear from the record why Mr. Orgeron visited the Clinic on June 4th, 1980; however, the evidence indicates that x-rays were taken of Orgeron which showed that plaintiff had “low grade chronic lung changes, bilaterally”. (See Dr. Fitzgerald’s deposition, pp. 7-8). Plaintiff again visited the Clinic for a hand injury on June 12,1980, at which time Dr. Fitzgerald gave plaintiff a note which stated that plaintiff had early signs of lung disease and that he should work in a clean air environment. (See Dr. Fitzgerald’s deposition, pp. 15-16). The next day, June 13, 1980, when plaintiff saw Dr. Fitzgerald again to redress his hand injury, the doctor wrote Mr. Orgeron a third note stating that his low-grade chronic lung condition was probably caused by sandblasting dust. (emphasis added).

Applying Cartwright’s definition of actual and constructive notice, it is obvious that Dr. Fitzgerald’s notes stating that Mr. Orgeron should only work in clean air areas and not to sandblast anymore were sufficient to excite Mr. Orgeron’s attention and put him on guard that he needed to inquire further into the actual cause of his lung condition. In fact, Mr. Orgeron did inquire further as is evident by Mr. Orgeron checking himself into a hospital on June 19,1980 for pulmonary tests. Mr. Orgeron wanted to find out the cause of his deteriorating lungs that was preventing him from sandblasting, thus he sought to have his condition evaluated by the West Jefferson hospital and its staff. Therefore, Mr. Orgeron’s act of checking himself into the hospital is sufficient evidence that the inquiry process had commenced. The plaintiff had at least constructive notice; he knew he had lung problems and had a reasonable belief that, his condition was work-related due to the facts that (1) Dr. Fitzgerald told him to work only in clean air areas and not to sandblast since his condition was probably caused by sandblasting dust, (See 6-13-80 note of Dr. Fitzgerald’s); and (2) on July 2, 1980, he filed a workmen’s compensation claim stating he had silicosis. (See Bruno to Cam-craft demand letter, supra).

Although Mr. Orgeron did not know the exact diagnosis or name of his lung condition until July 12, 1980 when Dr. Morton Brown told him, (See January 15,1985 affidavit of Dr. Brown). Mr. Orgeron knew in June 1980 that he had lung problems, knew he could no longer sandblast, knew that it probably was work-related, and as a result checked himself into the hospital to find out what was causing his lung problems. Thus, under the Cartwright definition, Mr. Orgeron had at least constructive notice of his condition in June of 1980 which led to his inquiry as to what specifically was causing his condition and all information flowing from that inquiry is considered at the least constructive notice or knowledge. Such information Mr. Orgeron received from Dr. Fitzgerald reasonably put him on inquiry notice and as such was sufficient to start the running of prescription. See Yarbrough v. Louisiana Cement Company, Inc., supra.

Plaintiff’s reliance on Williams v. Public Grain Elevator of New Orleans, Inc., 417 So.2d 398 (La.App. 4th Cir.1982), not considered, 422 So.2d 160 (La.1982), is misplaced. The plaintiff in Williams filed a workmen’s compensation action more than six months after he quit work for shortness of breath but within six months of being notified by Dr. Morton Brown (the same doctor as in the present case) that he had pneumoconiosis, an occupational disease caused by exposure to grain dust and pesticides. The Williams court held that the plaintiff did not have actual or constructive notice knowledge that his condition was work-related until that time. Therefore, to determine when prescription begins to run it must be decided when the plaintiff “knew or had reasonable grounds to believe that his condition was work-related”, (emphasis added) 417 So.2d at 399.

Mr. Orgeron in the present case suggests that a diagnosis of a disease as occupationally related requires expert testimony. Under Williams that is correct, but an actual diagnosis of a disease as an occupational disease by an expert is not neces sary to put one on constructive or actual notice that his disease might be work-related. As long as the plaintiff had reasonable grounds to believe his condition was work-related that is sufficient to commence the running of prescription. Williams v. Public Grain Elevator of New Orleans, Inc., supra. Mr. Orgeron had reasonable grounds to believe his condition was work-related after Dr. Fitzgerald’s examination, even though a confirmed diagnosis that his lung condition was caused by silicosis was not given at that time. Further, plaintiff was sufficiently put on notice that he needed to inquire further as to whether his condition was work-related when Dr. Fitzgerald told him he should not sandblast anymore since his condition was probably caused by sandblasting which he did at work. Thus, prescription began to run in June 1980 not July 12, 1980 when Dr. Morton Brown diagnosed plaintiff’s condition to be caused by silicosis. Since plaintiff did not file his tort suit until July 6, 1981, the one year prescriptive period had run and this suit should be dismissed.

III. THE KNOWLEDGE OF AN ATTORNEY IS IMPUTABLE TO HIS CLIENT

Under Louisiana and federal law, it is well settled that the knowledge of an attorney is imputable to his client. Link v. Wabash Railroad, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); T.H. Martin v. Schwing Lumber & Shingle Co., Inc., 228 La. 175, 81 So.2d 852 (1955); Martin v. White, 219 So.2d 219 (La.App. 1st Cir.1969) Barber v. Testa, 331 So.2d 139 (La.App. 3rd Cir.1976); See also Marpco, Inc. v. South States Pipe & Supply, 377 So.2d 525 (La.App. 3d Cir.1979). A number of courts have held a suit to have prescribed when the plaintiff’s attorney had knowledge but failed to file the action timely. See Martin v. White, supra; Barber v. Testa, supra. Further, the Supreme Court in Link v. Wabash Railroad stated that keeping a suit alive merely because a plaintiff should not be penalized for omissions of his own attorney would be visiting the sins of plaintiff’s lawyer upon the defendant. 370 U.S. 634 n. 10, 82 S.Ct. 1390 n. 10. A plaintiff must be bound by the acts of his attorney.

It is true that this steadfast premise seems to conflict with Williams v. Public Grain Elevator of New Orleans, Inc., 417 So.2d 398, 399 (La.App. 4th Cir.1982) which states that only an expert can diagnose an occupational disease. The Court agrees with plaintiff that his counsel, Joseph Bruno, is not a medical expert, but that is not the issue. The issues are whether plaintiff had a reasonable belief that his condition was occupationally related on June 2, 1980 when his attorney sent a demand letter to plaintiff’s employer, Camcraft, Inc., and/or whether Mr. Bruno’s reasonable belief that Mr. Orgeron’s condition was caused by silicosis is imputable to the plaintiff as of June 2,1980. However, these issues need not be addressed, since it is apparent that plaintiff was put on inquiry notice by the chain of events that occurred in June of 1980 as well as by his act to hire an attorney, all indicating that plaintiff had at least constructive knowledge of his lung condition in June of 1980. Plaintiff had sufficient notice of his condition even though he did not have an exact label to describe it at the time he hired Joseph Bruno as his attorney. Contacting Mr. Bruno only confirms that he had sufficient notice of his condition, and that he reasonably believed it was work-related. Thus, such actions only confirm that he had commenced inquiry into his situation.

CONCLUSION

The plaintiff has stated a valid claim against E.D. Bullard Company, however, plaintiff has failed to timely file his action. The plaintiff had at least constructive if not actual knowledge of his lung condition and that it was probably work-related in June 1980. Suit was not filed until July 6, 1981. Therefore, plaintiff's action has unfortunately prescribed. Thus, E.D. Bullard’s motion for summary judgment will be GRANTED dismissing the plaintiff's claims against E.D. Bullard Company on the basis of one year prescription. IT IS SO ORDERED.

      . Bruno’s demand letter to Camcraft reads as follows:
      July 2nd, 1980
      Re: Gary Orgeron
      Dear Sir:
      This is to advise that I have the privilege of representing Mr. Gary Lee Orgeron with reference to his claim for workmen’s compensation benefits arising out of his contraction of the occupational disease-silicosis. We hereby formally make demand against you for workmen’s compensation benefits due and owing from June 20th, 1980 to the present be paid together with all medical expenses which Mr. Orgeron had incurred during that time. Please have your attorney contact me as soon as it is received. Failure to respond will force me to take the necessary legal steps to protect my client’s interest. I remain ...
      Very truly yours,
      Joseph M. Bruno
      Bruno, Bruno & Blouin
      (Emphasis added).

      . Article 3492
      Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.

      . The Court is admittedly puzzled by Mr. Bruno’s statement that he filed the workmen's compensation claim on the basis that plaintiff had contracted the occupational disease-silicosis pri- or to Dr. Brown’s diagnosis because he did not want prescription to run on plaintiff, but then failed to file the tort claim against the defendants for one year and four days. However, even though Bruno is not a medical expert, his demand letter to plaintiffs employer also was sufficient to give plaintiff reasonable grounds to believe that his condition was work-related.