author: COHEN, Senior District Judge.

text:
    Alfred M. BARLETTA and Concetta M. Barletta, his wife, Plaintiffs, v. GOLDEN NUGGET HOTEL CASINO, Veronica Bartch, City of Atlantic City, Police Department of Atlantic City, Chief of Police of Atlantic City, Joseph Fair, Elsie Wilson and Laura Cheatum, Defendants/Third Party Plaintiffs, v. The STATE OF NEW JERSEY, Irwin I. Kimmelman, Thomas O’Brien, John Sheeran, and John Doe (a fictitious name), Third Party Defendants.
    Civ. A. No. 83-0119.
    United States District Court, D. New Jersey.
    Feb. 6, 1985.

      Martin Margolit, P.C., Camden, N.J., for plaintiffs.
    Horn, Kaplan, Goldberg, Gorny & Daniels, P.C. by Jack Gorny, Atlantic City, N.J., for defendant, third party plaintiff Golden Nugget Hotel Casino.
    Slater & Tenaglia, P.C. by Peter M. Kober, Marlton, N.J., for defendant, third party plaintiff Veronica Bartch.
    Gormley, Savio & Gasbarro by William E. Gasbarro, Absecon, N.J., for defendants, third party plaintiffs City of Atlantic City, Chief of Police of Atlantic City, and the Police Dept, of Atlantic City (other than Officers Joseph Fair, Elsie Wilson and Laura Cheatum).
    Goldenberg, Mackler & Sayegh by Abigail Sayegh, Atlantic City, N.J., for defendants, third party plaintiffs Joseph Fair, Elsie Wilson and Laurel Cheatum.
    Irwin I. Kimmelman, Atty. Gen., N.J. by Rosemarie Ruggiero Williams, Deputy Atty. Gen., Division of Law, Dept, of Law and Public Safety, Trenton, N.J., for third party defendants.
   OPINION

COHEN, Senior District Judge.

This tort and civil rights action is presently before the Court on a motion to dismiss made on behalf of one of the third party defendants, Detective John Sheeran, a member of the New Jersey State Police Department. Sheeran’s motion is based entirely upon an ■ assertion of Eleventh Amendment immunity.

This is another installment in a series of tort cases which has evolved on a busy casino floor, amid the fervor generated by one of the "comparatively innocuous” forms of gambling. See Champion v. Ames, 188 U.S. 321, 356, 23 S.Ct. 321, 327, 47 L.Ed. 492 (1903). On October 24, 1982, at approximately 3:00 a.m., an argument arose between the primary plaintiff, Concetta M. Barletta, and one of the defendants, Veronica Bartch, over the use of a slot machine at the Golden Nugget Casino (the Casino) in Atlantic City, New Jersey. For some yet unexplained reason, tempers flared and Mrs. Barletta, who may simply have been the prevailing pugilist in the resulting contest, was detained by the Casino’s security guards. She was thereafter placed under arrest by defendant, Joseph Fair, an Atlantic City police officer, for simple assault. Apparently, neither Bartch nor Barletta was seriously injured during their hostile encounter. However, Mrs. Barletta claims that she sustained severe injuries and damages at the hands of the police.

The plaintiff maintains that she was unnecessarily and improperly taken to police headquarters before any complaint was signed against her. Further, she claims that, after informing the police of her precarious health (having recently undergone a colostomy), she was, nevertheless, detained in a cold cell, without adequate clothing, for 6V2 hours. Finally, Mrs. Barletta contends that she was subjected to a humiliating strip search by police matrons and defendants herein, Elsie Wilson and Laura Cheatum. Ironically, after having $2,700.00 taken from her at the time she was placed in custody, plaintiff was released when her husband posted $100.00 in bail. In her subsequent trial, held in April of 1982 at the Atlantic City Municipal Court, plaintiff’s motion for acquittal was granted at the end of the state’s case.

Without admitting the occurrence of a false arrest, the Casino alleges that plaintiff’s detention and subsequent incarceration were actions taken at the behest of third party defendant, Detective Sheeran, a state police officer assigned to the Division of Gaming Enforcement (DGE). Pursuant to an agreement among the DGE, the New Jersey State Police, the Atlantic City Police Department and the Atlantic City Prosecutor’s Office, all state criminal violations which occur within the confines of a casino are to be investigated by DGE personnel. The Atlantic City Police Department is obligated, by the terms of the same agreement, to assist DGE personnel in the processing. of any person arrested in a casino. Thus, the agreement seems to support, at least at first blush, the contention that Detective Sheeran was in charge of plaintiff’s arrest.

In January of 1983, the Barlettas sued both Mrs. Bartch and the Casino for negligence, false arrest and abuse of process. The Barlettas’ amended complaint named the City of Atlantic City, its police department and certain individual members of the police force as additional ' defendants. These additional defendants filed a third party complaint, seeking contribution, against the State of New Jersey, Attorney General Kimmelman, DGE Director Thomas O’Brien, John Doe, an unknown state investigator and, ultimately, Detective Sheeran.

This case has been before the Court previously on five principal occasions. On September 16, 1983, we granted the Casino’s motion to dismiss based on plaintiff’s failure to allege subject matter jurisdiction. After this pleading deficiency was corrected, the Casino moved for summary judgment. On February 15, 1984, 580 F.Supp. 614, we granted this motion in regard to plaintiff’s negligence and abuse of process claims but denied it regarding their false arrest claim. On April 27, 1984, these decisions were affirmed upon reconsideration. After the plaintiff had added a civil rights claim, under 42 U.S.C. § 1983, Kimmelman, O’Brien and the State of New Jersey moved to dismiss the third party complaint against them on the basis that it was barred by the Eleventh Amendment. On May 15, 1984, we granted their motion and also granted leave for the Casino to add Detective Sheeran as a third party defendant. Finally, on July 9, 1984, we denied motions for summary judgment made on behalf of the Barlettas and the defendants, City of Atlantic City and the Atlantic City Police Department. Thus, the stage was set for the present motion in which Detective Sheeran claims that he, too, is entitled to the sovereign immunity which underlies the Eleventh Amendment.

DISCUSSION

Although “the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court,” Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974), it really does not bear on the question of personal or subject matter jurisdiction. See Petrol Shipping Corp. v. Kingdom of Greece, Ministry of Com., 360 F.2d 103, 107 (2d Cir.1966); Wright & Miller, Federal Practice and Procedure: Civil § 1351, at 561. Instead, the Amendment presents a sui generis challenge to the jurisdiction of federal courts; suits against states are simply not within the realm of Article III. See Pennhurst State School & Hospital v. Halderman, — U.S.-,-, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984). Accordingly, we are not guided on the present motion by either Fed.R.Civ.P. 12(b)(1) or 12(b)(2), which place initial burdens of proof on the party asserting jurisdiction.

It is clear that a state official must prove his or her entitlement to official or qualified immunity, Skehan v. Bd. of Trustees of Bloomsburg State College, 538 F.2d 53, 62 (3d Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 588 (1976), but it is uncertain whether the same is true when the official asserts the protection of the sovereign. See Knox v. Regents of Univ. of Wisconsin, 385 F.Supp. 886, 887 (E.D. Wis.1975) (holding that a plaintiff bears the burden of proving a waiver of sovereign immunity). Fortunately, we may resolve the present controversy without reference to initial burdens of proof.

On this preliminary motion, we are required to view the facts under the light most favorable to the nonmoving party. Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974). So construed, it appears that an award of damages against Detective Sheeran would not expend itself on New Jersey’s public treasury or interfere with the state’s public administration. Accordingly, we shall deny his present motion with prejudice. The discussion which follows explains why these factors are dispositive.

Eleventh Amendment jurisprudence has been aptly and eloquently described by Judge Sloviter, speaking for the Third Circuit, as a “step through the looking glass [which] leads to a wonderland of judicially created and perpetuated fiction and paradox.” Spicer v. Hilton, 618 F.2d 232, 235 (3d Cir.1980). The esoteric nature of Eleventh Amendment cases is due in part to tensions which inhere in our federalism, principally the interplay between the supremacy of federal law and the sovereignty of states, and in part to the circumstances surrounding its enactment.

The Amendment became effective in 1798 in reaction to Chisolm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793), a case in which the Supreme Court assumed original jurisdiction over a suit brought by a citizen of South Carolina against the State of Georgia. Although the Amendment’s language merely overruled the result in that particular case, it has never been literally construed. As Justice Powell has recently emphasized, it soon became apparent that the Amendment’s “greater significance lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III.” Pennhurst State School & Hospital v. Halderman, — U.S.-,-, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984) (emphasis added.) Simply put, the Amendment did not establish the sovereign immunity of states; it made clear that the doctrine had survived the Constitution and its “new Federal Government.” See Edelman, 415 U.S. at 660, 94 S.Ct. at 1354. Some well-established jurisdictional restrictions, which purportedly stem from the Amendment, actually have their origins in the contemplation of the Constitution’s draftsmen. For example, the Amendment is said to bar suits in admiralty, yet it only speaks of “law or equity.” See Ex Parte Madrazzo, 7 Pet. 627, 8 L.Ed. 808 (1833). When the Court considered whether a citizen could sue his or her own state, it looked beyond the limited and unambiguous language of the Amendment and prohibited such a suit because it “was not contemplated by the Constitution when establishing the judicial power of the United States.” Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 507, 33 L.Ed. 842 (1890). In general, the Court has attempted to adhere to “the postulate that the States of the Union still possessing attributes of sovereignty, shall be immune from suits, without their consent, save when there has been ‘a surrender of this immunity in the plan of the convention.’ ” Monaco v. Miss., 292 U.S. 313, 322-23, 54 S.Ct. 745, 748, 78 L.Ed. 1282 (1934) (quoting the Federalist, No. 81). In short, from its inception the Eleventh Amendment has provided for a sovereign immunity which is, in some respects, considerably broader than a literal reading of the Amendment would suggest.

The impact of the Fourteenth Amendment on state sovereign immunity has been the subject of a line of cases from which we can derive a few, clear principles. Undoubtedly, Congress has plenary power to abrogate states’ immunity in order to enforce the substantive guarantees of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). However, Congressional intent in this regard must be very-clear and in Quern v. Jordan, 440 U.S. 332, 340-41, 99 S.Ct. 1139, 1144-45, 59 L.Ed.2d 358 (1979), the Court found that Congress did not clearly intend to abrogate states’ sovereign immunity when it enacted 42 U.S.C. § 1983. Additionally, New Jersey has not waived its Eleventh Amendment immunity. Thus, we are left with the task of reconciling the Fourteenth Amendment guarantees, which § 1983 was designed to make available, with New Jersey’s sovereign immunity in an effort to reach the “appropriate division of responsibility between the federal and state judicial systems.” See Fair Assessment in Real Estate Ass’n., Inc. v. McNary, 454 U.S. 100, 117, 102 S.Ct. 177, 186, 70 L.Ed.2d 271 (1981) (Brennan, J., concurring).

The principal tool of reconciliation is a determination that a particular suit is not, in fact, one against a state. Although “pri- or decisions of [the] Court have not been entirely consistent on this issue,” Pennhurst, — U.S. at-, 104 S.Ct. at 908, they are based on sound and enduring perceptions of public policy.

The Court has long recognized that one who acts in a manner contrary to the dictates of his office should not benefit from any immunity accorded that office. Thus, one who acts unconstitutionally may be “stripped of his official or representative character and subjected to the consequences” of his or her conduct. Id. (citing Ex Parte Young, 209 U.S. 123, 160, 28 S.Ct. 441, 454, 52 L.Ed. 214 (1908)). This retroactive divestment could not, of course, be sensibly employed if its effect was to eliminate an underlying federal civil rights cause of action. See Monroe v. Pape, 365 U.S. 167, 171-87, 81 S.Ct. 473, 475-84, 5 L.Ed.2d 492 (1961) (§ 1983 provides a remedy when state law is inadequate, invidious, or unenforced). Thus, the “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under the color’ of state law.” Id. at 184, 81 S.Ct. at 482 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941). Inevitably, therefore a state official’s conduct may constitute state action for Fourteenth, but not for Eleventh Amendment purposes. E.g., Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 685, 102 S.Ct. 3304, 3315, 73 L.Ed.2d 1057 (1982). The existence of Eleventh Amendment immunity depends primarily on the nature of the relief sought and the identity of the alleged constitutional tortfeasor.

A retroactive award, or an award of damages, may be granted by a federal court against a state official in his individual capacity, Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1973), but not in his official capacity because the latter award would necessarily be paid from the state treasury. Helfrich v. Commonwealth of Pa. Dept. of Military Affairs, 660 F.2d 88, 90 (3d Cir.1981) (per curiam). Conversely, the cost of complying with a prospective order enforcing federal law may permissibly impose financial burdens, even large ones, on the state treasury. Hutto v. Finney, 437 U.S. 678, 691, 98 S.Ct. 2565, 2573, 57 L.Ed.2d 522 (1978).

In this case, we note first that New Jersey is not the real party in interest merely because it was named as a defendant before the complaint was amended to add Detective Sheeran. See Ramada Inns, Inc. v. Rosemount Memorial Park Ass’n., 598 F.2d 1303 (3d Cir.1979). Instead, our inquiry must be into the essential nature of the proceeding.

The general rule is that a suit is against the sovereign if “the judgment sought would expend itself on the public treasury or domain or interfere with the public administration,” or if the effect of the judgment would be “to restrain the Government from acting, or to compel it to act.”

Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963) (citations omitted) (cited with approval in Pennhurst, — U.S. at-n. 11 and-n. 25, 104 S.Ct. at 908 n. 11 and 915 n. 25).

We may consider state law in order to determine whether any judgment versus Detective Sheeran would have to be paid from the state treasury, but the ultimate question of whether Sheeran has Eleventh Amendment protection is one of federal law. See Blake v. Kline, 612 F.2d 718, 722 (3d Cir.1979). Detective Sheeran maintains that New Jersey would be required to indemnify him, pursuant to N.J.S.A. 59:10-1, for any award of damages rendered against him. This statute, enacted as part of New Jersey’s Tort Claims Act, requires indemnification in any suit in which the Attorney General defends a state employee “on account of an act or omission in the scope of his employment.” N.J.S.A. 59.T0A-1. Although this term is not defined statutorily, the relevant legislative history makes it abundantly clear that an act involving malice or willful misconduct is not within the scope of a defendant’s employment. See Report on the New Jersey Tort Claims and Contractual Claims Acts, by Richard J. Hughes, (former) Chief Justice of the Supreme Court of New Jersey, and William F. Hyland, (former) Attorney General of the State of New Jersey, at 238-39; Message on Signing, 59:10A-1, from the Office of the Governor released June 1, 1972. Additionally, at oral argument, counsel for Detective Sheeran agreed that New Jersey would not be required to indemnify him for damages awarded due to wanton misconduct.

Sheeran is accused of wanton and willful misconduct. This allegation is colorable and, for the purposes of the present motion, should be accepted as true. Thus, we find that an award of damages against Sheeran would not necessarily be paid from the state treasury.

Next, we must consider whether an award of damages against Detective Sheer-an would “interfere with [the] state’s public policy and its administration of internal public affairs.” Blake, 512 F.2d at 725. Accord Dugan, 372 U.S. at 620, 83 S.Ct. at 1006. This inquiry need not detain us for long. Clearly New Jersey has a strong public interest in maintaining order at the casinos in Atlantic City. This agreement between the DGE and the Atlantic County officials, see supra p. 1497, was premised upon a conclusion that “as a result of the existence of legalized casino gambling in Atlantic City, there will be a predictable increase in criminal activity in the resort community.” However, the contemplated criminal activity had little relation to a shoving match between two women over the use of a slot machine. Even if this case involved allegations of more serious criminal conduct, there is no public policy which would permit prosecution at the expense of federal constitutional rights. Thus, we do not hesitate to refuse to dismiss suit against Detective Sheeran, due to fears that we may hinder proper prosecutorial efforts of the DGE or unduly interfere with the administration of New Jersey’s public affairs.

Finally, we note that the third party complaint does not state clearly whether Sheer-an is being sued in his individual capacity. Given the facts underlying the complaint and the favorable construction we are required to give it, we do not view this as dispositive. Accord Savage v. Commonwealth of Pa., 475 F.Supp. 524, 532 (E.D. Pa.1979).

This case may involve the flagrant abuse of a police officer’s authority. Detective Sheeran was apparently responsible for the initial decisions made in regard to Mrs. Barletta’s arrest arid incarceration and the State has failed to show when his responsibility terminated. At the same time, there appears to be little likelihood that “enormous fiscal burdens” will be placed on a state’s treasury without careful thought or that unwarranted intrusions will be made into a state’s public administration. See Hutto, 437 U.S. at 697 n. 27, 98 S.Ct. at 2577 n. 27. Notwithstanding significant evolution in the past two decades, section 1983 still “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961). “It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause----” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949) (J.L. Hand). On the other hand, we must be careful not to “dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.” Id. Thus, Sheeran may benefit from a personal, qualified immunity, not at issue on the present motion. The detective need not share in the immunity accorded the sovereign State of New Jersey.

The Court shall enter an appropriate order.

      . The Eleventh Amendment provides:
      The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.

      . Mrs. Barletta’s husband, Alfred M. Barletta, alleges that he suffered derivative injuries and sues per quod. Hereinafter, references simply to "plaintiff” are references to Mrs. Barletta.

      . It is not surprising that the Court's ability to divine Congressional intent, circa 1790, relative to states’ sovereign immunity has been questioned. Suggesting that the Eleventh Amendment may be inapplicable to cases based on federal question, subject matter jurisdiction, one commentator noted the following:
      We are dealing with a judicially developed "constitutional" rule — but it is a rule that, by its own terms, looks to what the Court has referred to as the "constitutional plan" to allow jurisdiction to be exercised over an unconsenting state in some instances, that recognizes at least some congressional power to impose jurisdiction in still other instances, and that allows jurisdiction to be conferred by the state’s consent in all remaining cases. The constitutional core of the rule, in other words, is a bit like the center of an onion.
      Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv.L.Rev. 61, 68 (1984) (hereinafter cited as Shapiro). Nevertheless, the Court has typically found historical retrospectives to be instructive in determining the proper scope of immunities under § 1983. See, e.g., Owen v. City of Independence, 445 U.S. 622, 635, 100 S.Ct. 1398, 1407, 63 L.Ed.2d 673 (1980). But cf. Davis v. Scherer, -U.S.-, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). In a similar, annals retentive vein, we note that the maxim "the King can do no wrong" may have been improperly translated to effect sovereign immunity. The maxim may originally have meant that the King was not privileged to do wrong. See Mayle v. Pa. Dept. of Highways, 479 Pa. 384, 388 A.2d 709, 710 n. 6 (1978) (citing Borchard, Government Liability in Tort, I, 34 Yale L.J. 1, 2 (1924). We, of course, can only make note of this suggestion.

      . Justice Brennan has continued to reject Hans and its progeny because his inquiry is into the constitutional barriers erected, not evinced, by the Amendment. See e.g. Pennhurst, — U.S. at -, 104 S.Ct. at 921 (Brennan, J., dissenting).

      . In other respects, the evolved immunity is narrower than one might expect. See Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d, § 3524.

      . Absent the need to reconcile the supremacy of federal law with state sovereignty, i.e., when state law is violated, the Eleventh Amendment prohibits federal courts from granting even equitable relief against state officials. Pennhurst, — U.S. at-, 104 S.Ct. at 909. One commentator has suggested that the Pennhurst decision improperly exalted the doctrine of sovereign immunity to constitutional status instead of utilizing the "more flexible doctrines of construction, comity and restraint.” Shapiro, supra note 4, at 62. But cf. McNary, 454 U.S. at 116, 102 S.Ct. at 186 ("[TJaxpayers are barred by the principle of comity from asserting § 1983 actions against the validity of state tax systems in federal courts”).

      . In Pennhurst, the Court “question[ed] the continuing viability of the [ Young ] ultra vires doctrine____” -U.S. at-, n. 25, 104 S.Ct. at 915 n. 25. The Court did not, however, do more than pronounce Young to be "a very narrow exception [to sovereign immunity] that will allow suit only under the standards set forth in Dugan v. Rank, infra p. 11."

      . In Blake, the Third Circuit noted that a hearing often is required before a district court can properly decide whether a complaint asserts an action which relates to the conduct of a sovereign for Eleventh Amendment purposes. 612 F.2d at 726. In order to reduce the likelihood that a separate hearing was required, the attorneys in this case were asked, in advance of oral argument, to address the factors articulated in Blake which are relevant to an action against a state official. The defendant in Blake was a state agency.


source: Caselaw Access Project

author: LAMBROS, District Judge.

license: Public Domain

text:
    Morton S. NEGIN, Plaintiff, v. CITY OF MENTOR, OHIO, et al., Defendants.
    No. C 82-1584.
    United States District Court, N.D. Ohio, E.D.
    Feb. 6, 1985.
    Morton S. Negin, of Negin & Negin, Cleveland, Ohio, pro se.
    Daniel F. Richards of Wiles, Richards & Bates, Willoughby, Ohio, for defendants.
   MEMORANDUM OPINION AND ORDER

LAMBROS, District Judge.

Plaintiff Morton S. Negin alleges that defendants violated his constitutional rights by denying him a building permit and several zoning variances. Presently before this Court are plaintiff’s motion for partial summary judgment on the issue of liability and defendants’ motion for summary judgment. See Fed.R.Civ.P. 56(c).

Plaintiff Negin owns a parcel of land located at 728 Deerborn Avenue in Mentor, Ohio. (Lot 728). In 1978 plaintiff asked defendant Mentor Board of Building and Zoning Appeals (Board) to declare lot 728 buildable and to grant him several variances. Ultimately the Board denied his requests on the grounds that lot 728 was not sufficiently large to be declared buildable under Mentor City Ordinance § 150.176.

Pursuant to Ohio Rev.Code § 2506.01 plaintiff appealed the Board’s decision to the Court of Common Pleas for Lake County, Ohio. The Court affirmed the Board’s decision. The Ohio Court of Appeals, however, reversed the Court of Common Pleas’ decision on the grounds that, as applied to Negin, Mentor City Ordinance § 156.176 was unconstitutional. Negin v. Board of Building and Zoning Appeals, No. 7-242 (Ohio App., 11th Dist., December 31, 1980). The Ohio Supreme Court affirmed the Court of Appeals’ decision. Negin v. Board of Building and Zoning Appeals, 69 Ohio St.2d 492, 433 N.E.2d 165 (1982). The Supreme Court articulated its rationale for holding Mentor City Ordinance § 150.-176 unconstitutional:

The requirement of a municipal ordinance that a landowner purchase additional property before he is permitted to improve a substantial lot, which was platted and held in single and separate ownership prior to the enactment of the ordinance renders that lot useless for any practical purpose____ The rendering of such a lot useless for any practical purpose goes beyond a mere limitation and becomes a confiscation____ [W]e hold that Section 150.176 of the Mentor Code of Ordinances as applied to the appellee has no reasonable relationship to the legitimate exercise of the police power by the City of Mentor. Accordingly, the judgment of the Court of Appeals is affirmed.

69 Ohio St.2d at 496-97, 433 N.E.2d at 169.

Plaintiff asserts that the Ohio Supreme Court’s Negin decision precludes defendants from relitigating the issue of whether they violated plaintiff’s constitutional rights. Plaintiff argues that this estoppel removes from this case the issue of defendants’ liability leaving only the question of the amount of damages plaintiff suffered as a result of defendants’ unconstitutional conduct.

The preclusive effect of state court judgments in section 1983 proceedings is governed by the Full Faith and Credit Statute, 28 U.S.C. § 1738. See Haring v. Prosise, 462 U.S. 306, 310, 103 S.Ct. 2368, 2371, 76 L.Ed.2d 595, 603 (1983). Section 1738 provides, in pertinent part, “judicial proceedings of any court of any ... state ... shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the Courts of such State.” Under section 1738, a federal district court must grant a state judgment the same preclusive effect as would the courts of the state in which the judgment was rendered. See Migra v. Board of Education, — U.S.-,-, 104 S.Ct. 892, 895, 79 L.Ed.2d 56, 61 (1984).

Plaintiff argues that, under Ohio law, the doctrine of collateral estoppel precludes defendants from relitigating the question of whether plaintiff’s constitutional rights were violated. The Ohio Supreme Court defined the doctrine of collateral estoppel in Hicks v. DeLaCruz, 52 Ohio St.2d 71, 369 N.E.2d 776 (1977) (per curiam):

if an issue of fact or law is actually litigated and determined by a valid and final judgment, such determination being essential to that judgment, the determination is conclusive in [a] subsequent action between the parties, whether on the same or a different claim.

52 Ohio St.2d at 74, 369 N.E.2d at 777.

Defendants assert that strict construction of the doctrine compels this Court to deny collateral estoppel effect to the Negin decision because that decision did not resolve precisely the same issues raised by this case. For example, the Ohio Supreme Court did not expressly hold that defendants deprived plaintiff of property without due process of law. Instead, the Court held only that the Board’s conduct had “no reasonable relationship to the legitimate exercise of the police power.” Negin, 69 Ohio St.2d at 496-97, 433 N.E.2d at 169. The Court’s opinion, however, echoes language employed routinely by the United States Supreme Court when considering whether a particular law comports with the Due Process Clause. See, e.g., Williamson v. Lee Optical, Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955). Moreover, in Negin, 69 Ohio St.2d at 496-97, 433 N.E.2d at 169, the Court cited in support of its decision State ex rel. Killeen Realty Co. v. City of East Cleveland, 169 Ohio St. 375, 160 N.E.2d 1 (1959), wherein the Court held that an unreasonable denial of a variance “constitutes a taking of property without due process of law.” 169 Ohio St. at 388, 160 N.E.2d at 9. In light of the record in this case and the relevant authorities, this Court holds that the Ohio Supreme Court’s Negin decision estops defendants from relitigating the issue of whether they deprived plaintiff of property without due process of law. Before this Court can enter partial summary judgment in favor of plaintiff, however, it must address a number of issues raised by defendants.

Defendants have moved for summary judgment on the grounds that plaintiff has failed to state a claim upon which relief can be granted. Defendants assert that in order to recover for an unconstitutional property deprivation plaintiff must show that the “available state procedures were not adequate to compensate him for the deprivation.” Brief in Support of Defendants’ Motion for Summary Judgment at 2. In support of this contention defendants cite, inter alia, Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In Parratt the Supreme Court held that a state prisoner had failed to allege a deprivation of property without due process of law because the property deprivation he claimed resulted from an isolated negligent act by a state official for which the state provided an adequate post-deprivation remedy. Id. at 544, 101 S.Ct. at 1917.

The Parratt court cautioned that its holding would not bar a § 1983 action in which the plaintiff alleged a property deprivation which occurred “as a result of some established state procedure.” Id. at 543, 101 S.Ct. at 1917. The Court invoked this limitation in Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct. 1148, 1157-58, 71 L.Ed.2d 265 (1982), and held that a section 1983 plaintiff had stated a claim for relief because he alleged that he had been deprived of property through the operation of an unconstitutional state adjudicatory procedure. See also Vicory v. Walton, 721 F.2d 1062, 1064 (6th Cir.1983) (noting Parratt exception); cf. Millstein v. City of Mayfield Heights, No. C 82-1522 (N.D.Ohio, February 29, 1984) (dismissing under Parratt § 1983 action involving isolated act by Mayor who had revoked plaintiff’s building permit). Plaintiff claims that defendants deprived him of property without due process of law by enforcing Mentor City Ordinance § 150.176. The Parratt Court envisioned that such claims would survive its decision; the Logan court enforced that vision. In light of these decisions, this Court holds that plaintiff has stated a claim upon which relief can be granted under section 1983.

Defendants also contend that plaintiff’s suit is precluded by the doctrine of merger. As defined by Ohio’s courts, the doctrine of merger precludes a plaintiff from raising claims which “could have been litigated” in a prior action. Stromberg v. Board of Education, 64 Ohio St.2d 98, 100, 413 N.E.2d 1184, 1186 (1980) (per curiam). Defendants contend that plaintiff is barred from seeking damages in this case because he could have sought damages when he challenged the Board’s decision before Ohio’s courts. This argument lacks merit because plaintiff could not have obtained damages in the prior state proceedings. Those proceedings involved an appeal of an administrative decision pursuant to Ohio Rev.Code § 2506.01. Section 2506.01 does not empower state courts to award damages for injuries suffered as a result of erroneous administrative decisions. Given the limited nature of the prior state proceedings, this Court holds that this case involves a separate cause of action and consequently plaintiff is not precluded from seeking damages in this case. Cf. Johnson’s Island, Inc. v. Board of Township Trustees, 69 Ohio St.2d 241, 246, 431 N.E.2d 672, 676 (1982) (plaintiffs failure to raise available constitutional defense in prior injunction action barred it from obtaining declaratory judgment that zoning ordinance was unconstitutional).

Finally, the Board’s members assert that they are personally immune from liability under section 1983. This defense is well taken. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court held that “government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738. At the time the Board members denied plaintiff Negin’s requests they could not reasonably have been expected to recognize that, as applied to Negin, Mentor City Ordinance § 150.156 was unconstitutional; it required a subsequent decision by the Ohio Supreme Court to make that legal determination. The umbrella of immunity enjoyed by the individual board members does not extend to the Board as an entity or to the City. In Owen v. City of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 1418, 63 L.Ed.2d 673 (1980), the Supreme Court held that municipal entities are not protected by the doctrine of qualified immunity.

After reviewing all of defendants’ arguments, this Court holds that by invoking the Ohio Supreme Court’s decision in Negin v. Board of Building and Zoning Appeals, 69 Ohio St.2d 492, 433 N.E.2d 165 (1982), plaintiff has conclusively established that defendants deprived him of property without due process of law. Given this violation and the liability of defendants City of Mentor and the Board for constitutional violations, plaintiff may recover damages from these defendants if he proves that their unconstitutional conduct caused him financial injury. Accordingly, partial summary judgment is hereby entered in favor of plaintiff Negin and against the Board and the City of Mentor. Having established that they are personally immune from damages in this action, summary judgment is hereby entered in favor of defendant Board members and against plaintiff Negin.

To preserve momentum, this order sets forth directions for the conclusion of this case. Discovery in this case shall be completed by March 1, 1985. Any remaining motions shall be filed by March 15, 1985. This action shall proceed to summary jury trial solely on the issue of damages on April 8, 1985 at 9:00 a.m. in Room 117 of the United States Courthouse, Cleveland, Ohio. A post summary jury trial conference will be held on April 15, 1985 at 11:00 a.m. in Room 106, United States Courthouse. The parties should consider the possibility of consenting to a binding summary jury trial. This would obviate the need for a formal jury trial while providing a just, expedient, and inexpensive means of resolving this dispute.

If necessary, this case shall proceed to jury trial on April 27, 1985 at 9:00 a.m. in Room 117 of the United States Courthouse. To prepare for jury trial the parties shall meet no later than April 15, 1985 to draft a proposed pretrial order concerning the following matters:

1) Identification of witnesses and marking of exhibits;
2) stipulations as to the authenticity and admissability of documentary evidence;
3) presentation and order of proof at trial;
4) restrictions on the number of witnesses or documents concerning any specific subject;
5) limitations on the length of direct and cross-examination.

In addition to preparing the above described proposed pretrial order, counsel for each party shall submit no later than April 17, 1985 written narrative summaries of the testimony of all witnesses they intend to call at trial. These summaries should be designed so that, after a brief series of introductory questions, witnesses called on direct examination may provide all of their testimony by reading their testimonial narratives into the record. These summaries will be sworn evidence. They should be concise and factual rather than conclusory and argumentative. I have found that such summaries, when available in advance of trial, expose potentially objectionable areas of testimony which may then be ruled on without interrupting the trial. Summaries are also valuable because the process of their preparation tends to distill out’the essence of each witness’s testimony.

All of these measures are intended to improve the quality of pretrial preparation and thereby enhance the quality of trial presentation. Efficient and high quality pretrial preparation and effective trial presentation serve the best interests of litigants, courts, and society and are, therefore, litigational imperatives.

IT IS SO ORDERED.

JUDGMENT

In accordance with the memorandum opinion and order of this date, partial summary judgment as to liability is hereby entered in favor of plaintiff Negin and against defendants City of Mentor and Mentor Board of Building and Zoning Appeals. Plaintiff’s claims against these defendants shall proceed to trial on the question of whether their unconstitutional conduct caused plaintiff financial injury. Summary judgment is hereby entered in favor of the individual Board members and against plaintiff because the Board members are personally immune from liability in this case.

IT IS SO ORDERED.


author: RYMER, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Oussanna Robine KOUYOUMDJIAN, Defendant.
    No. CR 85-34-PAR.
    United States District Court, C.D. California.
    Feb. 7, 1985.

      David W. Wiechert, Los Angeles, Cal., for plaintiff.
    Michael J. Treman, Santa Barbara, Cal., for defendant.
   MEMORANDUM OF DECISION AND DETENTION ORDER

RYMER, District Judge.

Oussana Kouyoumdjian is charged with possessing with intent to distribute and intentionally importing almost four kilograms of heroin in violation of 21 U.S.C. §§ 952(a) and 960(a)(1). Pursuant to 18 U.S.C. § 3145(b), defendant seeks review of the detention order entered by the magistrate on January 11, 1985.

Magistrates in the Central District use a preprinted detention hearing form. In his Order, the magistrate indicated by a check mark in the appropriate box that he found “(1) There is probable cause to believe that the defendant has committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in 21 U.S.C. §§ 952(a) and 960(a)(1).” He did not check, but crossed out by interlineation and initialed part of finding two, as follows: “The defendant has not rebutted the presumption established by finding 1 that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of the community.” The magistrate also concluded that he considered and found, pursuant to section 3142(g), that “defendant is an alien who came into the U.S. for the 1st time w/o prior notice to the family. She says she intended to visit carrying suitcases in which large quantities of heroin were concealed. Little is known of her criminal record, if any, or her background in Lebanon.” Following the hearing, the defendant was ordered detained pending trial.

Defendant contends that this court should set conditions for the pretrial release of the defendant on the grounds that (1) the pretrial detention order of the magistrate is not supported by the findings; (2) there are conditions which would reasonably assure the presence of the defendant; and (3) the provisions of the Bail Reform Act of 1984, which permit the “no bail” detention of a defendant, are unconstitutional. Having considered the memoranda of the parties, the record before the magistrate, the Declaration of Michael J. Treman in Support of defendant’s motion for bail and the Summary Report prepared by the Pretrial Services office of the United States Probation Department, and having heard argument of counsel, the Court concludes that a detention order is appropriate.

1. Adequacy of the Magistrate’s Findings.

Defendant raises a difficult issue. She argues that to detain a person under the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. (“the Act”), the judicial officer must explicitly find that there are no conditions or combination of conditions that will assure each of the Act’s objectives, i.e., appearance of the person and the safety of the community; and conversely, that a finding that only one objective cannot be so assured, in this case defendant’s appearance, does not suffice. Defendant relies primarily on the language of section 3142(e) itself, which states the objectives conjunctively: “If, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, he shall order the detention of the person prior to trial.” [Emphasis added.] By contrast, subsections (b) and (c), providing for release on personal recognizance or on conditions, state the objectives disjunctively, requiring the judicial officer to determine whether the particular form of release will “reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” Read literally, subsections (e) and (f) are conjunctive. However a disjunctive construction is equally logical and is more consistent both with the legislative history and the internal structure of the Act.

a. The statutory scheme.

Established rules of statutory construction require that the Court look to the “language in which the act is framed, and if that is plain, ... to enforce it according to its terms.” Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). When the meaning of that language is disputed, the stated purposes, legislative history and relationship to other statutes are examined in order to determine congressional intent. State of California v. Watt, 520 F.Supp. 1359 (C.D. Cal.1981), aff'd, 683 F.2d 1253 (9th Cir. 1982), rev’d, 464 U.S. 312, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984). Where acceptance of a literal meaning would thwart the obvious purpose of the statute, it should be construed so as to be consonant with the purposes of the act. Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166, 14 L.Ed.2d 75 (1965).

Under the Bail Reform Act of 1984, the judicial officer determining the status of an arrested person is presented with four options. The judicial officer may (1) release the defendant on his own recognizance or upon an unsecured appearance bond, § 3142(b); (2) release the defendant on conditions specified in subsection (c), § 3142(c); (3) temporarily detain the defendant to permit revocation of conditional release, deportation or exclusion, § 3142(d); or (4) detain the defendant, § 3142(e), after a detention hearing pursuant to subsection (f).

Section 3142(f)(1) provides that for certain crimes, including a serious narcotics offense of the sort involved in this case, a hearing shall be held upon motion of the attorney for the Government to determine if any of the conditions set forth in section 3142(c) will reasonably assure the person’s appearance and the community’s safety. In such a case if the person has a particular criminal history, there is a rebuttable presumption that no condition or combination of conditions will reasonably assure safety. § 3142(e). Regardless of the person’s record, if there is probable cause to believe that he has committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in certain statutes, including the Controlled Substances Act, 21 U.S.C. § 801 et seq., at issue here, a rebuttable presumption arises that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.” § 3142(e) (emphasis added). The statute further provides that when detention is based on safety, the finding pursuant to subsection (e) must be supported by clear and convincing evidence. § 3142(f).

Subsection (f)(2) provides that a hearing be held upon motion of the Government or the judicial officer in a case that involves a serious risk that the person will flee, § 3142(f)(2)(A), or that justice will be obstructed, § 3142(f)(2)(B).

Only a disjunctive construction is sensible if these provisions are to be construed consistently. First, section 3142(f) specifically refers the judicial officer to subsection (e). The lead sentence of subsection (c) provides that if the judicial officer determines that release will not assure appearance or will endanger safety, he shall order release “subject to the least restrictive condition, or combination of conditions, that he determines will reasonably assure the appearance of the person as required and the safety of any other person and the community ...” § 3142(c)(2) (emphasis added). Thus, conditional release is appropriate if the judicial officer determines that conditions can be imposed which reasonably guarantee the person’s appearance and the safety of the community. Put another way, for the defendant to gain conditional release, the judicial officer must be satisfied that both the defendant’s appearance and the community’s safety are assured. The converse must also be true: if the judicial officer can conceive of no conditions which will reasonably guarantee either the person’s appearance or the community’s safety, conditional release must be denied.

Second, subsection (f)(2) gives the judicial officer or the Government the option of initiating a detention hearing in a case perceived to involve only a serious risk that the person will flee. § 3412(f)(2)(A). It is illogical to have that power without the correlative ability at the hearing to determine that detention is indicated on the sole basis of a finding that no conditions will assure appearance. Subsection (f)(2)(B) correspondingly provides for initiating such a hearing in a case that involves a serious risk of obstruction of justice or witness intimidation — a power which would make no sense if, upon hearing, the judicial officer were unable to detain based solely on a finding that no conditions will assure safety.

Finally, the burden of proof required to support a finding based on safety is clear and convincing, whereas generally under prior law in which the only consideration was risk of flight, proof by a preponderance of the evidence sufficed. That the latter was unchanged by the Act indicates that appearance and safety are two independent findings, either of which warrants detention if supported by evidence meeting the standard respectively required.

b. Legislative History of the Bail Reform Act.

The legislative history reflects that the accused may be detained if the judicial officer finds the person to be either a flight risk or a danger to the community. See Report of the Committee on the Judiciary, United States Senate on S. 215, Rept. No. 96-147 (May 25, 1983). The Senate Report notes that prior to the Act, courts could consider only the risk of flight and not the public safety in determining bail. Id. at 22. As it states, “[The Bail Reform Act of 1966] adopted the concept that in non-capital cases a person is to be ordered released pretrial under those minimal conditions reasonably required to assure his presence at trial. Danger to the community and the protection of society are not to be considered as release factors under the current law.” Report at 31.

One of the purposes of the Bail Reform Act of 1984 was to allow courts to weigh an additional factor when considering bail: the danger to the community posed by the release of defendants. However, nothing in the legislative history suggests an intent to do away with the risk of flight as an independent concern or to make danger to the community the sole basis for pretrial detention:

Section 215 substantially revises the Bail Reform Act of 1966 in order to address such problems as a) the need to consider community safety in setting non financial pretrial conditions of release, b) the need to expand the list of statutory release conditions, c) the need to permit the pretrial detention of defendants as to whom no conditions of release will assure their appearance at trial or assure the safety of the community or other persons... Many of the changes in the Bail Reform Act incorporated in this bill reflect the Committee’s determination that federal bail laws must address the alarming problem of crimes committed by persons on release and must give the court adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released. The adoption of these changes marks a significant departure of the Bail Reform Act, which is that the sole purpose of bail laws must be to assure the appearance of the defendant at judicial proceedings. Id. at 1-2 (emphasis added).

That the Act was adopted to provide an independent ground upon which a defendant could be denied bail or detained is further reflected in the deficiencies of the 1966 Act which prompted reform. As the Senate Report notes: “ ‘the [1966] Act has come under criticism as too liberally allowing release and as providing too little flexibility to judges in making appropriate release decisions regarding defendants who pose serious risks of flight or danger to the community.’ ” Id. at 32, quoting Final Report of the Attorney General’s Task Force on Violent Crime, August 17, 1981, at 51 (emphasis added).

Both generally, and specifically as to the core pretrial detention provisions, risk of flight is carried forward from prior law as one concern, while safety to the community is established as a separate concern. For example, with respect to subsection (b) and the Act as a whole, the Report remarks:

“... unlike current law, in making the determination whether release under this subsection [ (b) ] is appropriate, the judicial officer is to consider not only whether these forms of release are adequate to assure the appearance of the defendant, but also whether they are appropriate in light of any danger the defendant may pose to others. As discussed above, the Committee has determined that danger to the community is as valid a consideration in the pretrial release decision as is the presently permitted consideration of risk of flight. Thus, subsection (a), like the other provisions of section 3142, places the consideration of defendant dangerousness on an equal footing with the consideration of appearance.” Id. at 39 (emphasis added).

See also Senate Report at 16 (example given of procedure contemplated by section 3142(c) indicates that a finding of no available condition that will assure appearance “is the very finding which, under section 3142(e), is the basis for an order of detention”). With respect to subsections (e) and (f) specifically, the Senate Report declares:

Subsections (e) and (f) set forth the findings and procedures that are required for an order of detention. The standard for an order of detention of a defendant prior to trial is contained in subsection (e), which provides that the judicial officer is to order the person detained, if, after a hearing pursuant to subsection (f), he finds that no condition or combination of conditions of release will reasonably assure the appearance of the defendant as required and the safety of any other person and the community. The facts on which the finding of dangerousness is based must, under subsection (f), be supported by clear and convincing evidence. Thus, this subsection not only codifies existing authority to detain persons who are serious flight risks, but also, as discussed extensively above, creates new authority to deny release to those defendants who are likely to engage in conduct endangering the safety of the community even if released pending trial only under the most stringent conditions listed in -section 3142(c)(2). Id. at 44 (emphasis added).

Thus it is reasonable to conclude that Congress intended the 1984 Act separately to encompass risk of flight and safety to the community. To construe the statute as defendant urges by requiring findings on both appearance and safety before detention could be ordered, would defeat the overriding purpose of the Bail Reform legislation.

2. Constitutionality of the Bail Reform Act.

Defendant asserts that the Eighth Amendment guarantees a right to bail and therefore pretrial detention under section 3142(e) is unconstitutional. Additionally, defendant argues that pretrial detention violates due process guarantees because it imposes punishment without adjudication of guilt. Neither argument is persuasive. The Court instead believes the Bail Reform Act of 1984 to be constitutional, and adopts the reasoning set forth in greater detail in United States v. Edwards, 430 A.2d 1321 (D.C.App.1981) (en banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982) and United States v. Hazzard, 598 F.Supp. 1442 (N.D.Ill.1984).

Although the Eighth Amendment provides that “excessive bail shall not be required,” the Supreme Court has not held that there is an absolute right to bail under all circumstances. See Carlson v. Landon, 342 U.S. 524, 545, 72 S.Ct. 525, 537, 96 L.Ed. 547 (1952); Hazzard; cf. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 1 (1951) (dicta to the contrary). The Eighth Amendment was adopted “merely to provide that bail shall not be excessive in those eases where it is proper to grant bail,” Carlson, 342 U.S. at 545-46, 72 S.Ct. at 537; see also Edwards, 430 A.2d at 1330; and “fails to say all arrests must be bailable.” Carlson, 342 U.S. at 546, 72 S.Ct. at 537. The determination whether bail is permissible for any particular offense is a duty of Congress rather than a duty of the courts interpreting the Eighth Amendment. Id.; Hazzard. In the 1984 Act, Congress did not state that certain offenses would not be eligible for bail. Instead, the Congress exercised its authority to define under what circumstances conditional release will be available. The Act provides a detailed set of factors and permissible conditions of release that the judicial officer is to consider. Moreover, section 3142 is structured in such a way that bail is to be granted unless certain societal interests, i.e. the community’s safety and preventing the defendant’s flight before his appearance, are implicated. See § 3142(b), (c). The 1984 Act also allows the accused to rebut the presumption which attaches with some offenses and establish that conditional release is appropriate in his ease.

Nor were defendant’s rights to due process infringed. The Fifth Amendment protects against a detainee’s punishment prior to an adjudication of guilt in accordance with due process of law. However, the Government may detain a defendant to ensure presence at trial so long as the restrictions do not amount to punishment. Bell v. Wolfish, 441 U.S. 520, 535-36, 99 S.Ct. 1861, 1871-72, 60 L.Ed.2d 447 (1979). To determine whether detention is punitive in nature, a court must decide whether the restriction is imposed for the purpose of punishment or whether it is incident to a legitimate governmental purpose. Id. at 538, 99 S.Ct. at 1873; Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554-567, 568, 9 L.Ed.2d 644 (1963); Hazzard. If detention is rationally related to a legitimate governmental objective, it does not, without more, amount to punishment. Bell, supra, 441 U.S. at 539, 99 S.Ct. at 1874.

Here, defendant’s detention is rationally related to the government’s well-established interest in ensuring her appearance at trial and for service of sentence, if any. Id. at 534, 99 S.Ct. at 1871. The mere fact that detention resembles a traditional form of punishment, incarceration, does not make it punitive. There is no indication that the Act seeks to promote such recognized goals of punishment such as retribution, deterrence or rehabilitation. The procedural protections encompassed by the 1984 Act, see § 3142(f), when coupled with the requirements of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, are sufficient to ensure that the defendant’s due process rights are compromised to the least extent practicable while still accommodating the government’s interest in preventing flight before trial and protecting the safety of the community.

3. Conditions of release.

The Magistrate’s findings are supported by the record. Defendant does not challenge the finding that there is probable cause to believe she has committed a predicate offense. The effect is to invoke the presumption that no combination of conditions will assure appearance and safety. None of the facts adduced rebuts the presumption.

The defendant is a citizen of Lebanon and lives in Beirut with her husband and daughter. (One son is a student in Armenian Russia and the other in Italy.) A brother, whose whereabouts are unknown, and a sister who lives in Pasadena are her only contacts with this country. There is nothing to indicate that she is or has been at all close to the sister, having not seen her in 15 years. The sister had no idea defendant was coming until the day before she arrived, suggesting that the trip was not planned and had been quickly arranged for something other than a familial purpose. She apparently has no significant assets, but a large amount of heroin was involved. The weight of the evidence against the defendant is substantial. None of the conditions which could be imposed under subsection (c), save for remaining in the custody of her sister, § 3142(c)(2)(A), is applicable to the profile presented by defendant. In view of the tenuousness of the tie, there is no reason to believe that the sister, merely because of her residence in Pasadena, could assure that defendant would stay and appear — or would not pose a danger to the community through a drug connection about which the sister may have no knowledge and over which she would have no control. Finally, given the state of affairs in Lebanon, extradition would likely be impossible were defendant to flee. Therefore, considering the factors identified in subsection (g), the magistrate correctly concluded that there are no conditions which would reasonably assure the presence of the defendant.

Accordingly defendant’s motion for bail pending trial is denied; and it is hereby ordered as follows:

1. Oussanna Robine Kouyoumdjian be committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal;

2. She be afforded reasonable opportunity for private consultation with her counsel;

3. On order of a court of the United States or on request of an attorney for the Government, the person in charge of the corrections facility in which Kouyoumdjian is confined deliver her to a United States marshal for the purpose of an appearance in connection with a court proceeding;

4. Medical care be provided as needed; and

5. Nothing said in this Order be construed as implicating, modifying or limiting the presumption of innocence.

      . It is not clear whether the presumption based on potential penalty is applicable on an (f)(2) hearing, but that need not be decided for purposes of this review.

      . Danger to the community may be inferred from drug trafficking activity as well as physical violence. See Senate Report at 39; see also United States v. Hawkins, 617 F.2d 59, 61 (5th Cir.), cert. denied, 449 U.S. 962, 101 S.Ct. 355, 66 L.Ed.2d 215 (1980).

      . Although defendant may have some health problems, there is no indication that she would be attended at all, let alone better, if released to the custody of her sister (who also appears to be without significant assets), than in custody where care is available.


author: LASKER, District Judge.

text:
    Eddie Lee GORDON, Plaintiff, v. Officer WATLEY, Officer Witsell, Thomas Coughlin, III, Superintendent Harold J. Smith, Superintendent Wilson E.J. Walters, and John and/or Jane Does Nos. 1-20, Defendants.
    No. 81 Civ. 5677 (MEL).
    United States District Court, S.D. New York.
    Feb. 7, 1985.

      Simpson, Thacher & Bartlett, New York City, for plaintiff; Mark G. Cunha, ESQ. Pamela L. Weisberg, New York City, of counsel.
    Edward G. McCabe, County Atty. of Nassau County, Mineóla, N.Y., for defendants Watley and Witsell; Peter B. Skelos, Deputy Co. Atty., Mineóla, of counsel.
    Robert Abrams, Atty. Gen. of the State of N.Y., New York City, for defendants Coughlin, Smith and Walters; Stanley A. Camhi, Lillian Z. Cohen, Asst. Attys. Gen., New York City, of counsel.
   LASKER, District Judge.

I

Plaintiff, Eddie Lee Gordon, sues under 42 U.S.C. § 1983 alleging deprivation of his rights under the Fourth, Eighth and Fourteenth Amendments, and under the common law of New York.

On March 6, 1979 Gordon was sentenced in Grady County, Cairo, Georgia, to confinement for a term of ten years for burglary. Under the terms of the sentencing order, Gordon had to serve four years in prison and six years on probation. On May 2, 1979 Gordon was indicted in Nassau County, New York for an unrelated offense of attempted robbery in the second degree. Gordon traveled to New York for adjudication of that offense, and on September 13, 1979 he was sentenced by Judge Baker to an indeterminate sentence of “none” to five years to run concurrently with the ten-year sentence previously imposed in Georgia.

On September 6, 1979 Gordon was returned to custody in Georgia to continue serving his sentence. Nassau County subsequently filed a detainer with Georgia so that New York would be notified if Gordon were released by the Georgia officials before completion of the minimum New York sentence.

Gordon completed two of the four-year prison portions of his Georgia sentence on March 6, 1981 and was paroled. Georgia officials, acting pursuant to the detainer filed by Nassau County, notified Nassau County officials of plaintiffs impending release. Two Nassau County correctional officers, Watley and Witsell, met Gordon at the Georgia facility and arrested and transported him back to New York. In New York, he was incarcerated at Ossining Correctional Facility and later transferred to Attica Correctional Facility. Gordon met with the New York parole board on May 12, 1981 and again on August 5, 1981 at which time he was granted parole effective on or after October 14, 1981. In sum, he was incarcerated in New York for a period of almost eight months.

Gordon subsequently brought this action naming as defendants Officers Watley and Witsell (hereafter, the “Nassau defendants”) as well as Thomas Coughlin, III, Commissioner of the New York State Department of Correctional Services, Harold J. Smith, Superintendent of the Attica Correctional Facility, Wilson E.J. Walters, Superintendent of the Ossining Correctional Facility, John and/or Jane Does Nos. 1-10 who were employed by the State of New York within the Department of Corrections, the Attica facility, or the Ossining facility, and who took part in the seizure, arrest and detention, and John and/or Jane Does Nos. 11-20, who served on the parole board (hereafter, the “state defendants”).

Three motions are before the court.

1. The state defendants move (A) to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) Gordon’s state law claims and the Nassau defendants’ cross-claim, and (B) to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

2. The Nassau defendants move for summary judgment on the ground that they acted in good faith and pursuant to a lawful detainer warrant.

3. Plaintiff moves for leave to file a second amended complaint to add as defendants Nassau County and Lieutenant McGuire, a correctional officer employed by Nassau County.

For the reasons set forth below, the state defendants’ motion to dismiss is granted in part and denied in part; the Nassau defendants’ motion for summary judgment is denied; and plaintiff’s motion for leave to file a second amended complaint is granted in part and denied in part.

II

THE STATE DEFENDANTS’ MOTION TO DISMISS

A. Pennhurst v. Haldermann

The state defendants move to dismiss Gordon’s pendent state claims on the ground that they are barred by the Eleventh Amendment as recently interpreted by the Supreme Court in Pennhurst State School and Hospital v. Haldermann, — U.S. -, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). They argue that Gordon is suing each of the state defendants only in their official capacity, that his claims are accordingly asserted against New York State itself for an alleged violation of state law, and that Pennhurst bars these claims, “regardless of the nature of the relief sought.” Gordon contends that Pennhurst does not apply because that case was confined to the issue of whether a federal court may award injunctive relief against state officials on the basis of state law. See id., 104 S.Ct. at 903. He asserts that in this case, by way of contrast, only damages are sought against certain state and local officials based upon their tortious and unconstitutional conduct. In addition, Gordon argues that his state claims should be heard along with his federal claims for reasons of fairness, judicial economy and efficiency.

We agree with Judge Sofaer, who faced a similar issue, that:

Pennhurst holds that when the Eleventh Amendment bars federal causes of action which could otherwise be brought in federal court, it bars pendent claims as well. The [Supreme] Court made two findings in Pennhurst that are germane to this case. First, it found that the federal claims involved ‘a suit against the State itself.’ Id. [, 104 S.Ct.] at 908; see id. [104 S.Ct.] at 909-17. Thus they were barred by the Eleventh Amendment. Second, it held that ‘the explicit limitation on federal jurisdiction contained in the Eleventh Amendment’ overrode the ‘judge-made doctrine [of pendent jurisdiction] inferred from the general language of Art. III.’ Id. [104 S.Ct.] at 917, see id. [104 S.Ct.] at 917-919.

Morrison v. Lefevre, 592 F.Supp. 1052, 1081 (S.D.N.Y.1984).

In this case, unlike Morrison, New York State is the real party in interest because the individual state defendants are sued only in their official capacity. As a result, the Eleventh Amendment bars this court from exercising pendent jurisdiction over Gordon’s state law claims. This is not a case in which the individual state defendants “acted against both state and federal law and outside of their authority.” Id. at 1081, citing, Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 462-64, 65 S.Ct. 347, 349-51, 89 L.Ed. 389 (1945).

Accordingly, the motion to dismiss the pendent state law claims asserted against the state defendants is granted. The state defendants also rely upon Pennhurst to dismiss the cross-claims asserted against them by the Nassau defendants. The Nassau defendants have not answered this motion and it is granted on default.

B. Failure to State a Claim

The state defendants also move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Gordon's complaint for failure to state a claim upon which relief can be granted. Both Gordon and the state defendants have presented facts and documentary proof outside the pleadings. Accordingly, the present motion is decided as one for summary judgment pursuant to Rule 56(b).

The state defendants’ arguments on this motion can essentially be reduced to a claim that nothing on the face of the commitment order suggests that Gordon is not subject to confinement in New York and that their actions were therefore valid and in accordance with New York law. Moreover, although Gordon alleges that defendant Coughlin caused his imprisonment in New York, defendants contend that there was no personal involvement by Coughlin.

Gordon argues, however, that because his New York sentence ran concurrently with his Georgia sentence, his sentence for the New York offense was fully satisfied by discharge of the sentence for the Georgia offense and that defendants therefore violated his constitutional rights by imprisoning him in New York. He disputes the facial validity of the commitment order authorizing his arrest and detention, and claims that on its face the order barred imprisonment in New York because it stated that the New York sentence was concurrent with the Georgia sentence.

Gordon contends further that Judge Baker’s use of the word “none” has been interpreted by state and Nassau County officials to mean a zero minimum sentence, and submits as exhibits the receiving blotter used by the Department of Correctional Services on which “none” is interpreted as “0-0-0 with Georgia sentence,” as well as a November 10, 1980 letter to Nassau County from the Coordinator of Inmate Movement of the New York Department of Correctional Services which states plaintiff’s sentence as “0/5”.

The discussion above makes plain that significant controverted issues still lurk in the case. Not only is the intent of the sentencing judge still unclear from the evidence presented, but also Gordon disputes the facial validity of the commitment order and claims that defendants should have known that the order on its face barred imprisonment in New York.

The state defendants’ motion is therefore denied without prejudice to renewal on an amplified record.

Ill

THE NASSAU DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The Nassau defendants move for summary judgment on the ground that they acted in good faith. They argue that the validity of Gordon’s extradition was a matter for judicial determination. They also contend that Gordon has shown no constitutional deprivation through unconstitutional conduct, as they assert is required by Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), because the Nassau County order of commitment filed as a detainer in Georgia was facially valid. Moreover, the Nassau defendants argue that even if Gordon proves his allegations, the conduct complained of does not rise to the level of “deliberate indifference” as is required under Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).

The motion is denied. Gordon has adequately pleaded a claim under Section 1983. See Monell v. Department of Social Services, 436 U.S. 658, 690-691, 98 S.Ct. 2018, 2035-2036, 56 L.Ed.2d 611 (1978); Fine v. City of New York, 529 F.2d 70, 73 (2d Cir.1975). He has alleged a constitutional violation accomplished through unconstitutional conduct. Specifically, Gordon claims violations of his constitutional rights under the Fourth, Eighth and Fourteenth Amendments and facts sufficient to establish that defendants acted under color of state law.

The Nassau defendants’ mere claim of good faith is insufficient to justify a grant of summary judgment. In Bivens v. Six Unknown Named Agents, the Court of Appeals for the Second Circuit held that the defendant must “allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable.” Id., 456 F.2d 1339, 1348 (2d Cir.1972). At this stage of the proceedings defendants have not met this burden.

The Nassau defendants’ motion for summary judgment is denied without prejudice to renewal on a sufficient record.

IV

PLAINTIFF’S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

Plaintiff moves to amend the complaint to add as defendants Nassau County and Lieutenant McGuire, a correctional officer employed by Nassau County. Nassau County opposes the motion to add Lieutenant McGuire but does not oppose addition of itself as a party defendant.

Nassau County opposes the motion as to McGuire on the ground that the three-year statute of limitations has run as to him. The statute of limitations in this case for actions brought pursuant to 42 U.S.C. § 1983 is three years. See Board of Regents v. Tomanio, 446 U.S. 478, 483-484, 100 S.Ct. 1790, 1794-1795, 64 L.Ed.2d 440 (1980); Pauk v. Board of Trustees, 654 F.2d 856, 861 (2d Cir.1981), cert. denied, 445 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982) (three-year statute of limitations of New York CPLR § 214(2) governs the limitations period for Section 1983 claims brought in this state).

Although Gordon’s motion to amend the complaint was filed on June 1, 1984, more than three years after the cause of action accrued, he contends that the doctrine of relation back of amendments under Federal Rule of Civil Procedure 15(c) bars application of the statute of limitations since the amendment relates back to the date of the original pleading.

Gordon’s reliance on the doctrine is misplaced. For an amendment to a complaint to relate back, a plaintiff must meet the three conditions stated in Rule 15(c), among them that the claim stated in the amendment must arise from the same conduct or occurrence as was asserted in the original pleading. In essence, Gordon’s claim against McGuire is that he unconstitutionally filed the detainer warrant. Nothing in the original pleading speaks to the unconstitutionality of filing the detain-er. Gordon alleged unconstitutional arrest and detention in the complaint. A claim that the detainer was improperly filed is a separate though related cause of action to which the misnomer exception of Rule 15(c) does not apply. See Marlow v. Fisher Body, 489 F.2d 1057, 1064 (6th Cir.1973).

In contrast, Gordon’s motion to add Nassau County as a defendant meets all of the prerequisites of the rule of relation back. The claim against Nassau is the same as that already pleaded. Indeed, Gordon alleges only that Nassau County gave official approval to the acts alleged in the complaint. In addition, Nassau County has been actively engaged in the defense of officers Watley and Witsell and can clearly be said to have had actual notice of the suit. Finally, Nassau County knew or should have known that but for Gordon’s misidentification of the ultimate target of blame, that is Nassau County’s official policy, Nassau County would have been named in the original complaint. Significantly, Nassau County has not opposed addition of itself and may therefore be said to have impliedly consented to being joined as a party.

The motion of defendants Coughlin, Smith, and Wilson to dismiss the amended complaint is granted in part and denied in part. The motion of defendants Watley and Witsell for summary judgment is denied. Plaintiff’s motion for leave to file a second amended complaint to add additional defendants is granted as to Nassau County and denied as to Lieutenant McGuire.

It is so ordered.

      . The state defendants' motion to dismiss is a renewal of a prior motion filed by defendant Coughlin on December 10, 1982. The Nassau defendants’ motion is also a renewal of the motion previously filed on December 15, 1982.

      . Quoting, id., 104 S.Ct. at 908.

      . The state defendants also argue that the claims asserted against unnamed state employees, John and/or Jane Does Nos. 1-20, should be dismissed without prejudice because personal jurisdiction is lacking as to these defendants. Gordon responds that he has used the "John and/or Jane Doe” designation in order to reflect the existence of as yet unnamed parties, and that only after the identities and actual involvement of these individuals are obtained through the formal discovery process can a decision be made as to whether they should be dismissed from the case. The claims against the unnamed defendants are dismissed without prejudice. In the event that Gordon wishes to move to add unnamed defendants he shall provide within 30 days an affidavit stating his good faith reasons for believing that additional unnamed defendants are liable for the alleged wrongs.

      . In accordance with Rule 56, the parties were given 15 days notice of conversion of the Rule 12(b)(6) motion in order to allow them to present additional relevant materials. See Mayer v. Oil Field Systems Corp., 721 F.2d 59, 63 (2d Cir.1983). No additional materials were submitted.

      . Defendants assert that Gordon was paroled to the Nassau detainer and since he had not yet completed the required two-thirds of the sentence imposed in New York, he was not eligible for release under New York Correction Law § 803(1) (McKinney Supp. 1983-84). In support of this contention, defendants argue that Gordon was sentenced under a class D felony for which the minimum period of imprisonment for an indeterminate sentence is at least one year. See New York Penal Law § 70.00(3) (McKinney Supp. 1983-84). The defendants threfore interpret the sentencing order which states the minimum sentence as “none” to mean that no minimum was imposed.


author: BALDOCK, District Judge.

text:
    SEAY BROTHERS, INC., Plaintiff, v. CITY OF ALBUQUERQUE, et al., Defendants.
    No. Civ. 83-694 BB.
    United States District Court, D. New Mexico.
    Feb. 7, 1985.
    Rodey, Dickason, Sloan, Akin & Robb, P.A., John P. Eastham and Diane Fisher, Albuquerque, N.M., Blecher, Collins & Weinstein, Robert G. Badal, Los Angeles, Cal., for plaintiff.
    Malcolm W. DeVesty, Asst. City Atty., Albuquerque, N.M., for defendants.
    Modrall, Sperling, Roehl, Harris & Sisk, Allen C. Dewey, Jr., Albuquerque, N.M., for Albuquerque Nat. Bank, deponent.
    Squire, Sanders & Dempsey, Donald A. Wall, Phoenix, Ariz., for City of Albuquerque, a municipal corp., Harry E. Kinney, an individual and Mayor of the City of Albuquerque, and Frank A. Kleinhenz, an individual and Chief Administrative - Officer of the City of Albuquerque.
   MEMORANDUM OPINION AND ORDER

BALDOCK, District Judge.

THIS MATTER comes on for consideration of defendants’ Motion to Dismiss, filed July 15, 1983. The court, having considered the memoranda submitted by the parties, the relevant law, and otherwise being apprised fully in the premises, finds that the motion is well taken and should be granted.

Defendants move this court to dismiss plaintiff’s cause of action under Fed.R. Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A complaint is dismissed for failure to state a claim upon which relief can be granted only if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976); Chavez v. City of Santa Fe Housing Authority, 606 F.2d 282 (10th Cir.1979). All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true. Mitchell v. King, 537 F.2d 385 (10th Cir. 1976). All reasonable inferences derived from the pleadings must be liberally construed in favor of the plaintiff. Gas-a-Car, Inc. v. American Petrofina, Inc., 484 F.2d 1102 (10th Cir.1973). Specifically applying these standards to this case, I conclude that plaintiff’s complaint fails to state a claim upon which relief can be granted.

I. Factual Background.

Plaintiff, Seay Brothers, Inc., is a New Mexico corporation which collects and disposes of refuse produced by commercial entities in the Albuquerque, New Mexico, area. Defendants are the City of Albuquerque, New Mexico, its mayor, Harry E. Kinney, and Frank A. Kleinhenz, the City’s Chief Administrative Officer. The City, in 1977 and in 1980, enacted ordinances which prevent private refuse collectors from collecting refuse in Albuquerque. The 1977 and 1980 ordinances were designated respectively Ordinances 24-1977 and 34-1977, “City of Albuquerque Refuse Disposal System Improvement Revenue Bonds, Series May 1, 1977” and Ordinance 77-1980, “City of Albuquerque Refuse Disposal System Improvement Revenue Bonds, Series October 1, 1980.”

The complaint alleges that the defendants violated the Sherman Antitrust Act, 15 U.S.C. § 2, by unlawfully monopolizing the collection and disposal of refuse within the City of Albuquerque, and forcing plaintiff to cease collecting refuse therein; that the defendants conspired with the Albuquerque National Bank in violation of 15 U.S.C. § 1; that defendants violated New Mexico antitrust statutes; and that defendants tortiously interfered with contractual relations. Plaintiff also seeks declaratory relief.

The defendants admit the essential allegations of the complaint, including the charge that the City prohibits plaintiff from collecting and disposing refuse, but claims “state action” antitrust immunity under Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). Their claim of entitlement to this exemption is based on N.M.Stat.Ann. §§ 3-48-2 and 3 (1978). Section 3-48-2 provides in pertinent part:

A municipality may, by ordinance:
A. acquire and maintain refuse disposal areas or plants within or without the municipal boundary;
B. enforce a general system of refuse collection and disposal;
D. compel the taking of refuse to designated areas____
Section 3-48-3 provides in pertinent part:
A. a municipality may, by ordinance, provide for the collection and disposal of refuse by:
(1) the municipality;
(2) contract;
(3) any other manner deemed suitable by the municipality.
B. A municipality may appoint or contract with a refuse collector and prescribe the duties and compensation of a refuse collector.
C. A municipality may require each person owning or controlling real property to pay a reasonable fee for the collection and disposal of refuse____
D. A municipality providing for the collection of refuse may require any person owning or controlling real property to pay the refuse collection fee whether or not the refuse collection services are used by the person owning or controlling real property.

II. Theoretical Background.

A. State Action Immunity Doctrine.

The state action exemption to the Sherman Antitrust Act was first articulated by the Supreme Court in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307. The Court in Parker held that a marketing program enacted by the California Legislature to create price supports for raisins was exempt from challenge under the Sherman Act because the program “derived its authority ... from the legislative command of the state.” Id. at 350, 63 S.Ct. at 313. Recognizing the dual sovereignty of the federal and state governments, the Court stated:

We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of government in which, under the constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.

Id. at 350-51, 63 S.Ct. at 313-14.

Since Parker, the Court has continued to develop the State Action Doctrine. See, e.g., Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975); Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). Hoover v. Ronwin, — U.S.-, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984). In California Retail Liquor Deals Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980), the Court summarized the elements necessary to establish the state action exemption: “These decisions establish two standards for antitrust immunity under Parker v. Brown. First, the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’; second, the policy must be ‘actively supervised’ by the state itself.” Thus, the exemption only applies where the state itself has directed or authorized anti-competitive practices in a “clearly articulated and affirmatively expressed” manner, and where the state actively supervises the enforcement of the anti-competitive regulations.

B. State Action Exemption as Applied to Municipalities.

The United States Supreme Court has analyzed the application of the state action exemption to municipalities in two cases: City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978) and Community Communications Co., Inc. v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982). In the City of Lafayette, the Court examined whether two cities which operated utilities were exempt from the antitrust laws. Justice Brennan, writing for the plurality, concluded that cities are not necessarily exempt from the antitrust laws merely because of their status as political subdivisions of the state. He recognized that there is a “presumption against implied exclusions from coverage under the antitrust laws,” 435 U.S. at 398, 98 S.Ct. at 1129, in that a city must “demonstrate that there are countervailing policies which are sufficiently weighty to overcome the presumption” against an exemption. Id. at 400, 98 S.Ct. at 1130. The Court went on to recognize, however, that the actions of a city may be exempt from antitrust laws if it acted “pursuant to state policy to displace competition with regulation or monopoly public service.” Id. at 413, 98 S.Ct. at 1137. The Court explained its holding by stating:

This does not mean, however, that a political subdivision necessarily must be able to point to a specific, detailed, legislative authorization before it properly may assert a Parker defense to an antitrust suit____ [A]n adequate state mandate for anti-competitive activities of cities and other subordinate governmental units exist where it is found “from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of.”

Id. at 415, 98 S.Ct. at 1138.

In City of Boulder, the plaintiff challenged a three-month emergency ordinance which imposed a moratorium on the extension of cable television services in Boulder. Justice Brennan, this time writing for the majority, held that the state action exemption did not apply in cases where a state merely granted “home rule” power to a city. The Court characterized such a grant of authority as one of “mere neutrality” which did not meet the requirement of a “clearly articulated and affirmatively expressed” state policy. 455 U.S. at 54-55, 102 S.Ct. at 842-843. In leaving unresolved the issue of whether a city’s actions must also satisfy the test of “active state supervision,” the Court stated: “Because we conclude in the present case that Boulder’s Moratorium Ordinance does not satisfy the ‘clear articulation and affirmative expression’ criteria, we do not reach the question whether the ordinance must or could satisfy ‘active state supervision’ test focused upon in Midcal.” Id. at 51, n. 14, 102 S.Ct. at 841, n. 14.

III. Application of the State Action Exemption to This Case.

A. Clearly Articulated and Affirmatively Expressed State Policy.

Lafayette and Boulder indicate that before a city is entitled to the state action exemption, there must be a clearly articulated and affirmatively expressed state policy permitting anti-competitive activity. State statutes relating to municipalities, however, are often drafted in general terms and delegate broad discretion to cities. The degree of specificity in state law required to satisfy the standard as it applies to municipalities must be resolved by the trial court on an ad hoc basis. While the Supreme Court requires that the state “authorized or directed a given municipality to act as it did,” a city is not required “to point to a specific, detailed legislative authorization before it properly may assert a Parker defense.” City of Lafayette, 435 U.S. at 414-15, 98 S.Ct. at 1137-38. If a challenged anti-competitive restraint is not based on a specific statutory provision, a court must then determine whether an adequate expression of state policy may be inferred from “the authority given a governmental entity to operate in a particular area” and whether “the legislature contemplated the kind of action complained of.” Lafayette, 435 U.S. at 415, 98 S.Ct. at 1138. Thus, a state legislative policy to permit anti-competitive restraints will be inferred if the challenged action is a necessary or reasonable consequence of engaging in the authorized activity. See, e.g., Corey v. Look, 641 F.2d 32 (1st Cir.1981); Cen. Iowa Ref. Sys. v. Des Moines Metro Sol. Waste, 715 F.2d 419 (8th Cir.1983), petition for cert. filed, 52 U.S.L.W. 3441 (U.S. Nov. 18, 1983) (No. 83-825); Hybud Equipment Corp. v. City of Akron, Ohio, 742 F.2d 949 (6th Cir.1984). Nevertheless, mere authorization by state law to engage in certain activity will not be sufficient, standing alone, to protect anti-competitive actions of cities. City of Boulder, 455 U.S. at 55, 102 S.Ct. at 842.

In this case, the City of Albuquerque’s authority to engage in the challenged actions is not based on a specific state directive nor could it be considered a neutral grant of power. Nevertheless, N.M. StatAnn. §§ 3-48-2 & 3 expressly authorize cities to collect and dispose of refuse themselves, and to acquire and maintain their own refuse disposal areas. This authority is granted by statute, and, unlike Boulder, the City does not merely rely on its “home rule” powers. The State of New Mexico has affirmatively addressed the question of municipal refuse collection and disposal. There is a clear legislative policy regarding this industry. Thus, New Mexico’s position here is not “one of mere neutrality respecting the municipal actions challenged as anti-competitive.” Boulder, 455 U.S. at 55, 102 S.Ct. at 843.

While not specifically articulated, the New Mexico Legislature’s intent to permit cities to displace competition may be inferred from a plain reading of these statutes. Such a restraint on competition is a reasonable and foreseeable consequence of the exercise of the authority granted to municipalities to collect and dispose of refuse themselves. This inference is further supported by the New Mexico Supreme Court’s interpretation of these statutes. In City of Hobbs v. Chesport, Ltd., 76 N.M. 609, 613, 417 P.2d 210 (1966), the court held that “[t]he authority to enforce a general system under § 14-32-3, N.M.S.A.1953, (now N.M.StatAnn. § 3 — 48—2), and the authority to establish health measures, is authority for the municipality to place garbage collection and disposal exclusively within itself.” Thus, even though the statutes do not precisely address the question of whether Albuquerque could restrain trade, it may be inferred that the state legislature contemplated that the City’s actions might result in displacing competition. The City’s monopolization of refuse collection and disposal, therefore, is pursuant to the legislature’s clear articulation and affirmative expression of state policy.

B. Active State Supervision.

As discussed earlier, the Court in Boulder left unresolved the question of whether active state supervision is required where municipal conduct is involved. 455 U.S. at 51-52, 102 S.Ct. at 840-841. The circuit courts that have considered this question have held that active state supervision is not necessary where the challenged activity is within a traditional governmental function. See Goldcross Ambulance and Transfer v. City of Kansas, 705 F.2d 1005 (8th Cir.1983), petition for cert. filed, 52 U.S.L.W. 3039 (U.S. July 25, 1983) (No. 83-138); Town of Hallie v. City of Eau Claire, 700 F.2d 376 (7th Cir.1983), cert. granted, — U.S.-, 104 S.Ct. 3508, 82 L.Ed.2d 818 (1984). In the Town of Hallie, the Seventh Circuit noted that imposing such a requirement on municipalities “would erode the concept of local autonomy and home rule authority.” 700 F.2d at 384. Justice Rehnquist, in his dissent in Boulder, also noted that “[i]t would seem rather odd to require municipal ordinances to be enforced by the State rather than by the city itself.” 455 U.S. at 71, n. 6, 102 S.Ct. at 851, n. 6. Although the Tenth Circuit has never explicitly addressed the question of active state supervision, in Pueblo Aircraft Service v. City of Pueblo, 679 F.2d 805, 810 (10th Cir. 1982), cert. denied, 459 U.S. 1126, 103 S.Ct. 672, 74 L.Ed.2d 977 (1983), the court upheld Pueblo’s anti-competitive conduct in the absence of active state supervision and observed that “[i]n its ‘governmental capacity’ a municipality acts as an arm of the state for the public good on behalf of the state rather than itself.” Contra Community Communications Co. v. City of Boulder, 630 F.2d 704, 717 (10th Cir.1980) (Markey, J., dissenting), rev’d, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982).

N.M.StatAnn. § 3-43-l(B) (1978) empowers municipalities to “perform any act and adopt any regulation necessary or expedient for the promotion of health and the suppression of disease.” Clearly the manner in which refuse is collected and disposed of has a great impact upon the health of a community. The New Mexico courts have held that municipal ordinances enacted pursuant to the state statutes discussed herein involve the exercise of municipal police power which is necessary to protect the health of all members of the community. City of Hobbs v. Chesport, Ltd., 76 N.M. at 614, 417 P.2d 210; Gomez v. City of Las Vegas, 61 N.M. 27, 293 P.2d 984 (1956). It is unnecessary and inappropriate to rigorously apply the test of state supervision where a city is acting pursuant to its inherent police power and within the scope of traditional governmental functions. The New Mexico Legislature has given Albuquerque the power to go into the refuse disposal business itself, the power to control competition, and thus, the power to monopolize. This legislative delegation to Albuquerque to implement and supervise the operation of the monopoly is sufficient to satisfy the “active state supervision” test. The application of federal antitrust laws in this case would directly impair the ability of the State of New Mexico and the City of Albuquerque to provide for the health and safety of their citizens. I, therefore, conclude that the actions of the City of Albuquerque were authorized by clearly articulated and affirmatively expressed state policy and that there is active state supervision of the anti-competitive ordinances. Having satisfied the requirements of the state action exemption, plaintiff’s Sherman Act claims against the defendants will be dismissed.

IY. Pendent State Law Claims.

In addition to plaintiff’s federal claims, it also asserts violations of the New Mexico Antitrust Law, N.M.Stat.Ann. §§ 57-1-1, et seq. (1982 supp.) and tortious interference with contractual relations. Although a district court may hear state claims incidentally to its authority to adjudicate federal claims, pendent jurisdiction is a doctrine of discretion. U.M.W. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). The Court in Gibbs directed that “if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.” Id. at 726, 86 S.Ct. at 1139. Because I will dismiss the federal claims in this suit for failure to state a claim upon which relief can be granted, I decline to consider the plaintiff’s state law claims. The state law claims will also be dismissed.

NOW, THEREFORE,

IT IS ORDERED that defendant’s Motion to Dismiss is granted and that plaintiff shall take nothing by its complaint.