author: MUNSON, Chief Judge.

text:
    Ronald ALBRO, Michael Carpenter, Neil Epstein and Harold Warner, Individually and on Behalf of All Persons Similarly Situated, Plaintiffs, v. The COUNTY OF ONONDAGA, NEW YORK, Sheriff of Onondaga County, Mario M. Cuomo, Governor of the State of New York, and Thomas A. Coughlin, III, Commissioner of the Department of Correctional Services, State of New York, Defendants.
    No. 85-CV-1425.
    United States District Court, N.D. New York.
    Jan. 31, 1986.
    As Amended Feb. 3, 1986.

      Public Interest Law Firm, Syracuse University Law Clinic, Syracuse, N.Y., for plaintiffs, Daan Braveman, of counsel, Deborah J. Blood, Marcy Robinson Dembs, David Greenspan, Connor O’Brien, Brenda Waight, Student Attys., of counsel.
    • Robert J. Rossi, Co. Atty., Syracuse, N.Y., for defendants Onondaga County and Sheriff of Onondaga County; Diane E. Tucker, of counsel.
    Robert Abrams, Atty. Gen., Albany, N.Y., for Governor Cuomo and Com’r Coughlin; Paul D. Silver, of counsel.
   MEMORANDUM-DECISION AND ORDER

MUNSON, Chief Judge.

Not at all unique in the New York state prison system, the Onondaga county jail, known as the Public Safety Building [“PSB”] is overcrowded. It has been operating in excess of capacity consistently since May 1984 and there is no anticipated decrease in the near future. Plaintiffs commenced this action on October 25, 1985 under 42 U.S.C. § 1988 on behalf of all persons incarcerated at the PSB alleging that the overcrowded conditions under which the inmates are detained are intolerable and inhumane. Plaintiffs allege violations of their rights protected by the first, fourth, fifth, sixth, eighth, ninth and fourteenth amendments to the United States Constitution, the Constitution of the state of New York and New York statutes and regulations. Plaintiffs seek declaratory and injunctive relief and a preliminary injunction restraining defendants from exceeding the rated capacity of the PSB and otherwise incarcerating plaintiffs under unconstitutional conditions. A hearing on plaintiffs’ motion for a preliminary injunction was held on October 31 and November 1, 1985.

This court certified the plaintiff class on November 21 under Rule 23(b), Fed.R. Civ.P., of “all persons who are or will be incarcerated during the pendency of this action at the PSB jail”; this class includes both pre-trial detainees and sentenced inmates. Plaintiffs allege that the pre-trial detainees are subjected to punishment in violation of the fourteenth amendment and sentenced inmates are subjected to cruel and unusual punishment in violation of the eighth amendment. Plaintiffs also allege that all inmates are deprived of their rights secured by the N.Y. Constitution Art. I § 6.

Plaintiffs’ complaint names as defendants the County of Onondaga and the Sheriff of Onondaga County under whose auspices the PSB is operated. The defendants moved to join the Governor of New York and the Commissioner of the New York Department of Correctional Services as additional defendants. The motion was granted to allow the state to participate in the hearing for a preliminary injunction subject to a motion for reconsideration after the hearing. The state defendants have now moved this court to vacate the court’s order of joinder of the state.

I.

The PSB jail has a maximum capacity of 212 inmates as rated by the New York State Commission of Corrections and as acknowledged by all of the parties in this action. There are 202 cells and one dormitory designed to house 10 inmates. Beginning in July 1983, the population has repeatedly exceeded the maximum capacity; since May 1984 to the present, the monthly average population counts reveal that the PSB jail has been consistently over capacity. These monthly averages as recorded by the jail administrators indicate that between May 1984 and the dates of the hearing, the population has fluctuated from between 2.4% to 31.1% over capacity. In the most recent months prior to the hearing, July 1985 to October 1985, the inmate population count has exceeded the maximum capacity by 19% to 26% representing an excess population of between 40 and 55 inmates.

The PSB jail has four housing floors. Each of the floors 2 through 5 has 2 long cell blocks (cell blocks A and B) and 2 short cell blocks (C and D) with the exception of cell block 5C which is the dormitory. The inmates for which there is no cell space when the population exceeds 212 are housed in the corridors in front of the cells. These corridors run the length of the front of the cells and are 5 to 10 feet in width. Up until October 30, 1985, the inmates housed in the corridors slept on mattresses on the floor. In the late afternoon of the day before the start of the hearing, the jail obtained cots from the county morgue. With the cots obtained from the morgue and a few others assembled from parts, there were 25 cots for use at the jail. So on the first day of the hearing most of the inmates housed in the corridors had cots on which to sleep. However, not all of the inmates were off of the floor because the population count was greater than 25 in excess of capacity.

The number of persons housed in each of the corridors varies as the population fluctuates. At times up to 27 inmates have been housed on a long corridor and up to 9 on a short corridor. These inmates have no place to secure their personal belongings. All of the inmates in one corridor share one toilet. During the periods called “lock-out” in which inmates are locked out of their cells, all of the inmates are in the corrider and must share one bathroom which is a cell kept vacant for common use. There are no dayrooms in the PSB. The inmates spend virtually all of their time in their cells or in the corridors including meals served to them there. At the time of the hearing, there was no physical recreation available to the inmates; the PSB roof was being repaired and to hasten the process, the gymnasium on the roof for the use of the inmates was used as a “staging area” for the construction, thereby making it unavailable to the PSB inmates.

The PSB obtained a variance from the Department of Corrections to suspend provision of the required hour of physical exercise per day. To be relieved temporarily from this requirement, the PSB was to substitute passive recreation. It appears that this was not done. Chief Jail Deputy Charles Pirro, employed by the Sheriffs Department with responsibility for running the PSB, testified that movies were shown in the chapel but could recall only one having been shown to some but not all of the inmates within the preceeding few months. Plaintiff Albro testified that he had been offered the opportunity to see two movies since he was admitted to the PSB jail on June 18, 1985. Passive recreation available to the inmates on the cell blocks consists of radio, television, cards, chess, checkers, letter writing, and reading. The inmates are permitted to leave the cell blocks to see visitors, attend religious services in the chapel, make telephone calls, appear in court, use the law library, attend Alcoholics Anonymous meetings and G.E.D. classes, and to visit the medical facility.

One result of the overcrowding has been the inability of the jail to segregate inmates appropriately. Particularly acute in this regard has been the practice of housing inmates in the corridor of cell block 2A where the mentally unstable inmates are housed. Plaintiffs testified that inmates housed in the corridor of 2A were often targets for human feces and urine thrown by the persons housed in the cells. In addition, security and safety problems arose from the jail’s failure to house pretrial detainees separate from sentenced inmates. Plaintiffs testified that the sentenced inmates “had nothing to lose” thereby exacerbating incidents of fighting, theft and extortion as against the pre-trial detainees who hesitated to defend themselves out of fear that additional charges would be brought against them.

Plaintiffs testified to the tense atmosphere caused by the close quarters in which the inmates were housed — that the high frequency of fights over minor items resulted from the tension. Security problems were increased due to the group sleeping arrangements in the corridors. Also, the inmates in the corridors had access to the individual cells.

Security provided by the deputy sheriffs is deficient. At the time of the hearing, the jail had the authority to fill 171 slots though only 151 were presently filled. Chief Pirro testified that he was unable to fill the vacant positions because he was required to hire persons from a civil service list which list had been depleted and he would have to await the results of the previously-administered civil service examination. There was also testimony that some of the 151 persons who were due to retire shortly were abusing their sick leave privileges because the recently-negotiated change in the retirement system allows retirees to accumulate only a limited amount of unused sick leave time. Therefore some of the deputies due to retire shortly were calling in sick. Additionally Chief Pirro testified that there was an unusually high incidence of medical problems among the deputies resulting in their absence from work.

Dirome Williamson, Correction Facility Review Specialist for the State Commission of Correction, testified as to his most recent inspection of the PSB jail on September 11, 1985. Though his presence and purpose were known to the jail administrators at the time of his visit, Williamson noted that the deputies failed to make the required number of rounds of the cell blocks. There was testimony of fights breaking out which were not promptly controlled by the deputies because they were not readily available on the cell blocks. When a fight broke out, plaintiffs testified that the inmates had to yell for a guard to come into the cell block to break up a fight. In addition to the increased security problem created by housing inmates in the corridors, there was testimony that the reduction in the deputy-to-inmate ratio hampered the deputies’ ability to get to know the inmates individually so as to better anticipate threats to order in the jail.

II.

Pre-trial detainees’ fourteenth amendment protections include the right not to be incarcerated under conditions which amount to punishment “for under the Due Process Clause, a detainee must not be punished prior to an adjudication of guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1871, 60 L.Ed.2d 447 (1979). Overcrowding amounts to punishment when it “subjects a detainee over an extended period to genuine privations and hardship not reasonably related to a legitimate governmental objective.” Lareau v. Manson, 651 F.2d 96, 103 (2d Cir.1981).

Statistics maintained by the county reveal the average length of stay of inmates from January to October 1985 as follows:

# of days percentage of inmates

1-2 56.5%

3-10 24.1%

11-30 8.4%

31-1 yr. 10.9%

Of course these statistics do not measure the length of detention of inmates on any given day. Given the large percentage of inmates incarcerated for the shortest period of 1-2 days which increases to 70% for persons held 1-5 days, it appears that on any given day the average length of incarceration of inmates is considerably greater than the presented statistics reveal. See Lareau, 651 F.2d at 102. To this extent these statistics indicate that many inmates are subjected to the hardships caused by the overcrowded conditions for a substantial period of time. Though a large percentage of the plaintiff class is incarcerated for a short period of time, there was no testimony indicating that only these short-term inmates were subjected to severe housing conditions. Although the Second Circuit has said these statistics bear on what remedy should be employed, see id,., these numbers offer little guidance to the court in attempting to fashion a remedy to reduce the population. However, they do suggest that inmates are subjected to the conditions for a sufficiently long period to amount to punishment necessitating a remedy to alleviate these conditions.

Here no justification is presented for the overcrowded conditions at the PSB other than the need or desire to house more prisoners than the maximum rated capacity. This does not constitute a legitimate governmental purpose which would excuse forcing pre-trial detainees to endure hardship and privations over an extended length of time. See id. at 104. Accordingly, the only inquiry under the fourteenth amendment to be made by this court is whether the conditions at the PSB amount to punishment. The eighth amendment’s prohibition against cruel and unusual punishment protects sentenced inmates from “unnecessary and wanton” inflictions of pain, including those that are “totally without penological justification.” Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59. The inquiry as to sentenced inmates is whether the totality of conditions “deprive[s] inmates of the minimal civilized measure of life’s necessities.” Id.

Overcrowding has adversely affected many aspects of living conditions at the PSB for all inmates — sentenced inmates and pre-trial detainees alike. Housing inmates in the corridors affects others in the same corridor as well as persons in the cells on the corridors. There is increased tension and propensity for physical threats and violence because of the housing situation, the failure to segregate inmates by statutory classification, and the apparent inability of the deputies to adequately perform their supervisory duties. The population excess reduces the availability to all inmates of what limited alternative recreation is made available, such as movies shown. The lack of activities outside of the cell blocks makes the present housing situation especially severe because the inmates spend virtually their entire day in the cells or on the cell blocks. Lack of housing space which results in mentally stable inmates being housed with those who are not is so obviously intolerable as to not warrant further discussion.

Before the cots were obtained, mattresses were laid on the floor and could be rolled up to make more floor space during the day. The cots are not a totally satisfactory solution to the housing problem. Though the conditions are in one sense not so egregious for those inmates no longer sleeping on the floor in the corridors, see id. at 105; Vazquez v. Gray, 523 F.Supp. 1359, 1365 (S.D.N.Y.1981), the cots create other problems. One is the decrease in available floor space because the cots cannot be folded. Also cots increase the threat to security as the testimony revealed that they can be disassembled to be used as a weapon. Chief Pirro testified that the increased security risk was the basis for his not obtaining cots sooner.

The county does not dispute that the PSB is overcrowded. It has made some effort to adapt to the overcrowding though nothing directed toward reducing the number of inmates housed at the PSB. The blame for the overcrowding does not, however, belong on the shoulders of the county, but because of the adverse effects on the living conditions caused by the continuous overcrowding something must be done with all due speed to alleviate the overcrowding. Though the county defendants are subject to order of this court to take affirmative steps to eliminate the unconstitutional conditions, the court would be remiss if it laid blame on the county officials responsible for running the PSB. Rather, the blame must fall squarely on the shoulders of the public which pressures legislators to increase criminal penalties yet simultaneously denies the authority for public expenditure for programs directed toward persons against whom these laws are enforced— whether these be alternative programs for pre-trial release or alternate sentences or for construction of additional prisons. See Rhodes, 452 U.S. at 357, 101 S.Ct. at 2404 (Brennan, J., concurring) (“The problems of administering prisons within constitutional standards are indeed ‘complex and intractable,’ ... but at their core is a lack of resources allocated to prisons.”); Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). As a result, the state prison system in New York is operating at 109% capacity and is causing a strain on the county jails as the number of inmates that the state can accept into its system has decreased. Therefore, the counties in the state, including Onondaga, are forced to house persons who should be in the state, rather than county, system. As the problem has continued, certain counties are particularly overtaxed and have boarded out their own inmates to other counties either because of their recognition that they lacked space to house these inmates or by force of court order directing the counties to reduce their inmate population. See e.g., Badgley v. Varelas, 729 F.2d 894 (2d Cir.1984) (Nassau County); Vazquez, 523 F.Supp. 1359 (Westchester County).

III.

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

Plaintiffs’ allegations that they have suffered and will continue to suffer constitutional deprivations from the conditions resulting from the overcrowding at the PSB jail satisfy the requirement of irreparable harm; deprivation of constitutional rights constitutes irreparable harm per se. See e.g., Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984) (and cases cited therein); Fortune Society v. McGinnis, 319 F.Supp. 901, 903 (S.D.N.Y.1970) (Weinfeld, J.). Plaintiffs have demonstrated a likelihood of success on the merits on their fourteenth amendment claim on behalf of pre-trial detainees that conditions of confinement amount to punishment, thereby making the granting of preliminary relief appropriate as to the pre-trial detainees.

Continuous overcrowding resulting in inmates being housed in the corridors — particularly those not provided cots; inmates not being segregated — particularly persons not mentally unstable housed with the mentally unstable inmates on cell block 2A; and the lack of activities outside of the cell blocks cannot be said to comport with contemporary standards of decency. See Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Plaintiffs have therefore demonstrated serious questions going to the merits of their eighth amendment claim to make them fair ground for litigation. See Jackson Dairy, 596 F.2d at 72. Relief available to the pre-trial detainees would equally benefit the sentenced inmates. Therefore the balance of hardships on plaintiffs’ claim for relief under the eighth amendment tips decidedly toward the plaintiffs and entitles the sentenced inmates to preliminary in-junctive relief.

Because of its invidious effect on numerous aspects of plaintiffs’ living conditions, Lareau, 651 F.2d at 100, the continuous overcrowding at the PSB as in recent months of 40-45 inmates over capacity must be eliminated. It is not that the maximum rated capacity sets an absolute standard above which the court must find a fourteenth amendment violation. However, the capacity as set by the State Department of Corrections does reflect an assessment by the Commission of Corrections of minimum standards deemed necessary to ensure that persons incarcerated at the PSB and other jails and prisons are provided adequate care while incarcerated. The Commission of Corrections is responsible for promulgating rules and regulations establishing minimum standards of care and has the duty to inspect correction facilities for compliance with these standards, including jail administrators’ adherence to laws and regulations governing the rights of inmates. N.Y.Correct.Law § 45 (McKinney Supp.1986). Cf. Wolfish, 441 U.S. at 543 n. 27, 99 S.Ct. at 1876 n. 27; Rhodes, 452 U.S. at 348 n. 13, 101 S.Ct. at 2400 n. 13 (opinions of experts as to desire-able prison conditions do not establish the constitutional minima). Indeed the Commission of Corrections has cited the PSB for its failure to adhere to the maximum rated capacity. See infra note 5. The court will not adopt the maximum rated capacity to set a mandatory population ceiling at this time in order to alleviate the overcrowding. The Second Circuit has expressed its disapproval of a district court setting an absolute population cap as a remedy for overcrowding because of the inflexibility of such a remedy. See La- reau, 651 F.2d at 109-10. The court therefore will not mandate an immediate reduction to the maximum rated capacity of the PSB at this time. However, the design capacity incorporated in the Department of Corrections’ maximum rated capacity can serve as an appropriate goal for the necessary population reduction either for the defendants, or if they do not act to reduce the overcrowding, then for the court.

The PSB houses what can be divided between mandatory and discretionary inmates. The discretionary inmates include “boarders”: those persons housed pursuant to a contract with Onondaga County. Onondaga County at the present time has contracts with the counties of Nassau, Madison, Saratoga, Cayuga, and Oswego and with the federal government. At the time of the hearing, the PSB had 21 boarders — 17 from Nassau County and 4 from the federal government. Also among discretionary inmates are persons arrested for parole violations with no additional state criminal charges filed against them. Generally, the PSB houses approximately 25 persons held for parole violations only. Chief Pirro testified that the number of discretionary inmates held in the PSB has remained relatively constant even prior to the overcrowding. Rather, he attributes the change resulting in overcrowding solely to the delay by the state in accepting state readies. The county has unsuccessfully attempted through a state court action to force the state to accept those inmates which the state is statutorily obligated to accept promptly from the counties and to reimburse the county for boarding expenses. Regardless of the factors which the county believes have caused the overcrowding, the Sheriff of Onondaga County bears the responsibility for operating the jail and must be held accountable to plaintiffs for the unconstitutional conditions at the PSB.

Though the county may be correct in asserting that there would be much less overcrowding were it not for the problems caused by the state, for purposes of this litigation the county must accept primary responsibility for the current overcrowded conditions. This responsibility includes the obligation to take those measures within its power and control to reduce the population to appropriate levels and to insure that persons incarcerated at the PSB are not held under conditions violative of the Constitution. Therefore, the county must reduce the number of inmates held at the PSB. Though recognizing that a federal court is ill equipped to make decisions regarding jail administration, the court nevertheless must employ some remedy where the persons responsible for the unconstitutional conditions refuse to act. Martinez, 416 U.S. at 405-06, 94 S.Ct. at 1807-08. It appears to the court that the PSB should cease accepting discretionary inmates but the court will not order the county to reduce the population in this specific manner before the county has the opportunity to consider and propose its own alternatives that will effectively reduce the population at the PSB.

Although the court is mindful that the already strained state prison system and that of other counties may not easily bear the increased numbers from the reduction in numbers at the PSB, this consideration cannot prevent the court from ordering a reduction of the inmate population when presented with constitutional violations at the PSB. The long-range solution may be to develop alternatives to incarceration but until this is accomplished, the plaintiffs in this lawsuit should not be forced to endure the present conditions at the PSB.

IV.

The state defendants have moved to vacate the court’s order permitting joinder of Governor Mario M. Cuomo and Thomas A. Coughlin, III, Commissioner of the Department of Correctional Services. The state defendants argue that the state defendants should not be joined because complete relief can be granted as among the existing parties. See, Rule 19(a), Fed.R.Civ.P.; Badgley, 729 F.2d at 901.

Though the county defendants possess primary responsibility for operating the PSB, the county has shown that it does not act completely autonomously in controlling the population at the PSB. The various county jails and the state Department of Corrections through a state computer link receive and exchange information on population levels at the various prison facilities state-wide. Also, the county has successfully argued that any reduction in population achieved at the PSB could easily be negated by the state’s slowing down the rate at which state-ready inmates are accepted from the PSB based on the state’s monitoring of available space at the PSB and other county jails. The state’s contributing to the overcrowding and hampering the county’s ability to reduce the population at the PSB makes the state properly a defendant in this action. See Benjamin v. Malcolm, 88 F.R.D. 333, 335 (S.D.N.Y.1980). Therefore, it appears practical to keep the state defendants in this action to cooperate with the county defendants in developing an immediate and a long-range solution to the overcrowding at the PSB.

V.

To remedy the housing conditions at the PSB, the court orders the following:

Effective within 5 days after the date of this order, no inmate may be housed on the floor of a corridor but must be on a cot.

Effective within 2 days after the date of this order, no general inmate not believed to be mentally unstable nor under observation for mental instability may be housed with the mentally unstable inmates currently housed on cell block 2A.

The parties are directed to appear in person, or by way of their attorneys, for a conference with the court on February 14, 1986 at 11:00 a.m. to present specific proposals for reducing the inmate population at the PSB. The county should consider terminating its existing contracts to house boarders and ceasing to accept discretionary inmates, including persons arrested for parole violations only.

The county is ordered to prepare and submit to the court at the conference a report of the number of persons accepted each day and daily totals of the inmate population at the PSB indicating how each is classified; i.e. parole with criminal charges, parole only, new criminal charges only, state readies (indicating which of the state readies are also contained in the parole only, parole with criminal charges and new criminal charges only categories), and boarders.

The motion by defendants Governor Cuo-mo and Commissioner Coughlin to vacate this court’s prior order permitting joinder is denied.

IT IS SO ORDERED.

      . The Sheriff of Onondaga County is charged with responsibility for the PSB under the New York Corrections Law:
      [T]he sheriff of each county shall have custody of the county jail of such county.
      N.Y. Correct. Law § 500-c, subd. 1 (McKinney Supp.1986).

      . The testimony on the width of the corridors was less than precise. These dimensions are those estimated by the witnesses and based on the photographs of the cell blocks introduced by plaintiffs and defendants. The corridors appear to vary in width.

      . Chief Pirro testified that on October 31, 1985 there were 239 inmates housed in the PSB which was 27 over capacity. He also testified that on October 22, 1985, the last date of the county’s statistics presented to the court, the population count was 263, or 51 over capacity. On that date Chief Pirro stated that there were approximately 48 optional inmates: 17 boarders from Nassau County, 4 boarders from the federal government, and 27 persons detained for parole violations only.

      .New York Corrections Law § 500-c provides in pertinent part:
      "The New York Corrections Law no longer generally requires a county sheriff to separate inmates in a county jail according to the categories previously set out in N.Y. Correct. Law § 500-c (McKinney Supp.1986), 1970 N.Y. Laws c. 70, § 1, as amended; suspended effective Aug. 6, 1984, 1984 N.Y. Laws c. 908, § 1 (providing that § 500-c as repealed and replaced by 1984 N.Y. Laws c. 907, § 5, would be suspended rather than repealed). Rather, the new classification statute mandates only that men be housed separately from women and persons under 19 years of age be housed separately from older inmates. N.Y. Correct. Law § 500-b subd. 3 & 4 (McKinney Supp.1986). Otherwise the statute provides that "the chief administrative officer [of the county jail] shall exercise good judgment and discretion” in assigning persons to facility housing units so as to foster the security of the jail and safety of inmates. N.Y. Correct. Law § 500-b subd. 7(a) (McKinney Supp.1986), added, 1984 N.Y. Laws c. 907, § 4. The statute goes on to enumerate factors relating to the personal history and characteristics of individual inmates which the chief administrative officer of the jail is to consider in assigning inmate housing. See N.Y. Correct. Law § 500-b subd. 7(b). Segregation of inmates according to statutory classification is mandated as follows:
      8. Where the commission finds substantial noncompliance with commission rules and regulations with regard to (a) minimum staffing requirements;, or (b) maximum jail capacity and security requirements; or (c) where it is determined that the county does not have an approved service plan in effect pursuant to article thirteen-A of the executive law or is found to be in non-compliance therewith, as provided in section two hundred sixty-three of such law, it shall prohibit the commingling of any of the following categories of inmates:
      (1) persons in custody on civil process, or committed for contempt, or detained as witnesses with persons detained for trial or examination upon a criminal charge with convicts under sentence;
      (2) persons detained for trial or examination upon a criminal charge with convicts under sentence;
      (3) persons under nineteen years of age with persons nineteen years of age or older: or
      (4) a woman detained in any county jail or penitentiary upon a criminal charge or as a convict under sentence with a man; and if detained on civil process, or for contempt, or as a witness in a room in which there are no other prisoners with a man, except with her husband....
      N.Y. Correct. Law § 500-b subd. 8 (McKinney Supp.1986).”

      . This conclusion that housing inmates at the PSB in excess of the maximum rated capacity serves no legitimate purpose is buttressed by the county’s failure to seek a variance from the state Commission of Corrections to be relieved from this requirement. Rather, the State Commission of Corrections cited the PSB in its 1984 evaluation for failing to comply with the Maximum Prisoner Capacity, N.Y.Admin.Code tit. 9 Executive (D) § 7040.1 (1983).

      . It has come to the attention of the court that the repair of the PSB roof is now complete and therefore it is assumed that the inmates now receive their hour of daily physical exercise in the gymnasium. However, this does not by itself obviate the finding that conditions at the PSB are unduly harsh both at the time the violations were presented to the court and at the present time, three months later. Rather, if active recreation is provided this will be a factor to be considered by the court if it must fashion a final remedy.

      . For example, the Security Through Development of Secure Correctional Facilities Bond Act of 1981, L.1981 c. 850, § 1 was not approved by the voters of the State in the general election held in November, 1981 thereby preventing N.Y. Correct. Law § 46 (subd. 5) (McKinney Supp. 1984) from taking effect. Codification Note foil. N.Y. Correct. Law § 46 (McKinney Supp. 1984).

      . The Supreme Court, Onondaga County, granted plaintiffs request for an order of mandamus compelling the Department of Correctional Services to accept and commit state prisoners within 36 hours of their sentencing pursuant to N.Y.Crim.Proc. Law § 430.20 and compelling defendants to reimburse the County for past expenses incurred due to the state’s delay in accepting and committing prisoners. County of Onondaga v. N.Y.S. Department of Correctional Services, slip op. (N.Y.Sup.Ct., Onondaga County, Jan. 28, 1983), rev’d, 97 A.D.2d 957, 468 N.Y.S.2d 760 (App.Div., 4th Dept.1983), aff’d, 62 N.Y.2d 826, 477 N.Y.S.2d 606, 466 N.E.2d 146 (Ct.App.1984).

      . Rule 19, Fed.R.Civ.P. “Joinder of Persons Needed for Just Adjudication” provides in pertinent part:
      (a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties.... If he has not he so joined, the court shall order that he be made a party.

      . A Pennhurst problem does not appear to exist at this time because the remedial order is founded on a duty owed to the plaintiffs by defendants under the United States Constitution and not directly on state law. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (Pennhurst II); Badgley v. Varelas, 729 F.2d 894, 901 (2d Cir.1984). While state law may impose a connection between the state and county defendants, state law nevertheless is not the basis for holding the state defendants potentially liable to the plaintiffs. Rather, state law merely evidences that the state is in a position to affect the population levels at the PSB. Accordingly, the state defendants are properly joined under Rule 19(a) to facilitate or at least not impede the vindication of plaintiffs' constitutional rights.


source: Caselaw Access Project

author: RYMER, District Judge.

license: Public Domain

text:
    MEDALLION TV ENTERPRISES, INC., et al., Plaintiffs, v. SELECTV OF CALIFORNIA, INC., et al., Defendants.
    No. CV 82-5195 PAR (MCx).
    United States District Court, C.D. California.
    Jan. 31, 1986.

      Avery H. Einhorn, Flax and Rosenfeld, Beverly Hills, Cal., for plaintiffs.
    Louis R. Miller, Wyman, Bautzer, Roth-man, Kuchel & Silbert, Los Angeles, Cal., for defendants.
   AMENDED MEMORANDUM OF DECISION AND ORDER

RYMER, District Judge.

Plaintiffs Medallion TV Enterprises, Inc. (“Medallion”) and its owner, John Ettlinger, have brought this action against Se-lecTV of California (“SelecTV”), and its officers and directors James LeVitus, Lionel Schaen, and Richard Kulis for violation of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. §§ 1962(b), (c), (d), as well as for various state law claims. The Court has jurisdiction over this action pursuant to 18 U.S.C. § 1964(c) and the doctrine of pendent jurisdiction.

Defendants move for summary judgment under Fed.R.Civ.P. 56, essentially asking the Court to reconsider its June 28, 1984 Memorandum Of Decision And Order (“Order”) denying defendants’ previous motion for summary judgment, in light of the United States Supreme Court’s recent decision in Sedima, S.P.R.L. v. Imrex Co., — U.S. -, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) and this Court’s decision in Ailington v. Carpenter, 619 F.Supp. 474 (C.D.Cal.1985). For the reasons stated below, defendants’ motion is granted.

I. INTRODUCTION

To be liable under 18 U.S.C. § 1962(b), a defendant must (1) acquire or maintain (2) any interest in or control of any enterprise (3) through a “pattern” (4) of “racketeering activity.” To be liable under Section 1962(c), a defendant must (1) participate (2) in the affairs of an “enterprise” (3) through a “pattern” (4) of “racketeering activity.” In addition, Section 1962(d) renders a defendant liable for conspiring to violate Sections 1962(b) and 1962(c). “Racketeering activity” is defined as any act indictable under several provisions of Title 18 of the United States Code. 18 U.S.C. § 1961(1)(B). The acts, enumerated in the RICO Act, are commonly called “predicate acts” and include the conduct alleged by plaintiffs: mail fraud, 18 U.S.C. § 1341; wire fraud, id. § 1343; and interstate transportation of stolen property, id. § 2314.

The facts of this case, described in the Court’s Order and not genuinely controverted by the parties in this motion, are as follows. Plaintiffs and defendants sought to obtain the rights to and to telecast the heavyweight prizefight between Mu-hammed Ali and Trevor Berbick in the Bahamas on December 11, 1981. In September or October 1981, Ettlinger obtained from the fight promoter the right of first refusal for television rights to the fight. In early October, Ettlinger and the individual defendants, who controlled SelecTV, met to discuss the possibility of joining together to telecast the fight. Eventually, plaintiff Medallion and defendant SelecTV entered into a joint venture, called Medsel, to acquire and exploit the rights by selling the telecast to cable and pay television stations. The agreement was later reduced to writing. In late October, Medsel obtained the telecast rights from Sports Internationale, the Bahamian fight promoter. As part of the Medsel joint venture agreement, SelecTV agreed to sell the television rights to pay and cable television stations in the United States and Canada. Medallion assumed responsibility for selling telecast rights throughout the rest of the world.

Although SelecTV and Medallion attempted to sell the rights, the sales results were disappointing. Both SelecTV and Medallion lost money on the joint venture. On October 6, 1982, plaintiffs filed their Complaint, seeking to hold defendants responsible for their losses in the fight.

In denying defendants’ motion for summary judgment in its June 28, 1984 Order, the Court relied on pre-Sedima law that allowed a civil RICO claim to be based on two or more predicate acts, even if those predicate acts arose from the same criminal transaction. The Court found that there was a genuine controversy of fact regarding the existence of a scheme to defraud by defendants that resulted in the following predicate acts: wire fraud, in connection with telephone calls by Schaen to Ettlinger on October 8 and 9 regarding a face-to-face meeting at a restaurant to discuss entering into the venture, at which Schaen allegedly made fraudulent representations; mail fraud, in connection with Schaen’s and LeVitus’s causing Ettlinger to use the telephone on November 9 to transfer letters of credit from his Chicago bank to the Bahamas; and transportation of stolen property, also in connection with Schaen’s and LeVi-tus’s causing Ettlinger to make the transfer. In addition, the Court specified two issues to be without substantial controversy. First, it found that an internal memorandum of November 30, 1981 from Schaen to LeVitus, which was mailed to Ettlinger and which allegedly contained misrepresentations of sales figures, was not mailed in furtherance of the scheme to defraud. Second, the Court ruled that phone calls and mailings by defendants to television stations in their sales efforts, including letters, contracts, and offers, were not made in furtherance of the scheme to defraud.

II. LIABILITY UNDER 18 U.S.C. §§ 1962(b), (c)

Viewing the facts in the light most favorable to the plaintiffs in this motion for summary judgment, the following predicate acts may exist: the telephone calls on October 8 and 9, 1981 between Schaen and Ettlinger; and Ettlinger’s transfer of the letters of credit on November 9 as a result of those conversations. In its previous Order, the Court relied on pre-Sedima law holding that the predicate acts alleged by plaintiffs, if proved, could support RICO liability. In light of Sedima, however, the Court concludes that the predicate acts, even if proved, could not support a finding of a “pattern” as required for liability under Section 1962(c).

1. Enterprise.

Plaintiffs allege that SelecTV and Medsel were both enterprises for the purposes of 18 U.S.C. §§ 1961(4), 1962(b), (c) (Complaint ¶¶ 26, 27). Defendants argues that plaintiffs cannot satisfy the “enterprise” requirement. Two elements are necessary to establish an “enterprise” under 18 U.S.C. §§ 1961(4), 1962(b), (c). First, there must be “evidence of an ongoing organization, formal or informal, and ... evidence that the various associates function as a continuing unit.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1981). Second, the enterprise must have an existence separate and apart from the pattern of activity in which it engaged. Id.; compare United States v. Tillett, 763 F.2d 628, 632 (4th Cir.1985); United States v. Riccobene, 709 F.2d 214, 221-24 (3d Cir.), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983); United States v. Bledsoe, 674 F.2d 647, 665 (8th Cir.1982), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982) (a RICO enterprise must have “ ‘an ascertainable structure’ distinct from that inherent in the conduct of a pattern of racketeering activity”) with United States v. Bagaric, 706 F.2d 42, 55 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Weinstein, 762 F.2d 1522, 1536-37 (11th Cir.1985) (upholding RICO’s application to situations “where the enterprise [is], in effect, no more than the sum of the predicate racketeering acts”).

In the instant case, defendant SelecTV cannot be the “enterprise” for purposes of RICO, since it cannot at the same time be the “person” sued under 18 U.S.C. §§ 1962(b), (c). Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir.1984); see also Bennett v. United States Trust Co., 770 F.2d 308, 314-15 (2d Cir.1985); Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384, 400-02 (7th Cir.1984), aff'd per curiam, 473 U.S.-, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985); Bennett v. Berg, 685 F.2d 1053, 1061 (8th Cir.1982), aff'd in part and rev’d in part on other grounds, 710 F.2d 1361 (8th Cir.), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983); Willamette Savings & Loan v. Blake & Neal Finance Co., 577 F.Supp. 1415, 1426-27 (D.Ore.1984). Neither can Medallion argue that the culpable person in this case is not SelecTV but its individual officers, employees, or agents: LeVitus, Schaen, and Kulis. “These attempts at factual distinctions do not make any real difference since a corporation cannot operate except through its officers and agents.” Tarasi v. Dravo Corp., 613 F.Supp. 1235, 1237 (W.D.Pa.1985). RICO’s use of the term “enterprise” “was meant to refer to a being different from, not the same as or part of, the person whose behavior the act was designed to prohibit....” United States v. Computer Sciences Corp., 689 F.2d 1181, 1190 (4th Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983), cited in Rae, 725 F.2d at 481.

Nevertheless, plaintiffs could contend that Medsel’ the joint enterprise entered into by Medallion and SelecTV to broadcast the Ali-Berbick fight, was the “enterprise” for purposes of RICO. Medsel is not a named defendant in this case. The facts indicate that it had an existence and purpose apart from those of the predciate acts alleged by plaintiffs; it was, in essence, more than the sum of the predicate acts. The Court therefore assumes that the “enterprise” requirement of RICO is satisfied for purposes of this summary judgment motion.

2. Pattern.

The October 8 and 9 telephone calls and November 9 transfer of the letters of credit satisfy 18 U.S.C. § 1961(5)’s threshold requirement that a “pattern” include at least two acts of racketeering activity. However, as the Supreme Court noted in Sedima, “proof of two acts of racketeering activity, without more, does not establish a pattern.” Sedima, 105 S.Ct. at 3285 n. 14 (quoting 116 Cong.Rec. 18,940 (1970) (statement of Sen. McClellan). It is the factor of “continuity plus relationship ” that combines to produce a pattern. Id. (quoting S.Rep. No. 91-617, 91st Cong., 1st Sess. 158 (1969) (emphasis in original) [hereinafter cited as S.Rep.]). Therefore the alleged predicate acts must show both “continuity” and “relatedness” to constitute a “pattern” under Section 1962. See Sedima, 105 S.Ct. at 3285 n. 14.

Relatedness. The relatedness of the predicate acts is established through proof of common perpetrators or victims, or similar purposes, results, or methods of commission. Id.; see also United States v. Stofsky, 409 F.Supp. 609, 614 (S.D.N.Y.1973), aff'd, 527 F.2d 237 (2d Cir.1975), cert. denied, 429 U.S. 819, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976); cf. 18 U.S.C. § 3575(e) (“criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events”). Here, the participants (SelecTV, Schaen and LeVitus) were the same, and the alleged acts of wire and mail fraud and transportation of stolen monies had the same victims. Moreover, the acts had the same purpose: To cause Ettlinger to transfer letters of credit in order to finance the telecasting of the Ali-Berbick match. With the same perpetrators, the same victims, the same methods of commission, and the same motive, the acts clearly were not disconnected but were parts of a single scheme.

Continuity. Plaintiffs must allege that the predicate acts occurred in different criminal episodes in order to show continuity of racketeering activity. See Sedima, 105 S.Ct. at 3285 n. 14. The requirement that plaintiffs in a RICO action demonstrate that the predicate acts occurred in different criminal episodes is consistent with the connotation of multiple events implicit in the term “pattern” and, more importantly, is the only construction that gives meaning to Congress’ intended rejection of RICO liability predicated upon isolated or sporadic criminal acts. See ABA Section of Corporation, Banking & Business Law, Report of the Ad Hoc Civil RICO Task Force 203-08 (1985) (“ ‘pattern’ requirement was intended as a means of limiting RICO to those cases where the required predicate offenses were committed in a manner which characterizes the perpetrator as a person who commonly commits such crimes. Only by requiring multiple predicate offenses occurring in two or more separate criminal episodes, can this goal be achieved in the RICO statute.”). RICO is “not aimed at the isolated offender.” Sedima, 105 S.Ct. at 3285 n. 14 (quoting 116 Cong.Rec. 35193 (1970) (statement of Rep. Poff)). As the report of the Senate Committee on the Judiciary explained:

The concept of ‘pattern’ is essential to the operation of the statute. One isolated ‘racketeering activity’ was thought insufficient to trigger the remedies provided ... largely because the net would be too large and the remedies disproportionate to the gravity of the offense. The target of [RICO] is thus not sporadic activity. The infiltration of legitimate business normally requires more than one ‘racketeering activity’ and the threat of continuing activity to be effective. It is this factor of continuity plus relationship which combines to produce the pattern.

S.Rep. at 158, quoted in Sedima, 105 S.Ct. at 3285 n. 14.

In Northwest Trust Bank/O’Hare v. Inryco, Inc., 615 F.Supp. 828, 832 (N.D.Ill.1985), for example, the district court held that a complaint alleging two predicate acts occurring within a month failed to state a claim under RICO because such acts did not constitute a “pattern.” Id. at 833. Even if three more acts alleged in the complaint and occurring 7 and 10 months after the first two were proved to be predicate acts, the five acts would not show a “pattern” because “[t]hey still implemented the same fraudulent scheme as the first two mailings — and the single scheme does not appear to represent the necessary ‘pattern of racketeering activity.’ ” Id. “It is difficult,” the court said, “to see how the threat of continuing activity stressed in the Senate Report could be established by a single criminal episode.” Id. at 832. The word “pattern”

connotes a multiplicity of events: Surely the continuity inherent in the term presumes repeated criminal activity, not merely repeated acts to carry out the same criminal activity. It places a real strain on the language to speak of a single fraudulent effort, implemented by several fraudulent acts, as a ‘pattern of racketeering activity.’

Id. at 831 (emphasis in original). In United States v. Moeller, 402 F.Supp. 49, 57-58 (D.Conn.1975), the district court noted:

While the statutory definition makes clear that a pattern can consist of only two acts, ... the common sense interpretation of the word ‘pattern’ implies acts occurring in different criminal episodes, episodes that are at least somewhat separated in time and place yet still sufficiently related by purpose to demonstrate a continuity of activity.... [T]he normal canon of narrowly construing penal statutes points toward such an interpretation.

Finally, in Exeter Towers Associates v. Bowditch, 604 F.Supp. 1547, 1554 (D.Mass.1985), an action by a limited partnership against the general partners regarding a mortgage transaction, the district court held:

[T]he connotations of a ‘pattern of racketeering activity,’ as that phrase is used in the RICO statute, are not satisfied by proof that, in effectuating the purchase of a single mortgage, the defendants committed two or more predicate acts of mail fraud. To construe the statute as applying in these circumstances would be to give it a sweep so broad as to be inconsistent with manifested congressional objectives. Most substantial business transactions involve two or more uses of the mail during negotiations. To hold that two such uses of the mail, in circumstances otherwise satisfying the prerequisites of proof of an offense under the mail fraud statute, are sufficient to constitute a ‘pattern of racketeering activity’ would be to sweep into federal courts, under RICO, the great majority of actions for fraud in commercial transactions.

Consistent with this intent to exclude single criminal events, a “pattern” of racketeering activity must include racketeering acts sufficiently unconnected in time and substance to warrant consideration as separate criminal episodes. The key to demonstrating a “pattern” is not merely the number of predicate acts, or the time span in which they occur, see Inryco, 615 F.Supp. at 833, but also whether they relate to separate criminal episodes. In the instant case, all plaintiffs can prove at most is a series of acts occurring within a two-month period relating exclusively to the telecast of the boxing match: the two telephone calls setting up the conference between Schaen, LeVitus and Ettlinger; and Ettlinger’s transfer of the letters of credit as a result of the meetings. Together the acts constitute a single criminal episode. They do not constitute a “pattern” of racketeering activity. Summary judgment is thus appropriate for defendants under plaintiff’s cause of action for violation of 18 U.S.C. §§ 1962(b), (c).

III. LIABILITY UNDER 18 U.S.C. § 1962(d)

Plaintiffs argue in their Opposition that even if their claims under Sections 1962(b) and (c) are dismissed, their claim under Section 1962(d) cannot be because a conspiracy to violate RICO does not require two predicate acts, or, indeed, any overt act at all. Section 1962(d) prohibits persons from “conspiring to conduct or participate, directly or indirectly, in the conduct of [an] enterprise’s affair through a pattern of racketeering activity.” United States v. Carter, 721 F.2d 1514, 1529 (11th Cir.1984). Plaintiffs rely on United States v. Alonso, 740 F.2d 862, 871-72 (11th Cir.1984) and United States v. Coia, 719 F.2d 1120, 1124 (11th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 2349, 80 L.Ed.2d 822 (1984) for the proposition that liability under Section 1962(d) does not require a showing of two predicate acts or, indeed, any overt acts.

These criminal prosecutions under RICO, however, are inapposite to the instant civil action. The private right of action under 18 U.S.C. § 1964(c) requires “injur[y] in [plaintiff’s] business or property by reason of a violation of section 1962”; that language presupposes an overt act. In Alonso, the Eleventh Circuit limited its holding to the assertion that “conviction of substantive RICO offenses is not an absolute prerequisite to conviction under the RICO conspiracy provisions.” Alonso, 740 F.2d at 872 (emphasis added). The Eleventh Circuit in Coia, 719 F.2d at 1124, did hold that proof of an overt act was not necessary for conviction under Section 1962(d). The Court relied in part on Singer v. United States, 323 U.S. 338, 340-42, 65 S.Ct. 282, 283-84, 89 L.Ed. 285 (1945), in which the Supreme Court concluded that because the particular conspiracy statute it was construing did not on its face require an overt act, no overt act requirement would be implied. The statute before the Supreme Court thus “punishe[d] conspiracy ‘on the common law footing.’ ” Id. at 340, 65 S.Ct. at 283 (quoting Nash v. United States, 229 U.S. 373, 378, 33 S.Ct. 780, 782, 57 L.Ed. 1232 (1913)). Alonso and Coia are not inconsistent with the federal common law of conspiracy, under which “[c]on-spiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.” United States v. Rodriguez, 546 F.2d 302, 306 (9th Cir.1976). The crime of conspiracy and the subsequent commission of the crime that is the object of the conspiracy may be prosecuted and punished as two separate crimes. The underlying rationale is that the conspiracy “poses distinct dangers quite apart from those of the substantive offense”: namely, the combination of persons to achieve unlawful ends, making it more likely that more complex and far-reaching crimes will be committed and less likely that individuals will abandon the criminal enterprise. Iannelli v. United States, 420 U.S. 770, 777-79, 95 S.Ct. 1284, 1289-91, 43 L.Ed.2d 616 (1975). “[CJollective criminal agreement — partnership in crime — presents a greater potential threat to the public than individual delicts.” Callanan v. United States, 364 U.S. 587, 593, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961).

In contrast to criminal conspiracy, which may be prosecuted and punished as a crime in itself because of the harm it poses to the public, a civil conspiracy under common law gives a plaintiff a cause of action only by virtue of the harm that conspiracy causes him individually. “Unlike a criminal conspiracy, where the conspiracy itself forms the gist of the crime, in a civil conspiracy, it is the overt acts producing damage to the plaintiff that gives rise to liability.” Kajtazi v. Kajtazi, 488 F.Supp. 15, 21 (E.D.N.Y.1978); see also Pacific Telephone & Telegraph Co. v. MCI Telecommunications Corp., 649 F.2d 1315, 1319 (9th Cir.1981) (under California law, civil conspiracy, “[ujnlike its criminal counterpart, ... in order to be actionable requires [an] independently wrongful act and resulting damages”); Rose Hall, Ltd. v. Chase Manhattan Overseas Banking Corp., 494 F.Supp. 1139, 1160 (D.Del.1980) (“A civil conspiracy cannot be established by proof of a conspiracy alone. The existence of a conspiracy desgined to injure a plaintiff provides him with no cause of action. A conspirator’s liability must be based upon overt acts done pursuant to the conspiracy”). Thus, in order for a plaintiff to have a private cause of action under 18 U.S.C. § 1962(d), there must at the very least be one or more overt acts causing injury to the plaintiff or “his business or property” under 18 U.S.C. § 1964(c).

This conclusion is supported by RICO’s legislative history. RICO’s two predecessor bills, S. 2048 and S. 2049, introduced in the Senate by Senator Hruska in 1967 (parallel bills were introduced by Representative Poff in the House) sought to apply antitrust theories to the problem of com-batting organized crime’s infiltration of legitimate business. Indeed, S. 2048 was framed as an amendment to the Sherman Act that would prohibit investment of unreported income from one line of business into another. Blakey, The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg, 58 Notre Dame L.Rev. 237, 249-54 (1982). Congress took no action on the proposed bills.

In January 1969, Senator McClellan introduced S. 30, the Organized Crime Control Act. While the bill did not contain a RICO provision, Senator McClellan later reviewed before the Senate the extent of organized crime in the United States and the need to combat it. 115 Cong.Rec. 5872 (1969). On March 20, 1969, Senator Hrus-ka introduced S. 1623, the Criminal Activities Profits Act, which, he explained, were a synthesis of the two bills he had introduced earlier. Although Senator Hruska no longer proposed coupling the bills with existing antitrust statutes, instead intending that the bills become part of the United States criminal code, he continued to speak of the proposed laws in antitrust terms:

[The bill] attacks the economic power of organized crime and its exercise of unfair competition with honest businessmen on two fronts — criminal and civil.
The criminal provisions of the bill prohibit the investment, in any business which is conducted in or which affects interstate commerce, of income which either has not been reported for Federal income tax purposes or has been derived from carrying on certain specified criminal activities.
In addition to this criminal provision, the bill also creates civil remedies for the honest businessman who has been damaged by unfair competition from the racketeer businessman. Despite the willingness of courts to apply the Sherman Anti-Trust Act to organized crime activities, as a practical matter the legitimate businessman does not have adequate civil remedies available under the act. This bill fills that gap. Patterned closely after the Sherman Act, it provides for private treble damage suits, prospective in-junctive relief, unlimited discovery procedures and all the other devices which bring to bear the full panoply of our antitrust machinery in aid of the businessman competing with organized crime.

Id. at 6993. “Standing alone, the criminal provisions may not be necessary,” Senator Hruska said. “In fact, the criminal provisions are intended primarily as an adjunct to the civil provisions which I consider as the more important feature of the bill.” Id. After several days of hearings on S. 30 and S. 1623, Senators McClellan and Hrus-ka jointly introduced S. 1861, the Corrupt Organizations Act, which ultimately became Title IX of the Organized Crime Control Act of 1969, RICO’s immediate predecessor. For the first time, the proposed bill spoke in terms of a “pattern” of racketeering activity and an “enterprise.” Id. at 9569. ' Three proposed provisions closely tracked the present language of 18 U.S.C. §§ 1962(a), (b)(c). Id. There was, however, no provision prohibiting a conspiracy to violate the provisions of the bill; nor was there a private treble damage remedy. Id. Nevertheless, the bill, Senator McClellan stated, “dr[ew] heavily upon the remedies developed in the field of antitrust.” Id. at 9567. The bill was referred to the Senate Committee on the Judiciary on April 18, 1969. Id. at 9568.

In December 1969, the Senate Judiciary Committee reported on S. 30 as amended by S.1861. Blakey, supra, at 265-70. For the first time, the proposed bill contained the anti-conspiracy provision of Section 1962(d); it did not, however, contain a private right of action for treble damages. 116 Cong.Rec. 581 (1970). Nevertheless, the Committee believed the civil remedies then included were adequate:

There is no doubt that the common law criminal trial, hedged in as it is by necessary restrictions on arbitrary governmental power to protect individual rights, is a relatively ineffectual tool to implement economic policy. It must be frankly recognized, moreover, that the infiltration of legitimate organizations by organized crime presents more than a problem in the administration of criminal justice. What is ultimately at stake is not only the security of individuals and their property, but also the viability of our free enterprise system itself. The committee feels, therefore, that much can be accomplished here by adapting the civil remedies developed in the antitrust field to the problem of organized crime.

S.Rep. at 80-81. RICO thus “brings to bear on the infiltration of organized crime into legitimate business or other organizations the full panoply of civil remedies, including a civil investigative demand, now available in the antitrust area.” Id. at 81. Yet the Senate Report coupled this analysis with the proviso that the “pattern” element was essential to the statute in that one isolated episode of racketeering activity was insufficient to trigger the provisions of the bill “because the net would be too large and the remedies disproportionate to the gravity of the offense.” Id. at 158. Infiltration of legitimate business normally required more than one racketeering activity “and the threat of continuing activity" to be effective. “It is this factor of continuity plus relationship which combines to produce a pattern.” Id. The bill, still without a private action for’ treble damages, passed on January 23, 1970. 116 Cong.Ree. 972 (1970).

S. 30 was referred to the Committee on the Judiciary of the House of Representatives on January 26, 1970, id. at 1103; two bills paralleling the Title IX RICO provision of S. 30, H.R. 19215 and H.R. 19586, were introduced in the House. Id. at 31914, 35242. The House passed an amended version of S. 30 with Sections 1962(a), (b), (c), and (d) unchanged; the definition of “pattern” intact except for the fact that the House version required the two predicate acts making up the “pattern” to be committed within ten years of each other; and a new private right of action for treble damages under Section 1964(c). Id. at 35340-41, 35363. The Senate passed the House version with no changes. Blakey, supra, at 279-80.

Thus while the criminal provisions of RICO on their face require no overt act for there to be a conspiracy under 18 U.S.C. § 1962(d), since under common law the conspiracy in itself is sufficient to confer such liability, the House addition of a private right of action for treble damages for violation of Section 1962 is entirely statutory and must be read in light of the House’s and Senate’s use of existing antitrust statutes as a model for RICO. The House, in adding Section 1964(c), was clearly influenced by the private action for treble damages under Section 4 of the Clayton Act, 15 U.S.C. § 15, for the two statutes are very similar in language. Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 4 of the Clayton Act, read together, give “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws,” including “[ejvery contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce,” a private right of action for treble damages. The private right of action under RICO, 18 U.S.C. § 1964(c), is phrased in similar terms, referring to “[ajny person injured in his business or property by reason of a violation of section 1962.”

The Clayton Act provides a private cause of action for persons harmed by the anti-competitive acts resulting from the conspiracy and tracks the common law of civil conspiracy. But a mere conspiracy to violate antitrust laws, without more, does not give a plaintiff a cause of action under the Clayton Act. “[Rjecovery for a statutory violation is not based on the conspiracy itself but on injury to the plaintiff produced by specific overt acts pursuant to the conspiracy.” Winckler & Smith Citrus Products Co. v. Sunkist Growers, Inc. 346 F.2d 1012, 1014 n. 1 (9th Cir.), cert. denied, 382 U.S. 958, 86 S.Ct. 433, 15 L.Ed.2d 362 (1965); see also Pocahontas Supreme Coal Co. v. National Mines Corp., 90 F.R.D. 67, 74 (S.D.N.Y.1981). A plaintiff who fails to show that he was injured in his business or property by the alleged conspiracy has no standing to sue for violation of the antitrust laws. Davies v. Carnation Co., 352 F.2d 393, 396-97 (9th Cir.1965). The provision for a private right of action for treble damages under RICO — a provision whose wording tracks that of Section 4 of the Clayton Act, contained in a statute modeled after the antitrust laws in general — must be read in the same way. Without overt acts causing injury, there is no cause of action under 18 U.S.C. § 1964(c) for violation of 18 U.S.C. § 1962(d). Cf. Sedima, 105 S.Ct. at 3286 (holding that injury by reason of a Section 1962(c) violation requires only harm caused by the predicate acts forming the pattern in order for there to be standing under Section 1964(c).

Plaintiffs argue, in the alternative, that Section 1964(c), read in conjunction with Section 1962(d), requires only injury caused by the conspiracy, not injury caused by a pattern of racketeering activity resulting from the conspiracy. Under this theory, injury caused by overt acts resulting from the conspiracy creates a cause of action even though those overt acts do not make up a “pattern.” While it is true that under the Clayton act a plaintiff need be harmed by only one overt act in order to have a cause of action, and RICO on its face provides a private cause of action to a person “harmed” by a violation of Section 1962(d), Sections 1962(d) and 1964(c) together must be read in light of the Senate Judiciary Committee’s special emphasis on the “pattern” requirement. This was in the same Senate Report that added the conspiracy provision to RICO. Assuming arguendo that plaintiffs are correct in asserting that a private cause of action lies under Section 1962(d) even if only one overt act harms the plaintiff, that contention would not get plaintiffs past the second step of the analysis: That defendants “conspire[d]” under Section 1962(d) to violate Sections 1962(b) and (c). These sections, read together, require that the defendant “conspire” to “acquire or maintain ... any interest in or control of any enterprise” through a “pattern of racketeering activity” or that he “conspire” to “participate ... in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” The evidence in this ease, however, suggests that any “conspiracy” on the part of defendants extended to the single Med-sel episode and did not contemplate separate criminal episodes that would constitute a “pattern” within the meaning of RICO. Plainitffs have produced no evidence, and the Court can discern none, raising a genuine issue of fact that defendants conspired to engage in a “pattern” of racketeering activity, and plaintiffs cannot survive a motion for summary judgment based on what might be adduced at trial. “It is not the intent of Rule 56 to preserve purely speculative issues of fact for trial.... ” Exxon Corp. v. F.T.C., 663 F.2d 120, 128 (D.C.Cir.1980); see also Zweig v. Hearst Corp., 521 F.2d 1129, 1135-36 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975).

Summary judgment is thus appropriate under plaintiff’s claim for violation of 18 U.S.C. § 1962(d).

IV. PENDENT CLAIMS

Because defendants’ motion for summary judgment against plaintiffs is granted, the Court has no pendent jurisdiction to hear plaintiffs’ pendent state claims. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). The pendent state claims are thus dismissed without prejudice to the merits.

Accordingly, it is ordered that:

1. Defendants’ motion for summary judgment against plaintiffs on plaintiffs’ claims for violation of 18 U.S.C. §§ 1962(b), (c), (d) is granted;

2. Plaintiffs’ pendent state claims are dismissed without prejudice.

      . Defendants in their Motion for Summary Judgment rely exclusively on the Court’s June 28, 1984 Order, arguing that even if the "predicate acts" regarding which this Court found genuine issues of material fact were to exist, they could not support judgment for plaintiffs as a matter of law. Plaintiffs, in their opposing papers, rely on the pleadings of this case and offer no new evidence to counter defendants’ Motion. They do contest the Court’s reasoning regarding its finding of two issues that were without substantial controversy, but the Court, upon reviewing those objections, will let those findings stand. See note 4 infra.

      . The written agreement is dated October 27, 1981 (Defendants’ January 7, 1984 Motion For Summary Judgment Ex. B).

      . The evidence is unclear as to whether the transfer of the letters of credit was accomplished in separate mailings. If this were the case, each separate mailing in furtherance of the alleged scheme to defraud by defendants would be a separate violation of the mail fraud statute. One may be convicted of mail fraud whether he uses the mails or causes use of the mails for purposes of executing the scheme to defraud. United States v. Bohonus, 628 F.2d 1167, 1173 (9th Cir.1980); see also Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1954).

      . Plaintiffs argue that the Court "seriously misapprehended” these other acts in ruling that they were not predicate acts, and used incorrect legal analysis. The Court rejects plaintiffs’ arguments.
      First, plaintiffs attack the Court's finding that the internal memorandum was not part of the scheme to defraud because the letters of credit by that time were irrevocable. The letters being irrevocable, the alleged misrepresentation could not have altered plaintiffs' conduct; thus the misrepresentations could not have been material, precluding a finding of a violation of 18 U.S.C. § 1341. Plaintiffs note in their Opposition that the letters of credit, even if irrevocable, were payable only upon occurrence of the fight. They argue that if they had been aware of the true facts as to the lack of sales, they could have cancelled the fight or enjoined it, thus precluding payment of the letters of credit.
      The RICO statute, however, requires that a plaintiff demonstrate facts tantamount to "probable cause” sufficient to support an indictment against the defendant with reference to the predicate acts. Taylor v. Bear Stearns & Co., 572 F.Supp. 667, 683 (N.D.Ga.1983); Bache, Halsey, Stuart, Shields, Inc. v. Tracy Collins Bank & Trust Co., 558 F.Supp. 1042, 1045 (D.Utah 1983). In order for defendants’ misrepresentations to be indictable, they must be material. United States v. Halbert, 640 F.2d 1000, 1007-08 (9th Cir.1981). Where there is no evidence showing that the alleged misrepresentations and non-disclosure could or would have made plaintiff change his conduct or course of dealing, there can be no fraud. United States v. Ballard, 663 F.2d 534, 541-42 (5th Cir.1981); see also United States v. Halbert, 712 F.2d 388, 390 (9th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984). Plaintiffs’ argument that they "could have” cancelled or enjoined the fight had they known the true state of sales is speculation, not evidence. It is uncertain, for example, how Medallion, which had television rights to the Ali-Berbick fight but was not its promoter nor the manager of either of the pugilists, would have had the power to cancel or enjoin the fight. Plaintiffs having produced no evidence that they had the ability to stop the fight had they known of the misrepresentations, the Court declines to revise its previous ruling. See Ballard, 663 F.2d at 541.
      Second, plaintiffs argue that the Court wrongly analyzed the mailings and telephone calls to third parties in finding them "not false in and of themselves,” thus ignoring its own dicta under Bohonus, 628 F.2d at 1173, and Pereira, 347 U.S. at 8, 74 S.Ct. at 362, that "[mjailing of documents which are themselves innocent may still constitute the crime of mail fraud if the documents are mailed in execution of a scheme to defraud." The Court, however, based its finding on the facts that
      [t]here is no evidence that these mailings and phone calls contained false or misleading statements. Nor has any evidence or argument been advanced to show how these communications were made in furtherance of the scheme to defraud. Indeed, these communications suggest that SelecTV attempted to sell the rights in fulfillment of its obligations under the joint venture agreement.
      (Emphasis added). Plaintiffs still have not produced such evidence or argument, and the Court stands by its initial finding.
      Even if the Court were to find that these acts were predicate acts, however, its analysis of the "pattern” element under Section 1962(c) would be unchanged, since those acts arose from the same allegedly criminal episode.

      . Defendants also argue that plaintiffs cannot demonstrate that Medsel was an enterprise under Section 1962(b) because Medsel did not exist until October 27, 1981, see note 2 supra, —after the telephone calls between Schaen and Ettlinger, but before the transfer of the letters of credit. Thus, defendants argue, only one predicate act occurred during Medsel’s existence and that is insufficient to create liability under Sections 1961(5) and 1962(b). Defendants claim that Section 1962(b) requires proof of the existence of the enterprise at the time of the unlawful acts. Nothing in the language of Section 1962(b) or the RICO legislative history, however, mandates such an interpretation. Section 1962(b), on its face, does not preclude the possibility that a RICO defendant can commit predicate acts so as to acquire an interest in an enterprise even though the enterprise does not exist all the time that the predicate acts are committed. Furthermore, the cases cited by defendants, Otto v. Variable Annuity Life Insurance Co., 611 F.Supp. 83 (N.D.Ill.1985) and United States v. Weisman, 624 F.2d 1118 (2d Cir.), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 91 (1980), are inapposite. Otto merely adopted the Eighth Circuit view, also adopted by this Court, that a plaintiff "must plead and prove that ‘the various associates function[ed] as a continuing unit' and that the enterprise existed 'separate and apart from the pattern of activity in which it engage[d].”’ Otto, 611 F.Supp. at 89 (quoting Turkette, 452 U.S. at 583, 101 S.Ct. at 2529). Weisman stated in dicta that Section 1962(c) "is apparently inapplicable to acts of racketeering activity occurring before the creation or acquisition of an enterprise,” but explicitly contrasted the language of that subsection, prohibiting a person from "conduct[ing] or participat[ing]” in the enterprise, to the different wording of Section 1962(a) and (b). Weisman, 624 F.2d at 1125 & n. 6.
      In any case, when Medsel came into existence would be relevant only to the question of what acts of the defendants could be considered predicate acts for the purposes of Section 1962(c), not whether Medsel was an enterprise. While Medsel could not have existed at the time of the October 8 and 9 telephone calls between Schaen and Ettlinger about the proposed business meeting to discuss their joint venture, it was in existence by November 9, when Ettlinger transferred the letters of credit. Because the evidence is unclear as to whether these were separate mailings of the letters of credit, see note 3 supra, it is unclear whether there were two predicate acts occurring during Medsel’s existence. Thus the Court declines to rule, for purposes of this summary judgment motion, that plaintiffs cannot meet the threshhold requirement under 18 U.S.C. § 1961(5) of showing two predicate acts for purposes of proving a "pattern” under 18 U.S.C. § 1962(c).

      . Plaintiffs' counsel so asserted during oral argument on November 25, 1985.

      . Even if the Court were to hold that there could be civil liability for violation of 18 U.S.C. § 1962(d) absent proof that the defendants conspired to engage in a "pattern" of racketeering activity, it could not hold that plaintiffs would have such a cause of action in this case, since the only defendants are SelecTV and its officers. A corporation and its officers are not capable of a civil conspiracy for purposes of the RICO act. See, e.g., Yancoski v. E.F. Hutton & Co., 581 F.Supp. 88, 97 (E.D.Pa.1983); Landmark Savings & Loan v. Rhoades, 527 F.Supp. 206, 209 (E.D.Mich.1981); see also Haddad v. Shell Oil Co., 423 F.Supp. 1384, 1388 (C.D.Cal.1976). Cf. Webb v. Culberson, Heller & Norton, Inc., 357 F.Supp. 923, 924 (N.D.Miss.1973) (corporation can only act through its officers and representatives, who cannot conspire with corporation of which they are a part).