author: GESELL, District Judge.

text:
    John V. NORRIS, Plaintiff, v. The DISTRICT OF COLUMBIA, et al., Defendants.
    Civ. A. No. 82-1806.
    United States District Court, District of Columbia.
    July 26, 1985.

      St. John Barrett, James H. Shelton, Washington, D.C., for plaintiff.
    Janet Golup, Asst. Corp. Counsel, Washington, D.C., for defendants.
   MEMORANDUM

GESELL, District Judge.

Plaintiff sues the District of Columbia and three correction officers under 42 U.S.C. § 1983 (1982) claiming he was maced and beaten by the officers while at the D.C. Jail, without cause, in violation of his rights under the Fifth Amendment. Following dismissal by another Judge of this Court the case was remanded, 737 F.2d 1148 (D.C.Cir.1984), and eventually was transferred to the undersigned. Pending defense motions to dismiss or for summary judgment were denied except as to defendants Barry and Palmer, who were dismissed, and all issues were considered in a full bench trial. The Court states below its findings of fact and conclusions of law.

Plaintiff, Norris, came to the D.C. Jail to await trial on January 14, 1982, and was assigned to the North Three area, awaiting classification. This area holds intake prisoners in a crowded dormitory section associated with a block of single cells one floor below. Norris was entitled to make a telephone call to his family. He wanted to do this but was never allowed to call, in spite of several requests of various guards and supervising custodians made over a three-day period. He became increasingly agitated and angry, felt he was being harassed by jail personnel and asked to be transferred to another section or to administrative segregation, also known as “the hole.”

Around midnight on January 17, 1982, when a dormitory count was being taken, he refused to be present for the count and stood with his personal effects on the landing outside the dormitory. When the count was completed and he refused to return to the dormitory the two guards on foot duty, defendants Frizzel and Byrd, asked for the shift supervisor, Lt. Green, also a defendant, to come to deal with the situation. Green explained to Norris that he could only be transferred if he was willing to sign a request for protective custody, which Norris refused to do. After making inquiries, Green informed Norris that there were no cells available in other sections and suggested he proceed to cell 12, below, which was vacant. Norris was verbally aggressive, calling Green the usual litany of names but finally went down to the cell with Green and the two guards. No force was used. Norris went voluntarily.

At cell 12 there was no one in the corridor. The automatic opener for the cell door stuck and Green had to spend some time and effort to open it manually. Norris became more agitated. He refused to enter the cell when directed because the door would not work. Lt. Green shot a single, short burst of CS gas, commonly known as mace, into Norris’s lower face. The CS gas was shot from an aerosol canister held near Norris’s chest to avoid shooting it directly into his eyes. The other two guards shoved Norris into the cell, he was handcuffed and then taken promptly to the infirmary following the routine practice in such cases to permit showering, washing of eyes and face and changing of clothing. All of the guards on duty at the time of the incident and Lt. Green filed formal reports on the incident. Norris was subsequently disciplined for his conduct after a prison disciplinary hearing.

None of the three officers involved beat or physically abused Norris. He received only the immediate temporary injury of irritation and burning sensation around his eyes. Norris hit an elbow on the wash bowl sink of the cell, presumably when shoved into the cell. The elbow was treated with Ben-Gay and the injury promptly subsided.

The Court cannot credit plaintiff’s version of the incident. His claims of brutal physical force are inconsistent with his testimony on trial and infirmary records. The mace had no permanent effect. His eyes were not injured in any organic way. His glacoma and other eye problems well preceded the incident. He is claim-minded and has brought several suits on other matters against the District.

Green had had no prior contact with Norris. He used mace to control Norris when Norris resisted entering the cell. He did not use mace to punish Norris because of anything Norris had said or done previously. In Green’s view it was proper to use mace in the circumstances under the rules, regulations and training he had received. Green was an experienced, highly trained officer, now promoted to Major. He has had extensive training in correctional matters, including the use of mace, wide correctional experience, and had taken advanced courses to supplement his practical experience. The two guards assisting him acted at his direction and did not even have mace to use since mace was only distributed to certain supervisors in the cell block.

Plaintiff seeks damages and injunctive relief. He alleges that the supervision and training of officers by the District of Columbia relating to the use of mace establishes an unconstitutional policy or practice sufficient to trigger its liability under § 1983. See City of Oklahoma v. Tuttle, — U.S. -, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). He also alleges that the three correctional officers involved in this incident are individually liable for depriving him of his due process rights under the Fifth Amendment in violation of 42 U.S.C. § 1983.

The policy and practice of the District of Columbia with respect to the use of mace at the time of the incident must be determined from a variety of proofs: the formal but necessarily general statements of policy, the precise procedures taught in regularly training, and the actual use as disclosed by mandatory incident reports obtained from the jail files. While this case concerns use of mace to control inmates in individual cell block situations, the formal policy is more broadly stated inasmuch as it covers a variety of circumstances that may arise throughout various facilities of the District’s entire correctional complex.

The general policy was stated as follows:

... mace will be employed only after all other reasonable efforts, excluding physical force, to control individuals or situations have failed.

Officers were regularly trained that non-deadly force, in the form of physical force or chemical weapons, may be used to prevent escape, to prevent an act which might result in death or serious bodily injury, to prevent serious damage to property, to prevent or quell a riot, to prevent the commission of a misdemeanor, and to prevent or defend against a physical assault. They were also advised that non-deadly force could be used to enforce institutional regulations. The training materials emphasize, however, that “in EVERY case only the amount of force necessary to accomplish the task will be used.” The use of physical force or chemical agents as a form of punishment was expressly forbidden and nondeadly force was authorized only if oral or other nonforceful methods of persuasion were not effective.

Thus physical force and chemical agents are treated as equally acceptable alternatives when persuasion or minor laying on of hands, such as a guiding arm, proves unsuccessful. But the use of chemical agents was subject to special conditions which restricted and tended to inhibit their routine use. Only supervisors were authorized to carry and use mace. Supervisors carried a canister of CS gas which they were trained to use by firing the gas once, for a short interval (about one second), aimed below the eyes at chest level to avoid shooting the chemical directly into the eyes. Repeated use within a short period of time was prohibited unless there was substantial justification. Clear-cut guidelines required that persons exposed to the chemical agents receive immediate first aid. Inmates and guards exposed to the chemical were to be removed from the area and immediately referred to the medical staff. The medical staff provides a shower, water to flush the eyes and a complete change of clothing. Supervisors who used mace were required to submit a formal written report on every incident of its use. Correctional officers were occasionally disciplined for misuse.

Incident reports reflect a practice of use consistent with the policy in practically all instances. Many of the instances involve the use of mace in self-defense. Others involve situations where mace was apparently used to avoid physical contact with a resisting inmate who was acting in a threatening manner or was suspected to be dangerous if physical force was used.

The incident reports also indicate that the use of mace at the jail was not routine. All of the reports on the use of chemical agents filed between July, 1976 and May, 1985 are in evidence. During this 107 month period, only sixty-six instances were reported. The number of instances is so small that a heavy presumption exists that physical force, within limits, as opposed to mace, is the preferred means of controlling inmates at the jail.

Although the official policy of the D.C. Jail could have been articulated to jail guards with greater clarity, the Court finds that the policy at the time of this incident can be summarized as follows. Chemical and physical force were regarded as the means of last resort to control inmates at the jail. Punitive use of either type of force was specifically proscribed and grounds for discharge. When an inmate resists other methods of enforcing rules, supervisors had the discretion to choose between the use of physical force or the chemical weapon and this included the discretion to choose to use a chemical weapon rather than physical force when the supervisor believes that confronting or overpowering the inmate posed a possible threat of injury to guards or inmates. In practice, physical force tended to be the preferred means of controlling inmates and the guidelines governing the use of chemical weapons are observed and monitored.

Plaintiff attacks this policy as unconstitutional based on two different theories. The first is that it authorizes the use of chemical weapons for summary punishment. The D.C. Jail’s strict prohibition on punitive use entirely defeats this attack.

Plaintiff’s second theory is that the use of chemical weapons for prison discipline is an “excessive,” “undue” or “unjustified” use of force that “shocks the conscience” or “grossly exceeds that warranted by the circumstances.” Norris v. District of Columbia, 737 F.2d at 1151-52 & n. 8. Plaintiff contends that any use of chemical weapons to enforce jail regulations in the absence of an unequivocal danger of immediate bodily injury is an excessive, unconstitutional use of force. Thus he suggests that jail officials should be required to use physical force coupled with physical restraints, such as handcuffs, to control inmates unless an immediate and serious threat of danger has been established.

In support of this contention he presented an expert witness who gave general testimony concerning the possible dangerous effects of mace under certain circumstances and efforts of some correctional institutions to limit its use. The record indicates that the Federal Bureau of Prisons and some other correctional authorities may presently require a somewhat more restrictive use of chemical agents than that permitted in the D.C. Jail and encourage more use of decisive physical force to control inmates. See Federal Bureau of Prisons, Use of Force and the Application of Physical Restraints on Inmates, 28 C.F.R. § 552.23 (1984).

Considerable discretion is involved under any prisoner control program. The Court does not have the power to require correction officials to adopt one policy as preferable over another unless it is compelled by the constitutional guarantees which § 1983 is designed to protect. A recalcitrant inmate must be controlled and, except in extreme instances, the Constitution does not dictate when a choice must be made between physical force as opposed to chemicals.

No regulation can anticipate all the possible confrontations that may occur during a day in an overcrowded jail such as D.C. Jail. Jail and prison officials are “under an obligation to take reasonable measures to guarantee the safety of the inmates and of themselves.” Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984). In setting constitutional limitations on how they are to accomplish this extraordinary, difficult and dangerous task, courts must be conscious of the pressures and conditions under which detention facilities operate. See id.; Wolff v. McDonnell, 418 U.S. 539, 561-62, 566, 94 S.Ct. 2963, 2977-78, 2980, 41 L.Ed.2d 935 (1974). Discretion must be exercised, often on hunch, in a short space of time. Danger to self, danger to the inmates, and the danger of loosing control of a situation are ever present. The responsibility for setting security policies is “lodged in the sound discretion of the institutional officials,” and “ ‘proper deference to the informed discretion of prison authorities demands that they and not the courts make the difficult judgments which reconcile conflicting claims affecting the security of the institution, the welfare of the prison staff, and the property rights of detainees.’ ” Block v. Rutherford, — U.S.-, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984), quoting, Bell v. Wolfish, 441 U.S. 520, 557 n. 38, 99 S.Ct. 1861, 1884 n. 38, 60 L.Ed.2d 447 (1979). The due process clause does not prohibit reasonable responses to the problems of jail security or require administrative officials to adopt the least restrictive means of maintaining control of their facilities. Block v. Rutherford, 104 S.Ct. at 3234 n. 10. Nor does due process clause authorize courts to second-guess the reasonable policy judgments delegated to prison administrators. See Hewitt v. Helms, 459 U.S. 460, 467-68, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983).

Modern penology approves use of chemical weapons to control inmates under closely supervised conditions as an alternative to the use of excessive physical force. In certain situations, the use of mace to control an inmate may be safer and more effective than risking a physical confrontation. See Soto v. Dickey, 744 F.2d 1260, 1262-63 (7th Cir.1984). The security system at the D.C. Jail contains all the appropriate safeguards and proper use of chemical weapons is enforced by constant training and monitoring by reporting requirements.

In weighing the appropriateness of making chemical weapons available to supervisors if physical force is necessary to control an individual inmate it should be recognized that D.C. Jail guards and supervisors carry no blackjack, batton or other weapon and function in a highly volatile, overcrowded atmosphere. They are grossly outnumbered, often by a ratio of 50 or 100-to-l where most inmates are not held in individual cells. Given the variety of situations that may suddenly arise, no written policy can precisely define just when and how personnel should act in choosing between a need for force between muscle and mace. Given all the related rules limiting the availability and use of mace, the strictures against its misuse and the reporting and medical treatment requirements, the policy of the D.C. Jail appears to adequately restrict the discretion of supervisors to use the chemical.

Before the policy can be sustained, the Court must be satisfied that mace in the form of CS, if used as prescribed, is not reasonably likely to cause serious or lasting injury. Mace is used in the context of individual inmate control by ejecting a single, one-second liquid burst in the direction of the lower face from about two feet away. CS causes, in the language of its supplier, “extreme temporary discomfort”: in the form of stinging and burning sensation. The effects only last a matter of minutes and are relieved by prompt washing when the mace is used as contemplated. Given these limited effects, the Court cannot find that the District’s policy on the use of mace in less than extreme circumstances such as that presented here constitutes an excessive use of force. There was no proof presented to support such a claim.

Other courts that have examined the constitutional limitations on the use of mace have reached similar conclusions. In Spain v. Procunier, 600 F.2d 189 (9th Cir.1979), the Ninth Circuit vacated a district court order that restricted the use of tear gas to cases of actual or imminent threat of serious damage or a riot. In discussing the constraints which the Eighth Amendment places on the use of chemical weapons, the court found that the use of dangerous quantities should be restricted to “grave circumstances which would justify the use of severe and potentially lethal force.” Id. at 195. But with respect to nondangerous amounts:

[U]se of the substance in small amounts may be a necessary prison technique if a prisoner refuses after adequate warning to move from a cell or upon other provocation presenting a reasonable possibility that slight force will be required. In these circumstances the substance may be a legitimate means for preventing small disturbances from becoming dangerous to other inmates or the prison personnel.

Id. The court concluded that “where there are safeguards to insure that tear gas is not used in dangerous quantities we think its use can be justified in situations which are reasonably likely to result in injury to persons or a substantial amount of valuable property____” Id. at 196.

The Fourth Circuit adopted a similar position in Bailey v. Turner, 736 F.2d 963 (1984), in upholding a jury verdict against an inmate who had brought a § 1983 claim after being maced in his cell. The court stated that the use of mace is not per se unconstitutional and its use must be evaluated based on the totality of the circumstances, the provocation, the amount of gas used, and the purposes for which it was used. Id. at 969. After quoting the conclusions of the Ninth Circuit in Spain v. Procunier, the court concluded that “review both of the authorities of this circuit as well as of other circuits makes it abundantly clear that the use of mace on an unruly or ‘recalcitrant’ prison inmate, though confined in his cell, is not plainly unconstitutional,” and using a single bursts of mace, for non-punitive purposes, is not an unconstitutional use of force. Id. at 969-71.

Finally, the Seventh Circuit has also adopted the view of the court in Spain v. Procunier. In Lock v. Jenkins, 641 F.2d 488 (7th Cir.1981), the court held that the use of tear gas to stop pretrial detainees from shouting and uttering threats or to retrieve a food tray from an inmate locked in his cell was constitutionally impermissible, but the use of a not unreasonable amount against detainees who were locked in their cells and trying to incite a riot was justified. Id. at 496-97. More recently, the Seventh Circuit emphasized the limits of its holding in Lock v. Jenkins when it reversed a district court ruling that imposed extremely restrictive conditions on the use of chemical agents against inmates in Soto v. Dickey, 744 F.2d 1260 (7th Cir.1984). The court observed that the options available to correctional officers in enforcing orders against recalcitrant inmates are often limited to chemical agents or physical force. A realistic consideration of the conditions in detention facilities and deference to the judgment of penal authorities led the court to conclude that

[T]he use of nondangerous quantities of the [chemical] substance in order to prevent a perceived future danger does not violate ‘evolving standards of decency’ or constitute an ‘unnecessary and wanton infliction of pain.’ We think that its use can be justified in situations which are reasonably likely to result in injury to persons or a substantial amount of valuable property. [Spain v. Procunier,] 600 F.2d at 196.

Id. at 1270.

This case does not involve the use of dangerous or excessive amounts of chemical agents. Nor does it involve the use of mace to inflict punishment. It involves the use of mace as an alternative to the use of physical force when other means of controlling the inmate have proven futile. A policy authorizing such use is not unconstitutional. The Court holds that the District of Columbia was not at the time of the incident pursuing a policy or practice as to the use of chemical weapons that violated the Fifth Amendments insofar as mace was permitted to be used under certain conditions to control or restrain individual inmates as an alternative to the use of physical force.

Plaintiff’s claims against the individual defendants also must fail. Lt. Green used mace in good faith, exercising the discretion given him under the policy of the D.C. Jail. It was not his intent to punish or to retaliate against plaintiff because he had been called vulgar names. He had no basis for believing his actions were unauthorized or contrary to the Constitution. Throughout his extensive career and advanced training as a correction officer he was repeatedly given to understand that mace could be used as an appropriate restraint in lieu of physical force that might endanger himself, the inmate or others. In the past he had been knifed, he had been thrown down stairs by obstreperous inmates.

Lt. Green’s use of mace on the plaintiff may have been unnecessary to effect the needed restraint. Yet, physical force had been used, greater injury to Norris and the guards might have occurred. If hindsight in the deliberate atmosphere of the courtroom years later opens the possibility that plaintiff’s intransigence in refusing to enter his cell could have been resolved without mace, this does not mean that the supervisor’s decision on the spot was so indiscreet or lacking in basis that inferences of malice or gross negligence must be made. Highly trained career officers with long experience must be granted some leeway to act within areas of this assigned discretion without having such judgment second-guessed and their employer held responsible. Lt. Green is clearly entitled to qualified immunity and the Court so holds. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

The claims against the two other guards who acted under Lt. Green’s orders and who neither used nor encouraged use of mace or excessive physical force must also be dismissed for failure of proof. Moreover, Norris wholly failed to show an excessive use of force on the part of Lt. Green. Lt. Green’s patient, deliberate and conscientious effort to assist plaintiff and to work out his problem, which is not disputed, is wholly inconsistent with the plaintiff’s claim that Green was provoked to take retribution immediately thereafter for the constant name calling that interspersed the conversation. There had been no prior dealings between the two men leading to a long-standing grudge. Plaintiff was angry, tense, frustrated, volatile, and as such presented an uncertain aspect which signaled a need for caution and concern for safety in the early morning hours when events occurred. There is no evidence of any prior occasions where Lt. Green had used mace improperly or heedlessly, no evidence he has ever brutalized an inmate, no evidence he lacked training. While the contemporaneous reports of the other guards substantially corroborate Lt. Green, even if these are ignored the Court must credit Green’s version over that of plaintiff.

Equitable Relief

Plaintiff seeks an elaborate, detailed comprehensive injunction governing future use of chemical weapons in the entire D.C. correctional system. While there may be need to perfect in somewhat more explicit written terms of the D.C. policy dealing with use of chemicals in differing situations, this case does not provide the appropriate vehicle for such an undertaking. It is not a class action. There is no threat that Norris will be treated differently than anyone else. There is absolutely no proof that would enable the Court to develop the parameters of such sweeping relief. Plaintiff has failed to make out a case of any injury. Written rules have since been agreed upon in a subsequent suit by way of settlement of a case assigned to Judge Jackson involving chemicals. Pl.Ex. No. 19. Equitable relief must be and hereby is denied.

The Clerk of Court is directed to enter judgment for defendants on all claims.

      . The remand directed, among other things, that plaintiff be allowed "to engage in reasonable discovery directed towards proving his allegations that the District has ‘failed adequately to supervise, train, instruct and control officers in the use of mace.’ Amended Complaint at 3.” Norris v. District of Columbia, 737 F.2d at 1152. Plaintiff acknowledged on the record prior to trial that he had been afforded such discovery.

      . Mace is a trade name that comprehends several chemicals, including CS gas, which is orthochlorabenzal-malonoitrile.

      . Plf. Ex. No. 15, Dept. Order 6011.1, September 27, 1972.

      . Plf. Ex. No. 20, Lesson Plan for training course on "Use of Force Doctrine.”

      . Plf. Ex. No. 17.

      . Plf. Ex. No. 21.

      . There may have been a few unreported incidents, but the evidence before the court indicates that they were not significant in number and these reports represent virtually all of the incidents that occurred.

      . In evaluating whether a use of force is excessive or undue so that it violates due process, the Court is to be guided by the factors set out in Johnson v. Glick, 481 F.2d 1028 (2d Cir.) cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973):
      In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

        Id. at 1033. See Norris v. District of Columbia, 737 F.2d at 1150.

      . Def. Ex. No. 6.


source: Caselaw Access Project

author: EDGAR, District Judge.

license: Public Domain

text:
    Gerald SEALS, Beverly Seals; and Charles Travis Seals, a minor, By and Through his father and mother and next friends, Gerald and Beverly Seals, Plaintiffs, v. Don LOFTIS, Superintendent of Schools, Hamilton County Department of Education; Billy J. Edwards; Ruth G. Harmon; Linda Mines; James Monroe; Ronald O’Neal; Fred Skillern; John K. Witherspoon, Jr., members of the Board of Education; Dr. Robert L. McElrath, Commissioner Tennessee Department of Education, and Chairman State Board of Education, acting in their official capacity, Defendants.
    Civ. No. 1-84-670.
    United States District Court, E.D. Tennessee, S.D.
    July 22, 1985.
    Addendum to Memorandum Aug. 21, 1985.

      Gloria Snavely, Effective Advocacy for Citizens With Handicaps, Inc., Knoxville, Tenn., for plaintiffs.
    Ward Crutchfield, Neil Sutherland, Chattanooga, Tenn., Richard L. Colbert, Asst. Atty. Gen., Nashville, Tenn., for defendants.
   MEMORANDUM

EDGAR, District Judge.

Gerald Travis Seals (“Travis”) is a handicapped child within the meaning of the Education of All Handicapped Children Act, 20 U.S.C. § 1400, et seq. (“EAHCA”). Among Travis’ problems are a seizure disorder, visual difficulty, and learning disabilities. The Hamilton County Department of Education (“Department”) established for Travis an “individualized education program” as defined by 20 U.S.C. § 1401(19). He began his elementary schooling at Dallas Elementary School in Hamilton County, Tennessee.

In order to better deal with Travis’ handicaps, the Department transferred Travis to Ganns Middle Valley Elementary School at the beginning of the 1983-84 school year. School personnel noted at that time that Travis’ behavior had changed from what it had been in the spring of 1983 at the close of school. He was sometimes disoriented. His school performance had deteriorated. School personnel received information that Travis had suffered three grand mal seizures during the summer and had perhaps not been recently examined by a physician.

On September 26, 1983, the Department convened a multi-disciplinary team (“M Team”) meeting to consider Travis’ situation. After this meeting the M Team recommended to Travis’ parents that he be evaluated medically by a pediatrician. The Department made this recommendation because it did not want to do anything which would affect Travis’ education without first having a recent medical evaluation.

Acting on the recommendation of the Department’s M Team, Travis’ parents brought him to Dr. Richard E. Poehlein, a pediatrician of their own choice. Dr. Poehlein referred Travis to Dr. Lawrence T. Ch’ien for a neurological evaluation. Upon completion of this evaluation, Dr. Ch’ien, along with Dr. Poehlein, referred Travis to Dr. William M. Hillner, a psychologist, for a psychological evaluation. While the M Team had not specifically requested the neurological and psychological evaluations, it is quite clear that Dr. Poehlein felt that both of those evaluations were necessary to help him ascertain the source of Travis’ difficulties. It is also clear that the Department became aware of the evaluations by Drs. Ch’ien and Hillner, and made some use of a written report by Dr. Hillner in ascertaining Travis’ special education needs. The neurological and psychological evaluations did not result in any changes in Travis’ individualized education plan, but might have resulted in changes had the evaluations reached different conclusions.

When a dispute arose over whether the Department or Travis’ parents were to pay for the evaluations done by Drs. Ch’ien and Hillner, a “due process” hearing was convened before a hearing officer under the provisions of Tennessee Code Annotated § 49-10-601 and 20 U.S.C. § 1415(b)(2). The hearing officer concluded that the Department “pay the amount which is in excess of the cost born [sic] by the Seals’ insurance for Travis’ medical and neurological evaluation.”

The facts surrounding the Seals’ insurance coverage on Travis were not developed at the due process hearing. However, it has been established by stipulation of the parties in this ease that:

(1) The total bill from Dr. Ch’ien for neurological evaluations was $265.00. The Seals’ insurance carrier paid $79.20 of this amount.
(2) The total bill from Dr. Hillner for psychological evaluations was $247.00. The Seals’ insurance carrier paid $99.70 of this amount.
(3) The payment of these benefits did not affect the Seals’ insurance premium rates.
(4) The Seals had already satisfied their deductible amount of $100.00 on their coverage. Thus, no deductible amount was paid by them in relation to the matters involved in this case.
(5) The Seals’ insurance policy carries a lifetime maximum of benefits for psychological services of $30,000.00. This amount has been reduced in the amount of $99.70, the amount of benefits paid to Dr. Hillner.

The Seals elected to bring this action pursuant to 20 U.S.C. § 1415(e)(2), seeking inter alia reimbursement of the insurance proceeds paid by the Seals insurer to Drs. Ch’ien and Hillner. The Seals contend that the hearing officer erroneously required them to use their insurance coverage to pay for the evaluations done by Drs. Ch’ien and Hillner. The, Department contends that the hearing officer decided the insurance question properly, but erred in requiring the Department to pay the rest of the cost of these evaluations. This Court has, pursuant to 20 U.S.C. § 1415(e)(2), received the records of the administrative proceedings and has heard additional evidence at the request of the parties.

The questions which must be decided here are:

(1) Whether the evaluations by Drs. Ch’ien and Hillner are within the scope of aid which is to be provided the Seals pursuant to the EAHCA, and, if so,
(2) Whether the Seals can be required in this case to utilize the proceeds of their medical insurance to pay for the evaluations of Drs. Ch’ien and Hillner.

Addressing the first issue, it should first be noted that the EAHCA provides that state school systems which receive funding under the Act must have in effect a “policy that assures all handicapped children the right to a free appropriate public education.” 20 U.S.C. § 1412(1). The term “free appropriate public education” means:

... special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under § 1414(a)(5) of this Title, (emphasis supplied)

20 U.S.C. § 1401(18).

The term “special education” as used in 20 U.S.C. § 1401(18), supra, is defined as:

... specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.

20 U.S.C. § 1401(16).

The term “related services” as used in 20 U.S.C. § 1401(18), supra, is defined as:

... transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education, and includes the early identification and assessment of handicapping conditions and children.

20 U.S.C. § 1401(17).

The services rendered by Drs. Ch’ien and Hillner easily fit within the above definition of “related services.” Dr. Hillner’s services were “psychological services” and Dr. Ch’ien’s services were medical services for “diagnostic and evaluation purposes.” Travis’ special medical and educational needs are intertwined here, and it is clear that both may be “related services” under the EAHCA. See Irving Independent School District v. Tatro, — U.S. -, 104 S.Ct. 3371, 3378-79, 82 L.Ed.2d 664 (1984); see also Papacoda v. Connecticut, 528 F.Supp. 68, 72 (D.Conn.1981); T.G. v. Board of Education of Piscataway, New Jersey, 576 F.Supp. 420, 423 (D.N.J.1983).

It is apparent that these services were requested and required by the Department to assist Travis, in the words of 20 U.S.C. § 1401(17), “to benefit from special education.” As such, they must be furnished to Travis by the Department pursuant to the EAHCA.

The Seals seek reimbursement for their insurance carrier for the above amount. This Court has the power to order such reimbursement if such is in order. Burlington School Committee v. Massachusetts Dept. of Education, 471 U.S -, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). There is little specific guidance from the EAHCA on this insurance reimbursement issue. On the one hand, the EAHCA requires the furnishing of a free appropriate public education to handicapped children. On the other hand, the United States Department of Education has promulgated a rather cryptic regulation which is found at 34 C.F.R. § 300.301(b) which provides:

Nothing in this part relieves an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a handicapped child.

The above regulation, being directed only at the obligations of insurers, does not deal directly with whether the Seals may be required to use their medical insurance for the services of Drs. Ch’ien and Hillner. Because of EAHCA’s emphasis upon a free appropriate public education, this Court concludes that parents of a handicapped child cannot be required to utilize their private medical insurance benefits where the utilization of those benefits would cause them to incur a financial cost. See Interpretation of 34 C.F.R. § 104 and 300 at 45 Fed.Reg. 86,390 (1980). Any other conclusion would be inconsistent with the concept of a free appropriate public education which underlies the EAHCA.

This Court further holds that the Seals in this case did incur a cost with respect to the insurance payment to Dr. Hillner in that the payment reduced the lifetime benefits available to them under their policy. Defendants must therefore reimburse the Seals in the amount of Ninety Nine and 70/100 Dollars ($99.70).

Since the Seals’ insurance payment to Dr. Ch’ien did not result in a “cost” to the Seals, the decision of the hearing officer, to the extent that it requires the Seals to use their insurance for this purpose, is affirmed.

An appropriate order will enter.

ADDENDUM TO MEMORANDUM

This matter is now before the Court on plaintiff’s motion pursuant to Federal Rule of Civil Procedure Rule 59(e) to modify the judgment previously entered in this case. In its judgment, the Court ordered that the defendants reimburse the plaintiffs in the amount of $99.70, the total amount which the parties had stipulated was paid by the plaintiffs’ insurance carrier for Dr. Hillner’s psychological services. This amount was awarded because this insurance payment reduced the lifetime benefits available to the plaintiffs for psychological services under their insurance coverage thus resulting in a “cost” to the plaintiffs incon-' sistent with the provisions of the EAHCA for a free appropriate education.

This Court also concluded, as apparently the hearing officer did, that the services provided by Drs. Ch’ien and Hillner were related services under the EAHCA. Accordingly, the hearing officer’s decision is affirmed in this respect, and the plaintiffs are also entitled to reimbursement from the defendants for the amounts paid by the plaintiffs directly to Drs. Ch’ien and Hillner except for any amount paid by the plaintiffs’ insurance carrier to Dr. Ch’ien.

In summary, the Court calculates the entire amount of plaintiffs’ recovery is as follows:

Amount paid by plaintiffs to Dr.
Ch’ien of $265.00 less the $79.20 insurance payment to Dr. Ch’ien by plaintiffs’ insurance carrier = $185.80
Amount paid by plaintiffs directly to Dr. Hillner = + 147.30
Amount paid by plaintiffs’ insurance carrier to Dr. Hillner = + 99.70
TOTAL = $432.80

The plaintiffs have submitted an affidavit in support of their motion which provides slightly different figures from those which have been previously stipulated by all the parties. The Court on the status of the record cannot alter the figures which have previously been stipulated. If indeed the actual figures are different from those which have been stipulated, the parties are encouraged to reach a mutual agreement upon those figures for the purpose of satisfying the modified judgment which will be entered in this case.

MODIFIED JUDGMENT

In accordance with the memorandum filed herewith, it is ORDERED AND ADJUDGED that the defendants reimburse plaintiffs in the total amount of Four Hundred Thirty-Two and 80/100 Dollars ($432.80) and their costs of this action. This judgment shall replace the judgment entered by the Court on July 22, 1985.

IT IS SO ORDERED.

      . The Seals do not seek payment for Dr. Poehlein's charges.

      . The Department contends that the services of Drs. Ch’ien and Hillner were beyond the scope of the M Team recommendation. Under the circumstances of this case the Court concludes to the contrary. However, this problem might have been avoided if the M Team had given the Seals clearer instructions at the outset.


author: BUA, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Yehuda DRAIMAN, Defendant.
    No. 84 CR 950.
    United States District Court, N.D. Illinois, E.D.
    July 22, 1985.

      Anton R. Valukas, U.S. Atty. by William A. Spence, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
    Patrick A. Tuite, David S. Mejia, The Law Offices of Patrick A. Tuite, Ltd., Chicago, Ill., for defendant.
   MEMORANDUM ORDER

BUA, District Judge.

Before the Court is defendant’s motion for bond pending appeal of defendant’s conviction. Defendant was convicted of ten counts of mail fraud and subsequently sentenced to four years imprisonment and five yéars consecutive probation. For the reasons stated below, defendant’s motion is denied.

Under 18 U.S.C. § 3143(b), the defendant bears the burden of proving four conditions before a court may grant bail pending appeal:

(1) that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released;
(2) that the appeal is not for purpose of delay;
(3) that the appeal raises a substantial question of law or fact; and
(4) that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.

United States v. Hall, 603 F.Supp. 333, 335 (N.D.Ill.1985) (quoting US. v. Miller, 753 F.2d 19, 24 (3d Cir.1985). In this circuit, a “substantial question of law or fact” is defined as “a ‘close’ question or one that very well could be decided the other way.” United States v. Molt, 758 F.2d 1198, 1200 (7th Cir.1985). Without passing on elements one and two, defendant has failed to establish that “the appeal raises a substantial question of law or fact” which, if determined favorably to defendant on appeal, would be likely to result in a reversal or new trial as required by the third and fourth elements. Having reviewed the alleged trial errors in defendant’s motions for acquittal and for bond, the Court finds that defendant has failed to raise any “close question” which would be likely to result in a reversal of the conviction or a new trial of all counts on which imprisonment has been imposed.

In his post-trial motion for judgment of acquittal or new trial, defendant raised 17 alleged errors at trial which the Court denied on May 21, 1985. In his memoranda in support of the motion for bond pending appeal, defendant argues that four principal issues are “substantial questions” justifying bond under § 3143(b). First, defendant argues that the Court committed reversible error by excluding evidence of the nature and details of the complaint which defendant filed against the Chicago police officers who were government witnesses at trial. Second, defendant argues that there was insufficient evidence regarding mailings charged in certain counts of the indictment. Third, defendant argues it was error for the Court to introduce Government Exhibit 47, a worksheet of an accountant. Finally, defendant argues that the Court committed reversible error when it allowed the government to introduce evidence of other offenses committed by the defendant for the purpose of rehabilitating Sol Mes-singer, a government witness at trial.

A. Facts

Defendant Yehuda Draiman was charged, in a 13-count indictment, with ten counts of mail fraud, two counts of obstruction of justice, and one count of perjury. The jury returned verdicts of guilty on the mail fraud counts and not guilty on the perjury count. The jury was unable to reach an unanimous verdict on the obstruction counts, and the Court dismissed those counts on the government’s motion.

The mail fraud counts charged that the defendant entered into a scheme to defraud two insurance companies by submitting false claims relating to a burglary at the defendant’s business. The evidence at trial established that several video tapes valued at approximately $25,000 were stolen from the defendant’s business on August 15, 1981. At the time of the burglary, defendant was insured against the loss of inventory and cash and against business interruption expenses caused by the burglary. Upon learning of the burglary, defendant devised a scheme to inflate the amount of his losses and defraud his insurance companies. Defendant overstated his losses due to the burglary and created false documents to support his claim. Specifically, defendant submitted a claim on behalf of his business for $1,071,646 for loss merchandise and cash. Not until after the insurance company scrutinized the claim did the defendant reduce the amount of the claim.

While the insurance companies were investigating the defendant’s insurance claim, defendant created false documents which purported to substantiate his loss. Defendant created false bills of lading and other documents to show that merchandise had been delivered to defendant’s business which actually never existed. In addition, the defendant convinced an employee to lie at a deposition in further support of the claim.

B. Evidence Relating to Defendant’s Complaints Against Chicago Police Officers

Before trial, defense counsel informed the Court that the defense intended to cross-examine Chicago police officers, testifying in the government’s case-in-chief, regarding details of a Chicago Police Department Internal Affairs Division (“IAD”) investigation. The IAD has investigated complaints filed against the officers by the defendant. Tr. 8-9. Although the government offered to stipulate that the charges of impropriety were made by the defendant, the defense objected to any such stipulation, and the Court indicated that it would permit the defense to introduce, during cross-examination, testimony relating to the IAD investigation. Tr. 10.

On the first day of trial, the government sought clarification of the Court’s prior order allowing the defense to inquire into the IAD investigation. At that time, the Court informed both sides that cross-examination into the substance of the IAD complaint would be excluded. Tr. 50. Although the Court offered to permit cross-examination to establish potential bias on the part of the witness, the Court reasoned that introducing the substance of defendant’s charges against the police officers would constitute inadmissible hearsay. Ultimately, the Court concluded that rulings on specific questions should be deferred until the witnesses testified. Tr. 51.

While Officer Lohan testified in the government’s case-in-chief, defense counsel attempted to introduce the substance of the complaint filed against Lohan for the purpose of showing bias. Although the Court excluded the substance of the complaint as hearsay, defense counsel was permitted to question Lohan on the fact that a serious complaint had been filed against Officers Lohan, Mulligan and Davis by the defendant with the IAD; that Lohan was investigated by the IAD; and that Lohan was ultimately exonerated of the charges. Tr. 170-71. During Officer Davis’ direct testimony, Davis revealed that the defendant had filed a complaint against him with the IAD; that Davis was investigated by the IAD; and that the IAD concluded that the complaint was unfounded. Tr. 206. Defense counsel was allowed to inquire further into the matter on recross-examination. Tr. 248-49. After Officers Lohan and Davis testified, defense counsel made an offer of proof as to the nature of the testimony defense counsel sought to elicit from the officers. Tr. 254. Specifically, the defense desired to reveal to the jury that the nature of the complaint filed by the defendant was that the officers were demanding payoffs from the defendant.

In support of his argument that the Court’s order excluding the substance of the IAD complaints constitutes a “substantial question” under 18 U.S.C. § 3148, defendant cites Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) and United States v. Hitchmon, 609 F.2d 1098 (5th Cir.1979). In Davis, the Supreme Court held that a defendant’s constitutional rights were violated when the trial judge refused to allow defendant’s counsel to reveal to the jury that a government witness had been placed on probation as a result of a juvenile delinquency adjudication. The Court held that the state’s interest in protecting the anonymity of juvenile offenders did not outweigh the defendant’s right to expose a witness’ prior conviction and vulnerable status as a probationer as a possible motive for overzealous cooperation with law enforcement officials. Unlike the defendant in Davis, however, the defendant in this case was able to expose any possible bias on the part of Officers Lohan and Davis. The jury was aware that the defendant had filed a “serious complaint” against the officers during the time of their investigation of the defendant. Accordingly, defense counsel argued during closing arguments that:

The point is there is a burglary and there is a loss.
4s sj: if 4; 4s sjs
No question a coverup by the Chicago Police Department for their own wrongdoing. Mr. Draiman made the fatal mistake, and that is to report the police to the IAD for something they had done.
4« 4s 4s "k H: 4s
But he [the defendant] complained about the police, and so what do they do? They have got to cover their tracks. So they make up this story on August 15....

In light of defendant’s closing argument and cross-examination of the officers, defendant was allowed to present to the jury facts which exposed any possible bias on the part of Officers Lohan and Davis.

Similarly, the remaining cases cited by defendant are distinguishable. In United States v. Hitchmon, 609 F.2d 1098 (5th Cir.1979), a conviction was reversed because the trial judge prevented the defense from “asking any question that might disclose that [an internal] DEA investigation had been conducted.” Id. at 1100. In this case, the Court allowed defense counsel to reveal that the IAD investigation had been conducted and that the defendant had initiated the investigation. In Austin v. United States, 418 F.2d 456 (D.C.Cir.1969), the appellate court held that the trial judge properly excluded a defendant's testimony, offered to establish a police officer’s bias that he had accused the police officer of bribery. In United States v. Carrean, 572 F.2d 683 (9th Cir.1978), the appellate court reversed a conviction where the trial judge repeatedly interrupted defense counsel’s arguments, made sua sponte objections to the introduction of defendant’s evidence and, sua sponte, limited the scope of defense counsel’s cross-examination of government witnesses. Reviewing the trial judge’s conduct, the appellate court held that “the trial judge overstepped the bounds of judicial propriety by excessively interjecting himself into the proceeding below.” Id. at 686. The exclusion of evidence in this case comes nowhere close to the trial judge’s conduct in Carreon which deprived that defendant of a fair trial.

Generally, a trial court has broad discretion to control and limit cross-examination. Davis, supra, 415 U.S. at 316, 94 S.Ct. at 1110; United States v. Rodgers, 755 F.2d 533, 548 (7th Cir.1985). Restricting the scope of cross-examination is error only if the jury is not afforded “sufficient information to make a discriminating appraisal of the witness’ motives and bias.” Rodgers, supra, 755 F.2d at 548. In this case, the jury knew that the defendant initiated a serious complaint against Officers Lohan and Davis; that the officers were investigated by the IAD as a result; and that the defendant’s complaint was made while the officers were gathering evidence against the defendant. Since the jury had sufficient information to appraise the witness’ motives and bias, the exclusion of defendant’s proffered evidence fails to raise a “substantial question” under § 3143.

C. Sufficiency of the Evidence

Defendant next argues that the evidence was insufficient to establish that the defendant caused the mailings charged in the indictment; that the mailings in Counts 4 and 5 were repetitious of the mailing in Count 3; and that the letters for attendance at depositions did not further the scheme.

Generally, a mailing is considered “in furtherance of a scheme” if the defendant “commit[s] an act with knowledge that the use of the mails will follow in the ordinary course of business, or commit[s] an act when the use of the mails can reasonably be foreseen.” United States v. Gorny, 732 F.2d 597, 601 (7th Cir.1984). Mailings made after the scheme has reached fruition, however, are not in furtherance of the scheme. United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). On the other hand, “mailings made to promote the scheme, or which relate to the acceptance of the proceeds of the scheme, or which facilitate concealment of the scheme have been found to have been in furtherance of the scheme____” United States v. Wormick, 709 F.2d 454 (7th Cir.1983) (citations omitted).

In this case, defendant caused a false insurance claim to be filed. It is immaterial that an employee of the defendant actually signed the claim and that the claim was submitted by a public adjuster. It was reasonably foreseeable to the defendant that the claim would be scrutinized by the insurance companies, accountants and lawyers investigating the claim. All of the mailings were reasonably foreseeable and all occurred before the defendant’s scheme reached fruition since the defendant never received money from the insurance companies. Cf. United States v. Maze, 414 U.S. 395, 402, 94 S.Ct. 645, 649, 38 L.Ed.2d 603 (1974) and United States v. Wormick, 709 F.2d 454, 462-63 (7th Cir.1983) (mailings after the scheme has reached fruition cannot support a mail fraud conviction). Furthermore, defendant has provided no support for his novel argument that copies of defendant’s Proof of Loss, mailed to persons investigating the claim, fail to support separate mail fraud charges.

The deposition notices were mailed in furtherance of the scheme because the defendant, on several occasions, postponed the depositions for the purpose of creating false documents and arranging perjury. Accordingly, the depositions themselves became part of the scheme to defraud the insurance companies. The false documents and perjury presented at these depositions were “a step toward receipt of the fruits of the scheme____” The letters scheduling these depositions (Government Exhibits 33 and 34) were not only in furtherance of the scheme, but were necessary to schedule the depositions which became part of the defendant’s scheme to defraud the insurance companies.

The only letters which the defendant has arguably raised a “substantial question” are Government Exhibits 36 and 37 which gave rise to Counts 9 and 10 of the indictment. These letters were from the insurance companies’ lawyer to the defendant’s lawyer requesting clarification of an apparently unsatisfactory explanation of the defendant’s losses. Although a plausible argument exists that the purpose of these mailings conflicted with, rather than promoted, the defendant’s scheme (see United States v. Staszcuk, 502 F.2d 875, 880 (7th Cir.1974)), even if the Court were to assume that a “substantial question” exists on Counts 9 and 10, bail pending appeal would not be justified. Defendant has failed to sustain his burden of showing that an appellate court ruling favorable to the defense on Counts 9 and 10 would be likely to result in reversal of the conviction or “an order for a new trial of all counts on which imprisonment has been opposed.” United States v. Hall, 603 F.Supp. 333, 335 (N.D.Ill.1985). Sentence was imposed on Count 1 only and reversal on other counts would, at best for the defendant, cause the appellate court to remand for resentencing. See United States v. Wormick, 709 F.2d 454, 463 (7th Cir.1983).

D. Government’s Exhibit 47

The third issue raised by defendant relates to the introduction into evidence of Government Exhibit 47. The document to which the defendant objects, however, was prepared by the defendant’s own accountant at the defendant’s request and was delivered to the accountant for the insurance companies as part of the documentation in support of the defendant’s claim. The accountant who prepared the document was hired by the defendant and prepared the document as part of the routine accounting for the loss. Since the document was prepared in the regular course of business and was a statement of an agent of the defendant, the document was properly admitted as a business record and admission by a party in exception to the hearsay rule. Fed.R.Evid. 801(d)(2); 803(6).

Although the government apparently violated Fed.R.Crim.P. 16(a)(1)(C) by not disclosing Government Exhibit 47 before trial, the government’s inadvertent error does not warrant a new trial or reversal of the conviction. There is no allegation of prosecutorial bad faith, and the document was not exculpatory under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963). Given that the document was prepared by the defendant’s accountant at the defendant’s direction, it is unlikely that the defendant was prejudiced by any unfair surprise. In any event, defense counsel did not request additional time to study the document and therefore cannot claim prejudicial surprise at this juncture. See United States v. Eddy, 549 F.2d 108, 113 (9th Cir.1976).

E. Evidence of Other Crimes

Finally, defendant argues that the Court committed reversible error by allowing the government to introduce evidence of other offenses not charged in the indictment for the purpose of rehabilitating a government witness, Sol Messinger. Before trial, the Court denied the government’s request to introduce evidence in its case-in-chief relating to the defendant’s inventory of stolen and pirated video tapes. Tr. 55. The Court rejected the government's arguments that defendant’s involvement in the manufacture and sale of pirated tapes was admissible under Fed.R.Evid. 404(b) to show the defendant’s motive or intent.

Sol Messinger, a former employee of the defendant, testified for the government at trial. On direct examination, Messinger stated that in about October of 1981, the defendant had enlisted Messinger’s aid in creating false invoices to support the defendant’s insurance claim. Messinger testified that he immediately contacted Agent Bob Williams of the FBI. After informing Agent Williams, Messinger met with the defendant, gave defendant the business stationery he requested, and observed the defendant change the letterhead on the stationery for the purpose of creating a false invoice. Messinger testified that he was cooperating with the FBI’s investigation because he knew the defendant was engaging in a fraud. Later, in February of 1982, Messinger testified that the defendant approached him and asked him to sign a false document in support of the. defendant’s insurance claim. Messinger again informed Agent Williams of the defendant’s request. In May of 1982, Messinger was asked by the FBI if he would wear a body recorder during his conversations with the defendant. Messinger agreed, and on June 4, 1982, Messinger secretly tape recorded a conversation with the defendant.

During cross-examination, defense counsel inquired extensively into Messinger’s motivation for cooperating with the FBI’s investigation of the defendant. Additionally, defense counsel pointed out that Mes-singer was either confused or not truthful as to when his cooperation with the government began. For example, defense counsel questioned Messinger on the discrepancy between his testimony that he first contacted the FBI in June of 1981 and the fact that the defendant’s burglary did not occur until August of 1981. Tr. 566-67. Mes-singer responded: “Yes, but I was contacting some other activities that Draiman had.” Tr. 567. Defense counsel then accused Messinger of lying under oath. “You say now it [Messinger’s first contact with the FBI] was June of 1981. But you know that’s a lie because the burglary didn’t happen until August of 1981.” Tr. 567. In addition to accusing Messinger of lying about the date of his first contact with the FBI, defense counsel attacked Messinger’s motives for cooperating with the FBI. After Messinger admitted that the defendant gave him free housing and money for living expenses, defense counsel asked Messinger why he would “trap [the defendant] into saying something that is going to be used against him?” Tr. 590. Defense counsel then continued: “Do you feel any pangs of conscience about that?” Tr. 591. “Do you feel anything wrong in what you were doing to this man who had helped you all these years?” Tr. 591. “So on the one hand, you are working and putting his money in your pocket and supporting your family, and on the other hand, you are putting the knife into his back. Right?” Tr. 592. “So you were spying on this person who had helped you.” Tr. 592.

Throughout cross-examination, defense counsel raised serious questions regarding Messinger’s motivation for cooperating with the FBI’s investigation of the defendant. Additionally, Messinger was unable to explain why he had contacted the FBI before defendant’s store was burglarized. Faced with leaving a distorted impression of Messinger’s credibility in the minds of the jurors, the Court allowed Messinger to explain his relationship with the FBI during redirect. Specifically, Messinger testified that the reason he first contacted the FBI was because he believed that the defendant was illegally copying video tapes. Messinger explained that he first contacted the FBI because he was concerned that he was being asked by the defendant to participate in various illegal activities. Messing-er explained that his contact with the FBI before the burglary related to the defendant’s involvement in pirated tapes and not the defendant’s insurance claim. After Messinger’s explanation on recross, defense counsel was permitted to recross-examine Messinger the next morning.

Generally, when the testimony of a government witness is impeached on cross-examination by defense counsel, the government is entitled to rehabilitate the witness on redirect. See United States v. Press, 336 F.2d 1003, 1013 (2nd Cir.1964). If the defense cross-examines the witness on a part of a transaction, the government is entitled to “elicit evidence on redirect examination of the whole transaction____” United States v. Barrentine, 591 F.2d 1069, 1081 (5th Cir.1979). The government may rehabilitate the witness, “even if in doing so the evidence offered made the defendant appear as an unsavory character.” Beck v. United States, 317 F.2d 865, 870 (5th Cir.1963). In fact, even death threats made by a defendant may be elicited during redirect when such testimony is necessary to correct a distorted impression of a witness’ credibility. United States v. Lehr, 562 F.Supp. 366, 374 (E.D.Pa.1983).

Before trial, the Court ruled that the probative value of the evidence concerning defendant’s involvement with pirated tapes was slight when offered to prove defendant’s motive or intent to commit the crimes charged in the indictment. After defense counsel’s cross-examination of Messinger, however, the evidence became crucial for the government to rehabilitate Messinger. After cross-examination, the jury was left with the impression that Messinger had lied in a deposition concerning the point in time he first contacted the FBI. Messinger, however, was instructed by the government (following the Court's prior order) not to reveal the fact that his first contact with the FBI concerned pirated tapes and not the defendant’s insurance claim. Given the fact that defense counsel vigorously stressed Messinger’s “perjury,” it was necessary for the jury to understand the apparent discrepancy. The introduction of the pirated and stolen tape testimony, necessary to rebut defense counsel’s attack on Messinger’s veracity and motives, outweighed the prejudicial effect on the defense. In addition, the prejudicial effect was substantially lessened when defense counsel was allowed to recross-examine Messinger the following day. Accordingly, admission of the testimony was not error and, alternatively, if error occurred, the defendant has failed to establish sufficient prejudice that would likely result in a reversal of the conviction on appeal. See United States v. Barrentine, 591 F.2d 1069, 1082 (5th Cir.1979).

CONCLUSION

For the reasons stated above, defendant has failed to sustain his burden under 18 U.S.C. § 3143(b). Accordingly, defendant’s motion for bail pending appeal is denied and the defendant is ordered to surrender to the custody of the United States Marshal on or before August 27, 1985 at 12:00 noon.

IT IS SO ORDERED.


author: RAYMOND J. BRODERICK, District Judge.

text:
    Jean D. SMITH, v. Gerald P. FOURNIER, Internal Revenue Service.
    Civ. A. No. 84-3908.
    United States District Court, E.D. Pennsylvania.
    July 22, 1985.

      Jean D. Smith, pro se.
    Glenn L. Archer, Jr., Stuart Glick, Jr., U.S. Dept, of Justice, Tax Div., Washington, D.C., for defendant.
   MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

Pro se petitioner Jean D. Smith has filed a petition to quash a third-party record-keeper summons served by the Internal Revenue Service (the respondent) upon the Fidelity Bank in Philadelphia. The summons, served on the bank pursuant to 26 U.S.C. § 7602, requests copies of 1099 forms which allegedly show that certain payments from a trust were made to the petitioner in the calendar years 1980, 1981, and 1982. The petitioner seeks to' quash the summons pursuant to 26 U.S.C. § 7609(b)(2), alleging, inter alia, that she has been targeted for criminal prosecution as a “tax protester” and that the IRS has violated her right to due process by issuing the instant summons while “deliberately delaying]” referral of her case to the Justice Department for prosecution. The respondent has moved to enforce the summons pursuant to 26 U.S.C. § 7609(b)(2)(A). A hearing on the issues raised by the petitioner was held on July 2, 1985. For the reasons that follow the Court has determined that the petition to quash the summons will be denied and the motion to enforce the summons will be granted.

The procedure for determining the enforceability of a contested IRS summons is well-established. Under 26 U.S.C. § 7609, a taxpayer may file a petition to quash in the district court within twenty days after the IRS has given notice of the service of the summons upon the third-party record-keeper. The IRS is authorized to seek enforcement of the summons in the taxpayer’s proceeding. 26 U.S.C. § 7609(b)(2)(A). To establish a prima facie case for enforcement, the IRS must show: (1) that the investigation will be conducted pursuant to a legitimate purpose; (2) that the inquiry at issue may be relevant to the legitimate purpose of the investigation; (3) that the data being sought is not already in the possession of the IRS; and (4) that the administrative steps required by the Internal Revenue Code with respect to the issuance of a summons have been followed. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-55, 13 L.Ed.2d 112 (1964); United States v. LaSalle National Bank, 437 U.S. 298, 313-14, 98 S.Ct. 2357, 2365-66, 57 L.Ed.2d 221 (1978); United States v. Garden State National Bank, 607 F.2d 61, 67-68 (3d Cir.1979); Smith v. United States, 592 F.Supp. 753, 755 (D.Conn.1984); Provenzano v. United States, 569 F.Supp. 543, 544 (E.D.Pa.1983); Godwin v. United States, 564 F.Supp. 1209,1212 (D.Del.1983); see Picket v. United States, 746 F.2d 176, 183 n. 11 (3d Cir.1984).

The requisite prima facie showing for enforcement generally is made by the affidavit of the IRS agent who issued the summons and is seeking enforcement. United States v. Garden State National Bank, 607 F.2d at 68; Godwin v. United States, 564 F.Supp. at 1212. Once a prima facie case for enforcement has been made, the burden falls upon the taxpayer to disprove the existence of a valid purpose for issuing the summons, or to show that the enforcement of the summons would amount to an abuse of the Court’s process. See Godwin, 564 F.Supp. at 1213, citing United States v. LaSalle National Bank, 437 U.S. at 316, 98 S.Ct. at 2367. In LaSalle National Bank, the Supreme Court ruled that a § 7602 summons could not be validly issued after the IRS had formed an “institutional commitment” to recommend to the Justice Department that a criminal prosecution be commenced; the Court established a “good faith” inquiry designed to determine if the IRS was “honestly pursuing the goals of § 7602 [which at that time were limited to civil tax investigations] by issuing the summons.” LaSalle National Bank, 437 U.S. at 316, 318, 98 S.Ct. at 2367, 2368. However, the 1982 Tax Equity and Fiscal Responsibility Act amendments to § 7602 explicitly expanded the purposes for which the summons power could be used to include criminal investigations, and abrogated the LaSalle “institutional commitment” test by providing that a § 7602 summons is enforceable so long as it is in fact issued before a Justice Department referral has occurred. See Picket v. United States, 746 F.2d at 183—84. Thus a taxpayer alleging that the IRS issued the summons in “bad faith” must now

prove that the summons is issued solely to harass him, or to force him to settle a collateral dispute, or that the IRS is acting solely as an information-gathering agency for other departments, such as the Department of Justice or the F.B.I.

Picket, 746 F.2d at 185 (citations omitted). The Third Circuit recently has described the taxpayer’s burden as “almost insurmountable”. Id., quoting United States v. Garden State National Bank, 607 F.2d at 69.

Finally, it has been uniformly held that in order to obtain an evidentiary hearing, a taxpayer opposing an IRS summons must come forward with an affidavit setting forth specific facts from his or her own resources which demonstrate the existence of a genuine issue of material fact on a legally sufficient defense to the summons. See Moutevelis v. United States, 727 F.2d 313, 314 (3d Cir.1984); United States v. Harris, 628 F.2d 875, 880-83 (5th Cir.1980); United States v. Garden State National Bank, 607 F.2d at 70; United States v. Morgan Guaranty Trust Co., 572 F.2d 36, 39-42 (2d Cir.1978); Smith v. United States, 592 F.Supp. at 755-56; Godwin v. United States, 564 F.Supp. at 1215.

In the present case the respondent submitted an affidavit by Gerald Fournier, the IRS agent who issued the summons to the bank. In his affidavit Agent Fournier states, inter alia, that he is assigned to investigate the federal income tax liabilities of the petitioner for the taxable years of 1980, 1981, and 1982; that the purposes of the investigation are to determine the petitioner’s correct income tax liabilities and to determine whether the taxpayer committed any offenses connected with the administration or enforcement of the internal revenue laws with respect to such income tax liabilities; that the IRS has made no recommendation or referral to the Department of Justice for a grand jury investigation of, or criminal prosecution of, the petitioner, and that the Department of Justice has not made any request to the IRS pursuant to 26 U.S.C. § 6103(h)(3)(B) for the disclosure of any tax return information with respect to the taxes and periods under investigation by the IRS; that the records requested by the summons are not already in the possession of the IRS and are relevant and necessary to the purposes of the investigation; and that all procedures required by the Internal Revenue Code were followed with respect to the issuance of the summons. This affidavit establishes the government’s prima facie ease for enforcement of the summons.

In rebuttal, the taxpayer submitted an affidavit stating that she has been “under continuous and intense criminal investigation” by the IRS for over three years; that the IRS has “harassed and annoyed” her family, friends, and associates as well as herself; and that certain documents she obtained from the IRS pursuant to the Freedom of Information Act (F.O.I.A.) reveal that she has been “targeted” for criminal prosecution as an “illegal tax protester”, and that these documents have been edited (through “black-outs” or “whiteouts”) to conceal the IRS’ “deliberate delay in submitting a recommendation to the Justice Department for criminal prosecution” and the IRS’ design to use the summons “merely ... to gather additional evidence for [her] prosecution.”

Attached to her affidavit were copies of various documents obtained by the petitioner from the IRS via the F.O.I.A. (Exhibits A through L attached to petitioner’s “Reply to Response to Petition to Quash Summons”). Some of these documents did indeed contain “black-outs” and “white-outs” as alleged by the petitioner. Accordingly, out of an abundance of caution the Court granted the petitioner’s request for an evidentiary hearing and ordered the IRS to provide unedited copies of the documents referred to by the petitioner in order for the Court to make an in camera determination as to whether any of the documents bore any relevance to the petitioner’s allegations of “bad faith”.

At the hearing on July 2, 1985, the Court examined, in camera, unedited copies of Exhibits C, D, and E attached to petitioner’s affidavit. The Court determined at that time that none of those documents— copies of internal IRS paperwork regarding the petitioner — had any relevance to the issues raised in the petition to quash. Exhibits G through L, which the petitioner conceded had not been “edited”, similarly do not contain any information relevant to the issue of “bad faith” raised by the petition to quash. Finally, counsel for the IRS stated at the hearing that the IRS had been unable to locate copies (edited or unedited) of Exhibits A, B, and F attached to the petitioner’s affidavit, because they did not, according to the government’s records, appear among the documents released to the petitioner pursuant to her F.O.I.A. request. At the close of the hearing the Court requested counsel for the IRS to endeavor to locate unedited copies of those documents and forward them to the Court for in camera inspection. The IRS did locate and submit unedited copies of petitioner’s Exhibits A, B, and F. The Court has examined these documents in camera and finds they contain nothing which would permit an inference of any improper conduct by the IRS in connection with the issuance of the summons in this case.

At the hearing on July 2, 1985 Agent Fournier testified that he had not recommended to anyone in the Internal Revenue Service or the Justice Department that a criminal prosecution of the petitioner be commenced, and that he was not aware of any request by the Justice Department for information regarding the petitioner’s tax returns. There was no evidence presented — either through the testimony of the agent or the testimony of the petitioner — which would tend in any way to establish any of the factors identified by the Third Circuit as indicative of the IRS’ “bad faith”, i.e., that the summons was issued solely to harass the taxpayer, or solely to force her to settle a collateral dispute, or solely to gather information for other government agencies. See Picket v. United States, 746 F.2d at 185.

The only contention pressed by the petitioner at the hearing was her claim— not raised in her brief — that the IRS had failed to establish its prima facie case for enforcement because the 1099 forms requested in the summons already must be in the “possession” of the IRS within the meaning of United States v. Powell, 379 U.S. at 57-58, 85 S.Ct. at 254-55. At the hearing, the agent testified that although the IRS should have received a magnetic tape from the bank containing the information contained in the 1099 forms, he had been unable to retrieve the 1099 forms from the IRS computer system, and consequently he had been unable to obtain the information contained in the 1099 forms. Under substantially identical circumstances the Third Circuit observed that the costs of “retrieval” of 1099 forms (stored in tapes or documents) is “prohibitive”, and held that if “the information sought ... is, as a practical matter, neither accessible to nor available to [the IRS]”, the fact that the forms sought “may technically be deemed within the physical proprietary control of the Government” will not bar enforcement of the summons. United States v. First National State Bank of New Jersey, 616 F.2d 668, 674 (3d Cir.1980); see also United States v. Provenzano, 569 F.Supp. at 545. In this case it is undisputed that the information sought in the summons is not, as a practical matter, accessible or available to the IRS and, accordingly, the fact that a magnetic tape containing the bank’s 1099 forms may be somewhere in an IRS storage facility will not bar enforcement of the summons.

For all of the reasons set forth above, the Court has determined that the petition to quash the IRS summons filed by Jean D. Smith will be denied and the motion filed by the IRS to enforce the summons will be granted.


author: LEISURE, District Judge:

text:
    PORT CHESTER YACHT CLUB, INC., Plaintiff, v. Peter IASILLO, individually and as Mayor of the Village of Port Chester, John Branca, Brian McMahon, Nicholas Fusco, Carmen Talia, Gary Gianfranco, and Raymond Heilman, individually and as Members of the Board of Trustees of the Village of Port Chester, the Village of Port Chester, Michael Ritchie, individually and as Village Manager of the Village of Port Chester, Sam Lerner, individually and as Corporation Counsel of the Village of Port Chester, and George O’Hanlon, individually and as Village Attorney of the Village of Port Chester, Defendants.
    No. 84 Civ. 7529 (PKL).
    United States District Court, S.D. New York.
    July 23, 1985.

      Monroe Yale Mann, Port Chester, N.Y., for plaintiff.
    Wilson, Elser, Edelman & Dicker, New York City, for defendants; James L. Fischer, John S. Diaconis, Thomas A. Leghorn, New York City, of counsel.
   LEISURE, District Judge:

Plaintiff, the Port Chester Yacht Club, Inc. (hereinafter the “Yacht Club”) commenced this action (Club v. Iasillo) in federal court against the Village of Port Chester (hereinafter the “Village”), its Mayor, Trustees, Manager, Corporation Counsel and Attorney in their official and individual capacities, seeking injunctive and monetary relief. The Yacht Club alleges that defendants deprived it of certain civil rights secured under the First, Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States in violation of the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, 1986. The complaint also alleges pendent state tort and breach of contract claims against the defendants. Jurisdiction is based on both federal question jurisdiction 28 U.S.C. § 1331, and civil rights jurisdiction, 28 U.S.C. § 1343.

This is the Yacht Club’s second attempt to litigate in federal court its objections to the Village’s Harbor Redevelopment Plan (hereinafter the “Plan”). Previously, in Village of Port Chester v. Port Chester Yacht Club, Inc., 598 F.Supp. 663 (S.D.N.Y.1984) (Village v. Club), the Yacht Club unsuccessfully tried to remove to federal court a state summary proceeding action. The underlying facts and dispute of both Village v. Club and Club v. Iasillo are ostensibly the same.

FACTUAL BACKGROUND

The Yacht Club was incorporated in 1938 under N.Y. State’s Membership Corporation Law and has leased from the Village four acres of land adjacent to Long Island Sound in the Village of Port Chester for approximately fifty-five years. During this time the Club made numerous capital improvements on the property, including the construction of buildings and a launching ramp, installation of a retaining wall and driving piles, and dredging a portion of Port Chester harbor. Since 1975, the Yacht Club has occupied the property pursuant to a lease that is due to expire by its terms in 1995.

In May 1981, the Village’s Board of Trustees commissioned the preparation of an Urban Renewal Plan for the Harbor Redevelopment Area. The area of the redevelopment plan includes the property leased to the Yacht Club. Between May 1981 and March 1983, the Village conducted studies to investigate the Plan’s impact on the Village and its inhabitants. In addition, the Village conducted several public hearings in which residents, including members of the Yacht Club, expressed their opposition to the Plan. Nevertheless, the Board of Trustees adopted the Plan at a public hearing in March 1983.

On October 26, 1984, one week after the commencement of Club v. Iasillo, the Village commenced a summary eviction proceeding (Village v. Club) in the Town of Rye Justice Court, County of Westchester pursuant to Article 7 of the New York Real Property Actions and Proceedings Law, seeking to evict the Yacht Club from the property. The Village alleges as a grounds for eviction that the lease agreement, dated April 12, 1979, is illegal, void and of no effect; that the Yacht Club is a mere licensee whose license has been revoked; and that the Yacht Club has refused to vacate the property after receiving a notice dated October 9, 1984 that the Village had revoked its consent to occupy the premises. Village of Port Chester v. Port Chester Yacht Club, Inc., 598 F.Supp. at 664. Furthermore, the Village contends that even if the lease is valid, the Village still has a right to the property under its power of eminent domain.

The Yacht Club maintains, inter alia, that the lease is valid and the Village has no right to exercise its eminent domain power because the redevelopment plan is really a private, not a public use. The Yacht Club timely removed Village v. Club to this court hoping to consolidate Village v. Club and Club v. Iasillo into one judicial proceeding. This request was refused and Village v. Club was remanded to state court where it is presently being litigated. 598 F.Supp. at 666.

The Village has moved to dismiss the remaining action, Club v. Iasillo, pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and Rule 56 for summary judgment. Each side has submitted affidavits, legal memoranda and other documents supporting their respective positions. Discovery has not been conducted. Due to the numerous factual disputes, defendant’s request for summary judgement is denied. However, based on the papers submitted, the constitutional and civil rights claims alleged in counts I, II and III are dismissed without prejudice, for failure to state claims upon which relief may be granted, and the pendent state tort and breach of contract claims alleged in counts IV through X are dismissed for lack of subject matter jurisdiction.

DISCUSSION

On a defendant’s motion to dismiss a complaint pursuant to Rule 12(b)(6), the court must accept the allegations of the complaint as true and should not grant the motion “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Weise v. Syracuse University, 522 F.2d 397 (2d Cir.1975) (applying principle to suit brought pursuant to §§ 1983, 1985).

The Yacht Club’s alleged deprivation of its First and Fourth Amendment rights are unsupported in the complaint and accompanying affidavits and therefore are dismissed. However, the complaint does discuss in broad language that the Yacht Club was deprived of its rights secured by the Fifth Amendment of the Constitution. Apparently, the Yacht Club is claiming that it is being deprived of its property without due process of law and without just compensation. Since the property interest protected by the Fifth Amendment applies to the States through the Fourteenth Amendment, Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 450, 66 L.Ed.2d 358 (1980), Penn Central Transportation Co. v. New York City, 438 U.S. 104, 122, 98 S.Ct. 2646, 2658, 57 L.Ed.2d 631 (1978), Chicago B. & Q. Railroad Co. v. Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 585, 41 L.Ed. 979 (1897), the Yacht Club asserts that the complaint states a cause of action under § 1983.

In this case, plaintiff must show three elements to support a claim of an unconstitutional taking in violation of the Fourteenth Amendment and § 1983: (1) a property interest (2) that has been taken under the color of state law (3) without due process or just compensation. See Parratt v. Taylor, 451 U.S. 527, 535-37, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981); Kohlasch v. New York State Thruway Authority, 460 F.Supp. 956, 960 (S.D.N.Y.1978) (Weinfeld, J.). The first two requirements are met in this case. Unquestionably, the Village is acting under the color of state law, and for the purposes of this motion the Club’s allegations of possessing a valid property interest must be deemed true. However, the Yacht Club’s claim must fail as a matter of law because there has not been any violation of a federally protected right.

Not every deprivation of property is a constitutional violation. Only when an individual has been deprived of property without due process of law has he been injured in a constitutional sense. Miller & Son Paving, Inc. v. Wrightstown Township Civic Ass’n., 443 F.Supp. 1268, 1272 (E.D.Pa.1978), aff'd, 595 F.2d 1213 (3d Cir.1979), cert. denied, 444 U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d 56 (1979). The complaint fails to state anywhere that the Village has taken the Club’s property without due process of law. No factual determination has been made as to who owns the property nor has any of the Club’s property actually been taken by the Village. The simple approval of a rédevelopment plan can not be considered a deprivation of the Yacht Club’s constitutional rights.

In addition, the complaint does not contend that the procedures used by New York State to resolve such a dispute are unconstitutional. In fact, the Yacht Club, in order to insure that it receives the proper due process should avail itself of these procedures. Judge Weinfeld has stated “that the bypassing of an adequate state remedy renders the complaint subject to dismissal for failure to state a constitutional violation.” Kohlasch, 460 F.Supp. at 960 (citing O’Grady v. City of Montpelier, 573 F.2d 747, 751-52 (2d Cir.1978)). In Kohlasch, plaintiffs, the owners and a lessee of real property, sought damages and permanent injunctive relief from the defendant, New York State Thru way Authority, for injuries resulting from the discharge onto plaintiffs’ property of oil, sand, debris and chemicals from a drain constructed by the defendant on adjacent lands. Plaintiffs claimed that defendants deprived them of their property without just compensation in violation of the Fourteenth Amendment of the Constitution of the United States. The Thruway Authority moved to dismiss on grounds of failure to state a claim upon which relief may be granted. Judge Wienfeld stated, inter alia, that the complaint failed to state a claim for an unconstitutional taking of the plaintiffs’ property because the plaintiffs made no attempt to avail themselves of the adequate state procedures for compensation following a de facto appropriation. Similarly, the Yacht Club has also made no attempt to take advantage of the adequate state procedures in order to challenge the Village’s redevelopment plan. The Yacht Club has not even commenced suit in state court pursuant to Article 78 of the New York Civil Practice Law and Rules (CPLR) or any other statute to assert its property rights. Nevertheless, the Yacht Club still has an opportunity to assert its claim and challenge the proposed plan in the pending state action of Village v. Club where the Yacht Club is in a position to obtain complete relief. If, after pursuing state remedial possibilities, the Yacht Club still believes that its property has been taken without due process of law, it then may assert a § 1983 constitutional claim in federal court.

In addition, plaintiff’s §§ 1985 and 1986 claims also fail to state a claim upon which relief may be granted. To state a claim under § 1985(3), the following must be shown: (1) a conspiracy by the defendants; (2) designed to deprive plaintiff of the equal protection of the laws; (3) the commission of an overt act in furtherance of that conspiracy; (4) a resultant injury to person or property or a deprivation of any right or privilege of citizens; and (5) defendant’s actions were motivated by a racial or otherwise class-based invidiously discriminating animus. Carter v. Cuyler, 415 F.Supp. 852, 857 (E.D.Pa.1976) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971)). For the purposes of this motion, I assume that the Yacht Club is considered a class, and that defendants conspired and acted in furtherance of that conspiracy to deprive the plaintiff of its guaranteed rights. However, based on the above reasoning, there is no evidence to support a claim that the Yacht Club was actually deprived of any federally guaranteed right.

Moreover, 42 U.S.C. § 1986 is derivative of § 1985 and provides a remedy for persons injured by neglect or refusal of those having power to prevent the wrongs specified in § 1985, but failed to do so. Therefore, if conduct alleged under 42 U.S.C. § 1985 fails to state a claim, it also fails to state a claim under 42 U.S.C. § 1986. Martin Hodas, East Coast Cinematics, Inc. v. Lindsay, 431 F.Supp. 637, 645 (S.D.N.Y.1977).

The Yacht Club urges the Court to exercise its pendent jurisdiction over the seven state law claims (counts IV-X), on the theory that both these and the constitutional claims arise “from a common nucleus of operative facts.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). However, since the federal claims are dismissed, the state claims are also dismissed for lack of subject matter jurisdiction.

Based on the foregoing, the Yacht Club’s §§ 1983, 1985 and 1986 claims are dismissed. The defendants’ motion for costs and disbursements is denied. Each party shall bear its own costs and disbursements.

SO ORDERED.

      . Additionally, the Yacht Club asserts jurisdiction based on 28 U.S.C. § 1333 (admiralty and maritime cases) and 33 U.S.C. §§ 1, 403, 404 (navigable waters). I see no basis for these assertions and do not rely on these statutes for jurisdiction.

      . Although the lease is dated April 1979, the lease term began in 1975.

      . The government can exercise its eminent domain powers only to appropriate property for public and not private use.

      . The Fifth Amendment states in relevant part "No person shall be ... deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.” U.S. Const, amend V.

      . This is not to say that the Yacht Club must wait until it is phsically evicted, before it can claim that it has been deprived of its property without due process of law or just compensation. New York courts have held that to claim such an injury a condemnee must show merely evidence of "physical entry by the condemnor [or], a physical ouster of the owner [or], a legal interference with the physical use, possession or enjoyment of the property or a legal interference with the owner’s power of disposition of the property.” City of Buffalo v. J. W. Clement Co., 28 N.Y.2d 241, 253, 321 N.Y.S.2d 345, 357, 269 N.E.2d 895, 903 (1971).

      . In cases where federal jurisdiction has been exercised absent prior state proceedings, see e.g. Archer Gardens, Ltd. v. Brooklyn Center. Dev. Corp., 468 F.Supp. 609, 614 (S.D.N.Y.1979), plaintiffs were able to show that they had suffered some form of Fourteenth Amendment injury. However, the Yacht Club has failed to pass this threshold requirement, because as discussed above, the plaintiff failed to allege any deprivation of a constitutional right.

      . New York State law affords a condemnee due process in an eminent domain proceeding. See N.Y. Eminent Domain Law § 101 (purpose); § 201 (requirement of a hearing); § 202 (requirement of notice); § 207 (judicial review); § 301 (requirement of just compensation) (McKinney 1979); Kohlasch v. New York State Thruway Authority, 482 F.Supp. 721, 723 n. 9 (S.D.N.Y.1980).

      . The Yacht Club, pursuant to Article 7 of the RPAPL, is allowed to assert affirmative defenses and counterclaims. See N.Y. Real Prop.Acts. 743 (answer) (McKinney 1979).

      . Plaintiff requested leave to file an amended complaint. However, at this time, based on the findings of this opinion, I see no reason to grant this request.