Makris v. Salem, NH CV-97-330-SD 10/29/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

and as Administrator of the Estate of Dimitrios "James Makris; and Sofia Beredimas Makris

Civil No. 97-330-SD

Town of Salem, New Hampshire; Steven MacKinnon, individually and as Chief of Police of the Town of Salem, New Hampshire; and Stephen Daly; Charles Moore; William Teuber; Fred Rheault; John Doe; Peter Delorev, individually and as Police Officers for the Town of Salem

O R D E R

The plaintiffs,1 parents of an individual who died in a

motorcycle accident while being pursued by police, as

representatives of their son's estate, claim that the defendants

Town of Salem, New Hampshire, and Salem police officers

associated with the chase, deprived their son of his

constitutional rights in violation of

and 1985

Plaintiffs have requested oral argument on their motion. The court does not believe that oral argument would be helpful and therefore denies this request. In addition, plaintiffs allege state-law claims of wrongful

death, intentional infliction of emotional distress, and

negligence. Currently before the court is defendants' motion for

summary judgment as to all federal claims, to which plaintiffs,

Spiros and Sofia Makris, object. For the reasons that follow,

this court grants the defendants' motion in its entirety.

BACKGROUND

This case arises from a police surveillance and chase of

plaintiffs' son, James Makris (Makris), that began because the

police believed that Makris had possession of a stolen, loaded

weapon. On the afternoon of July 12, 1995, the Atkinson, New

Hampshire, police department informed the Salem police department

that a loaded Smith & Wesson .45 caliber semiautomatic handgun

had been stolen from a construction site and that three male

suspects were headed toward Salem in a red Camaro. Shortly after

receiving this information. Officer Steven Malisos of the Salem

police department stopped a red Camaro with two male occupants at

the Rockingham Mall in Salem, New Hampshire. Detective Fred

Rheault, Sergeant Peter Delorey, and Officer William Teuber, all

from the Salem police department, arrived soon after to assist

Malisos. Incident to the arrest of the Camaro's two occupants,

Frank Bemis and Dana Fritsch, the police found a black pellet gun

2 in the car, but did not find the stolen handgun. In questioning

Bemis and Fritsch, Malisos and Rheault discovered that

immediately prior to coming to the mall, Bemis and Fritsch had

given a third person, James Makris, a ride to his parents' home

on Cortland Drive in Salem. In addition, both Bemis and Fritsch

knew that their boss kept a handgun in his truck at a

construction site and informed the police that Makris also was

aware of this information. They said they did not know whether

Makris had the gun. Based upon this investigation, Delorey

suspected that Makris had possession of the stolen, loaded

weapon, so Delorey instructed Teuber to survey (discreetly) the

Makris home and to make sure Makris did not leave the area while

a search warrant was being obtained for the gun.

The Makris home is located at the end of Cortland Drive, a

dead-end street. The only exit from the Makris home by vehicle

is through the intersection of Cortland Drive and Brady Avenue.

Because Teuber did not have an unmarked cruiser when he went to

survey the Makris home, he parked his car near the end of

Cortland Drive where it intersected with Brady Avenue. From this

position Teuber could not see the Makris home, nor could the

occupants of the Makris house see his car, but Teuber could see

3 vehicles as they drove down Cortland Drive toward Brady Avenue.2

After Teuber had been parked on Cortland Drive for at least

twenty minutes. Officer Charles Moore pulled up along the

driver's side of Teuber's car so that Moore's cruiser faced Brady

Avenue. Teuber informed Moore that Makris was suspected of being

in possession of a stolen, loaded handgun, that Makris had been

last seen at his parents' address on Cortland Drive, and that

Teuber was instructed to make sure Makris did not leave the area

until the police obtained a search warrant for the gun.

Soon after this conversation, Teuber thought he saw Makris

slowly traveling down Cortland Drive toward him on a motorcycle.

Although Makris wore a full face helmet, Teuber alleges he was

able to identify Makris from his physique.3 Teuber communicated

to Moore that the operator of the motorcycle was Makris and

pulled out after Makris. Moore followed Teuber in pursuit of

Makris. Both officers followed Makris onto Brady Avenue and

engaged their emergency lights and sirens to pull Makris over.

Soon after, Makris pulled over to the side of the road on Brady

2Teuber's car was positioned on the grass perpendicular to Cortland Drive, allowing him to pull out onto Cortland Drive without difficulty.

3Teuber had encountered Makris weightlifting at his gym for over a year and knew that Makris had an unnaturally bulky physique (which Teuber suspected was due to steroid abuse).

4 Avenue. Teuber parked directly behind Makris. Moore parked next

to Makris at an angle partially boxing in Makris's motorcycle.

At this time Teuber reported license plate information from

Makris's motorcycle to the Salem police department. The

motorcycle had been stopped for approximately fifteen to thirty

seconds, but before either officer could approach Makris, he took

off on his motorcycle at a high rate of speed down Brady Avenue

toward Cross Street.

After Makris took off, both officers followed Makris with

their blue lights and sirens engaged. At this time Moore was

behind Makris, and Teuber followed Moore. Both officers traveled

approximately a quarter mile down Brady Avenue before turning

onto Cross Street after Makris. After turning onto Cross Street,

Teuber could not see Makris, but Moore could. At about this time

the police officers learned from headquarters that the motorcycle

Makris was operating had been stolen within the last month. As

Makris sped4 down Cross Street toward New Hampshire Road, Moore

began to lose sight of him until he could only see Makris's

motorcycle intermittently in the distance ahead of him.5 When

4The officers estimate that Makris was traveling at approximately a hundred miles per hour.

5Brady Avenue and New Hampshire Road are mostly rural roads without sidewalks. Cross Street is more built up, with residences which are closer together, but this road also does not have sidewalks. 5 Moore and Teuber reached the intersection of Cross Street and New

Hampshire Road, they did not know which way Makris had gone.

Moore took a right onto New Hampshire Road and Teuber took a left

onto New Hampshire Road.

Shortly after Teuber turned left onto New Hampshire Road, he

saw Officer Rheault traveling toward him in the opposite

direction on that street. Rheault, who knew of the chase via the

police radio and had been looking for Makris in this area,

informed Teuber that Makris had not gone in the direction in

which Teuber was proceeding.

As Moore traveled down New Hampshire Road (in the opposite

direction of Teuber), he saw a flash in the distance ahead of him

that he thought might be the motorcycle and transmitted this

information to the police department. Within a half mile after

seeing this flash, Moore came upon Makris, who was lying in the

middle of New Hampshire Road.

Makris's motorcycle had crashed into a fire hydrant, and the

impact threw Makris onto the street. Moore radioed for an

ambulance and approached Makris. Makris was conscious and still

wore his helmet. When Moore tried to question Makris about the

location of the stolen gun, he could not understand anything

Makris said and could tell that Makris was physically injured and

in pain. Makris attempted to get up and to remove his helmet.

6 Moore instructed Makris to stay where he was until the ambulance

arrived and helped Makris take off his helmet. Soon after.

Officer Rheault arrived at the scene and also questioned Makris

about the gun without any success.6 The total distance traveled

from Cortland Drive to the scene of the crash was between 1.5 and

2.0 miles. As a result of injuries from the motorcycle crash,

Makris died a few days later.

DISCUSSION

1. Standard of Review

The court may only grant a motion for summary judgment where

the "pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c). Accordingly, at this stage of the

proceeding, the court does not weigh the evidence and determine

the truth of the matter, but instead determines whether there is

a genuine issue of fact for trial. See Stone & Michaud Ins. Bank

Five for Savinas,

(D.N.H. 1992) (citing

Anderson v. Liberty Lobby, Inc.,

(1986)). The

6The stolen gun was not found at the scene of the accident but was found by police at the Makris's house later in the day. 7 substantive law identifies which facts are material so that

[o]nly disputes over facts that might affect the outcome of the

suit under the governing law will properly preclude the entry of

summary judgment. Factual disputes that are irrelevant or

unnecessary will not be counted.'" Caputo v. Boston Edison Co.,

(1st Cir. 1991) (quoting

).

The party seeking summary judgment bears the initial burden

of establishing the lack of genuine issues of material fact. See

Celotex Corp. v. Catrett,

(1986); Quintero de

Quintero v. Aponte-Rocrue,

(1st Cir. 1992).

As a result, the court must view the entire record in the light

most favorable to the nonmoving party, "'indulging all reasonable

inferences in that party's favor.'" Mesnick v. General Elec.

Co.,

(1st Cir. 1991) (quoting Griggs-Rvan v.

Smith,

(1st Cir. 1990)). However, once a

defendant has submitted a properly supported motion for summary

judgment, the plaintiff "may not rest upon mere allegation or

denials of his pleading, but must set forth specific facts

showing that there is a genuine issue for trial."

.

8 2.

Pursuant to

, litigants can bring civil

actions against government officials who "under color of any

statute, ordinance, regulation, custom, or usage, of any State or

Territory . . ., subjects, or causes to be subjected, any citizen

of the United States . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution . . . ."

(1994). As the basis for their section 1983

action, plaintiffs claim that the police officers violated

Makris's Fourth and Fourteenth Amendment rights by pursuing and

stopping him as they did.

Defendants assert three defenses against this section 1983

claim: (1) plaintiffs fail to establish a Fourth Amendment due

process violation because Makris was not seized as the term

applies to the Fourth Amendment; (2) plaintiffs fail to establish

a substantive due process violation under the Fourteenth

Amendment because Salem Police had a legitimate police purpose in

pursuing Makris; and (3) even if a constitutional violation is

established under the Fourth or Fourteenth Amendments, the police

officers are entitled to qualified immunity. See Defendants'

Motion For Summary Judgment.

To determine whether the police officers should be afforded

the protection of qualified immunity, the court first must

9 evaluate the merits of this case. See Siegert v. Gilley,

(1991) ("A necessary concomitant to the

determination of whether the constitutional right asserted by a

plaintiff is 'clearly established' at the time the defendant

acted is the determination of whether the plaintiff has asserted

a violation of a constitutional right at all."), reh'g denied,

(1991). According to the First Circuit, "[a] court

may . . . bypass the qualified immunity analysis if it would be

futile because current law forecloses the claim on the merits."

Aversa v. United States,

(1st Cir. 1996)

(bypassing qualified immunity analysis, court found no viable

constitutional claim where plaintiff was discharged by a third

party as a result of defendant's defamatory statements). Like

the Aversa court, this court will bypass the issue of qualified

immunity because current law forecloses the claim on the merits,

making it unnecessary to engage in qualified immunity analysis.

3. Fourth Amendment

Plaintiffs claim that Makris's temporary stop and the

following pursuit were an unreasonable seizure by the police in

violation of the Fourth Amendment, which states, in part, that

people have the right "to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures."

10 U.S. Co n s t , amend. IV. Before the court can reach the question of

reasonableness of the police action involved, the court must

first determine if the police actually seized Makris, as

plaintiffs allege.

According to Terry v. Ohio,

, 19 n.16 (1968),

"[o]nly when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen

may we conclude that a 'seizure' has occurred." Thus, for a

seizure to occur, there must be some physical force or show of

authority by the police. It is obvious in this case that the

police, in their marked cars with lights and sirens engaged at

the time they pulled Makris over and during their pursuit of

Makris, displayed their authority to Makris.

Even if there is some show of authority by police, such as

when the police flash their lights or run after a person, there

is no seizure unless the individual submits to the show of

authority. See California v. Hodari D . ,

(1991) (Court found no seizure during pursuit of individual

because individual did not comply with police order to stop).

Before the court will find a seizure under the Fourth Amendment,

there must be a restraint of an individual's movement by

authorities in one of two ways: either through submission by the

individual to authorities or through government action,

11 intentionally applied, that is successful in terminating an

individual's movement. This physical control of an individual by

authorities is necessary because a seizure occurs when possession

of an item is taken which brings the item under the physical

control of another. See

. Furthermore, contrary to

plaintiffs' suggestion, a seizure is not continuous, but rather

is a single event. See

. Thus, even if an official

physically restrains a person in some way, either through the

individual's submission or through physical force which is

intentionally applied, if that person escapes the official's

physical control, the seizure ends. An individual who flees

from government officials certainly has not submitted to these

officials in any way that would result in a Fourth Amendment

seizure. See

. Consistent with the Court's view on

submission and individuals in flight, the District of Columbia

Circuit has ruled that the operator of a vehicle who initially

stopped when police pulled him over was not "seized" within the

meaning of the Fourth Amendment because he did not actually

submit to police authority when he drove away before officers

could reach his vehicle. United States v. Washington,

(D.C. Cir. 1994), cert, denied,

(1994).

Thus, according to current law, if a person has not submitted to

the authorities in some way, absent some intentional exertion of

12 physical force over a person by authorities, there cannot be a

seizure. See United States v. Young,

(1st Cir.

1997) (court found no seizure where police officers pulled their

car next to the operator of a vehicle and asked if they could

question him briefly) (citing United States v. Sealy,

(1st Cir. 1994) (court found no seizure where police

officers briefly questioned from their cruiser an individual on

the street, and he fled)).

Contrary to plaintiffs' assertions, an individual, prior to

his or her capture, will not be considered to be seized while

fleeing from officials because this individual has not submitted

to authorities in any way. Even though Makris initially stopped

for the police, this stop can hardly be considered a submission

to police authority when he sped away before the officers could

approach him. Thus the court cannot find a Fourth Amendment

seizure based upon submission to authority where Makris showed no

signs of submission.

Without submission, an individual in flight, as was Makris,

could still be seized under the Fourth Amendment if government

officials actually stop him or her by an intentional act. See

Brower v. County of Inyo,

(1989). The court

has specifically addressed this issue in several cases involving

police chases. In Brower, the court found that the police seized

13 an individual when he crashed into a roadblock which police had

purposefully positioned in such a way that he would crash into

it. See

. Despite this ruling, the Court has noted

specifically that, even though a chase by police communicates to

an individual that they want the individual to stop, this does

not necessarily implicate Fourth Amendment protections. See

Michigan v. Chesternut,

(1988) (Court found

no Fourth Amendment seizure where police drove alongside an

individual who was running away from them). Accordingly, when a

police chase is terminated because the suspect crashes, there is

no seizure unless law officials purposely caused the crash in

some way. See County of Sacramento v. Lewis, ___ U.S. , ,

(1998) ("no Fourth Amendment seizure would

take place where a 'pursuing police car sought to stop the

suspect only by the show of authority represented by flashing

lights and continuing pursuit,' but accidentally stopped the

suspect by crashing into him"); Horta v. Sullivan,

(1st Cir. 1993) (court found no seizure by a pursuing officer who

chased a motorcyclist for over three miles at speeds as high as

75-80 miles per hour, even though motorcyclist lost control of

his motorcycle and crashed into another officer's vehicle).

According to these standards set by the Court, even though

Makris temporarily pulled over, no physical force was

14 intentionally applied by the police toward Makris that would

suggest they had seized him. This is not a case like Terry,

where a seizure occurred because an officer physically touched a

suspect. See

. Instead, the

officers in this case could not get physically close to Makris

during his temporary stop. Because Makris fled before police

approached him, the court cannot find that the police took

physical "possession" of Makris during his temporary stop in any

way that would result in a seizure.

Additionally, even though Makris's movement was terminated

when he lost control of his motorcycle and crashed into a fire

hydrant, in no way can this termination of Makris be considered a

seizure by police. Only if the police had intentionally caused

Makris to stop in some way, such as placing a roadblock in a

manner that would cause him to crash, could the court find that

these police officers seized Makris when he lost control of his

motorcycle. Because the court finds no evidence of a seizure in

this case, the Fourth Amendment claim against the defendants must

fail.

4. Fourteenth Amendment

If a constitutional claim alleging abusive conduct by

government officials is covered by a specific constitutional

15 provision, like the Fourth Amendment, the claim must be analyzed

under the standard appropriate to that provision. See

___ U.S. at ___ ,

. On the other hand,

if no specific constitutional provision applies regarding

allegations of physical abuse caused by government officials, as

in the present case, the court may analyze the claim according to

the substantive due process standards of the Fourteenth

Amendment. See

Accordingly, despite the failure of

plaintiffs' Fourth Amendment claim, there is still a possibility

that defendants could be liable under section 1983 based on the

Fourteenth Amendment.

Plaintiffs urge the court to apply a deliberate indifference

standard when determining if defendants violated Makris's

substantive due process rights under the Fourteenth Amendment.

Alternatively, plaintiffs allege that even if the court applies a

shock-the-conscience standard rather than a deliberate

indifference standard to defendants' conduct, they can still

prove violations of Makris's Fourteenth Amendment rights because

the actions by defendants were so egregious. Contrary to these

assertions, the court is not convinced that plaintiffs have

presented evidence to prove that the actions of the police

officers rise to the level of "conscience shocking" as required

by the Fourteenth Amendment standard.

16 The Fourteenth Amendment provides in part that no state

shall "deprive any person of life, liberty or property, without

due process of the law." U.S. Co n s t , amend. XIV, § 1. This

provision protects individuals against deliberate action by

government officials intended "'to deprive a person of life,

liberty, or p r o p e r t y . See

___ U.S. at ___ ,

(quoting Daniels v. Williams,

(1986)). Again, the court considers the totality of the

circumstances to determine whether there has been a Fourteenth

Amendment violation by such officials. See, e.g., Evan v . Avery,

(1st Cir. 1996), cert, denied,

(1997).

The Court has emphasized that not all government action

which causes harm to an individual is actionable under the

Constitution. See

___ U.S. at ___ ,

. In high-speed police pursuits in particular, the First

Circuit has ruled that only those actions by government officials

that "shock the conscience" will be violations of due process

under the Fourteenth Amendment. See

. In Evans, the police pursued a suspect in a densely

populated residential area where traffic was heavy and

pedestrians were prevalent. Even though the pursuit resulted in

the death of a ten-year-old pedestrian, the court, considering

17 the totality of the circumstances, ruled that because the actions

by the police did not amount to anything more than ordinary

negligence, and did not shock the conscience, there could be no

Fourteenth Amendment violation. See

. Since Evans,

the Supreme Court, specifically rejecting the "deliberate

indifference" standard proposed by plaintiff here, adopted this

shock-the-conscience standard for all actions involving

Fourteenth Amendment violations by law enforcement officials

during high-speed police chases. See

___ U.S. at

,

. In establishing this higher standard to

apply to situations where the police have to make split-second

decisions, the Court explained that the Constitution focuses on

the major concerns between "'the governors and the governed, but

it does not purport to supplant traditional tort law in laying

down rules of conduct to regulate liability for injuries that

attend living together in society.'"

at 1718 (quoting

). Accordingly, this court will

apply a shock-the-conscience standard to defendants' actions to

determine whether these government officials violated Makris's

substantive due process rights under the Fourteenth Amendment.

Actions of government officials that can be deemed to be

so arbitrary and so egregious that they shock the conscience

occur in situations where government officials intend "to injure

18 [an individual] in some way unjustifiable by any government

interest." See

___ U.S. at ___ ,

. For instance, in circumstances where a police officer is

engaged in a high-speed automobile chase aimed at apprehending a

suspected offender, a due process violation under the Fourteenth

Amendment will only be found if the purpose of the police chase

was to cause harm to the individual, unrelated to any legitimate

police objective. See

. This result may seem harsh,

but as Justice Kennedy points out in his concurrence in Lewis,

"[t]here is a real danger in announcing a rule, or suggesting a

principle, that . . . suspects may ignore a lawful command [by

police] to stop and then sue for damages sustained in an ensuing

chase," as this could cause suspects to flee more often.

(Kennedy, J . , concurring).

Accordingly, in the instant case, for a violation of the

Fourteenth Amendment, there must be evidence that the police

officers had an intent to harm the decedent that was not

justified by any legitimate police purpose. Based on the

standards discussed above, there is no evidence in this case that

the police officers engaged in activity that deprived Makris of

his Fourteenth Amendment rights. The officers attempted to pull

Makris over only because they thought he was the person driving

the motorcycle and they suspected he was in possession of a

19 stolen, loaded weapon. Furthermore, after Makris fled and

engaged the officers in pursuit, the officers then knew that

Makris had failed to stop for them, that he was operating a

stolen vehicle, and that he was driving greatly in excess of the

posted speed limit. It is clear that these officers had a

legitimate police purpose in pursuing Makris. To the contrary,

there is no evidence that the officers' intent was to harm

Makris. Like the officers in Lewis, Teuber and Moore were faced

with lawless behavior for which they were not to blame; these

officers only acted upon their duties to enforce the law, not to

harm or kill Makris. See

. Consequently, the

totality of the circumstances in this case does not suggest that

the officers' behavior was conscience shocking, and therefore

there can be no Fourteenth Amendment claim against the

defendants.

Because the court has determined that the defendants'

actions did not involve either Fourth or Fourteenth Amendment

violations, as alleged by the plaintiffs, the section 1983 claim

against the police officers must fail.

5.

Plaintiffs allege that the police officers, as individual

defendants, conspired against Makris in violation of 42 U.S.C.

20 § 1985. Federal law protects individuals against two or more

people who conspire "for the purpose of depriving, either

directly or indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges and

immunities under the laws" by allowing individuals to recover for

injuries caused by these conspirators in a civil action.

(3)(1994). Unlike section 1983 actions, defendants

in section 1985 actions are not required to be acting "under

color of state law;" therefore, private as well as public

officials may be named as defendants. See Griffin v.

Breckenridge,

(1971) (Court ruled that

according to

private conspirators who committed

a racially motivated assault while on a public highway could be

sued by injured plaintiffs).

Without distinguishing between private or public defendants,

the Griffin Court also ruled that to bring a conspiracy claim

under

(3), plaintiffs must show that the

conspiracy was motivated by "'some racial, or perhaps otherwise

class-based, invidiously discriminatory animus.'" Aulson v.

Blanchard,

(1st Cir. 1996) (because town selectman

could not show he belonged to cognizable class, his conspiracy

claim under

(3) failed) (quoting

). The First Circuit and several other circuits

21 have interpreted the Griffin Court's analysis regarding section

1985(3) conspiracies to mean that there is "no principled basis

for distinguishing between public and private conspiracies."

. Thus all plaintiffs who bring civil

actions under this statute "must allege facts showing that (1)

the defendants conspired against them because of their membership

in a class, and (2) the criteria defining the class are

invidious."

Plaintiffs in this case have not alleged that defendants'

actions were motivated by any class bias. "'Judges are not

expected to be mindreaders. . . . [A] litigant has an obligation

"to spell out its arguments squarely and distinctly . . .

Willhauck v. Halpin,

(1st Cir. 1991) (quoting

United States v. Zannino,

(1st Cir. 1990) (other

citations omitted)). Accordingly, where the plaintiffs have not

alleged that Makris belonged to any cognizable class against

which the defendants were invidiously conspiring, the court will

not analyze this issue further.

6. Town and Supervisory Liability

Plaintiffs allege that the Town of Salem failed to train its

employees adequately in the areas of surveillance and high-speed

police chases and that this failure resulted in the violation of

22 Makris's constitutional rights. According to Monell v. New York

City Dep't of Social Services,

(1978), a

municipality will only be held liable under section 1983 if: (1)

municipal employees have deprived individuals of their

constitutional rights and (2) it is the execution of the

government's policy that is ultimately responsible for the

deprivation of rights. See also Bordanaro v . McLeod,

(1st Cir. 1989).

This court has emphasized that even though a person may be

harmed in some way through his or her interaction with municipal

employees, if that person has suffered no constitutional injuries

by these employees, then the municipality itself cannot be liable

under section 1983. See

; Havden

v. Gravson,

(1st Cir. 1998) (where plaintiffs could

not prove equal protection violation against police chief, town

could not be found liable for its police policies). Accordingly,

because all of plaintiffs' federal claims against the pursuing

officers fail, there remains no federal basis for imposing

liability against the Town of Salem, the police department, or

the police officers' supervisors.

23 7. State Claims

Because this court has eliminated the federal claims, the

court declines to hear this case based upon state-law claims

alone. See

(c) (1998) (authorizing district court

to decline jurisdiction after it "has dismissed all claims over

which it has original jurisdiction"); Camelio v. American

Federation,

(1st Cir. 1998) ("balance of

competing factors ordinarily will weigh strongly in favor of

declining jurisdiction over state law claims where the

foundational federal claims have been dismissed at an early stage

in the litigation").

Plaintiffs have asked this court to remand the instant case

to state court. "Remand" is impossible, however, because

plaintiffs, by choice, initiated this case in federal court, not

state court. See

(c) (1998) (case removed from

state court to federal court "shall be remanded" back to state

court if at any time before final judgment the district court

lacks subject matter jurisdiction (emphasis added) ) . If

plaintiffs wish to have their state claims adjudicated in state

court, then they will have to file those claims with that court.

24 Conclusion

For the abovementioned reasons, defendants' motion for

summary judgment (document 8) is granted as to Counts I-IV. The

remaining state claims in Counts V-VIII are dismissed without

prejudice. The clerk of court shall enter judgment accordingly.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

October 29, 1998

cc: Peter G. Callaghan, Esq. Mitchell J. Wallman, Esq. James B. Krasnoo, Esq. Donald E. Gardner, Esq.

25