author: OBERDORFER, District Judge.

text:
    TUCSON MEDICAL CENTER, Plaintiff, v. Margaret M. HECKLER, Defendant. DISTRICT OF COLUMBIA GENERAL HOSPITAL, et al., Plaintiffs, v. Margaret M. HECKLER, Defendant. GEORGETOWN UNIVERSITY HOSPITAL, et al., Plaintiffs, v. Margaret M. HECKLER, Defendant. CAPITOL HILL HOSPITAL, et al., Plaintiffs, v. Margaret M. HECKLER, Defendant. WASHINGTON HOSPITAL CENTER, et al., Plaintiffs, v. Margaret M. HECKLER, Defendant.
    Civ. A. Nos. 84-2437, 84-2496, 84-3484, 85-0729 and 85-0766.
    United States District Court, District of Columbia.
    June 19, 1985.
    Ronald N. Sutter, Powers, Pyles, Sutter & O’Hare, Washington, D.C., for plaintiffs.
    Joseph DiGenova, U.S. Atty., Royce C. Lamberth, Asst. U.S. Atty., Stephen B. Weiss, Atty., Health Care Financing and Human Development Services Div., Office of the General Counsel, Department of Health & Human Services, Washington, D.C., for defendant.
   MEMORANDUM

OBERDORFER, District Judge.

I.

For cost reporting years before October 1, 1983, Medicare applied its “cost reimbursement system” to repay hospitals that had furnished inpatient services to Medicare patients. Under this system, Medicare determined the “reasonable cost” of the inpatient services that a hospital had provided to patients, and then reimbursed the hospitals in that amount or in the amount of the hospital’s customary charges, whichever was less. 42 U.S.C. § 1395f(b). At the close of a fiscal year, a hospital would submit a cost report to its “fiscal intermediary,” usually an insurance company to which the Secretary had contracted part of the program’s audit and payment functions. See 42 U.S.C. § 1395h(a). The intermediary would review the cost report and would then issue a “notice of amount of program reimbursement” (NPR). 42 C.F.R. § 405.1803(c) (1982). A hospital that was dissatisfied with an intermediary’s NPR could seek a hearing before' the Provider Reimbursement Review Board (PRRB or Board). 42 U.S.C. § 1395oo(a)(l)(A) (1982).

Under legislation that applies to cost reporting periods beginning on or after October 1, 1983, Medicare will continue to reimburse medical education and capital costs under the “reasonable cost” system. 42 U.S.C. § 1395ww(a)(4). Inpatient operating costs, however, will be paid for on the basis of prospectively determined rates. See 42 U.S.C. § 1395ww(d). Under the prospective payment system (PPS), Medicare will pay hospitals for inpatient operating costs based on a standard national rate for each discharge, adjusted for the complexity of each hospital’s case mix. 42 U.S.C. §§ 13-95ww(d)(l)(A)(iii), (3).

The plaintiffs in these consolidated cases are not-for-profit hospitals, each of which submitted a cost report on its “base year,” a prior cost reporting year which provides one of the two elements from which prospective rates are calculated by a fiscal intermediary. Plaintiffs’ fiscal intermediaries refused to use a wage index that included federal government hospital data in calculating plaintiffs’ base year costs for the “hospital-specific portion” of PPS. The intermediary for each plaintiff issued a Notice of Base Period Costs and Target Amount for each plaintiff’s first PPS year. See Plaintiff’s Motion for Summary Judgment in Tucson v. Heckler, C.A. No. 84-2437,-Exhibit 12 (hereinafter “Plaintiffs’ Exhibit”). The Notice stated that

the target amount is final and not subject to any change after the beginning of your fiscal year under the prospective payment system.

Id. at 2. Each plaintiff appealed the intermediary’s determination to the PRRB. See Plaintiffs’ Exhibit 13.

The Board, relying on Health Care Financing Administration Ruling (HCFAR) 84-1, declined to accept the plaintiffs’ hearing requests. See Plaintiffs' Exhibit 4. According to HCFAR 84-1, an intermediary’s estimation of a hospital’s base year costs under the PPS is not final and therefore is not reviewable until after an intermediary has issued an NPR. As a result, the plaintiffs will not be able to obtain Board review of what is supposed to be a prospective rate of payment until after the intermediary makes a final determination as to reimbursement for a particular year — nearly two and a half years after the commencement of the PPS year.

The plaintiffs challenge HCFAR 84-1 on the ground that it is inconsistent with 42 U.S.C. § 1395oo(a), the statute that governs PRRB appeals. Plaintiffs also argue that the ruling is inconsistent with the Secretary’s other regulations, which provide that an intermediary’s prepayment determination is “final.” The plaintiffs seek a declaratory judgment that HCFAR 84-1 is invalid and that the Board has jurisdiction over plaintiffs’ appeals under the PPS. For relief, plaintiffs seek an order remanding the dispute to the PRRB so that it can consider the merits of plaintiffs’ challenges.

II.

A.

There is a threshold question of this Court’s jurisdiction. Defendant challenges it on the theory that the Board’s action is not final and therefore not reviewable. Plaintiffs contend that the Board’s refusal to take jurisdiction of the appeal is itself a final decision that may be reviewed under section 1395oo.

Despite the strict limits on judicial review of Medicare reimbursement decisions, plaintiffs prevail on this issue because they seek review only of the jurisdiction decision, not of the substantive claims to be argued before the PRRB. The Court may, under these circumstances, properly exercise jurisdiction over the plaintiffs’ appeal from the PRRB’s refusal to take jurisdiction. Athens Community Hospital, Inc. v. Schweiker, 686 F.2d 989, 992-94 (D.C.Cir.1982).

B.

The statutory provision which controls the commencement of PRRB appeals is 42 U.S.C. § 1395oo(a). It provides:

Any provider of services which has filed a required cost report within the time specified in regulations may obtain a hearing with respect to such cost report by a Provider Reimbursement Review Board .... and ... any hospital which receives payments in amounts computed under [the PPS system] and which has submitted such reports within such time as the Secretary may require in order to make payment under such section may obtain a hearing with respect to such payment by the Board, if
(1) such provider—
(A)(i) is dissatisfied with a final determination of the organization serving as its fiscal intermediary ... as to the amount of total program reimbursement due the provider for the items and services furnished to individuals for which payment may be made under this subchapter for the period covered by such report, or
(ii) is dissatisfied with a final determination of the Secretary as to the amount of the payment under [the PPS system]____
(2) the amount in controversy is $10,000 or more, and
(3) such provider files a request for a hearing within 180 days after notice of the intermediary’s final determination under paragraph (1)(A)(i), or with respect to appeals under paragraph (1) (A)(ii), 180 days after notice of the Secretary’s final determination.

The emphasized portions of § 1395oo were added pursuant to the legislation that established the PPS system. See Social Security Amendments of 1983, § 602(h)(1), Pub.L. 98-21, 97 Stat. 65, 165.

Section 1395oo(a) clearly contemplates two different kinds of appeal. One begins when the intermediary issues an NPR; the other, when the intermediary issues a notice of what will be paid under the PPS system. The quoted language suggests that an appeal from a PPS determination is available when the provider “has submitted such reports within such time as the Secretary may require in order to make payment under such section” so long as a provider files its request for a hearing before the PRRB within “180 days after notice of the Secretary’s final determination.” Section 1395oo(a) (emphasis added). There is no dispute that the plaintiffs have submitted the required reports in a timely fashion, nor is there any doubt that plaintiffs’ appeals are timely. Further, there is no question that the amount in controversy for each plaintiff exceeds $10,000.

The central issue, then, is when is a PPS determination final for purposes of seeking PRRB review? According to the Secretary’s HCFAR 84-1, the PPS determination is not final until the intermediary has issued an NPR. Plaintiffs claim that the PPS determination is final once the intermediary makes it. Defendant argues that the standard for judicial review of HCFAR 84-1 is one of deference to the agency’s interpretation of the jurisdictional statute. Plaintiffs respond that the Secretary’s interpretation of the statute is not entitled to deference at all, because it is an interpretative ruling. Plaintiffs also point out that courts are the final arbiters of statutory construction questions, and further argue that the Secretary’s ruling is entitled to no deference here because it is not supported by adequate reasoning.

HCFAR 84-1 states in conclusory fashion that an intermediary’s notice of base year costs (the PPS determination) “is neither a final determination of program reimbursement nor a notice of the amount of program reimbursement as required by the statute and regulations.” 49 Fed.Reg. 22,-415 (1984). But it fails to explain adequately why the PPS determination should be controlled by the NPR review provisions, particularly where Congress has taken the time to set up two entirely separate processes for initiating an appeal. Although the notice accompanying the ruling attempts to justify the Secretary’s decision in the light of existing regulations, it does not contain any analysis of the relevant statutory language. The Secretary’s proffered interpretation of the statute would reduce the 1983 additions to section 1395oo(a) to mere surplusage. The plaintiffs correctly observe what is apparent from the face of the statute: Congress patently did not impose the appeal mechanism for the cost reimbursement system on the new prepayment system.

The plaintiffs also cite several of the Secretary’s regulations and interpretations, all of which treat an intermediary’s determination as being final subject only to extremely narrow exceptions which are not relevant here. This administrative interpretation is important because 42 U.S.C. § 1395oo(a)(3) plainly allows a hospital to file an appeal with the PRRB if it does so “within ... 180 days after notice of the Secretary’s final determination ...” (emphasis added). The Notice of Base Year Costs issued to plaintiffs explicitly stated that its payment determination was “final and not subject to any change” after the beginning of the hospital’s fiscal year under the PPS. Plaintiffs’ Exhibit 12 at 2. Moreover, the regulations treating PPS determinations as final preceded HCFAR 84-1. See 42 C.F.R. §§ 405.474(b)(l)(iv), (v) (published at 48 Fed.Reg. 39,825 (1983)). In addition, on at least 31 separate occasions, the PRRB agreed to hear an appeal from an intermediary’s determination without awaiting the issuance of an NPR. See Plaintiffs’ Exhibit 5. Thus, to the extent that contemporaneous agency interpretation of a controlling statute is an issue, it is apparent that HCFAR 84-1 reflects, at best, an unreasoned reversal of what until then had been the Secretary’s consistent interpretation of the jurisdictional statute. Indeed, even the Secretary’s more recently promulgated regulations treat the intermediary’s determination, subject to exceptions not applicable here, as final: “The intermediary’s estimate of base year costs and modifications thereto is final and may not be changed after the first day of the first cost reporting period beginning on or after October 1, 1983 ____” 50 Fed.Reg. 12,753 (1985) (to be codified at 42 C.F.R. § 412.-71(d)).

The inconsistency of the Secretary’s position has been described in Redbud Hospital District v. Heckler, CCH Medicare and Medicaid Guide ¶ 34,084 (N.D.Cal. July 30, 1984). On a motion for preliminary injunction, the Redbud court faced issues virtually identical to those presented here. After a careful review of the Medicare statute, the legislative history and applicable regulations, that court concluded:

Clearly, Congress, in setting up a prepayment system and expressing special concern for hospitals in situations such as that faced by Redbud, could not have intended that such a hospital must wait to obtain review until after the end of its first year under the system, by which time it could well have been forced out of business in the event of inaccurate PPS hospital-specific target rate estimations. The Secretary, in refusing to afford review within a reasonable time frame, is in derogation of the statutory scheme provided by Congress, and has abused her discretion.

Id. at 9884 (emphasis added).

The defendant does not even cite Redbud in her opposition. Moreover, the plaintiffs represent without contradiction that Red-bud was never appealed and this Court has found no report of an appeal. The Secretary provides absolutely no explanation of why a case that is directly on point should not only be considered, but also followed here. Compare Lopez v. Heckler, 572 F.Supp. 26, 28-30 (C.D.Cal.1983) (criticizing the Secretary for refusing to “acquiesce” to binding Court of Appeals precedent), request for partial stay of injunction denied, 713 F.2d 1432 (9th Cir.1983), request for partial stay granted, 463 U.S. 1328, 104 S.Ct. 10, 77 L.Ed.2d 1431 (1983) (Rehnquist, J.), modified, 725 F.2d 1489 (9th Cir.1984). In the circumstances, the reasoned unappealed decision of the Redbud court is entitled to greater deference than the ipse dixit ruling of the Secretary. Moreover, independent of that precedent, the plain language added to section 1395oo(a) as part of the prospective payment system enacted by Congress in 1983 establishes that a determination such as the one made by the intermediary here is reviewable by the Board before an NPR is issued.

An accompanying order will consolidate the several related cases that involve the identical issue, declare that the intermediary’s decision is reviewable by the Board, and remand the cases to the Board for its review.

ORDER

For the reasons set forth in an accompanying Memorandum, it is this 18th day of June, 1985, hereby

ORDERED: sua sponte, that District of Columbia General Hospital v. Heckler, C.A. No. 84-2496; Georgetown University Hospital v. Heckler, C.A. No. 84-3484; Capitol Hill Hospital v. Heckler, C.A. No. 85-0729; and Washington Hospital Center v. Heckler, C.A. No. 85-0766, be, and are hereby, CONSOLIDATED with Tucson Medical Center v. Heckler, C.A. No. 84-2437; and it is further

ORDERED and ADJUDGED: that plaintiffs’ motions for summary judgment be, and are hereby, GRANTED; and it is further

ORDERED and ADJUDGED: that defendant’s cross-motions for summary judgment be, and are hereby, DENIED; and it is further

DECLARED: that HCFAR 84-1, published at 49 Fed.Reg. 22413-22415 (May 29, 1984), is inconsistent with 42 U.S.C. § 1395oo(a) and therefore invalid; and it is further

ORDERED and ADJUDGED: that the decisions of the Provider Reimbursement Review Board (“Board”) denying jurisdiction over plaintiffs’ appeals under the prospective payment system be, and hereby are, REVERSED; and it is further

DECLARED: that the Board has jurisdiction over the appeals of the plaintiffs under the prospective payment system; and it is further

ORDERED and ADJUDGED: that these consolidated cases be, and hereby are, REMANDED to the Board for the expeditious processing of plaintiffs’ appeals under 42 U.S.C. § 1395oo.

      . Medicare as used here refers to the program created by Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq.

      . An accompanying order will consolidate the several cases that raise the identical issue: Tucson Medical Center v. Heckler, C.A. No. 84-2437; District of Columbia General Hospital v. Heckler, C.A. No. 84-2496; Georgetown University Hospital v. Heckler, C.A. No. 84-3484; Capitol Hill Hospital v. Heckler, C.A. No. 85-0729; Washington Hospital Center v. Heckler, C.A. No. 85-0766.

      . 49 Fed.Reg. 22,413-15 (1984).

        . See, e.g., Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984).

      . See 49 Fed.Reg. 253 (1984); 42 C.F.R. §§ 405.-474(b)(l)(iv), (v) (published at 48 Fed.Reg. 39,-825 (1983)); Medicare Provider Reimbursement Manual, Part 1, HCFA Pub. 15-1 (May 1983) (Plaintiffs Exhibit 2) at 1, 28-7 & 28-14.

      . See also Sunshine Health Systems, Inc. v. Heckler, No. CV 85-953-AHS (Px), slip op. at 5 (C.D.Cal. April 10, 1985) (granting plaintiffs motion for preliminary injunction).


source: Caselaw Access Project

author: EDWARD C. REED, Jr., District Judge.

license: Public Domain

text:
    James D. COOK, Plaintiff, v. Vernon HOUSEWRIGHT; George Sumner; John Ignacio; James McClennan; Allen Schnaser; Lula Spencer; and Lt. Smith, Defendants.
    No. CV-R-84-344-ECR
    United States District Court, D. Nevada.
    June 19, 1985.
    James D. Cook, in pro. per.

      D. Brian McKay, Atty. Gen. by David F. Sarnowski, Deputy Atty. Gen., Carson City, Nev., for defendants.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

This is a pro se 42 U.S.C. § 1983 civil rights action by an inmate of Nevada State Prison against prison officials, the prison doctor, a prison nurse and an outside surgeon. A number of incidents reflecting improper medical care are alleged. The major contentions are that there was deliberate delay in transporting the plaintiff to a local hospital for a needed second operation on his right knee and that the plaintiff has been denied the services of a physical therapist even though a medical doctor has said that physical therapy would be required for full recovery from that operation. As a result, the plaintiff contends, he never will regain the full use of his right leg and he unnecessarily suffered and will continue to endure pain and discomfort for the rest of his life.

Defendants Vernon Housewright, Director of the Nevada Department of Prisons, and George Sumner, Warden of the Nevada State Prison, have filed an Fed.R. Civ.P. 12(b)(6) motion to dismiss the complaint as against them. The basis for the motion is their lack of participation or involvement in the conduct alleged in that pleading. Each of the moving defendants has attached his own affidavit to the motion papers. Those affidavits assert a lack of personal knowledge as to any of the matters alleged in the complaint, no personal participation in the day-to-day provision of medical care for inmates, and no involvement, supervisory or otherwise, with the providing or withholding of medical treatment for the plaintiff.

The plaintiff, in response, has asked that the motion be treated as one for summary judgment. He has attached his own affidavit to the responsive papers. Therefore, the Court will treat the proceeding as an Fed.R.Civ.P. 56 motion for summary judgment.

The complaint charges that defendant Housewright, while acting in his official capacity as Director of the Department of Prisons, failed to properly train and instruct his subordinates to perform their duties in a manner that would not violate the plaintiffs constitutional rights. The pleading makes the same allegation against defendant Sumner, in his capacity as Warden of the Nevada State Prison. In addition, Mr. Sumner is charged with refusing to provide proper medical care and treatment to the plaintiff, as required by law.

Although a court may find that an untrained or poorly trained prison employee has violated an inmate’s constitutional rights, and provide a remedy, to require prisons to have adequate training programs “is an impermissible judicial involvement with the minutiae of prison administration.” Hoptowit v. Ray, 682 F.2d 1237, 1251 (9th Cir.1982). Nevertheless, an official’s failure to act, in violation of duties imposed upon him by statute, may subject him to liability under § 1983. Johnson v. Duffy, 588 F.2d 740, 744 (9th Cir.1978). NRS 209.131 places upon the Director of the Department of Prisons responsibility for the care and treatment of prison inmates and specifically requires him to take proper measures to protect the health of the inmates. In turn, NRS 209.161 makes the Warden of each prison responsible to the Director for the administration of his prison, including the execution of all policies pertaining to the care of inmates. This Court has held, in a case not involving medical care, that a prison official may be held liable if his lack of care in the training of subordinates proximately results in injury to an inmate. Buckner v. State of Nev., 599 F.Supp. 788, 791 (D.Nev.1984); see also Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (prisoners are entitled to reasonable medical care, and the officers with custody of them have a duty to procure such care and Hopper v. Hayes, 573 F.Supp. 1368, 1373 (D.Ida.1983) (where a city’s failure to train its police officers constitutes negligence, the city may be held liable under § 1983).

Hoptowit, at 682 F.2d 1251, indicates that injunctive relief may be granted requiring prison officials to prevent guards from violating inmates’ Eighth Amendment rights. As to damages, the Ninth Circuit rule is that, in a § 1983 action, vicarious liability (i.e., respondeat superior) may not be imposed on a state official for acts of his subordinates in the absence of a state law imposing such liability. Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir.1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.1978); Johnson v. Duffy, supra at 744. Nevada has no such law as to wardens or the Director of the Department of Prisons. The affidavits of the moving defendants indicate that they were not involved in, did not participate in, and had no knowledge of the providing or withholding of medical treatment for the plaintiff. The plaintiff’s affidavit does not seek to refute these assertions.

It is true that personal participation is not the only predicate for § 1983 liability. If a defendant sets in motion, by omitting to do that which he is legally required to do, a series of acts by others that the defendant reasonably should know would cause the others to inflict injury, the defendant may be held liable. Id. at 743, 744; Arnold v. Intern. Business Machines, 637 F.2d 1350, 1355 (9th Cir.1981). There would have to exist a foreseeable risk or causal relationship between a defendant’s failure to train his subordinates and the latters’ conduct that injured the plaintiff, however, Rymer v. Davis, 754 F.2d 198, 201 (6th Cir.1985); Buckner v. State of Nev., supra at 791. The record before I the Court in this motion for summary judgment belies the existence of such a causal relationship. Medical card repeatedly was provided, on other occasions, to the plaintiff. Nor is there any indication of any policy not to furnish such care to any inmate, as needed. The isolated allegedly deliberate failure by subordinates to provide proper care to the plaintiff alone will not suffice to impose liability on defendants Housewright and Sumner. See City of Oklahoma City v. Tuttle, — U.S.-, ---, 105 S.Ct. 2427, 2433-37, 85 L.Ed.2d 791 (6/3/85). The moving defendants’ lack of involvement, participation and knowledge as to the plaintiff’s medical treatment remains unrefuted. In such case, they may not be held liable. May v. Enomoto, 633 F.2d 164, 167 (9th Cir.1980).

IT IS, THEREFORE, HEREBY ORDERED that the motion for summary judgment by defendants Vernon Housewright and George Sumner be granted. The Clerk of Court shall enter judgment dismissing the complaint as against said two defendants.


author: GERRY, District Judge.

text:
    Juan PEREZ, et al., Plaintiffs, v. Calvin NEUBERT, et al., Defendants.
    Civ. A. No. 85-2702. (Consolidated with Civ. A. No. 85-2703 through 85-2734).
    United States District Court, D. New Jersey.
    June 20, 1985.

      Juan Perez, et al., pro se.
    Irwin I. Rimmelman, Atty. Gen. of N.J. by Stephen P. Tasy, Deputy Atty. Gen., Trenton, N.J., attorneys for defendants.
   OPINION

GERRY, District Judge.

I. INTRODUCTION

These are thirty-three consolidated cases. The plaintiffs are among some 125,000 Cubans who arrived in the United States in the spring and summer of 1980, as part of the “Freedom Flotilla” that embarked from the Port of Mariel, Cuba. See Fernandez-Roque v. Smith, 734 F.2d 576 (11th Cir.1984). Of these 125,000, a small percentage, but a fairly substantial number, were inmates released from Cuban jails and mental institutions. This court has no certain information about which, if any, of the thirty-three plaintiffs involved in these cases fall into this latter category of “Marielitos.”

Because most of these 125,000 Marielitos lacked documents entitling them to legally enter the United States, they were deemed “excludable.” See 8 U.S.C. § 1182(a). Normally, excludable aliens, following exclusion hearings, are immediately deported, “unless the Attorney General, in an individual case, in his discretion, concludes that deportation is not practicable or proper.” 8 U.S.C. § 1227(a). In the case of the Mariel Cubans, due to the special circumstances of their arrival, the Attorney General deemed deportation improper. Pursuant to his authority under 8 U.S.C. § 1182(d)(5), the Attorney General “paroled into the United States” the majority of the Marielitos, including the thirty-three presently before the court. Since arriving in Florida, the plaintiffs have come to New Jersey. All have been convicted of crimes committed in New Jersey and are serving sentences in connection with those crimes.

These convictions may, at some future date, result in the return of the plaintiffs to Cuba. As of the summer of 1984, the government of Cuba had refused to accept back any of the Marielitos. In late 1984, the governments of the United States and Cuba reached some kind óf an understanding under which Cuba would take back some of the Marielitos the United States government considered undesirable. However, in May 1985, the United States began broadcasts to Cuba via Radio Marti. This station, which bears the name of a Cuban national hero, was charged with the responsibility of transmitting anti-Castro information into Cuba. The Cuban government, apparently incensed by the broadcasts, abruptly backed out of its agreement to repatriate the Marielitos. While it is conceivable that at some point the governments may reach a new understanding under which deportation could be resumed, at the moment that is mere speculation.

On or about April 3, 1985, the thirty-three plaintiffs were removed from the general prison populations of several state correctional institutions and were transferred to the Management Control Unit (MCU) at the Leesburg State Prison. The MCU, as will be described hereinafter, is a more restrictive form of confinement than general population confinement.

The plaintiffs have brought suit pursuant to 42 U.S.C. § 1983 and claim violations of the 1st, 4th, 6th, 8th and 14th Amendments. They seek by way of injunctive relief their return to the general prison population. A hearing on their preliminary injunction application was held on June 7, 1985. In addition to the testimony and documents put into evidence on that day, the defendants have submitted for the court’s in camera inspection additional evidence regarding the need for special confinement.

The following shall constitute the court’s findings of fact, and conclusions of law.

II. FINDINGS OF FACT

1. All thirty-three plaintiffs have been convicted of crimes in the State of New Jersey and are currently incarcerated in the Management Control Unit in Leesburg State Prison. Prior to being placed in the MCU on or about April 3, 1985, the plaintiffs were serving their sentences in various institutions in the New Jersey system. Fifteen were in the general prison population at Leesburg (Brito, F.; Brito, R.; Contrera; Dixon; Echeverría; Jiminez; Morales; Moreno; Musa; Navarro; Ortiz; Puente; Ramirez; Sanchez; and Valdez); five were in the general population at Southern State (Junquera; Lopez, A.; Miquez; Rivera; and Velasquez); three in the general population at Annandale (Mendez; Roman; and Salabria); one was in the Youth Corrections facility at Yardville (Gonzalez); and nine were in the Prisoner Reception Unit (PRU) at Yardville (Delarosa; Fuentes; Garcia; Illarza; Lopez, P.; Niebla; Perez; Rosell; and Verdecía). The PRU seems to be a temporary way-station for those admitted to confinement in the state system. After being examined and classified, inmates are ordinarily transferred from the PRU to other facilities. None of the plaintiffs came from the state prisons at Trenton or Rahway.

2. The court does not have before it complete information on the crimes for which the plaintiffs were convicted. We do know the parole eligibility dates of these men, however. Thirteen are eligible in 1985; eight, in 1986; five, in 1987; three, in 1988; two, in 1990; and one, in 1991. (Information as to one man, Valdez, was uncertain.)

3. The defendants in these actions are Irwin I. Kimmelman, the Attorney General for the State of New Jersey, and E. Calvin Neubert, the Superintendent of Leesburg.

4. The plaintiffs were not the only Marielitos in the New Jersey prison system who were placed in Management Control Units throughout the state. In fact, all of the approximately 170 Mariel Cubans in the system were so placed in early April 1985, in MCUs at Trenton, Rahway and Lees-burg. Non-Mariel Cubans were not similarly singled out for such treatment, nor were other conspicuous groups within the prisons, such as “bikers” or Muslims.

5. The system-wide segregation of Mariel Cubans was precipitated by revelations concerning a series of incidents and threatened demonstrations involving some of the Marielitos in several of the prisons. Out of deference to the interest of prison officials in keeping the sources of this information — some of it from confidential informants — secret, the court will only set forth below so much detail as is necessary to give its decision coherence.

(a) In July 1984, there was a group demonstration at Leesburg staged by fourteen Marielitos, apparently resulting in some way from these inmates’ dissatisfaction with their Immigration and Naturalization Service (INS) detainers. These inmates merely threatened a hunger strike and a work stoppage until their concerns were addressed but did not threaten violence. Some of the demonstrators were transferred. Notably, not all Marielitos at Lees-burg were involved in the demonstration, and no action was taken against those not involved.

(b) In late February 1985, prison officials received a report from the INS based on information provided by an informant the INS characterized as reliable. The report stated that Mariel Cuban inmates were planning acts of violence against prison officials. The informant opined that these inmates would rather spend their lives in United States jails (by committing new acts of violence) than go back to Cuban jails pursuant to the deportation agreement between the two governments.

(c) An undated report of an Internal Affairs Unit (IAU) investigator (probably written shortly after the INS memo) identified the probable leaders at Trenton State and Leesburg of any coordinated activity by the Mariel Cubans.

(d) On March 31, 1985, officials received reliable, confidential information regarding a planned disturbance at Trenton State Prison the following day. This disturbance was to take place in the mess hall and ostensibly was supposed to be a protest against a new lunchroom procedure. But this protest, according to the informants, was merely a subterfuge. The Marielitos were actually planning acts of violence against prison personnel in order to avoid deportation. The informants believed that the Marielitos were to be joined in this demonstration by bikers and Muslims at Trenton State Prison, who would use the crisis as a means for airing their own, unrelated grievances.

6. Based on the reports from Trenton State Prison, all Marielitos at that facility were quickly placed in MCU lockup at Trenton State Prison on April 1.

7. After April 1, reports continued to come in.

(a) On April 3, 1985, there was an incident at Leesburg in which one Marielito stabbed another. Apparently, the victim had accused the attacker of being an informant (a “rat”), and the attacker believed that the victim was trying to turn other Marielitos against him. Although this stabbing upon later investigation seemed to have simply been an isolated incident involving two inmates, at the time it gave officials some cause for believing that it had something to do with the other Marielito unrest throughout the state.

(b) Meanwhile, there was considerable unrest at Southern State. On April 2, the institution received inmates from Trenton State Prison. One of these transferees started a rumor that Marielitos at Trenton State Prison and Leesburg were being locked up and would be shipped to Cuba, where they would be shot. (We note for the record that there is no credible evidence from which to conclude that such a fate awaits any Marielitos who may ultimately be returned to Cuba. The now-abrogated repatriation agreement between the two governments contemplated that deportees would not be mistreated upon their return.)

In the early afternoon of April 4, 1985, personnel at Southern State received a report that Mariel Cubans at the facility had planned a disturbance the previous day, but that it had not materialized due to the inability of inmates to spread the word.

8. On April 3, 1985, all Marielitos at Leesburg were placed in MCU status there. Late on April 4, 1985, all Marielitos at Southern State were placed in MCU status there. It appears that on April 4, all other Marielitos in the state system were similarly placed. In the week or so that followed, various of these inmates were transferred around the state, so that at the present all are in MCUs in Trenton, Rahway or Lees-burg.

9. Throughout early-to-mid-April, 1985, reports sporadically came in about further possible disturbances by the Mariel Cuban inmates at Trenton State, and information was received about a planned violent demonstration at Rahway which had been short-circuited by the segregation of Marielitos there.

10. There does not seem to have come to light during this period any specific information about planned violence by Marielitos at any of the following institutions: Bordentown, Mid-State, Annandale or Yardville (PRU and Youth Corrections).

11. The plaintiffs were placed in MCUs on April 3 or 4, pursuant to Department of Corrections Standard 141.

According to the testimony of prison officials and the terms of Standard 141, confinement in the Management Control Unit is not disciplinary or “punitive”; that is, confinement is not imposed because an inmate has violated a prison regulation. Confinement is not viewed as a stain on one’s prison record and is not considered in any way in the parole process. Rather, the Management Control Unit is a form of preventive detention used by officials to prevent a potential disturbance from erupting. In the language of the Standard, an inmate may be placed in the MCU if he constitutes a “threat”:

(1) to the safety of others; or (2) of damage to or destruction of property; or (3) of interrupting the safe, secure, and orderly operation of the institution____

Ordinarily, a hearing precedes placement in the MCU. However, under the Standard, one may be placed in the MCU prior to hearing in the event of an emergency posing an immediate and substantial threat to the security and orderly operation of the institution. In the event of an emergency, hearings are to be held “as soon as possible,” with the promptness depending on the number of inmates involved. And any inmate who is continued in the MCU following a hearing is entitled to a review of the need for continued confinement at least once every three months. See Standard 141.10 and .11.

12. On April 3, each of the plaintiffs in the Leesburg general population was notified that he was being placed in the MCU. The notice made mention of each plaintiff’s status as an “illegal Cuban alien,” and further stated:

The intent of this action is to halt untoward escalation of activities which in our best professional judgment could pose a serious threat to the well-being and safety of the staff and inmate population.

13. On April 23 or 24, each plaintiff in these cases was given a notice of an MCU classification hearing to be held on April 25 or 26. The notice listed the factors which, “in general,” the Special Classification Committee would be considering:

Past record including offense(s) for which committed; records of past institutionalization; disciplinary record on work assignments; adjustment to institutional programs, records on past housing assignments; attitude toward authority; psychological makeup; and involvement in criminal activities within the prison.

These factors are those listed in Standard 141 itself.

14. Prison officials testified that hearings could not be held until three weeks after placement in the MCU because of the large number of inmates involved. Prior to this wholesale segregation, there had only been some 22 individuals in MCU status.

15. Hearings were held as scheduled. Each plaintiff was given an opportunity to make a statement, and each plaintiff denied any intention to participate in any organized protests or violence. It appears that the inmates were told about the Trenton State situation (apparently the most dangerous). Some inmates stated that they had nothing to do with the problems at Trenton State Prison. At the hearings, the prison officials verified that the plaintiffs were Marielitos.

16. On May 2, 1985, each plaintiff was given a Notice of Classification Decision. The thirty-three Notices are identical, and each reads as follows:

All Cuban (Marielito) aliens that are incarcerated within the state prisons are presently subject to deportation back to Cuba. Confidential information received by the Department of Corrections indicates the obsessive fear of deportation in effect initiated a conspiracy to create [a] violent, hostile disturbance. You have been identified as a Mariel Cuban subject to be deported. Although you have not posed a problem to date, your relationship with and/or possible peer pressure from other Mariel Cuban conspirators may result in your becoming involved in an institutional disturbance of serious consequences. You pose a threat to the security and orderly operation of any correctional institution while incarcerated. It is the decision of the Special Classification Committee that you be placed in a Management Control Unit where you can participate in work/education programs without endangering the lives of others, including staff and inmates.

The notice further alerted plaintiffs of their right to take an appeal to defendant Neubert and notified them that their cases would be reviewed in August, 1985.

17. Some of the plaintiffs did take an administrative appeal. All such appeals were resolved on May 24, 1985 in favor of the original decision.

18. As of this writing, all thirty-three plaintiffs remain in the MCU at Leesburg. While Standard 141 indicates that MCU inmates have many of the same privileges and rights available to inmates in the general population, it is readily apparent that these privileges and rights are definitely subject to significant restrictions, which might lead the MCU inmates to doubt that they are not being “punished.”

For example, MCU inmates must eat in their cells.

They may work, but their work is performed in their cells. Each plaintiff has been assigned the job of “cell sanitation”— keeping his cell clean. Prior to MCU assignment, the plaintiffs performed a broader range of work activities.

Exercise and showers are limited.

MCU inmates do not attend religious services, although “spiritual counseling shall be available on an individual basis.” See Standard 141.24.

Access to the prison law library is only indirectly available, through intermediaries.

Educational activities are also available but, again, apparently on an individual basis within each inmate’s cell.

In short, then, the plaintiffs are locked up, one to a cell, twenty-four hours a day, with certain brief periods outside their cell.

III. LEGAL ANALYSIS

1. Before we begin, we emphasize that this case is concerned only with thirty-three Marielitos at Leesburg prison. While there may be similarities between the circumstances of these men and those affecting other Marielitos throughout the state correctional system, differences of which this court is not fully aware may warrant that those confined in MCUs at Trenton State Prison and Rahway Prison be treated differently.

2. Additionally, we note that the defendants, to their credit, have not contended that the plaintiffs, because they are excludable aliens, are not in the present context protected by the Constitution. It has recently been held that excludable aliens cannot challenge either INS admission or parole decisions under a claim of constitutional right. Jean v. Nelson, 727 F.2d 957, 972 (11th Cir.1984) (en banc). However, excludable aliens may be able to challenge, under a constitutional theory, governmental action outside of the immigration context. See Fernandez-Roque v. Smith, 734 F.2d at 582 n. 8; US. v. Henry, 604 F.2d 908, 914 (5th Cir.1979) (Miranda rights); Medina v. O’Neill, 589 F.Supp. 1028 (S.D.Texas 1984) (conditions of confinement). While the issue may not be free from doubt, we will proceed on the assumption that the plaintiffs may challenge their confinement on constitutional grounds.

3. If we had found that the conditions of confinement of the plaintiffs were substantially similar to those affecting inmates in the general population, we would be proceeding no further. Mere sequestration, under “separate but equal” conditions, would not, in the prison context, be cognizable under § 1983. However, in our factual findings, we concluded that the conditions of confinement in the MCU are substantially less favorable than the conditions suffered by the general population. We would not go so far, however, as to characterize the MCU conditions as so “cruel and unusual” as to be violative of the Eighth Amendment.

4. New Jersey, like other jurisdictions, has adopted regulations establishing two basic types of restricted housing — disciplinary and administrative segregation.

Confinement in disciplinary segregation is punitive and is imposed when an inmate has violated a prison rule. Administrative segregation — MCU confinement — is not imposed as punishment but is used to head off a potentially dangerous situation within the prison. We assume, nevertheless, that the actual conditions of these two types of confinement are about the same.

The leading case on administrative confinement is Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), wherein the Supreme Court considered “what limits the Due Process Clause of the Fourteenth Amendment places on the authority of prison administrators to remove inmates from the general prison population and confine them to a less desirable regimen for administrative reasons.” Id. at 462, 103 S.Ct. at 867.

The Supreme Court rejected the claim that the Due Process Clause implicitly, in and of itself, created a liberty interest in being confined to the general population, rather than to more austere conditions:

It is plain that the transfer of an inmate to less amenable and more restrictive quarters for non-punitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence [and does not involve] an interest independently protected by the Due Process Clause.

Id. at 468, 103 S.Ct. at 869-70. But, the Court went on to recognize, a liberty interest protected by the Due Process Clause may be created by state statute or regulations. Id. at 468, 103 S.Ct. at 869.

While both the Third Circuit and the Supreme Court in the Hewitt case were somewhat reluctant to read the Pennsylvania regulations there at issue as creating a liberty interest in confinement in the general population, both courts nevertheless did hold that the Pennsylvania regulations created such a liberty interest, in non-restrictive confinement. These courts were persuaded that the regulations, by setting forth substantive grounds, justifying administrative confinement, clearly contemplated that an inmate would not be confined “absent [these] specified substantive predicates.” 459 U.S. at 472, 103 S.Ct. at 871.

This court has carefully considered New Jersey Department of Corrections Standard 141, and we conclude that this regulation similarly confers a liberty interest in general population confinement. This conclusion is implicit in the regulation’s setting forth of grounds permitting administrative confinement:

[That an inmate constitutes a] threat (1) to the safety of others; or (2) of damage to or destruction of property, or (3) of interrupting the safe, secure and orderly operation of the institution____

An inmate who does not pose such a threat is therefore entitled to remain in the general population.

5. Having determined that the plaintiffs have a liberty interest protected by the Due Process Clause, it becomes necessary to determine what kind of process is required (i.e., the nature of the hearing) before that interest can be taken away, and when the process is due.

Again, Hewitt v. Helms provides us with a starting point for analysis. There, the Supreme Court held that one may be placed in administrative confinement prior to a hearing, and that the hearing need only be held “within a reasonable time after” confinement. Id. at 472, 103 S.Ct. at 872. Cases in this District which predate Hewitt have likewise held that exigent circumstances within a prison may warrant segregation without prior notice and hearing. Calloway v. Fauver, 544 F.Supp. 584, 601 (D.N.J.1982); Hodges v. Klein, 421 F.Supp. 1224, 1231 (D.N.J.1976), aff'd, 562 F.2d 276 (3d Cir.1977).

Accordingly, we conclude that due process was not violated by the initial, prehearing placement of the plaintiffs in MCUs on April 3 and 4. Based on the reliable information and less substantiated rumors coming in, this court cannot conclude that the official response was exaggerated.

Next, we address the question of whether the hearings were held “within a reasonable time” after confinement. Insofar as the plaintiffs do not seek damages, this is something of a moot point. The fact is, hearings were held. The outcomes of the hearings are plaintiff’s principal grievance. Nevertheless, for the sake of not leaving unanswered questions that might just as easily be answered, we hold that the hearings were held with reasonable expedition. In deciding what is reasonable, we consider the time necessary for completion of an investigation of the potentially dangerous circumstances and the principal role-players, as well as the administrative burden the hearings entailed. We note that officials were still garnering information on possible disturbances in mid-April, and that the number of hearings was quite substantial (approximately 170). Given these factors, we cannot conclude that the three week delay between initial confinement and the hearings was unreasonably long, or that the additional week it took for prison officials to reach their decisions was unreasonably long.

Hewitt v. Helms further dictates the conclusion that the type of hearings held passed (indeed, surpassed) constitutional muster. The Supreme Court there held:

[A]n informal, non-adversary evidentiary review is sufficient ... for the decision that an inmate represents a security threat____ An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily, a written statement by the inmate will accomplish this purpose____So long as this occurs, and the decision maker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied.

Id., 459 U.S. at 476,103 S.Ct. at 874. Thus, the Court eschewed the more formal, elaborate, procedural requirements appropriate to disciplinary confinement cases. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

In the instant case, the plaintiffs were informed of the problem forming the basis for the possible continuation of confinement and were given an opportunity to tell their side of the story. Accordingly, as far as form or procedure was concerned, the classification hearings were more than adequate.

6. That brings us to the question which presents some difficulty: whether the decision of the Classification Committee to continue the MCU status of the plaintiffs was justified. This is not a matter of procedure, but one of substance.

We start with the maxim that “Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). The safety of the institution’s inmates and guards is perhaps the most fundamental responsibility of the prison administration. Id.; Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 132, 97 S.Ct. 2532, 2541, 53 L.Ed.2d 629 (1977). Nevertheless, the court need not defer to prison officials where there is substantial evidence in the record to indicate that the official response is “exaggerated.” Bell, supra, 441 U.S. at 547-48, 99 S.Ct. at 1878-79; Calloway, supra, at 598.

Second, as to a hearing officer’s factual findings, it is not for a court to weigh the evidence de novo and draw its own conclusions. Rather, the court’s function is limited to determining if the hearing officer’s conclusion is supported by substantial evidence. Id. at 605. Put another way, we merely ask whether or not the Classification Committee decision was “arbitrary and capricious,” whether or not there were “some facts” to support the decision. McCrae v. Hankins, 720 F.2d 863, 868 (5th Cir.1983); Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir.1981).

Even when we accord the defendants this wide-ranging deference, we are greatly troubled by the wholesale treatment of the plaintiffs. Each inmate, although individually examined by the Committee, got a Notice of Decision identical in all respects to the Notice received by his co-plaintiffs. See Finding of Fact 16, supra. The defendants’ witnesses conceded that the only real criterion for continued confinement was whether the inmate was a Marielito. Essentially, then, we have a case of “guilt by association.”

We are fully aware that in considering a particular inmate’s potential for threatening institutional security, prison officials may attach some significance to group membership and may consider a broad range of factors somewhat extrinsic to the particular individual. As dicta in Hewitt v. Helms indicates:

In assessing the seriousness of a threat to institutional security, prison administrators necessarily draw on more than the specific facts surrounding a particular incident; instead they must consider the character of the inmates confined in the institution, recent and long-standing relations between prisoners and guards, prisoners inter se, and the like. In the volatile atmosphere of a prison, an inmate easily may constitute an unacceptable threat to the safety of other[s] ... even if he himself has committed no misconduct; rumor, reputation, and even more imponderable factors may suffice to spark potentially disastrous incidents____[T]he administrators must predict not just one inmate’s future actions ... but those of an entire institution.

459 U.S. at 474, 103 S.Ct. at 873. See also Mims v. Skapp, 744 F.2d 946 (3d Cir.1984).

Nevertheless, that cannot excuse, in our opinion, the total disregard of individual factors that these cases seem to represent. One would think that the latitude afforded prison officials to effectuate pre-hearing MCU confinements and to defer hearings for a reasonable period carries with it the obligation to more fully investigate “pendente lite”each inmate’s risk to the institution. Accordingly, we must conclude that the decisions of the Classification Committee are not supported by substantial evidence.

7. That brings us to the question of remedy. As this is an injunctive application, we must, inter alia, consider the public interest, which in this case we believe is virtually synonymous with prison safety. Although we do not believe the prison officials gave sufficient consideration to individual factors, we certainly cannot conclude that, if such factors had been considered, the results would have been different. The evidence submitted in camera certainly suggests that at least some of the Marielitos pose a grave threat to prison security. Therefore, we believe it would be a mistake for us to ignore the quite legitimate fears of the defendants and return— wholesale — the plaintiffs to the general population. Rather, we believe that what is called for is a new round of hearings, to be held expeditiously.

Hewitt v. Helms recognizes that administrative segregation may not be used as a pretext for indefinite confinement, and that prison officials must engage in some sort of a periodic review of administrative confinement. 459 U.S. at 477 n. 9, 103 S.Ct. at 874 n. 9. Such further review is especially warranted here where: the initial review was somewhat flawed; where Standard 141 itself contemplates such review (every three months) anyway; and where the defendants’ witnesses recognized that the deportation status of the plaintiffs is different from what it was as of the original hearings. See Introduction, supra. As the Third Circuit has recently observed, “The validity of the government’s interest in prison safety and security as a basis for restricting the liberty rights of an inmate subsists only as long as the inmate continues to pose a safety or security risk.” Mims v. Shapp, 744 F.2d at 953. Presumably, the present non-deportability of the plaintiffs alters the equation somewhat.

The Third Circuit further acknowledged that while an inmate’s interest in non-administrative confinement is “not one of great consequence,” id. at 950, quoting Hewitt, that interest becomes more significant as its duration becomes longer or more indefinite. Id. at 951-52.

Accordingly, we will require rehearing in all thirty-three cases within 30 days of this opinion. In considering each plaintiff’s risk to institutional security, the defendants are at liberty, as before, to take into account factors extrinsic to the individual, such as group membership and the institutional atmosphere. The Third Circuit, in Mims, supra, pointed out that officials are free to consider such “subjective” factors. Id. at 953. But that does not mean that other factors equally relevant should be overlooked.

In the second set of hearings, the defendants should also consider the following, we believe, in an effort to reach as broadly based a decision as possible:

(a) Whether the particular inmate has an outstanding INS detainer.

The evidence suggests that not all the plaintiffs have detainers. To the extent that an inmate is not subject to a detainer, he may have less reason to be restive about his immediate future.

(b) How much time each plaintiff has left to serve.

One might think that to the extent one has a lengthy term ahead, which might have to be served prior to deportation, one would be less desperate to act.

(c) What prison each plaintiff came from.

Most of the plaintiffs seem to come from medium to minimum security facilities. Not only may those inmates, having been so assigned, be presumed to pose less of a risk; also, such prisons may have lacked the sort of inmate group action more commonly associated with Trenton State Prison and Rahway Prison and most dangerous to security.

(d) What each inmate actually thinks about:
(1) when and/or whether he will be having an exclusion hearing;
(2) what the outcome of that hearing would probably be; and
(3) what will happen if he is sent back to Cuba.

Although officials may have facts and opinions about these matters which differ from those of the inmates, inmate perceptions may well be probative as to their potential for violent action. Of course, officials shall be the judges of credibility.

In addition to the above, the prison should consider the criteria set forth in Standard 141.5: past criminal record, disciplinary record within the prison, institutional adjustment, etc. See Finding of Fact 13. The officials should also pay greater attention to the intelligence gathered, vis-a-vis each individual.

In summary, then, we hold that due process requires a new set of hearings in accordance with the above criteria.

8. We shall retain jurisdiction over this matter, and the defendants shall apprise us of the progress and outcome of these hearings.

9. The plaintiffs’ claims on constitutional grounds other than the due process clause shall be dismissed.

      . One’s parole eligibility date is not necessarily the equivalent of the date one will be released. The Parole Board has the discretion to deny parole for a variety of reasons. Moreover, even if one is paroled, one will not necessarily be set free. If there is an outstanding detainer, one will be released into the custody of the authority which has lodged the detainer. It appears that the Immigration and Naturalization Service (INS) has detainers on twenty-eight of these plaintiffs.

      . Ultimately, the attacker was judged guilty of disciplinary infractions, and his case was turned over to the county prosecutor for further action. The victim was judged not guilty of disciplinary infractions.

      . This is not a significant restriction in the case of these plaintiffs, none of whom speak much English.

      . The terminology the New Jersey system uses to describe these types of confinement is at variance with the terminology more commonly encountered in the case law. New Jersey refers to disciplinary confinement as “administrative segregation,” and refers to administrative confinement as "placement in the Management Control Unit.” To avoid confusion, we will employ the more common terminology.

      . The Third Circuit observed:
      Such a right may be less easily recognized in the context of administrative confinement ... even though the conditions of administrative confinement are not substantially different from those experienced in disciplinary confinement. This reluctance [to recognize the right] stems from observation that administrative confinement is often used to maintain control in a volatile environment — to quench sparks before they become flames.

        Helms v. Hewitt, 655 F.2d 487 at 494 (3rd Cir.1981). The Supreme Court further observed that prison officials, entrusted with the day-today operation of a prison, should perhaps be afforded more latitude than prison regulations may appear to contemplate. 459 U.S. at 470, 103 S.Ct. at 870.


author: LITTLE, District Judge.

text:
    James Michael WILDER v. PLACID OIL COMPANY. Richard SANDERS v. PLACID OIL COMPANY.
    Civ. A. Nos. 83-1790, 83-1915.
    United States District Court, W.D. Louisiana, Alexandria Division.
    June 20, 1985.

      Wilbert J. Saucier, Jr., Pineville, La., for James Michael Wilder.
    Gravel & Brady, James J. Brady, Alexandria, La., for Richard Sanders.
    Abbott, Webb, Best & Meeks, John P. Napolitano, Laurence E. Best, New Orleans, La., for Placid Oil Co. in No. 83-1790.
    Herbert & Abbott, Laurence E. Best, New Orleans, La., for Placid Oil Co. in No. 83-1915.
   RULING

LITTLE, District Judge.

The issue pending before this Court is whether Catahoula Lake, a low lying portion of the Little River in the State of Louisiana, is navigable for purposes of admiralty jurisdiction. The matter has been briefed by the parties and presented by way of cross-motions for summary judgment. Having previously denied defendant’s motion in a Ruling dated 5 June 1985, and having further received the benefit of defendant's profert in curia on this point and the full trial hearing of this matter, the Court hereby grants plaintiffs’ motion and assigns the following reasons.

FACTS

These consolidated actions were instituted by Richard Sanders and James Michael Wilder against Placid Oil Company to recover damages for personal injuries and property loss allegedly sustained when Wilder’s 15-foot outboard aluminum boat, in which both complainants were riding, struck a steel well-head casing pipe allegedly owned and maintained by Placid. According to the plaintiffs’ pleadings, the pipe was submerged and was not marked. The actions were originally brought pursuant to the admiralty maritime jurisdiction of the Court, 28 U.S.C. § 1333 and designated under Fed.R.Civ.P. 9(h). Both plaintiffs subsequently filed amended complaints alleging diversity of citizenship pursuant to 28 U.S.C. § 1332 as an alternative basis of jurisdiction.

The uncontroverted material submitted by the parties indicates that the Little River is formed by the meeting of the Dudgdemona River and Bayou Castor just to the northeast of Rochelle, Louisiana. It flows in a more or less southerly direction into the lowlands which become Catahoula Lake in high water. From Catahoula Lake the water is discharged through several tributaries and distributaries until the tributaries finally rejoin into one channel at Archie, Louisiana. One such distributary is a diversion canal built by the U.S. Army Corps of Engineers and completed in May of 1972. This canal has a permanent dam structure across it which forecloses navigation except during flood stages. At Archie, the Corps has fabricated a weir across the span of the Little River. The weir, completed in June of 1973, is constructed out of concrete and crests at an elevation of 36 feet above sea level or 36 NGVD (National Geodetic Vertical Data). This keeps the water level at 36 NGVD from the outflow of the lake up to the structure itself. The water level of the lake is controlled by movable gates in the permanent dam in the diversion canal. Thus, when the water level of the Little River is higher than 36 NGVD, vessels may pass over the weir. The weir, while permanent, is not a total obstruction to navigation.

From Archie, Louisiana the water flows easterly to Jonesville and Trinity, Louisiana, where it joins the Ouachita and Tensas Rivers to form the Black River. The Black then runs into the Red River which in turn runs into either the Atchafalaya River, from which one may enter the Gulf Intracoastal Canal or the Lower Old River, which allows passage into the Mississippi River. A steady, if not substantial barge trade is conducted on the Atchafalaya, Black and Red Rivers, while the Mississippi River is a major maritime commercial artery. Accordingly, these waters form a continuous highway between states over which commerce may be conducted.

In 1887, the Little River was navigated by steamboat from White Sulphur Springs, Louisiana above Catahoula Lake, to its end at Jonesville, Louisiana. 1887 Ann. Rep. of the Chief of Engineers, Part II at 1499. The business on the river consisted of logging, fur trading and transportation of bales of cotton. Id.

The Little River, including Catahoula Lake, is a navigable waterway of the United States for the purposes of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 401 et. seq. In 1932, the Corps listed the Little River as being navigable from its mouth at Jonesville to mile 82.8 at the Missouri-Pacific Railroad bridge. Currently the Corps limits its jurisdiction to mile 55.

By affidavit, Thomas William Coon testified that he piloted the MISS FLORENCE, a self-propelled barge measuring approximately 35 X [¶] feet with a draft of 3 feet when empty, throughout Catahoula Lake from 1966 to 1979, and that on one occasion he piloted this vessel from Catahoula Lake through the system of waters described above to Orange, Texas. He also testified that he has been a passenger on crew boats as large as 40 feet in length which have passed into the Black River system from Catahoula Lake navigating over the weir at Archie, Louisiana, on several occasions.

Julian Wesley Thompson, age 46, has lived close to Catahoula Lake all his life. From 1957 through 1970 he operated the MISS FLORENCE and another self-propelled barge known as Barge No. 259 on the Little River and in Catahoula Lake. Barge No. 259 is approximately 40 x 200 feet. He personally piloted the MISS FLORENCE from Buffalo Bayou in the State of Mississippi to Catahoula Lake. He has also personally witnessed the passing of 40-foot crew boats over the weir at Archie, Louisiana. The last such crossing he witnessed was in May of 1985.

Vernie A. Gibson, born in 1914, is a lifelong resident of LaSalle Parish, Louisiana and has spent those years in close proximity to Catahoula Lake. He has worked portions of Catahoula Lake, Little River, Old River, Black River, Ouachita River, Atchafalaya River and the Mississippi River as a commercial fisherman and fur trapper since 1933. He remembers the days of steamboat traffic from the Lake to the Black River. He has personally navigated vessels of 5V2 to 6 foot drafts over the weir at Archie, Louisiana, and has done so as recently as 1982.

For many years, including 1984 and 1985, Placid has operated crew boats, work boats, self-propelled barges and drilling barges on the Little River and in Catahoula Lake. The record is replete with photographs as recent as 1984 of those vessels in active navigation.

Navigation in Catahoula Lake and on Little River occurs all year round. Navigation over the weir is seasonal.

Historically (1933 to 1967), the water level of the river has been above 36 NGVD from January through July with occasional instances in August, November and December. The highest level recorded was 59.41 NGVD on May 16, 1973. The lowest level was 20.89 NGVD on October 23, 1976. According to the record, navigation over the weir was possible during January-June of 1984; January-July and December of 1983; June and December of 1982; June of 1981; March-June of 1980; January-July of 1979; April-June of 1978; and March-May of 1977-1981 and 1982 were drought years. Plaintiffs were injured in January of 1983. Navigation over the weir was possible at that time.

LAW

Admiralty and maritime jurisdiction extends to all navigable waters within the United States. 28 U.S.C. § 1333; 46 U.S.C. § 740; see e.g., Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, 41, 62 S.Ct. 886, 891-92, 86 L.Ed. 1246, 1256 (1942). Plaintiffs contend that because the Corps finds Little River a navigable water of the United States under the Rivers and Harbors Act, it is also a navigable water of the United States for purposes of admiralty jurisdiction.

“In Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), the Supreme Court indicated that the term ‘navigability’, as used in past Supreme Court decisions has been used to define four separate and distinct concepts: to delineate the boundaries of navigational servitudes; to define the scope of Congress’ regulatory authority under the Interstate Commerce Clause; to determine the extent of authority of the Army Corps of Engineers under the Rivers and Harbors Appropriation Act of 1899; and, to establish the limits of the jurisdiction of the federal courts conferred by Article 111, Section 2 of the United States Constitution over admiralty and maritime cases.” Finneseth v. Carter, 712 F.2d 1041, 1043 (6th Cir.1983); Kaiser Aetna v. United States, 444 U.S. at 171-72, 100 S.Ct. at 388, 62 L.Ed.2d at 340-41. Thus, the fact that the Little River is a navigable water for the purposes of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 401, et. seq., is not dispositive in this case since the requirement of navigability under that Act and navigability for admiralty jurisdiction are not the same. Finneseth, 712 F.2d at 1043 n. 1; see discussion in Kaiser-Aetna, supra.

In Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the Supreme Court set forth the test for admiralty tort jurisdiction. Admiralty tort jurisdiction under 28 U.S.C. § 1333(1) and 46 U.S.C. § 740 exists if: (1) the alleged wrongful injury occurred upon navigable waters, and (2) the alleged acts or omissions of the defendant significantly relates to traditional maritime activity. Id. Accord, Foremost Ins. Co. v. Richardson, 457 U.S. 668, 673, 102 S.Ct. 2654, 2658, 73 L.Ed.2d 300, 305 (1982).

In Foremost, the Supreme Court held that the collision of two pleasure boats on navigable waters falls within admiralty jurisdiction. 457 U.S. at 674 and 676, 102 S.Ct. 2654, 73 L.Ed.2d at 306 and 307. The Court rejected a requirement that the wrong had to involve maritime commerce in order for it to have a significant connection with traditional maritime activities. Id. Instead, the Court emphasized the navigational aspect of the Executive Jet test. 457 U.S. at 675 n. 5, 102 S.Ct. 2654, 73 L.Ed.2d at 306 and note n. 5. A host of lower courts have found pleasure craft accidents within the periphery of admiralty jurisdiction. See, e.g., Oliver By Oliver v. Hardesty, 745 F.2d 317 (4th Cir.1984) (19-foot pleasure craft); Finneseth v. Carter, supra (two pleasure craft); Kelly v. U.S., 531 F.2d 1144 (2nd Cir.1976) (19-foot sailboat); Richards v. Blake Builders Supply Co., Inc., 528 F.2d 745 (4th Cir.1975) (18-foot motorboat and 20-foot motorboat); St. Hilaire Moye v. Henderson, 496 F.2d 973 (8th Cir.1974), cert. denied, 419 U.S. 884, 95 S.Ct. 151, 42 L.Ed.2d 125 (1974) (18-foot motorboat); Kelly v. Smith, 485 F.2d 520 (5th Cir.1973) (15-foot outboard motorboat); Respess v. U.S., 586 F.Supp. 861 (E.D.La.1984) (17-foot outboard motorboat); Hartman v. United States, 522 F.Supp. 114 (D.S.C.1981) (speedboat); Armour v. Gradler, 448 F.Supp. 741 (W.D.Pa.1978) (30-foot fishing cruiser); Spiller v. Lowe, 328 F.Supp. 54 (W.D.Ark.1971) (16-foot aluminum flat-bottomed boat); Madole v. Johnson, 241 F.Supp. 379 (W.D.La.1965) (motorboat). Recently, one appellate panel has found otherwise. See, Souther v. Thompson, 754 F.2d 151 (4th Cir.1985) (motor ski boat).

In Souther, supra, the Fourth Circuit seems to limit the inclusion of pleasure craft in admiralty jurisdiction to cases where an alleged navigational error by the craft itself causes the injury. 754 F.2d at 153. This Court believes this is too narrow a reading of Foremost. Collision eases, where two vessels impact, and allision cases, where one vessel impacts with a stationary object, are an important and integral part of admiralty law. See, generally, G. Gilmore and C. Black, The Law of Admiralty, Ch. VII, pp. 485-531 (2d ed. 1975). The Court finds that an allision with some allegedly negligently placed navigational obstruction, such as this case, is clearly encompassed within the term “maritime activities” as used in Foremost. At issue, then, is whether the first requirement of the Executive Jet test has been met: i.e., whether the alleged wrongful action of Placid caused injury upon “navigable waters”.

“Navigable water” subject to admiralty jurisdiction is defined as including waters that are navigable in fact. The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 L.Ed. 1058 (1852). See also, e.g., The Belfast, 7 Wall. 624, 19 L.Ed. 266 (1869). This includes man-made or artificial bodies of water. Ex Parte Boyer, 109 U.S. 629, 3 S.Ct. 434, 27 L.Ed. 1056 (1884); The Robert W. Parsons, 191 U.S. 17, 24 S.Ct. 8, 48 L.Ed. 73 (1903); Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 52 S.Ct. 166, 76 L.Ed. 282 (1932).

At this juncture the Court is hard-pressed to find a definition of “navigable in fact” for purposes of admiralty jurisdiction. Legions of lower courts have cited the time-honored cases of The Daniel Ball, 77 U.S. (10 Wall.) 557, 19 L.Ed. 999 (1871) and The Montello, 87 U.S. (20 Wall.) 430, 22 L.Ed. 391 as including the Supreme Court’s definition of this term for admiralty jurisdiction. Indeed, Ex Parte Boyer tells us that The Daniel Ball and The Montello “extended the salutary views of admiralty jurisdiction applied in The Genesee Chief”. 109 U.S. at 631-32, 27 L.Ed. at 1057. But in Kaiser Aetna v. U.S., the Supreme Court cites those same eases for the definition of “navigable waters” within the boundaries of “Congress’ regulatory authority under the Commerce Clause”. 444 U.S. at 172, 100 S.Ct. 383, 62 L.Ed.2d at 341. This is the Court’s dilemma: How can we follow Ex Parte Boyer without doing harm to Kaiser Aetna since admiralty jurisdiction and jurisdiction under the Commerce Clause are separate and distinct?

In The Genesee Chief, the Supreme Court spoke repeatedly of the substantial amount of commerce conducted on the inland rivers and great lakes of this country and of how it was as rich as that conducted on the high seas. 12 How. at 457, 13 L.Ed. at 1064. It stands to reason that such commerce played an integral part in the court’s extention of admiralty jurisdiction beyond the ebb and flow of the tide. Accordingly, in The Steamboat Ad. Hiñe v. Trevor, 71 U.S. (4 Wall.) 555, 18 L.Ed. 451 (1867), the Supreme Court stated that The Genesee Chief extended admiralty jurisdiction to “wherever ships float and navigation successfully aids commerce”. 71 U.S. at 563, 18 L.Ed. at 453-54. Finally, in Ex Parte Boyer, it was held:

“Navigable water situated as this (Erie) canal is used for the purposes for which it is used, a highway for commerce between ports and places in different states, carried on by vessels such as those in question here (horse drawn barges), is public water of the United States, and within the legitimate scope of the admiralty jurisdiction conferred by the Constitution and statutes of the United States, even though the canal is wholly artificial, and is wholly within the body of a state, and subject to its ownership and control; and it makes no difference as to the jurisdiction of the district court that one or the other of the vessels was at the time of the collision on a voyage from one place in the state ... to another place in that state.”

109 U.S. at 632, 3 S.Ct. 434, 27 L.Ed. at 1057. See, also, The Belfast, 74 U.S. (7 Wall.) 624, 19 L.Ed. 266 (1869). Thus, it appears that even if The Daniel Ball is a “separately distinct” Commerce Clause case, the cases cited above show that its definitions of “navigable waters” and waters “navigable in fact” are still appropriate for actions in admiralty:

“Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”

77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999, 1001 (1870). The Court can discern little difference between these definitions and the tenets extracted from Ex Parte Boyer above.

Placid Oil Company and at least one of its subdivisions explore for minerals in Catahoula Lake. According to the evidence, it has navigated crew boats over the weir at Archie, Louisiana to aid this exploration. The evidence also shows that at least one commercial fisherman has done the same in aid of his business. There is also evidence that part of this commerce has been conducted between states.

Defendant argues that if there is commerce on the Little River, it is not enough to support jurisdiction. Defendant does not deny its own transportation and drilling barge activities in that area. It has not rebutted Mr. Gibson’s testimony. We think the amount of commerce is sufficient. See, Respess v. U.S., 586 F.Supp. at 864 (commercial fishing); Cf. Pippen v. Shell Oil Co., 661 F.2d 378, 384 (5th Cir.1981) (offshore drilling is maritime commerce). But see, Herb’s Welding, Inc. v. Gray, 470 U.S. -, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985) (welder working on a fixed offshore oil drilling platform in state territorial waters held not engaged in maritime employment for purposes of the LHWCA, 33 U.S.C. §§ 901 et seq.).

It is also relevant that the Army Corps of Engineers holds the Little River and Catahoula Lake as navigable waters of the United States, maintains structures throughout the system at issue in this case and deems it necessary that Placid obtain a permit which governs the placing of structures in those waters in order to conduct their exploration. These determinations are not controlling, see, Kaiser Aetna v. U.S., supra, but from an evidentiary point of view they are not without significance and may be taken into account. Finneseth v. Carter, 712 F.2d at 1045 n. 4; Hartman v. U.S., 522 F.Supp. 114, 117 (D.S.C.1981); Sawczyk v. U.S.C.G., 499 F.Supp. 1034, 1039 (W.D.N.Y.1980); see also, United States v. Oregon, 295 U.S. 1, 23-24, 55 S.Ct. 610, 619, 79 L.Ed. 1267, 1278-79 (1935). The Court is also cognizant of the fact that Congress has declared that all the navigable rivers and waters in the former territories of Orleans and Louisiana shall be and forever remain public highways, 33 U.S.C. § 10, and accords that statement the weight it deserves.

Further, it is interesting to speculate that if the boat had caused injury in this case, plaintiffs might very well have petitioned this Court for limitation of liability. See, 46 U.S.C. § 188 (limitation applies to all vessels used on lakes or rivers or in inland navigation); see generally, Herman, Limitation of Liability for Pleasure Craft, 14 J.Mar.Law & Com. 417 (1983). In any event, the Court has no doubt that vessel navigation on the Little River is governed by the Inland Navigational Rules, 33 U.S.C. §§ 2001, et seq. and that both above statutes are traditionally applied in admiralty. To draw the line for admiralty jurisdiction at the weir in Archie, as defendant would have us do, could only lead to confusion. The above statutes would then apply to boats downriver from the weir but not those upriver, even when the water is above 36 NGVD and conducive to through navigation. This we cannot do.

Defendant finally argues that the seasonal navigability over the weir renders the Little River above the weir and Catahoula Lake non-navigable. This argument also has no merit. Many rivers have portions of their waters which are impassable at certain times of the year. The upper Mississippi and the Saint Lawrence Seaway are examples of rivers that freeze during the winter months. Does this make those waters any less “navigable waters” for purposes of admiralty jurisdiction? We think not.

At this point, a quote from the appellate decision in Foremost is appropriate:

“We note additionally from the record that the place where the accident occurred (Amite River) is seldom, if ever, used for commercial activity. That does not cause us to vary from our holding. The waterway is not landlocked. It would be introducing another note of uncertainty to hold that admiralty jurisdiction extends only to a stretch of navigable water that presently functions as a commercial artery. Jurisdiction should be as readily ascertainable as courts can make it. If the waterway is capable of being used in commerce, that is a sufficient threshold to invoke admiralty jurisdiction.”

Richardson v. Foremost Ins. Co., 641 F.2d 314, 316 (5th Cir.1981), aff'd. sub nom. Foremost Ins. Co. v. Richardson, 457 U.S. 668,102 S.Ct. 2654, 73 L.Ed.2d 300, rehearing denied, 459 U.S. 899, 103 S.Ct. 198, 74 L.Ed.2d 160 (1982). The Little River, including Catahoula Lake, is neither landlocked nor incapable of commerce. The Court finds the accident involved in this case is within its admiralty jurisdiction. The cases of Adams v. Montana Power Co., 528 F.2d 437 (9th Cir.1975) (completely obstructed portion of Missouri River); Chapman v. U.S., 575 F.2d 147 (7th Cir.1978) (Kankakee River found not usable for commerce); Livingston v. U.S., 627 F.2d 165 (8th Cir.1980) (Norfork River obstructed and incapable of commerce); Edwards v. Hurtel, 717 F.2d 1204 (8th Cir.1983) (Table Rock Lake found not susceptible of use for commerce); Land and Lake Tours, Inc. v. Lewis, 738 F.2d 961 (8th Cir.1984) (Lake Hamilton obstructed by two dams found non-navigable under admiralty jurisdiction); Dunham v. DeMaine, 559 F.Supp. 224 (E.D.Ark.1983) (Lake Hamilton, supra); and Smith v. Hustler, Inc., 514 F.Supp. 1265 (W.D.La.1981) (Lake Bistineau obstructed by dam found incapable of commerce) are inapposite. Plaintiffs’ motion is GRANTED.