author: KINNEARY, District Judge.

text:
    Dr. A.J. KOLIBASH, Jr., et al., Plaintiffs, v. SAGITTARIUS RECORDING COMPANY, et al., Defendants.
    No. C2-85-1017.
    United States District Court, S.D. Ohio, E.D.
    Jan. 27, 1986.

      Michael J. Johrendt, Mayer, Johrendt & Cook, Co., Columbus, Ohio, for plaintiffs.
    Chester E. Kasiborski, Jr., John J. Ronayne, Kim R. Kolb, Van Til, Kasiborski & Ronayne, Detroit, Mich., for defendants Rose, Feldman and Stephen Feldman.
   OPINION AND ORDER

KINNEARY, District Judge.

This matter comes before the Court to consider the defendants’ motion to dismiss. This case arises from a tax shelter scheme involving the lease of “master recordings” by defendant Sagittarius Recording Company to various individuals. Twenty-three of these individuals have joined this suit as plaintiffs and assert sixteen different counts against the architects and promoters of the scheme as well as various accountants, attorneys and other individuals who rendered professional opinions regarding the value of the recordings as well as legal and tax aspects of the scheme. The plaintiffs allege violations of state and federal securities laws, the Racketeer Influenced and Corrupt Organizations Act as well as common law fraud, negligence, breach of warranty and breach of contract as grounds for seeking relief from the defendants. Defendants Rose, Feldman, Rodin, Pavone & Skehan (“Rose, Feldman”), a New York accounting firm, and Stephen Feldman, a licensed certified public accountant with Rose, Feldman, move to dismiss plaintiffs’ claims alleging violations of the federal securities laws.

Statement of Facts

The tax shelter scheme involved in this case, known as the Sagittarius Recording Company Master Recording Lease Program (the “Program”), was marketed by defendant Sagittarius between 1980 and 1983. Under the Program, Sagittarius purchased the rights to various “master recordings.” It paid for the master recordings with small cash down payments and unconditional full recourse notes. These notes are full recourse only with respect to Sagittarius, are secured by a security interest in the master recordings and are due on December 31, 1991. However, the notes are prepayable, prior to maturity, from the net proceeds derived from the marketing of each master recording.

Sagittarius leased the master recordings to the plaintiffs for a period of 7V2 years. Pursuant to the terms of the lease agreement, the lessee/investor would make an initial cash payment of between $11,300 and $22,600 in 1981 and an additional payment of between $8,700 and $17,400 in 1982, depending upon the value of the master leased by the lessee/investor. See 1981 Program, Exhibit A to Complaint. In addition, each lessee was obligated to make efforts to promote and commercially exploit his master recording and spend at least $3,500 within six months from the date of the lease for such promotion and distribution. Sagittarius provided each lessee with the names of potential distributors but otherwise did not assist or offer to assist the lessee in his efforts to promote and distribute the master recording. Finally, each lessee was required to pay to Sagittarius a certain percentage of the net proceeds derived from exploitation of the master recording.

In consideration for the lease payments, Sagittarius transferred the investment tax credit associated with the purchase of each master recording to the lessee. Depending upon the value of the master recording, the lessee/investor would receive a first year investment tax credit of between $39,500 and $80,000. Sagittarius represented that the investment tax credit in conjunction with the write-off of the first year lease payment would result in a ratio of tax write-off to lease payment of approximately 8 to 1. Id. Exhibit A, 1981 Program. In addition to the tax benefits, the lessees would also receive a certain percentage of the net proceeds which they earned as a result of promoting and distributing the master recordings. However, it is undisputed that many or all of the investors lacked the experience typically required to successfully market the recordings.

In order to attract investors, plaintiffs allege that defendants Sagittarius and Frank J. VanArsdale (“VanArsdale”), in conjunction with the accounting firm of Rose, Feldman, assembled a promotional package describing the Program and its purported benefits. This package consisted of: (1) a description of the Program; (2) a description of the master recordings being offered through the Program; (3) a statement as to the background and qualifications of the defendants; (4) illustrations of the tax and cash benefits purportedly available from investing in the Program; (5) financial statements of Sagittarius; (6) tax and legal opinions concerning the legitimacy of tax benefits represented by Sagittarius; and (7) professional opinions by appraisers concerning the market value of the master recordings. The plaintiffs allege that they invested in the Program based upon the representations in the promotional material and suffered economic loss because of fraudulent and negligent omissions and misrepresentations of material facts in the above materials.

Defendants’ Motion to Dismiss Federal

Securities Law Counts — No Security

Defendants Rose, Feldman and Stephen R. Feldman move to dismiss the plaintiffs’ first five federal securities laws claims on the grounds that the Program offered by Sagittarius did not constitute a security within the meaning of section 2(1) of the Securities Act of 1933, 15 U.S.C. § 77b(l), or of section 3(a)(10) of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(10). The plaintiffs maintain that the Program constituted an “investment contract” and therefore was a security within the meaning of the above sections. However, the defendants maintain that the Program lacked the essential elements which characterize an investment contract. These elements include the presence of (1) an investment of money, (2) in a common enterprise, with (3) profits to come solely from the efforts of others. Securities and Exchange Commission v. Howey, 328 U.S. 293, 298-99, 66 S.Ct. 1100, 1102-03, 90 L.Ed. 1244 (1946); Curran v. Merrill Lynch, Pierce, Fenner and Smith, 622 F.2d 216, 221 (6th Cir.1980), aff'd. on other grounds, 456 U.S. 353, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1981). In determining whether these elements were present, the Court is mindful that its inquiry is conducted for the purpose of resolving defendants’ motion to dismiss. Consequently, plaintiffs’ claims under the securities laws should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim” that the leases were investment contracts and, therefore, securities. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Hart v. Pulte Homes of Michigan Corp., 735 F.2d 1001, 1004 (6th Cir.1984).

First Element: Investment of Money

There is no question that the plaintiffs made a payment of money. The critical inquiry is whether they made an investment of money. An investment of money occurs when an investor commits his money to an enterprise in such a manner to subject himself to risk of financial loss. El Khadem v. Equity Securities Corp., 494 F.2d 1224, 1228 (9th Cir.), cert. denied, 419 U.S. 900, 95 S.Ct. 183, 42 L.Ed.2d 146 (1974); S.E.C. v. International Mining Exchange, Inc., 515 F.Supp. 1062, 1068 (D.Co.1981). The record in this case clearly indicates that the plaintiffs’ money was at risk since there was significant uncertainty as to whether any individual would realize earnings from marketing the master recordings. There was also risk with respect to the tax aspects of the transaction. Indeed, the defendants went to great lengths to warn the investors that the desired tax investment credits were not guaranteed but would depend upon how the Internal Revenue Service interpreted the commercial transactions involved in the Program. Therefore, the Court finds that there was an investment of money by the plaintiffs.

Second Element: Common Enterprise

The Courts of Appeals are split with respect to the meaning of common enterprise. The Fifth and Ninth Circuits only require the showing of vertical commonality in order to establish a common enterprise within the meaning of Howey. See S.E. C. v. Koscot Interplanetary, Inc., 497 F.2d 473, 483 (5th Cir.1974), S.E.C. v. Glen W. Turner Enterprises, Inc., 474 F.2d 476, 482 (9th Cir.1973), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973). However, this Circuit and the Seventh Circuit require a showing of horizontal commonality. Curran v. Merrill Lynch, Pierce, Fenner & Smith, supra, at 222; Milnarik v. M-S Commodities, Inc., 457 F.2d 274, 277-78 (7th Cir.), cert. denied 409 U.S. 887, 98 S.Ct. 113, 34 L.Ed.2d 144 (1972). Horizontal commonality, as defined by the Sixth Circuit, entails a relationship between investors which:

... ties the fortunes of each investor in a pool of investors to the success of the overall venture. [Citation omitted.] In fact, a finding of horizontal commonality requires a sharing or pooling of funds.

Union Planters National Bank v. Commercial Credit Business Loans, Inc., 651 F.2d 1174, 1183 (6th Cir.), cert. denied 454 U.S. 1124, 102 S.Ct. 972, 71 L.Ed.2d 111 (1981).

In examining the defendants’ Program, the Court must disregard form for substance and examine the economic realities of the transactions comprising the Program. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 851-52, 95 S.Ct. 2051, 2060, 44 L.Ed.2d 261 (1974); Techerepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564 (1967). Moreover, as the Court stated earlier, in order to dismiss the securities claims asserted against the defendants, the defendants must show that “the plaintiffs have alleged no set of facts showing that the fate of each purchaser’s investment was tied to that of the other investors through a common scheme.” Hart v. Pulte Homes, supra, at 1004.

In considering the record before it, the Court believes that the defendants have partially met this burden. The Court notes that there is no horizontal commonality with respect to the earnings the investors expected to receive from the promotion and distribution of the master recordings. This aspect of the transaction can be fairly described as unitary in nature and thus fails to meet the horizontal commonality test as defined by this Circuit in Curran v. Merrill Lynch. However, the tax aspects of the Program present a different matter.

The plaintiffs allege that the viability of the Program hinged upon the collective payments of many investors to Sagittarius and, therefore, horizontal commonality was present. More specifically, the plaintiffs argue that the cost basis for each master recording was based upon the purchase price. As noted earlier, Sagittarius only made a small cash payment for each recording and secured the balance with a full recourse promissory note. The plaintiffs maintain that in order for the master recordings to be fully valued for the investment tax credit, the full recourse promissory notes must be valued according to their face amount. However, Sagittarius’ primary assets were the master recordings. Accordingly, the notes were effectively without recourse and were subject to being devalued. Such a devaluation would destroy the value of the investment tax credit and strip the Program of its primary benefit. This result was avoidable only by the participation of many investors in the Program. Such participation would increase Sagittarius’ net worth because Sagittarius retained a significant proportion of each installment payment made by the investors. An increase in Sagittarius’ net worth, in turn, would yield the appropriate cost basis to support a substantial investment tax credit. Thus, the plaintiffs argue, the financial fate of each investor was tied to Sagittarius’ success in attracting additional investors to the Program.

The defendants characterize plaintiffs’ argument as inscrutable. However, plaintiffs’ argument is not so inscrutable that it prevented the defendants from making the same argument in their description of the tax aspects of the Program. See Booth, Lipton & Lipton 1981 tax opinion, pp. 25-26, Exhibit A to Complaint. Given the above allegations by the plaintiffs as well as description of the program by defendant Booth, Lipton & Lipton, the Court believes that the plaintiffs have set forth a set of facts which, if proven, would establish that the favorable tax advantages each investor sought were tied to the investment and participation of others in the Program. At the very least, the Court believes that the plaintiffs have alleged sufficient facts to establish the presence of a common enterprise as defined by this Circuit for the purpose of withstanding defendants’ motion to dismiss.

Third Element: Profits Derived Solely from the Efforts of Others

As described above, investors in the Program expected two benefits from their investment; a tax benefit in the form of the investment tax credit and the earnings derived from promoting and marketing the master recordings. Because any profits derived from marketing recordings would be derived primarily from the efforts of each individual investor, it is evident that these profits do not meet the third element of the Howey test. However, the tax benefits expected by the investors present a different question.

There is no doubt that the expected tax benefits flowed from the tax scheme developed and promoted entirely by the defendants. Thus, the question is not whether the tax benefits were derived solely from the efforts of others, as this component of the Howey test is clearly met. Rather, this case presents the novel question of law of whether tax benefits resulting from the pre-investment structuring of a transaction may constitute “profits” within the meaning of Howey.

The defendants, citing to United Housing Foundation, Inc. v. Forman, maintain that tax benefits are not “profits.” In Forman, the Supreme Court stated:

We know of no basis in law for the view that the payment of interest, with its consequent deductibility for tax purposes, constitute income or profits. These tax benefits are nothing more than that which is available to any homeowner who pays interest on his mortgage.

Id. 421 U.S. at 855, 95 S.Ct. at 2062. The Court does not believe that the above conclusion is directly applicable to this case, however, since Forman involved tax benefits which were incidental to the “investors” main objective of securing housing. In contrast, the primary benefit that the investors expected to receive in this case were the tax benefits to be derived .from participating in Sagittarius’ Program.

The Court notes that the few courts which have considered the above issue have reached somewhat contradictory conclusions. In Sunshine Kitchens v. Altanthus Corp., 408 F.Supp. 719 (S.D.Fla.1975), a case involving the purchase and lease-back of computer equipment, the court rejected the plaintiff’s argument that expected favorable tax consequences of its investments constituted profits. However, the court based its conclusion on the fact that the anticipated tax benefits of the investment depended upon the plaintiff’s own accounting methods and not on the managerial efforts of others. The court did not specifically reach the question of whether tax benefits could constitute profits. Later, in Stowell v. Ted S. Finkel Investment Services, Inc., 489 F.Supp. 1209 (D.Fla. 1980) , affd. on other grounds, 641 F.2d 323 (5th Cir.1981), the same court held that tax benefits may be properly considered “profits” within the meaning of Howey where the profits from the investment take the form of a direct return on the investment and tax benefits from a favorable tax shelter. Id. at 1221. However, the court did not reach the question of whether tax benefits can be considered “profits” when they comprise the only return on the investment expected by the investor. See also S.E.C. v. International Mining Exchange, Inc., 515 F.Supp. 1062, 1069 (D.Co. 1981) . Finally, in the broadest view of this question, the court in Sharp v. Coopers & Lybrand, 457 F.Supp. 879 (E.D.Pa.1978) held that partnership interest could constitute a security even if investors purchased such interests merely for the tax benefits. Id. at 889.

In considering the issue before it, the Court is reminded that the three-part Howey test which “embodies the essential attributes that run through all of the [Supreme] Court’s decisions defining a security”, Forman, supra, 421 U.S. at 852, 95 S.Ct. at 2060, was meant to be a:

... flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of money of others on the promise of profits.

Howey, supra, 328 U.S. at 299, 66 S.Ct. at 1103. Why profits must be only in the form of dividends, profit sharing, or capital appreciation for an investment to be considered a security, as suggested by the defendants, appears, at least to this Court, to be beyond the flexible approach developed by the Supreme Court in Howey. Moreover, excluding tax benefits from the scope of the meaning of profits, particularly when tax benefits are the primary inducement for an individual to invest in a scheme, flies in the face of the economic reality. More importantly, a definition of “profits” which excludes tax benefits, at least under the circumstances of the present case, would be contrary to the remedial nature of the securities laws and their central purpose of protecting investors. Techerepnin, supra, 389 U.S. at 336, 88 S.Ct. at 553. Indeed, courts are admonished to broadly and liberally construe the meaning of “security” in order to advance the purposes of the securities laws. Id. at 336, 88 S.Ct. at 553; Sharp, supra, at 889. Therefore, the Court concludes that where, as in the present case, tax benefits are the primary or dominant economic inducement for investing, such tax benefits may properly be considered “profits” within the meaning of Howey. Because these tax benefits resulted solely from the efforts of the defendants in constructing the tax scheme and not from how each particular investor would report his or her income, as in the Sunshine Kitchen case, the Court further finds that the Program meets the third element of Howey, i.e., profits derived solely from the efforts of others. Consequently, whereas the defendants’ Program shares all of the essential attributes of a security as defined by the Supreme Court in Howey and Forman, the defendants’ motion to dismiss plaintiffs’ federal securities laws claims because of a lack of a security is hereby DENIED.

Whereupon, upon consideration and being duly advised, the Court finds defendants’ motion to dismiss plaintiffs’ federal securities laws claims on grounds that the Program did not constitute a security is without merit and it is, therefore, DENIED.

      . A "master recording" is a collection of musical recordings from which phonograph records, tapes and cassettes are manufactured.

      . These figures only apply to the 1981 Program. The amount of the initial payment and second payment differed each year of the program.

      . Both parties agree that most if not all of the investors lacked the sophistication to successfully promote and distribute the master recordings. Thus, it is clear to the Court that the investors were lured into the scheme by promise of a ratio of tax write-off to lease payment of approximately eight to one, and not by the potential earnings derived from marketing the recordings.


source: Caselaw Access Project

author: PATRICK F. KELLY, District Judge.

license: Public Domain

text:
    John MEDCALF, Individually and as Administrator of the Estate of Michael Medcalf, Deceased, Plaintiff, v. STATE OF KANSAS; Patrick McManus, Secretary of Corrections for the State of Kansas; Leo Taylor, Director of the Kansas Reception and Diagnostic Center; Herbert Maschner, Director of the Kansas State Industrial Reformatory; Vincente B. Serapio, M.D.; and Jose F. Sintos, M.D., Defendants.
    No. 81-1290-K.
    United States District Court, D. Kansas.
    Jan. 27, 1986.

      Ronald A. Lyon, Wichita, Kan., for plaintiff.
    Timothy G. Madden, Asst. Atty. Gen., Kansas Judicial Center, Topeka, Kan., for State of Kan. defendants.
    Darrell D. Kellogg & Lawrence M. Gurney, Wichita, Kan., for defendant Sintos.
    James Z. Hernandez, Wichita, Kan., for defendant Serapio.
   MEMORANDUM AND ORDER

PATRICK F. KELLY, District Judge.

This action was filed by John Medcalf, individually and as administrator of the estate of his son, Michael Medcalf, seeking actual and punitive damages for defendants’ failure to provide adequate, competent medical care to the decedent and for consequent violations of his civil rights under 42 U.S.C. § 1983, all arising from the care and treatment of Michael Medcalf during his incarceration at various Kansas penal institutions from June 4, 1980 through shortly before his death on October 20, 1980. Named defendants are the State of Kansas; Patrick McManus, Secretary of Corrections; Herbert Maschner, Director of the Kansas State Industrial Reformatory (KSIR); and Leo Taylor, Director of the Kansas Reception and Diagnostic Center (KRDC), all of which will be collectively referred to as the state defendants. Two additional defendants are Dr. Jose Sintos, Director of Clinical Services at KSIR, and Dr. Vincente Serapio, a medical officer at KSIR, hereinafter referred to as the physician defendants.

The state defendants filed a motion for summary judgment raising the following issues:

Has plaintiff stated a claim, for violation of his civil rights through cruel and unusual punishment contrary to the Eighth Amendment, on which relief can be granted?
Does the Eleventh Amendment bar plaintiffs claims against the State of Kansas and the state officials in their official capacities?
Are the state officials entitled to be dismissed because the doctrine of respondeat superior has no application in a § 1983 suit?

The physician defendants followed with motions for summary judgment and partial summary judgment presenting these questions:

Has plaintiff shown any actual deprivation of Michael Medcalf’s Eighth Amendment rights to be free from cruel and unusual punishment?
Are the physicians entitled to summary judgment on the grounds of qualified good faith immunity?

The Court concludes that although plaintiff has adequately stated a claim for relief, the Eleventh Amendment bars plaintiffs claims against the State of Kansas and the state officials in their official capacities. However, the unique facts and aggravated circumstances giving rise to this case are such that the physician defendants’ motions are denied.

The facts of the case will be addressed as they pertain to the issues.

The Sufficiency of the Complaint

The state defendants argue plaintiff fails to state a claim on which relief can be granted because he has not established Michael Medcalf was subjected to cruel and unusual punishment contrary to the Eighth Amendment during his incarceration.

The purpose of a motion under F.R. Civ.P. 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief. That provision must be read in conjunction with F.R. Civ.P. 8(a), which sets forth the requirements for pleading a claim in federal court and calls for “a short and plain statement of the claim showing that the pleader is entitled to relief.” Only when the pleading fails to meet this liberal standard is it subject to dismissal under Rule 12(b)(6). 5 Wright & Miller, Federal Practice and Procedure § 1356 (1969). The allegations necessary to state a claim for relief will not be insufficient unless it appears beyond question plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Dewell v. Lawson, 489 F.2d 877 (10th Cir. 1974).

In the context of this case, to state a cause of action under § 1983 plaintiff must allege acts or omissions sufficiently harmful to evidence deliberate indifference to the prisoner’s serious medical needs; a negligent, inadvertent failure to provide adequate medical care does not constitute the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97,104-06, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976). To constitute cruel and unusual punishment, improper or inadequate medical treatment must be continuing, must not be supported by any competent, recognized school of medical practice, and must amount to a denial of needed medical treatment. Ramsey v. Ciccone, 310 F.Supp. 600, 604 (W.D.Mo.1970). However, a complaint that an inmate was wrongfully denied medical care need not allege defendants consciously sought to inflict pain on the prisoner by withholding treatment in order to state a claim under § 1983. West-lake v. Lucas, 537 F.2d 857 (6th Cir.1976).

Under these principles, a complaint does not state a cause of action where it evidences a series of sick calls by the inmate, examinations, diagnoses and medications, and a professional medical decision not to order x-rays requested by the inmate; in short, a mere difference of opinion between the inmate and the institution’s medical staff. Smart v. Villar, 547 F.2d 112 (10th Cir.1976); see also McCracken v. Jones, 562 F.2d 22 (10th Cir.1977). Further, a complaint was found inadequate where an inmate merely alleged the prison hospital had been negligent in diagnosing his condition, on grounds plaintiff had not alleged deliberate indifference, and medical negligence alone is insufficient to state a claim under § 1983. Tomarkin v. Ward, 534 F.Supp. 1224 (S.D.N.Y.1982).

By contrast, the allegations of plaintiff’s amended complaint in this ease evidence more than mere negligence or a difference of opinion between the inmate and the institutions’ medical officers. Plaintiff alleges Michael Medcalf was suffering from diagnosed medical problems at the time of his incarceration in June 1980, a condition of which the prison administration and medical staff was aware. Throughout the summer and early fall of 1980, Medcalf consistently complained of severe headaches, nausea and vomiting, the elemental and classic symptoms of a brain tumor according to plaintiff’s expert witness. Although Medcalf was seen a number of times by the prison medical staff, primarily Dr. Serapio, and was admitted to the infirmary for periods of time, the plaintiff alleges Serapio failed to order tests on Medcalf’s condition and wholly failed to diagnose a brain tumor, more specifically described as a grade IV glioblastoma multiforme, before it caused Medcalf’s death. Alone that might appear to be a mere inadvertent failure to provide medical care, but plaintiff alleges it was negligent to the degree amounting to deliberate indifference of Medcalf’s medical needs, an allegation supported by the deposition testimony of plaintiff’s expert witness, himself a licensed physician. Thus, the complaint alleges (1) medical symptoms and an injury or illness so severe as to have necessitated immediate competent medical attention to preserve Medcalf’s life; (2) medical treatment which was, as a result, needed rather than merely desired; (3) the utter denial of the proper medical care, an aggravated tortious act which may well have gone beyond “simple” negligence; (4) the continuing denial of necessary treatment throughout the period of Medcalf's incarceration; and (5) deliberate indifference to Medcalf’s medical needs as the direct cause of his death. Sufficient allegations are raised concerning the degree of negligence exhibited by the physicians, and Serapio’s overall fitness and competence to serve in the prison environment, for the Court to conclude plaintiff has adequately stated a claim for relief under § 1983 and the Eighth Amendment. See Miranda v. Munoz, 770 F.2d 255 (1st Cir.1985); Rock v. McCoy, 763 F.2d 394 (10th Cir.1985); and Mullen v. Smith, 738 F.2d 317 (8th Cir.1984); see also Annot., 28 A.L.R.Fed. 279 (1976).

The Eleventh Amendment

Where a § 1983 action alleging a constitutional claim is brought directly against a state, the Eleventh Amendment bars a federal court from granting any relief on that claim. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 118-20, 104 S.Ct. 900, 918-19, 79 L.Ed.2d 67, 91 (1984), citing Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). Plaintiff concedes defendants are correct in contending the Eleventh Amendment bars his claims against the State of Kansas as a governmental entity. Accordingly, the state is dismissed from this case.

Defendants McManus, Maschner and Taylor, the Secretary of Corrections and institutional directors respectively, also claim the Eleventh Amendment prohibits any liability from being imposed on them in their official capacities as agents of the State of Kansas. Although earlier cases permitted § 1983 actions seeking damages for violations of one’s Eighth Amendment rights to be brought against state officials in their official capacities, see McDaniel v. Rhodes, 512 F.Supp. 117 (S.D.Ohio 1981), the law is now clear: § 1983 suits against state employees in their official capacities are barred by the Eleventh Amendment. Pennhurst State School & Hospital, supra; Quern v. Jordan, 440 U.S. 332, 343-45, 99 S.Ct. 1139, 1146-47, 59 L.Ed.2d 358 (1979); Maestas v. Bd. of Educ. of Mora Indep. Sch. Dist., 749 F.2d 591 (10th Cir. 1984); Barger v. State of Kansas, No. 620 F.Supp. 1432, 1436 (D.Kan.1985). As a result, § 1983 claims for violation of Eighth Amendment rights, and pendent state law claims, may not be brought against a state governor, corrections commissioner, and warden in their official capacities. DeGidio v. Perpich, 612 F.Supp. 1383, 1388-89 (D.Minn.1985); cf Hilliard v. Board of Pardons and Paroles, 759 F.2d 1190 (5th Cir.1985) (members of state parole board held immune). Defendants McManus, Maschner and Taylor are entitled to dismissal of plaintiff's § 1983 claims and pendent state law claims against them in their official capacities.

Respondeat Superior

The Secretary of Corrections and the institutional directors next argue they are entitled to summary judgment on plaintiff’s claims because they did not personally participate in the medical decisions and treatment given Medcalf, and because the doctrine of respondeat superior cannot be used to hold them liable for the acts or omissions of their subordinates. In the course of the Court’s preparation for its decision explaining alternate reasons these defendants could be held answerable to plaintiff’s claims, it was startled to find the magistrate’s order of April 1,1982, dismissing these defendants from the suit in their individual capacities. The Court was even more astonished to find that order was based on a joint motion for dismissal filed by both defendants’ and plaintiff’s lawyers! Dismissal of these defendants in their individual capacities is incomprehensible under present law governing the facts of this case. The Court is at an utter loss to understand the reasons for counsels’ motion. Under the circumstances, we have no hesitation in explaining the law; indeed, our obligation as a court of justice fairly demands we do so.

Suits against state officers in their individual capacities are not barred by the Eleventh Amendment. Barger v. State of Kansas, 620 F.Supp. 1432, 1437 (D.Kan. 1985), citing Beck v. Kansas University Psychiatry Foundation, 580 F.Supp. 527, 538 (D.Kan.1984), and Wrenn v. State of Kansas, 561 F.Supp. 1216, 1220 (D.Kan. 1983). Such suits proceed on the theory that when an officer acts unconstitutionally, “he is ‘stripped of his official or representative character and is subjected to the consequences of his official conduct.’ ” Barger, id., quoting Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 453-54, 52 L.Ed. 714 (1908). In Barger, Chief Judge O’Connor held that K.S.A. 75-6116, providing for payment by the state of any judgment for a civil rights violation against a state official in his individual capacity, does not present an Eleventh Amendment bar to maintenance of such suits. Id., at 1437-38.

Unquestionably, the doctrine of respondeat superior does not operate in a suit brought under § 1983. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Kite v. Kelly, 546 F.2d 334 (10th Cir.1978). However, supervisory officials sued in their individual capacities are answerable in a § 1983 action where there is a causal connection between their own actions and the claimed civil rights violation. Wilson v. Attaway, 757 F.2d 1227 (11th Cir.1985).

In Kendel v. Orr, 628 F.Supp. 326 (D.Kan.1985), Judge Theis explained the law governing a supervisor’s personal liability in a § 1983 action. Plaintiff Kendel sued under 42 U.S.C. §§ 1981, 1983, 1985 and 2000e, alleging abusive racial language, harassment, denial of promotion and a number of other improprieties by her employer, the Kansas Department of Social and Rehabilitation Services (SRS). Defendant Robert C. Harder, Secretary of SRS, moved for summary judgment on many of the same grounds put forth by the present supervisory defendants: respondeat superior does not apply; he had no direct participation in any of the alleged constitutional violations; and he was entitled to qualified immunity. Kendel was not pursuing liability on the basis of respondeat superior, but argued Harder directly participated in the discriminatory actions of his subordinates by failing to take remedial action. Judge Theis concluded plaintiff could recover on that theory.

Two types of inaction have been recognized by the courts as cognizable under section 1983. The touchstone of the Monell decision was that a municipality was not liable “unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Monell, 436 U.S. at 691 [98 S.Ct. at 2036], In Rizzo v. Goode, 423 U.S. 362, 371 [96 S.Ct. 598, 604, 46 L.Ed.2d 561] (1976), the Supreme Court held that a police commissioner and others were not responsible for the unconstitutional acts of police officers because the facts failed to demonstrate an “affirmative link” between the officers’ misconduct and any official authorization or approval of the misconduct.
The Tenth Circuit has interpreted the “affirmative link” requirement of Rizzo to mean that “before a superior may be held for acts of an inferior, the superior, expressly or otherwise, must have participated or acquiesced in the constitutional deprivation of which complaint is made.” Kite, 546 F.2d at 337. In McClelland v. Facteau, 610 F.2d 693, 697 (10th Cir. 1979), the Tenth Circuit extended the acquiescence theory and held that “when the defendant was in a position of responsibility, knew or should have known of the misconduct, and yet failed to act to prevent future harm,” liability under section 1983 would accrue. Thus, for supervisory inaction to form the basis of section 1983 liability, the plaintiff must establish either (1) an official policy or custom which results in constitutional violations, or (2) conduct by officials exhibiting acquiescence in unconstitutional actions.
Kendel does not assert a custom or policy resulting in constitutional violations. Kendel complains only that Harder was in a position that he knew “or should have known of the misconduct, and yet failed to act to prevent future harm.” McClelland, 610 F.2d at 697. The McClelland decision, however, turned on a duty analysis: “the section 1983 language ‘subjects, or causes to be subjected’ is broader than direct personal involvement; it includes failure to perform a duty if that failure causes deprivation of protected rights.” Id. at 696. The difficulty with the present summary judgment motion is that same problem that existed in McClelland: “The perimeters of [the] duty are uncertain and must be determined at trial.” Id. at 697.

Kendel, at 328-29. Judge Theis denied defendant’s motion for summary judgment, concluding there remained a number of “particularly factual” inquiries for trial: the establishment and scope of Harder’s duty; whether Harder discharged that duty by establishing an agency grievance committee; the nature of Harder’s duty to supervise the grievance procedure; and whether Harder discharged his duties by referring plaintiff to the committee or whether Harder maintained a duty of oversight faced with allegations of improprieties with the grievance mechanism. Id. at 328-29.

The Kendel analysis mirrors that prescribed by the Tenth Circuit Court of Appeals in a case very similar to this. In .an inmate’s § 1983 action against the prison warden and the director of the department of corrections claiming denial of needed medical care, the Court held that regarding the supervisory officials’ liability the proper approach is to analytically isolate, from what was there found to be the “malpractice” elements of the case, the basic issues of defendants’ duties to plaintiff and breach thereof. McCracken v. Jones, 562 F.2d 22 (10th Cir.1977). In that case, after isolating the issues of duty and discharge, and reviewing plaintiff’s evidence thereon, the Court upheld defendants’ judgment notwithstanding the verdict concluding there was no evidence defendants had not fully discharged their duty to provide plaintiff adequate medical care. McCracken, 562 F.2d at 25.

Regarding the precise nature of those duties, the Tenth Circuit has most recently held that the “deliberate indifference” to serious medical needs sufficient to impose liability under § 1983 may be shown either by the officials denying the prisoner access to medical personnel capable of evaluating the need for treatment, or by a pattern or practice of gross deficiencies in staffing, facilities, equipment or procedures. Garcia v. Salt Lake Co., 768 F.2d 303 (10th Cir.1985) (emphasis added). Simply stated, although the doctrine of respondeat superior does not apply in a § 1983 action, a plaintiff may maintain a theory of direct liability against prison officials and supervisors in their individual capacities, based either on their personal participation in the injury or on their failure to properly hire, train, supervise, direct or control the actions of a subordinate who causes injury to an inmate. Pearl v. Dobbs, 649 F.2d 608 (8th Cir.1981); Jones v. Denton, 527 F.Supp. 106 (S.D.Ohio 1981).

In this case, plaintiff has evidence raising substantial doubts about the education, prior experience, qualifications, and overall fitness and competence of the attending physician, Dr. Serapio, to serve as a prison doctor. That evidence includes the facts he was educated outside this country and that his experience prior to being hired by the state was limited to some years in a tuberculosis clinic, also outside the country. One of plaintiff’s contentions in the pretrial order is that defendants McManus, Maschner and Taylor were negligent in considering, reviewing and monitoring the qualifications and practices of both physicians. This evidence and allegation calls into question whether defendants adequately discharged their duties to carefully hire, train and supervise adequate medical personnel capable of evaluating and meeting the reasonable medical needs of the inmate population.

Michael Medcalf had a basic right to receive needed medical care while confined. Necessarily, defendant Secretary of Corrections and institutional officials labored under an affirmative duty to make available to the inmates that level of medical care reasonably designed to meet both the routine and emergency health care needs of the inmate population. Battle v. Anderson, 376 F.Supp. 402, 424 (E.D.Okla.1974). The reckless or callous indifference needed to show deliberate indifference to an inmate’s medical needs may be established by showing there was no reasonable access to medical personnel properly qualified to diagnose and treat illnesses and disturbances. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir. 1979); Harding v. Kuhlmann, 588 F.Supp. 1315 (S.D.N.Y.1984); cf. Ramos v. Lamm, 485 F.Supp. 122,142-43 (D.Colo.1979), aff’d in part, rev’d and remanded on other grounds, 639 F.2d 559 (10th Cir.1980) (where one of the significant reasons for finding unconstitutional the totality of conditions at the Colorado State Penitentiary was the inadequately trained medical staff).

Particularly noteworthy in this regard is the First Circuit’s recent opinion in Miranda v. Munoz, 770 F.2d 255 (1st Cir. 1985). In that case an epileptic prisoner was denied adequate medical care while incarcerated. He became critically ill as a result and died three days after being transferred to a local hospital. His mother and brother brought a § 1983 action against the jail physician (a specialist in obstetrics and gynecology), warden, assistant warden, and supervisory officials of the Puerto Rican corrections system. The supervisory officials were granted a directed verdict at the close of evidence, and the jury returned a verdict for plaintiffs against the remaining defendants. On appeal, the First Circuit affirmed the jury verdict, but vacated the directed verdict in favor of the supervisory officials and remanded the case for a new trial on their liability. Munoz, 770 F.2d at 257.

Concerning plaintiff’s verdict against the physician, warden, and assistant warden, the First Circuit acknowledged that in cases where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to raise claims sounding in state tort law to a constitutional level. Nevertheless, the Court recognized, in certain cases the treatment received may be so clearly inadequate as to amount to a refusal to provide essential care. The evidence in that case showed each of those three defendants had some knowledge of the inmate’s epileptic condition and knew he continued to exhibit symptoms, but failed to do anything to determine the precise causes of his attacks or prevent future attacks. The Court concluded the jury could properly determine it to be a case of medical attention so inadequate as to amount to deliberate indifference on the part of those defendants, on the ground they ignored a clear warning the medical treatment they provided the inmate was inadequate, allowing him to deteriorate beyond recovery. Munoz, 770 F.2d at 259.

The First Circuit’s discussion of the supervisory officials’ liability merits detail:

Because there is no respondeat superior liability under § 1983, ... supervisory officials may be found liable only on the basis of their own acts or omissions. Supervisors need not have actual knowledge of the specific incident at issue, however, if they had the power and duty to alleviate the conditions which led to the violation____ We agree with the description of supervisory liability given by the Fourth Circuit in Slakan v. Porter, 737 F.2d 368, 373 (4th Cir.1984):
“The outer limits of liability in any given case are determined ultimately by pinpointing the persons in the decisionmaking chain whose deliberate indifference permitted the constitutional abuses to continue unchecked.”
!¡C S¡S í(t % >}í

In this case, the defendants whose liability we are considering are responsible for administration of the entire prison system, not just of a single institution. In addition, Puerto Rico law provides that the Correctional ■ Administration shall have the duty and power

“[t]o establish programs to offer adequate medical care and hospital services intended to prevent diseases and the diagnosis, treatment and rehabilitation of the patient.
The services may be furnished, whenever the circumstances so require, outside Administration facilities under the necessary security measures.
Detailed records of medical examinations and the health condition of the patient shall be kept (emphasis added)”. P.R.Laws Ann. Tit. 4, § 1112(f) (1978).

We believe a jury could have found that each of the four defendants was charged with carrying out this mandate, and that each thus had the duty to ameliorate the medical conditions which led to Rosario Cristobal’s death____ Certainly, Irba M. Cruz de Batista, the director of the Correctional Administration, had such a duty____

Moreover, we can not say as a matter of law that the circumstances surrounding Rosario Cristobal’s death represented a “sporadic incident[ ]” over which these officials “ ‘might properly claim to have no knowledge or control’ ”____ The testimony at trial indicated that the conditions surrounding Rosario Cristobal’s medical treatment were as much a matter of central administration policy as of local reaction to his particular case____ [Tjhere was sufficient evidence to suggest that Rosario Cristobal’s treatment was not an unexpected aberration from the normally adequate medical care provided in Puerto Rico’s prisons, but an extreme example of the routinely poor conditions there. As such, these four defendants could be held liable for his death.

Although we have little trouble in determining that a reasonable jury could have found power and duty on the part of these defendants, we believe it is a much closer case on the issue of their deliberate indifference to Rosario Cristobal’s medical needs. Rodriguez Fraticelli, Cruz de Batista and Diaz Delgado all testified that they were attempting to improve medical conditions in Puerto Rico’s prisons, and Castro Penaloza’s testimony suggested that his failure to act may have been based on the good faith belief that others were taking care of the problems. Yet, we can not say as a matter of law that no jury would have imposed liability on these officials, whose credibility is beyond our scrutiny. Each had been in office for some time before Rosario Cristobal’s detention at Arecibo Jail, and yet conditions arguably were still inadequate. A jury could well decide that each bore some responsibility for contracting with a specialist in obstetrics and gynecology to provide only eight hours of medical care per week for 235 prisoners, and that this was sufficient in itself to establish the deliberate indifference of each of them to the special needs of an epileptic patient like Rosario Cristobal. We therefore conclude that the directed verdicts must be reversed, and the case remanded for a new trial on the issue of these four defendants’ liability.

Munoz, 770 F.2d at 260-62- (citations omitted; emphasis both added and in original). Lastly, the First Circuit noted that was not a case in which it would be inconsistent to find liability on the part of both the local prison officials and the central prison administration: “A jury could have found that it was the combination of conditions authorized by the Correctional Department and specific actions taken by the Arecibo Jail officials which caused plaintiff’s injury.” Id. at 261, n. 4.

In a § 1983 action, the question whether supervisory officials’ failure to properly hire, train and supervise subordinates amounts to gross negligence is a question of fact to be decided by the jury. Rock v. McCoy, 763 F.2d 394 (10th Cir. 1985). Another question of fact for the jury is whether there is a causal connection, the Rizzo v. Goode “affirmative link”, between the officials’ acts and omissions and plaintiff's injuries. Rock, 763 F.2d at 398. Regarding the present defendants’ contentions this case is at most an isolated instance of misconduct for which they cannot be held liable, Rock held that although not the general rule, there may exist certain circumstances whereby an isolated incident of misconduct can render supervisory officials liable under § 1983. Id. In that case there was direct evidence the police officers had undergone no training; in this case there is direct evidence calling into question the qualifications and competence of Dr. Serapio and the supervision he was given. On the question of an “isolated incident,” we also note the following:

Defendants’ argument that the circumstances in question, because they “at best” establish “a single isolated incident of mistreatment” ... cannot constitute actionable cruel and unusual punishment lacks any basis in law or logic. Nor surprisingly, no case cited by defendants supports the unlikely proposition that the protections of the Eighth Amendment do not apply where there is no pattern or practice of abusive conduct. Indeed, leading cases in this area frequently involve a challenged past, discreet act of alleged cruelty. See, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). While a pattern may be required to support class-based suits seeking broad, structural relief, no such systematic deficiencies or acts need be adduced to support a single claim of mistreatment____ And the distinct question of whether superior officers should be liable for single acts of mistreatment ... must be answered with reference to the general principles of supervisory liability governing § 1983 cases ... not the substantive standards imposed by the Eighth Amendment.

Ferola v. Moran, 622 F.Supp. 814, 820 n. 1 (D.R.I.1985) (citations omitted).

Finally, the state defendants argue that regarding the decision to hire Dr. Serapio, they were entitled to rely on a limited license to practice issued to him by the Kansas State Board of Healing Arts, and that regarding his supervision they were entitled to rely on the acts and judgment of Dr. Sintos. Kendel v. Orr, supra, makes it clear that where officials in these positions, laboring under a personal duty to preserve and protect the constitutional rights of a class of persons, choose to rely on the opinions and acts of others it presents questions of fact whether that reliance was reasonable and whether, in so doing, the officials satisfactorily discharged their own duties.

In conclusion, plaintiff would not be relying on the doctrine of respondeat superior in seeking damages from these state defendants in their individual capacities. Each of these men labored under a duty to ensure Michael Medcalf received adequate medical attention to his needs: to provide competent medical personnel, procedures, and treatment; to keep adequate records; to continually supervise the institutions and personnel in these regards; and much more. See K.S.A. 75-5210(c), -5221, -5249, and -5252(c); K.A.R. 44-5-112 (1980 Supp.). The question whether defendants satisfactorily discharged these duties, or whether they failed to the degree amounting to deliberate indifference to Medcalf s medical needs, would clearly have been a question for the jury.

That said, the Court recognizes, albeit with no small sense of frustration, the law of the case is these defendants have already been dismissed in their individual capacities. There is no challenge to the magistrate’s order before the Court, nor is it conceivable such a challenge could be maintained given that plaintiff’s counsel joined in the request for that dismissal. These defendants are not liable in their official capacities, and under the circumstances the Court is left with no choice but to conclude they are no longer a part of this suit in their individual capacities. The claims against them are dismissed in their entirety.

The Physician Defendants

Doctors Sintos and Serapio argue they are entitled to summary judgment on plaintiff’s § 1983 claims for the reason plaintiff cannot show any deprivation of Medcalf’s constitutional right to be free from cruel and unusual punishment under the Supreme Court’s opinion in Estelle v. Gamble, supra, requiring a showing of deliberate indifference to an inmate’s medical needs. More specifically, these defendants insist plaintiff cannot show deliberate indifference in part because Medcalf received medical treatment on a number of occasions; his disagreement over the treatment afforded does not establish cruel and unusual punishment; and that, at best, plaintiff has shown mere negligence, which does not amount- to cruel and unusual punishment under Estelle v. Gamble.

In considering this motion, we must review the pleadings in a light most favorable to plaintiff, the nonmoving party. The burden is on defendants to show there remain no questions of material fact and that they are therefore entitled to judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). That burden is somewhat heightened where, as here, constitutional and other questions of significant public import may be involved, as these especially should not be decided on an inadequate factual basis. Guglielmoni v. Alexander, 583 F.Supp. 821 (D.Conn.1984); 10A Wright & Miller, Federal Practice and Procedure, §§ 2732, 2732.2. In an action such as the present one, genuine issues of material fact relating to whether the inmate received competent and adequate care will preclude summary judgment for the prison doctors. Murrell v. Bennett, 615 F.2d 306 (5th Cir.1980); Jones v. Denton, 527 F.Supp. 106 (S.D.Ohio 1981).

The Eighth Amendment prohibits not merely physically barbarous punishment but any penal measures that transgress today’s broad and idealistic concepts of dignity, civilized standards, humanity and decency. Under Estelle v. Gamble, the infliction of unnecessary suffering is inconsistent with those standards and is therefore proscribed by the Eighth Amendment. Capps v. Atiyeh, 495 F.Supp. 802 (D.Ore.1980). The term “cruel and unusual punishment” connotes something inhuman, barbarous, violative of the basic concepts of decency and so foul as to shock the court’s sensibilities. Clappier v. Flynn, 605 F.2d 519 (10th Cir.1979). Because a prisoner cannot secure for himself needed medical treatment from an institution or practitioner of his choice, prison authorities have a constitutional duty to provide that needed medical treatment. From that premise flows the principle that prison authorities’ or prison doctors’ reckless disregard, callous inattention, or gross negligence which results in a denial of needed medical treatment is the legal equivalent of an intentional denial of that treatment, violating the Eighth Amendment. Ramsey v. Ciccone, 310 F.Supp. 600, 605 (W.D.Mo. 1970).

Defendants Sintos and Serapio contend plaintiff has established only a mere inadvertent failure to provide him needed medical care, simple negligence which is not actionable in a § 1983 claim. Again, the Estelle deliberate indifference standard does not encompass negligent care or mere differences in opinion between the inmate and the medical staff. Lee v. McManus, 543 F.Supp. 386 (D.Kan.1982); Robbins v. South, 595 F.Supp. 785 (D.Mont.1984). But those two principles do not provide these defendants the solace they seek for the following reasons.

First, there is a patent conflict between defendants’ characterization of these events as “simple negligence”, and the conclusion rendered by plaintiff’s expert witness, who labeled their failure to properly diagnose Medcalf’s symptoms as “gross negligence”. Thus, there is a remaining question of fact whether defendants’ negligence was “simple”, i.e., an inadvertent and unintentional act resulting from defendants’ inattention, or whether the negligence was “gross”, i.e., an extreme and unjustifiable failure to render the necessary care. The facts are not sufficiently developed at this point for us to decide this issue as a matter of law. The Tenth Circuit has recognized that an allegation of gross negligence in a similar context raises a question of fact for presentation to the jury. Rock v. McCoy, 763 F.2d 394, 397 (10th Cir.1985).

Secondly, defendants’ reliance on the principle that a mere difference of opinion with the medical staff’s decision is not actionable is misplaced in this case. The “disagreement” at issue is not between inmate Medcalf and the defendants, but between plaintiff’s expert witness, a licensed physician in his own right, and the defendants. A plaintiff’s case for denial of medical treatment is not frivolous where he has medical evidence supporting his difference of opinion. Lee v. McManus, 543 F.Supp. at 391.

Defendants also rely on the fact Medcalf did receive some medical care pri- or to his death, although perhaps not related to his actual illness. Rather than establishing their nonliability, this merely relates back to the factual questions concerning the aggravated nature of their negligence. For purposes of determining whether an Eighth Amendment violation has occurred,

... [Estelle v.~\ Gamble does not necessarily excuse one episode of gross misconduct merely because the overall pattern reflects general attentiveness. The issue is whether the questioned conduct is cruel and unusual because it involves deliberate indifference, or something more than a medical judgment call, an accident, or an inadvertent failure.

Murrell v. Bennett, 615 F.2d 306, 310 n. 4 (5th Cir.1980). Thus, contrary to defendants’ contentions, the fact Medcalf received some medical care would not preclude a jury finding of liability if it concludes defendants were grossly negligent in failing to test for, diagnose, and treat the brain tumor. That fact certainly cannot now be relied on as grounds for summary judgment in their favor.

Also bearing on this issue is plaintiff’s evidence regarding the background, education, fitness and competence of Dr. Serapio to discharge his duties to provide adequate medical care to the inmates. Further, plaintiff can show that Dr. Serapio was ultimately discharged from that position as a result of his apparent failure to provide adequate medical care to at least one other inmate. In this light, consider the Second Circuit’s remarks:

... while a single instance of medical care denied or delayed, viewed in isolation, may appear to be the product of mere negligence, repeated examples of such treatment bespeak a deliberate indifference by prison authorities to the agony engendered by haphazard and ill-conceived procedures. Indeed it is well-settled in this circuit that “a series of incidents closely related in time ... may disclose a pattern of conduct amounting to deliberate indifference to the medical needs of prisoners.”

Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977), quoting Bishop v. Stoneman, 508 F.2d 1224 (2d Cir.1974).

In conclusion, there remain a number of genuine issues of material fact regarding the adequacy of the medical care received by Medcalf. The physicians have not established their right to summary judgment as a matter of law.

Qualified Immunity

The physicians next contend they are protected from liability under qualified good faith immunity. Under Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), 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.” Whether the law in question was clearly established when the conduct at issue occurred is a legal issue to be resolved by the Court. Miller v. City of Mission, Kansas, 705 F.2d 368, 375 n. 6 (10th Cir.1983); Kendel v. Orr, 628 F.Supp. 326, 329 (D.Kan.1985).

Unquestionably, Medcalf’s right to adequate medical care during his incarceration was well established long before the time period at issue in this suit. In identical circumstances, the First Circuit has concluded defendants were not entitled to invoke the Harlow doctrine of qualified immunity. Miranda v. Munoz, 770 F.2d 255, 269 n. 2 (1st Cir.1985). The Court reserves for decision at the close of evidence the question whether these defendants should similarly be denied this defense.

Assuming the claims of good faith immunity are properly lodged in this case, they are nevertheless premature at this point in the proceedings and remain to be proven at trial. Summary judgment on the issue of good faith immunity is inappropriate because invocation of the defense depends upon the resolution of a number of factual issues. Kendel v. Orr, id., at 329. On very similar facts in Guglielmoni v. Alexander, 583 F.Supp. 821 (D.Conn.1984), faced with defendants’ motion for summary judgment, the Court held it could not declare defendants were entitled to good faith immunity as a matter of law where they had not shown their conduct could not be found deficient under prevailing Eighth Amendment standards. The focus of the good faith immunity inquiry necessarily centers on individual motives and reactions; thus, evidence tending to prove deliberate or callous indifference is the same evidence used to defeat the good faith defense. Webster v. Foltz, 582 F.Supp. 28, 33 (W.D.Mich.1983).

IT IS ACCORDINGLY ORDERED this 27th day of January, 1986, plaintiff’s § 1983 claims and pendent state law claims against the State of Kansas, Patrick Mc-Manus, Herbert Maschner, and Leo Taylor are dismissed. Defendants Sintos’ and Serapio’s motions for summary judgment and partial summary judgment are denied in their entirety.


author: YOUNG, District Judge.

text:
    Antonio MILONAS, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 85-0477-Y.
    United States District Court, D. Massachusetts.
    Jan. 27, 1986.

      Antonio Milonas, pro se.
    Robert F. Sylvia, Fine & Ambrogne, Boston, Mass., for plaintiff.
    Marianne Bowler, Asst. U.S. Atty., for defendant.
   MEMORANDUM AND ORDER

YOUNG, District Judge.

The plaintiff Antonio Milonas (“Milonas”) brought this action to obtain judicial review of a final decision of the Secretary of Health and Human Services (the “Secretary”) denying his application for Social Security disability benefits. The Secretary found that, despite some pain and certain recognized physical limitations, Milonas retained the residual functional capacity to perform sedentary work provided that he not be required to bend, crawl, stoop, climb, lift or carry objects weighing over five pounds, and that he be allowed to sit or stand at his discretion. Milonas argues that he is in fact disabled by certain psychological and emotional factors not considered by the Administrative Law Judge. Milonas further contends that the Administrative Law Judge exceeded his authority by weighing his own observations more heavily than those of three trained psychological experts when, as trier of fact, the Administrative Law Judge observed that Milonas showed “no outward signs of any significant psychological or psychiatric impairment.” (Tr. 16)

I.

Milonas is a 39 year old man who came to the United States from Greece in 1971. Although he speaks some English, Milonas has a limited sixth grade education and asserts that he is illiterate in English. From 1971 to 1973, Milonas worked for Teledyne Rodney Metals of New Bedford, Massachusetts as a laborer performing heavy unskilled work. Beginning in 1973, Milonas worked as a grinder in metal processing, a job considered heavy, skilled labor. During this period, Milonas led an active life and was sufficiently physically fit to lift large rolls of metal at work which weighed between 50 and 100 pounds each.

On August 4, 1979, Milonas injured his back while lifting a heavy metal roll at work. Generally diagnosed as chronic lumbar sprain, Milonas’ injury has been treated, both initially and over the intervening years, by a variety of physicians. For the injury, Milonas received a Workmen’s Compensation settlement of $15,000 in December, 1983. Milonas has not returned to work.

Milonas applied for disability benefits on June 10, 1983, alleging an inability to work since August 4, 1979. The application was denied initially and upon reconsideration. The Administrative Law Judge considered the case de novo and, on May 30, 1984, found that Milonas was not under a disability. The Appeals Council approved the decision of the Administrative Law Judge on August 24, 1984, rendering it the final decision of the Secretary.

II.

A district court reviewing a decision of the Secretary must determine whether the decision is supported by substantial evidence and conforms to statutory requirements. Geoffroy v. Secretary ofHHS, 663 F.2d 315, 319 (1st Cir.1981). The relevant statute defines a disabled individual as one who is unable:

to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months----

42 U.S.C. § 423(d)(1)(A) (1982). Section 423(d)(2)(A) further provides that an individual:

shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.....

Id. § 423(d)(2)(A).

The Secretary has promulgated regulations that employ a series of tests to determine whether a claimant is disabled. 20 C.F.R. § 404.1520 (1985). See Goodermote v. Secretary of HHS, 690 F.2d 5, 6 (1st Cir.1982). In particular, the Social Security Administration asks five questions in the following order:

First, is the claimant currently employed? If so, the claimant is automatically considered not disabled.

Second, does the claimant have a severe impairment? A “severe impairment” means an impairment which “significantly limits his or her physical or mental capacity to perform basic work-related functions.” 20 C.F.R. § 404.1521 (1985). If the claimant does not have a severe impairment, the claimant is automatically considered not disabled.

Third, does the claimant have an impairment equivalent to one specifically listed in the regulations’ Appendix 1? If so, the claimant is automatically considered disabled.

These first three tests are threshold “medical” tests. If the claimant is found to have a severe impairment (test 2) but that impairment is not equivalent to one listed in Appendix 1 (test 3), the agency goes on to the fourth and fifth questions, which apply “vocational” tests:

Fourth, does the claimant’s impairment prevent him from performing work of the sort he has done in the past? If not, he is not disabled. If so, the agency asks the fifth question.

Fifth, does the claimant’s impairment prevent him from performing other work of the sort found in the economy? If so, he is disabled; if not, he is not disabled. Goodermote v. Secretary of HHS, 690 F.2d at 6-7.

In applying these last two “vocational” tests, the claimant has the burden of proving that he is disabled under the fourth test; that is, he must prove that his disability is serious enough to prevent him from working at his former jobs. However, the Secretary bears the burden of showing that the claimant has not satisfied the fifth test; that is, the Secretary must show the existence of other jobs in the national economy that the claimant can perform. Id. at 7.

The Secretary has promulgated a set of medical-vocational guidelines known as “the Grid” to simplify the application of the fifth test. 20 C.F.R. Part 404, Subpart P, Appendix 2 (1985). The Grid has been upheld as a legitimate exercise of the general rulemaking authority granted to the Secretary. Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983); Torres v. Secretary ofHHS, 677 F.2d 167, 169 (1st Cir.1982). The Grid is basically a matrix, including different combinations of the four essential factors set out in the statute (physical ability, age, education, and work experience) and stating, as to each combination, whether a claimant with those characteristics is “disabled” or “not disabled.” It consists of three separate tables, one for those who retain the residual exertional capacity to perform “sedentary” work, one for those with the residual capacity to perform “light” work, and one for those with the residual capacity to perform “medium” work. The Administrative Law Judge simply selects the proper table and row based on the characteristics he finds the claimant to possess and reads the conclusion — “disabled” or “not disabled”— from the last column on the table. Sherwin v. Secretary of HHS, 685 F.2d 1, 2 (1st Cir.1982).

When application of the Grid directs a finding that an individual claimant is “not disabled,” the Administrative Law Judge is not required to name specific jobs that the claimant could perform. The Grid is designed to “make application of the statutory definition of disability more uniform and more fair, by eliminating the need to rely upon an individual vocational expert’s knowledge in many relatively uncomplicated situations.” Torres v. Secretary of HHS, 677 F.2d at 169. If the facts of a particular case do not fit squarely within one of the rules included in the Grid because they reveal a borderline case or a case lying between the two rules, those rules still “provide guidance;” they are to be given “consideration,” and they “provide an overall structure for evaluation.” 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(d). If instead the facts do not fit squarely within a rule because the claimant has a combination of impairments — particularly if the claimant has a nonexertional impairment — the rules require still more individualized consideration. Id. at § 200.-00(e); Sherwin v. Secretary of HHS, 685 F.2d at 3.

Whether or not the Grid directs a conclusion in a particular case, the Administrative Law Judge nevertheless must analyze each claimant’s physical ability, age, education, and work experience, and must also determine whether the claimant suffers from nonexertional impairments. Each of these findings is subject to judicial review. Torres v. Secretary of HHS, 677 F.2d at 170.

Judicial review of Social Security disability determinations is limited, and the Court must affirm the Secretary’s decision if it is supported by substantial evidence. The resolution of conflicts in the evidence and the determination of the ultimate question of disability is for the Secretary. Therefore, this Court must uphold the Secretary’s findings in this case if a reasonable mind, reviewing the entire record as a whole, could accept it as adequate to support the Secretary’s conclusions. Rodriguez v. Secretary of HHS, 647 F.2d 218, 222 (1st Cir.1981).

III.

The Administrative Law Judge found that Milonas has moderate back discomfort secondary to chronic lumbar strain, but that he does not have an impairment or combination of impairments listed in or medically equal to any described in Appendix 1. The Administrative Law Judge further found that Milonas does not suffer from any severe psychiatric or psychological impairment, has complaints of headaches and dizziness unsupported by objective medical evidence, and alleges a severity of back pain unsupported by the record and by credible subjective testimony.

Moving on to the vocational tests, the Administrative Law Judge found that Milonas was unable to perform his past relevant work, but retained the functional capacity to engage in limited sedentary work. Milonas’ limitations include all manner of bending, lifting restrictions of five pounds or less, and accommodation for discretionary sitting or standing as needed. The Administrative Law Judge next considered the exertional capacity required for sedentary work and Milonas’ age, education and work experience. In this context, the Administrative Law Judge credited testimony of a vocational expert that Milonas’ restrictions could be accommodated within several possible jobs, all of which are available in significant numbers in the regional and national economy. The suggested jobs include: casting inspector, polisher, cable maker, trimmer, and cutting machine attendant.

IV.

Milonas argues for reversal or remand because he asserts that the Administrative Law Judge (1) failed to consider the psychological and emotional elements in his pain, (2) exceeded his authority, and (3) failed to consider Milonas’ subjective accounts of pain.

(1) Alleged Failure to Consider the Psychological and Emotional Factors of Pain

Milonas contends that the Administrative Law Judge failed to consider the psychological and emotional bases of his pain. The Court observes that, although the Administrative Law Judge gave these factors short shrift, he did address them:

Dr. Greene offered a diagnosis of a ruptured L4-5 disc, by history, with emotional overlay. (Tr. 14)
Dr. Shapiro also suggested the possibility of a psychiatric or psychological component to the claimant’s complaints. (Tr. 14)
Nor does the record support a finding of any severe psychiatric impairment which could reasonably be expected to interfere with the claimant’s ability to meet the mental demands of work. (Tr. 16) [rejecting Dr. Morris’ assessment as “not entitled to substantial weight.” (Tr. 16) l

Contrary to Milonas’ allegations, his complaints of psychologically and emotionally derived pain were recognized, considered, and rejected. The record before the Court demonstrates that this rejection is supported by “more than a scintilla” of evidence and is, in fact, supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938).

Milonas further argues that Dr. Ciminello diagnosed him as “disabled.” (Tr. 127, 133-135) It is well-established, however, that the conclusion of “disability” by a treating physician is not binding on the Secretary. Tremblay v. Secretary of Health and Human Services, 676 F.2d 11, 13 (1st Cir.1982). Determination of the ultimate question of disability is for the Secretary, not for the doctors or the courts. Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222-223 (1st Cir.1981).

The Court determines that there is substantial evidence that the Administrative Lav/ Judge considered possible psychological and emotional causes of Milonas’ complaints and rejected them. While the Administrative Law Judge ought consider such factors, as he properly did, he need not find them persuasive, as he did not.

(2) Actions Alleged to be in Excess of the Administrative Law Judge’s Authority

Milonas next argues that, when the Administrative Law Judge assessed his psychological and emotional complaints, he acted improperly in considering and finding that:

It should be noted that the Administrative Law Judge had an opportunity to observe the claimant at the hearing and that there were no outward signs of any significant psychological or psychiatric impairment which could reasonably be expected to interfere with the claimant’s capacity to meet the mental demands of work. (Tr. 16)

Citing King v. Secretary of Health, Education and Welfare, 481 F.Supp. 947, 948-949 (E.D.Pa.1979), Milonas argues that the Administrative Law Judge cannot take judicial notice of the symptomatology, psychology, and physiology associated with pain which are not common knowledge.

If the Administrative Law Judge rejected Milonas’ claims of psychological impairment solely, or even primarily, on his observations as recounted above, it would constitute reversible error. While credibility and weight are for the Administrative Law Judge, expertise is for the experts. Particularly in cases of psychological impairment, the Administrative Law Judge seriously errs if he seeks outward signs of mental turmoil for, even among the very ill, none may be visible.

Nonetheless, the Court concludes that, however errant this observation by the Administrative Law Judge, there is substantial evidence in the record to support the conclusion that there is no “significant psychological or psychiatric impairment which could reasonably be expected to interfere with Milonas’ ability to meet the mental demands of work.” (Tr. 16) The reports of Drs. Greene and Shapiro and the accompanying clinical tests constitute the evidence in the record sufficient to support this conclusion. Although error, the Administrative Law Judge’s comment does not erode the substantial support for his result and, therefore, must be dismissed as harmless. The Court rules that the Administrative Law Judge did exceed his authority, but such error did not constitute the sole or primary basis for his findings.

(3) Subjective Pain

In evaluating pain symptomatology for evidence of a disability, Milonas bears the burden of showing a “medically determinable” ailment which might cause the pain. Winn v. Heckler, 762 F.2d 180, 181 (1st Cir.1985). Milonas argues that pain which is subjective in nature and which is unaccompanied by any objective observable symptoms may yet be so real and intense as to be disabling and, as such, will support a claim for disability benefits. This misstates the law. Neither party makes much of this requirement, however, though the Secretary properly calls the Court’s attention to the new standard pursuant to the Social Security Disability Benefits Reform Act of 1984. For this reason, the Court assumes without deciding that the Administrative Law Judge acknowledged the existence of a “medically determinable ailment” when he found that Milonas had a “chronic lumbar strain.” (Tr. 17, ¶ 3) This satisfies the Secretary’s regulations which state that “we will never find that you are disabled based on your symptoms, including pain, unless medical signs or findings show that there is a medical condition that could reasonably be expected to produce these symptoms.” 20 C.F.R. Section 404.1529.

Assuming both the identification of an objective source for the pain and the fact of at least some pain, the issue remains: did the Administrative Law Judge consider Milonas’ subjective accounts of pain when he found the extent of that pain not disabling? The Administrative Law Judge finds: “The claimant’s description at the hearing regarding the severity of his back pain and the degree of restriction imposed by his condition is not supported by the objective medical evidence, to the degree alleged, and his testimony was not entirely credible.” (Tr. 17) The hearing transcript amply demonstrates that the Administrative Law Judge sought and entertained Milonas’ “description” of the “severity of his back pain.” The Administrative Law Judge acts properly when he evaluates, as he did, these subjective assertions of disabling pain for credibility, motivation, and medical impairment. Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir. 1975).

The Administrative Law Judge clearly evaluated Milonas’ credibility: “his testimony was not entirely credible.” Insofar as he has the opportunity to observe demeanor and determine credibility, the observations of the Administrative Law Judge should be given great weight, particularly when assessing disabling pain. See Monroig v. Secretary of Health and Human Services, 538 F.Supp. 710, 711 (D.P.R. 1982). In fact, it is settled law that the judgement of the Administrative Law Judge is controlling on the issue of credibility. Id. at 711, citing Lizotte v. Secretary of Health and Human Services, 654 F.2d 127 (1st Cir.1981). Thus, the Administrative Law Judge does not dispute that Milonas has some pain, rather it is the “degree alleged” — the extent and scope of the pain — which was found not credible.

The Administrative Law Judge also evaluated Milonas’ subjective assertions of pain in view of objective medical evidence. This is proper, for the actual degree of a claimant’s pain is for the Secretary to evaluate in light of the supporting medical evidence. Gagnon v.. Secretary of Health and Human Services, 666 F.2d 662, 665 (1st Cir.1981). In fact, the Administrative Law Judge ought weigh Milonas’ subjective complaints in conjunction with objective medical determinations and make an independent judgment about his physical limitations and restrictions. See Thompson v. Califano, 556 F.2d 616, 617-618 (1st Cir.1977). In no event, however, is the Secretary at the mercy of every claimant’s subjective assertions of pain. Id. at 618; Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 1000 (1st Cir.1975).

The Administrative Law Judge specifically weighed the above factors:

In this regard, Dr. Coleman’s statement regarding the functional limitations imposed by the claimant’s condition (he would be unable to engage in any job activity requiring heavy lifting, repetitive bending or prolonged sitting or standing) is more persuasive than Dr. Ciminello’s assessment [that Milonas was disabled (Tr. 183) ] in light of the negative myelograms and CAT scan, the absence of any significant motor, sensory or reflex abnormalities upon physical examination. (Tr. 15)

(See Tr. Ill, 113, 120, 129, 152, 166, 177.)

When there is a conflict in the record, the Administrative Law Judge has the duty to weigh the evidence, resolve material conflicts in the testimony, and determine the case accordingly. Richardson v. Perales, 402 U.S. 389, 399-400, 91 S.Ct. 1420, 1426, 28 L.Ed.2d 842 (1971); Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir.1975); Gonzalez v. Richardson, 455 F.2d 953, 954 (1st Cir.1972). Moreover, it is entirely proper for the Administrative Law Judge to accord greater weight to findings which would result from more extensive objective clinical and laboratory tests as opposed to physician’s opinions which are not supported by such objective testing. See Torres v. Secretary of Health, Education and Welfare, 333 F.Supp. 676, 679 (D.P.R.1971). In summary, the Administrative Law Judge appropriately weighed the objective clinical evidence, resolved its conflicts, and measured his resulting judgment against Milonas’ subjective accounts of disabling pain.

The findings of the Secretary-are conclusive if supported by substantial evidence and this Court should not engage in the resolution of conflicting evidence which is solely within the province of the Secretary. Gonzalez v. Richardson, 455 F.2d at 954. Because the Administrative Law Judge acted properly when he weighed objective evidence against Milonas’ subjective complaints and because the record provides substantial support for the findings of the Administrative Law Judge, the Court affirms the Secretary’s conclusions regarding Milonas’ subjective pain.

The Administrative Law Judge’s conclusion that Milonas is not disabled is also supported by the application of the Medical-Vocational Guidelines (the Grid). Use of the Grid will satisfy the Secretary’s burden of proof. Heckler v. Campbell, 461 U.S. 458, 461-462, 103 S.Ct. 1952, 1954-1955, 76 L.Ed.2d 66 (1983); Torres v. Secretary of Health and Human Services, 677 F.2d 167, 169-170 (1st Cir.1982). The Secretary found that despite Milonas’ pain and restrictions on bending, climbing and lifting, he retains the residual functional capacity to engage in sedentary work provided that he can stand or sit at his discretion. (Tr. 17, 117) A vocational expert testified that significant numbers of jobs exist in the regional and national economy satisfying these criteria. These include casting inspector, polisher, cable maker, trimmer, and cutting machine attendant. (Tr. 18, 52-54) Milonas’ need to assume alternate sitting and standing positions is consistent with a finding of sedentary work. Thomas v. Secretary of Health and Human Services, 659 F.2d 8, 11 (1st Cir.1981).

Conclusion

The Court’s role on review is limited, and even more limited once it holds that there is substantial evidence in the record to support the conclusions of the Secretary as articulated by the Administrative Law Judge.

The Court holds that the Administrative Law Judge did consider the possibility that Milonas’ pain is caused in part by a psychological or emotional overlay and did consider evidence supportive of Milonas’ subjective accounts of pain. Although the Court rules that the Administrative Law Judge exceeded his authority in assessing Milonas for outward manifestations of his mental health at the hearing, the Court has determined that other substantial evidence cures this error.

Accordingly, the decision of the Secretary is AFFIRMED.

      . Dr. Morris diagnosed Milonas as having Organic Affective Syndrome manifested by depression, crying spells, sleeplessness, and frequent episodes of intractable pain. (Tr. 181)

      . On July 23, 1980, Dr. Ciminello wrote: "In my opinion, the patient [Milonas] is disabled as far as work is concerned.” (Tr. 183) See also Dr. Coleman: “It is my opinion that this man is totally disabled from any job activity that requires heavy lifting, repetitive bending or prolonged sitting or standing.” [Emphasis added.] (Tr. 106)

      . This should not be taken to encourage or condone psychiatric diagnoses by Administrative Law Judges at disability hearings. The Administrative Law Judge is not a psychiatric expert and must restrict himself to his proper legal functions.

      . The Secretary does not assert that the new standard governs this case. It does, however, impose upon future claimants a more stringent burden:
      An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce pain or other symptoms alleged and which, considered with all evidence required to be furnished under this paragraph ..., would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques must be considered in reaching a conclusion as to whether the individual is under a disability.
      42 U.S.C. § 423(d)(5)(A), as amended by the Social Security Benefits Reform Act of 1984, Pub.L. 98-460.