208 F.Supp.2d 163 (2002)
Ana Lydia OLIVO GONZALEZ, et al. Plaintiffs
v.
TEACHER'S RETIREMENT BOARD, et al. Defendants
No. CIV. 01-1580(SEC).
United States District Court, D. Puerto Rico.
June 12, 2002.
*164 Laura Maldonado-Rodríguez, Esq., San Juan, Marcos A. Rivera-Ortiz, Esq., Carolina, for Plaintiffs.
Salvador Antonetti-Stutts, Carlos M. Aquino-Ramos and Jo-Ann Estades-Boyer, *165 Esqs., Department of Justice of P.R., Federal Litigation Division, Suzette M. Del Valle-Lecaroz, Esq., San Juan, for Defendants.

OPINION AND ORDER
CASELLAS, District Judge.
Before the Court is the Honorable Juan Antonio Flores Galarza, Raul Corales Ramos, Ivonne Oritz Balladares, Irma A. Jimenez Lopez and Jose Figuero's ("Defendants") motion to dismiss the complaint for a failure to state a claim (Docket # 13), and Irma Gimenez Lopez, Ivonne Ortiz Balladares, Raul Corales Ramos and the Teacher's Retirement Board's motion to dismiss for a failure to state a claim and for a lack of diversity (Docket # 11).[1] Plaintiffs Ana Olivo Gonzalez and Jose Manuel Gonzalez Cruz have filed an opposition to Defendants' motions (Docket # 18). After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the Court finds that some of Defendants' motion (Docket # 13) should be granted, but the other Defendants' motion (Docket # 11) should be denied.

Jurisdiction
The Court's subject matter jurisdiction is invoked pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1343 (civil rights), 42 U.S.C. §§ 2000e to 2000e-17 (Title VII of the Civil Rights Act of 1964, as amended) ("Title VII"), and 42 U.S.C. § 1981 (Civil Rights Act of 1866, as amended) ("Section 1981"). The Plaintiff also alleges that this Court has supplemental jurisdiction over her Commonwealth of Puerto Rico claims pursuant to 28 U.S.C. § 1367. The parties do not contest that this is the proper venue.

Background
In this action, Plaintiff Ana Lydia Olivo Gonzalez ("Plaintiff") brings claims against her employer the Teacher's Retirement Board as well as the Honorable Juan Antonio Flores Galarza, Raul Corales Ramos, Ivonne Oritz Balladares, Irma A. Jimenez Lopez and Jose Figuero. The individuals are being sued in both their personal and official capacities. Plaintiff alleges race discrimination in violation of Title VII and Section 1981.
Plaintiff alleges that, during her employment at the Teacher's Retirement Board, Defendants have subjected her to race discrimination in the terms and conditions of her employment, which has resulted in a hostile working environment. Specifically, Plaintiff alleges that she has been singled out for particularly rough treatment in the form of harassment, hazing and insulting epithets. In addition, Plaintiff alleges that she has been refused promotions and consideration for positions based solely on the color of her skin. Plaintiffs' complaint contains two causes of action. The first is an allegation of discrimination in the terms, conditions and privileges of employment, in violation of Title VII. The second cause of action is an alleged violation of Plaintiff's contractual rights under Section 1981. Plaintiffs seek a declaratory judgment, injunctive relief, promotion, compensatory and punitive damages, costs and attorney's fees. Plaintiffs also demand a jury trial.

Applicable Law Analysis

1. Rule 12(b)(6) Standard
In assessing whether dismissal for failure to state a claim is appropriate, "the trial court, must accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the plaintiff's favor, and determine whether the complaint, so read, limns facts sufficient to justify recovery on any cognizable theory." LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 *166 (1st Cir.1998) (citations omitted). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), quoted in Davis v. Monroe County Bd. of Education, 526 U.S. 629, 119 S.Ct. 1661, 1676, 143 L.Ed.2d 839 (1999). See also Correa-Martínez v. Arrillaga-Beléndez, 903 F.2d 49, 52 (1st Cir.1990) (dismissal for failure to state a claim is warranted "only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory.").
But "[a]lthough this standard is diaphanous, it is not a virtual mirage." Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.1997) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988)). In order to survive a motion to dismiss, "a complaint must set forth `factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.'" Id.
In judging the sufficiency of a complaint, courts must "differentiate between well-pleaded facts, on the one hand, and `bald assertions, unsupportable conclusions, periphrastic circumlocution, and the like,' on the other hand; the former must be credited, but the latter can safely be ignored." LaChapelle, 142 F.3d at 508 (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)). See also Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999). Moreover, Courts "will not accept a complainant's unsupported conclusions or interpretations of law." Washington Legal Foundation v. Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir.1993).

a. Docket # 13
In the first cause of action Plaintiffs bring a claim under Title VII, which provides in relevant part that "[i]t shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's race ...." 42 U.S.C. § 2000e-2(a)(1). In their motion to dismiss the complaint, the individual Defendants claim that Title VII does not generally allow for the imposition of individual liability.
The issue of individual liability under Title VII, although not yet decided by the First Circuit Court of Appeals, has been reached on several occasions by the District Court of Puerto Rico; and each time, this Court has followed the majority of other federal courts by interpreting the statute against the imposition of individual liability. See Maldonado-Cordero v. AT & T, 73 F.Supp.2d 177, 184 (D.P.R.1999) ( holding that "Title VII's language and legislative history do not support holding individuals liable under the statute"); Canabal v. Aramark Corp., 48 F.Supp.2d 94, 96 (D.P.R.1999) (same); Acevedo Vargas v. Colon, 2 F.Supp.2d 203, 206 (D.P.R.1996) (same); Pineda v. Almacenes Pitusa, Inc., 982 F.Supp. 88, 92-93 (D.P.R.) (same); Contreras Bordallo v. Banco Bilbao Vizcaya de Puerto Rico, 952 F.Supp. 72, 73 (D.P.R.1997) (same); Hernandez v. Wangen, 938 F.Supp. 1052, 1063 (D.P.R.1996) (same).
Based on this precedent, and Plaintiffs' failure to provide any justification why we should not follow it, the Court will not extend individual liability to the individual Defendants under Title VII. Accordingly, Plaintiffs' Title VII cause of action against the individual Defendants, in their personal capacity, is dismissed. Plaintiffs' Section 1981 cause of action against the same Defendants remains pending.

*167 b. Docket # 11
The other motion to dismiss requests that the Court dismiss the complaint based on the doctrines of abstention and qualified immunity. Plaintiffs counter by arguing that the doctrine of qualified immunity does not protect the Defendants from a violation of clearly established constitutional or statutory rights, and that the Court should not abstain pursuant to the doctrine announced in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).

i. Qualified Immunity
Defendants invoke the doctrine of qualified immunity in support of their motion to dismiss. The defense of qualified immunity is available to government officials acting in the scope of their employment. It protects them from liability arising from discretionary action within the scope of their employment, "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Interpreting Harlow, the First Circuit has established a three-part inquiry to determine whether or not the doctrine of qualified immunity applies in a given situation.
First, the district court "must determine whether the plaintiff has alleged the deprivation of an actual constitutional right," Abreu-Guzmán v. Ford, 241 F.3d 69, 73 (1st Cir.2001) (quoting Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)), then "the court must proceed to determine whether that right was clearly established at the time of the alleged violation." Id. If these two questions are answered in the affirmative, the court then proceeds to determine "whether an objectively reasonable officer, performing discretionary functions, would have understood his or her conduct violated that clearly established constitutional right." Id. (citing Harlow, 457 U.S. at 818-19, 102 S.Ct. 2727).
In this case, the answer to the first two inquiries is in the affirmative. Plaintiff has alleged a violation of her right to be free from racial discrimination. See Tang v. State of Rhode Island, 120 F.3d 325 (1st Cir.1997). This is a recognized constitutional and statutory right that was clearly established at the time of the alleged violation. Moreover, the complaint contains sufficient factual allegations which, if proven at trial, might establish that an objectively reasonable government actor, performing discretionary functions, would have understood their conduct to violate Plaintiff's statutory or constitutional rights.
Since the issue of qualified immunity has been raised in the context of a motion to dismiss, and we conclude that the complaint contains sufficient factual allegations that could prohibit Defendants' reliance on the doctrine of qualified immunity, the Court can proceed no further. However, Defendants are free to raise this issue in the context of a motion for summary judgment.

ii. Colorado River Abstention
Defendants argue that this Court should dismiss Plaintiffs' federal complaint because she has also filed administrative complaints before the Commonwealth's Administrative Board of Appeals, known by its Spanish acronym "JASAP," based on the same alleged discriminatory conduct by Defendants. The Supreme Court in Colorado River established a narrow[2]*168 doctrine allowing district courts to stay or dismiss a federal action because of parallel state-court litigation. The Court recognized that while federal courts have a "virtually unflagging obligation" to exercise their jurisdiction, exceptional circumstances premised on "considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation[,]" 424 U.S. at 817-18, 96 S.Ct. 1236 (citations omitted), may sometimes permit the dismissal of a federal action which is duplicative of a pending state proceeding. The Court in Colorado River articulated an "exceptional circumstances" test of four factors which district courts should consider in assessing whether dismissal is appropriate: (1) whether either the federal or the state court has assumed jurisdiction over property, (2) "the inconvenience of the federal forum," (3) "the desirability of avoiding piecemeal litigation," and (4) "the order in which jurisdiction was obtained by the concurrent forums." Id. at 818, 96 S.Ct. 1236 (citations omitted).
In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the Court listed two additional considerations which may be factored in the district court's assessment of the appropriateness of dismissal: (5) whether federal or state law controls (the "source-of-law factor"), and (6) "the probable adequacy of the state-court proceeding to protect ... [the parties'] rights." Id. at 23-26, 103 S.Ct. 927.
Another factor considered by some courts is the motivation for the federal lawsuit; particularly, whether it is vexatious or reactive in nature. See Elmendorf Gráfica, Inc. v. D.S. America (East), Inc., 48 F.3d 46, 50 (1st Cir.1995); Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 947 F.2d 529, 537 (1st Cir.1991), cert. denied, 503 U.S. 986, 112 S.Ct. 1674, 118 L.Ed.2d 393 (1992) (hereinafter "Villa Marina II"); Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 15 (1st Cir.1990) (hereinafter "Villa Marina I"); Fuller Company v. Ramón I. Gil, Inc., 782 F.2d 306, 309-10 (1st Cir.1986); Marcano Arroyo v. K-Mart, Inc., 24 F.Supp.2d 169, 172 (D.P.R.1998); Fumero-Vidal v. First Fed. Sav. Bank, 788 F.Supp. 1275, 1282 (D.P.R.1992).
"No one factor," however, "is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction and the combination of factors counseling against that exercise is required. Only the clearest of justifications will warrant dismissal." Colorado River, 424 U.S. at 818-19, 96 S.Ct. 1236 (citations omitted). "[T]he decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction." Moses H. Cone, 460 U.S. at 16, 103 S.Ct. 927 (emphasis added). Ultimately, "the decision whether to defer to the state court is necessarily left to the discretion of the district court in the first instance," subject to reversal only for an abuse of that discretion. Id. at 19, 103 S.Ct. 927.
Recently, however, the Supreme Court held that while district courts may stay or dismiss an action based on abstention principles where the relief sought is equitable or otherwise discretionary, they may only stay, but not dismiss, a damages action based on those principles. Quackenbush *169 v. Allstate Ins. Co., 517 U.S. 706, 116 S.Ct. 1712, 1722-28, 135 L.Ed.2d 1 (1996). After a thorough examination, the Court concluded that:
[Our precedents] demonstrate that the power to dismiss ... [based on abstention principles] ... derives from the discretion historically enjoyed by the courts of equity.... Ultimately, what is at stake is a federal court's decision, based on a careful consideration of the federal interests in retaining jurisdiction over the dispute and the competing concern for the "independence of state action," that the State's interests are paramount and that a dispute would best be adjudicated in a state forum.
Id. at 1726 (citations omitted).
The First Circuit has not taken the Court's words in Quackenbush lightly and has avoided hair-splitting, stating the law as follows: "the Supreme Court held that abstention, under Burford or otherwise, may be appropriate in suits for damages. But the Court further held that in a damages action, the district court may only order a stay pending resolution of state proceedings; it cannot invoke abstention to dismiss the suit altogether." DeMauro v. DeMauro, 115 F.3d 94, 98 (1st Cir.1997) (citations omitted) (emphasis added). "This rule," as the circuit court noted, "may seem rather wooden, given the merger of law and equity, but the Court means what it says ...." Id. This being an action in damages, the Court may not dismiss it altogether. Our analysis thus turns to whether, in the circumstances that obtain, a stay would be appropriate.
The Court does not believe abstention is appropriate in this case for the reasons that follow. First, the complaints filed locally are situated in an administrative forum with a limited jurisdiction, which may only rule upon personnel transactions in violation of administrative rules of the public entity and violations of Puerto Rico's Personnel Law. 3 P.R. Laws Ann. § 1331, et seq. Second, the administrative forum has no jurisdiction to award money damages or to consider a tort action. Third, that forum does not have jurisdiction to resolve disputes based on federal statutes or the Constitution of the United States of America. Fourth, in the administrative forum, all of the Defendants are sued in their official capacity; whereas the federal suit names the board members in their official and personal/individual capacities.
Based on these differences, it is clear that the local and federal fora are not "parallel proceedings," under Colorado River. As such, Defendants' request for abstention is denied.

Conclusion
Based on the discussion above, Plaintiffs' case remains as follows:
1. The Title VII claim remains pending against her employer, the Teacher's Retirement Board;
2. The Section 1981 claim remains pending against all of the named Defendants.[3] However, Defendants may raise the issue of qualified immunity in a subsequent motion for summary judgment.
3. Docket # 11 is Denied.

*170 4. Docket # 13 is Granted inasmuch as the claims for individual liability, are dismissed under Title VII.
SO ORDERED.
NOTES
[1]  Because this is a federal question case, diversity is not an issue before the Court.
[2]  See, e.g., Elmendorf Gráfica, Inc. v. D.S. America (East), Inc., 48 F.3d 46, 50 (1st Cir. 1995); Burns v. Watler, 931 F.2d 140, 145 (1st Cir.1991); Fumero-Vidal v. First Fed. Sav. Bank, 788 F.Supp. 1275, 1282 (D.P.R.1992).
[3]  Although the parties do not discuss these items in their motions, the Court notes that the following issues will necessarily be before the Court in the future:

1. Whether Plaintiffs' claim for money damages under Section 1981, against the Teacher's Retirement Board, is barred by Eleventh Amendment Immunity;
2. To what extent is individual liability available under Section 1981.
The parties should be prepared to discuss these issues.


916 S.W.2d 385 (1996)
STATE of Missouri, Plaintiff/Respondent,
v.
Martin LINK, Defendant/Appellant.
Martin LINK, Movant/Appellant,
v.
STATE of Missouri, Respondent/Respondent.
Nos. 65065, 67448.
Missouri Court of Appeals, Eastern District, Division One.
January 23, 1996.
Motion for Rehearing and/or Transfer Denied February 28, 1996.
*386 Deborah B. Wafer, District Defender, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Cheryl A. Caponegro, Assistant Attorney General, Jefferson City, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied February 28, 1996.
REINHARD, Presiding Judge.
A twelve count indictment was returned against defendant on September 26, 1991. An amended information in lieu of indictment was later filed which restated the twelve counts and also alleged defendant to be a prior offender and dangerous offender pursuant to § 558.016, RSMO Supp.1992, and a prior offender pursuant to § 558.019, RSMo Supp.1992. Counts V through XI concerned defendant's criminal acts regarding one victim, and those counts were tried separately. They are: Count Vattempted forcible rape, § 566.030, RSMo Supp.1990, Count VIsodomy, § 566.060, RSMo Supp.1990, Count VIIfirst degree robbery, § 569.020, RSMo 1986, Count VIIIkidnapping, § 565.110, RSMo 1986, and Counts IX, X, and XI armed criminal action, § 571.015, RSMo 1986 (respectively related to Counts V, VI and VIII).
The jury returned guilty verdicts on all relevant counts. Defendant was sentenced by the court to terms of life imprisonment on Counts V, VI, and VII, and thirty year terms each on Counts VIII through XI. Count V was to run consecutively to previously imposed sentences (identified by the court as county case No. 91CR-488 and federal case 83-93CR). The remaining counts were ordered to run consecutively to each and every numerically preceding sentence and also ordered to run consecutively to the federal and county sentences.
Defendant appeals from the judgment entered on the above convictions and also appeals the motion court's denial, after an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief.[1] We affirm.
The evidence reveals that on January 23, 1991, victim drove to the Itaska Laundromat in St. Louis in order to do her laundry, arriving at approximately 8:00 p.m. She stated that she had selected the Itaska Laundromat because she knew it had a surveillance camera which she believed was watched by the person living above the laundry. The laundromat was empty when she arrived. At approximately 9:00 p.m. she observed a man (defendant) enter the laundromat. Victim testified defendant was clad in jeans, a flannel shirt, tennis shoes and a black hat with "some sort of satanic symbol" on it. Victim "continued to fold my clothes and, as he rounded the washers, I heard him getting closer, so I turned around to look and he was right there, pulling a knife out." Defendant swiped victim's eyeglasses off her face, and threw her to the floor. Defendant ordered victim to take off her pants and shoes, and she complied. Defendant then, "forced me onto the floor and took his jeans down to his knees and knelt in front of me and instructed me to do oral sex on him." After approximately a minute of oral sex, defendant then "pushed me down to lay on the floor, and he tried to put his penis inside of my vagina." Defendant failed in the insertion of his penis into victim's vagina, and forced her to perform oral sex once more. He then pushed her down again and this time was able to insert his penis into her vagina. Defendant told victim to "get a good look at his face." Subsequently, he pulled victim to her feet and said, "We're leaving." He ordered her to get dressed and told her to put her arms around him as if they were a couple. He put the knife to her side and told her, "If you scream, I'll cut you." They walked to defendant's car, a gray Ford Tempo with a red interior, and defendant opened the driver's side door and pushed her in. She crawled to the passenger's seat and in the process of sitting up, she was able to unlock the passenger's side door.
Still holding the knife, defendant instructed victim to give him all of her money. She gave him three dollars in quarters and her house key. Her purse was thrown into the back seat. Defendant ordered her to again undress and she complied, keeping on only *387 her sweatshirt. Defendant then placed his knife blade on victim's knee and drove off. At a four-way stop, victim leapt from the car just as defendant started to accelerate through the intersection. Defendant drove off down Virginia Avenue toward Interstate 55. Victim sought and gained help from a couple who drove her home. There, victim called the police who arrived shortly thereafter. Victim was subsequently taken to a hospital where a "sexual assault kit" was prepared.[2]
A number of police officers testified regarding the course of the investigation. Based on their interview with victim, an all-points-bulletin was put out for a very light-complected black male in his late twenties/early thirties, driving a gray Ford Tempo. Officer Henry Keeler, then assigned to the "Sex Crimes/Child Abuse Section" of the St. Louis Metropolitan Police Department, testified that he found victim's eyeglasses and her abandoned laundry at the laundromat. David Urg, an evidence technician searched the laundromat for fingerprints and testified that he found a fingerprint on the exterior of the right side of victim's eyeglasses. John Vogan, a St. Louis police officer assigned to the identification division, testified that the fingerprint on victim's eyeglasses was that of defendant's left middle finger.
On January 24, 1991, victim selected defendant's photograph from a five man police photo line-up. On January 26, 1991, defendant was arrested while driving a gray Ford Tempo by Officer Chris Nagel of the City of Kirkwood Police Department. His search of the vehicle revealed a knife and a black hat with a picture of the Grim Reaper and the words "Grave Diggers". Victim later identified the car as the one defendant had forced her into and also identified the hat and the knife as that, respectively, worn and used by defendant at the crime. A few days later, victim identified defendant in a live police line-up.[3]
On appeal, defendant first contends that the trial court erred:
... in overruling [his] objection and permitting the state to adduce evidence from [victim] that she went to the laundromat [on Itaska and Alaska] because there was a surveillance camera there and she thought it would be watched.... This evidence was irrelevant in that it was not probative of the charges being tried and was presented for the sole purpose of engendering sympathy for the [victim]. The evidence was prejudicial in that it tended to distract the jury's attention from the true issues and to encourage them to find [defendant] guilty based on their sympathy for a woman who thought she was in a supposedly "safe" laundromat being attacked.
The trial court has broad discretion in determining the relevancy of evidence. State v. Henderson, 826 S.W.2d 371, 374 (Mo.App.1992). Evidence is considered to be relevant if it logically tends to prove or disprove a fact in issue or to corroborate evidence which itself is relevant and bears upon the principal issue of the case. State v. Hill, 817 S.W.2d 584, 587 (Mo.App.1991). Defendant is required to show error in the reception of evidence and prejudice resulting therefrom. State v. Starke, 811 S.W.2d 799, 801 (Mo.App.1991). Here, irrespective of the relevance of the testimony, there was simply no possible prejudice. Evidence of guilt was strong and the judge, not the jury, assessed punishment. See State v. Stevenson, 852 S.W.2d 858, 863 (Mo.App.S.D.1993). Further, the nature of the question and response *388 was the sort to which the jury would attach little significance.
Defendant next asserts the trial court erred:
... in overruling [his] objections and permitting the prosecutor during closing argument to state that [defendant] was a "predator" who "cruises around the streets ... look[ing] for people" and to ask the jury to consider why [defendant] would want to keep victim's "house key"....
Defendant asserts that the reference to him being a street-cruising predator looking for other victims was highly prejudicial because it suggested the prosecution's knowledge of defendant's commission of similar offenses in the past and the "implicit suggestion" that defendant intended to commit such offenses in the future. In State v. White, 733 S.W.2d 57, 61 (Mo.App.1987), the prosecutor stated without objection during closing argument "that the defendant was like `a predator,' `a bug' and a `person preying on the poor.'" We stated:
Trial courts are vested with broad discretion in controlling closing arguments in criminal cases and the general rule is that attorneys are accorded a broad latitude in their summations. A conviction will be reversed for improper argument only if it is established the complained of comments had a decisive effect on the jury's determination.

* * * * * *
We do not condone the application of denunciatory epithets to a defendant. However, a new trial is not called for in every instance where a prosecutor uses an unbecoming name in characterizing the defendant.
Id. at 61 (citations and internal quotations omitted).
Whatever the propriety of the prosecutor's characterizations, there was simply no possibility of a decisive effect on the jury. See generally Stevenson, supra. This lack of the possibility of prejudice also relates to the other portion of closing argument identified by defendant as improper.[4] Moreover, after the defendant's objection to the state's "house key" question, the court directed the state "not to pursue that particular line of argument." Defendant requested no other relief. See State v. Olivares, 868 S.W.2d 122, 129 (Mo.App.W.D.1993).
We affirm.
KAROHL and DOWD, JJ., concur.
NOTES
[1]  Defendant has failed to address any points in this appeal to the denial of his Rule 29.15 motion. That appeal is therefore considered abandoned. See State v. Nelson, 818 S.W.2d 285, 287 (Mo.App.1991).
[2]  Victim was called a few days later by a man who told her he had found her phone book and some pictures on Virginia Avenue. Her wallet was discovered by two teens along the Meramec River in August of 1992. The wallet still contained victim's drivers license and some credit cards.
[3]  Defendant did not testify or call witnesses. He did, however, introduce a birth certificate which listed his parents as being white. In closing argument defendant essentially conceded the offenses occurred, but argued mis-identification. We note that victim never wavered in her identification of defendant. She selected him from a photo line-up, a live line-up and identified him at trial. It has been said that no other crime focuses a female victim's attention on her assailant as intensively as rape. State v. Trimble, 654 S.W.2d 245, 254 (Mo.App.1983). Here, victim had ample opportunity to view defendant, and we note that defendant even ordered her to look at his face.
[4]  The prosecutor stated:

They found her wallet in the river and found some of her ID on the street. We didn't find the money and we didn't find the [house]key so he keptincidentally, what did he want her house key for?
Defendant argues that there was no evidence that defendant kept victim's house key, and that the question was designed to make the jury infer defendant "had future designs on either burglarizing [victim's] house or perhaps committing additional offenses against her there."


232 Pa. Superior Ct. 405 (1975)
Commonwealth, Appellant,
v.
Nastari et al.
Superior Court of Pennsylvania.
Submitted November 11, 1974.
February 27, 1975.
*406 Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN DER VOORT, and SPAETH, JJ.
Louis R. Paulick and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellant.
Irving M. Green and David O'Hanesian, for appellees.
OPINION BY HOFFMAN, J., February 27, 1975:
The Commonwealth appeals from the order of the lower court that suppressed evidence seized by the police from appellees' vehicle.
*407 On December 20, 1971, at 1:55 a.m., two armed men committed a robbery in the North Versailles Bowl, a bowling alley in North Versailles Township, Allegheny County. The police were notified immediately. At 2:06 a.m., the Huntington Township police transmitted a radio broadcast which indicated that the robbery suspects, two white males between 35 and 40 years old, were headed towards North Huntington Township in a light-colored Volkswagen and that the suspects were armed. Lieutenant John Cimprich of the North Huntington Township Police Department heard the broadcast while he was sitting in his police car in a service station parking lot on Route 30, approximately one mile from the bowling alley. Immediately prior to the broadcast, the lieutenant had observed two men traveling at a slow rate of speed in a light-colored Volkswagen. There was little traffic on the highway because of the early hour of the morning; the lieutenant was able to observe the men clearly because the roadway was well-lit from the nearby service station. After the broadcast, and less than fifteen minutes after the robbery, the lieutenant notified his partner, Officer Richard Keeler, on patrol in a separate vehicle one mile east on Route 30, that the robbery suspects were approaching Keeler's location.
Officer Keeler spotted the VW immediately and followed the automobile as the driver turned off the main road. After Lieutenant Cimprich had caught up with the VW, Officer Keeler signaled for the suspects to pull off the roadway. While the lieutenant was talking with the operator of the vehicle, Officer Keeler shined a spotlight through the window on the operator and on the back seat of the automobile. With the aid of the flashlight, the officer saw a green bank bag and a large screw driver visible in a black gym bag. The subsequent search revealed two pistols and the money taken in the robbery.
Appellees were subsequently arrested and indicted on charges of armed robbery, violation of the Uniform *408 Firearms Act and burglary; appellee Nastari was additionally charged with pointing a firearm. Appellees thereafter filed a motion to suppress the physical evidence discovered in the gym bag. After a hearing on December 18, and 19, 1973, the court below granted the appellees' motion. The Commonwealth appealed that order on January 22, 1974.[1]
The Commonwealth concedes that the police must meet the requirements of the Fourth Amendment of the United States Constitution when they conduct an investigatory stop of an automobile. That is the clear holding of two recent Pennsylvania Supreme Court cases. Commonwealth v. Boyer, 455 Pa. 283, 314 A. 2d 317 (1974); Commonwealth v. Swanger, 453 Pa. 107, 307 A. 2d 875 (1973). As stated in Swanger, "[a]n automobile is a place where an individual has a reasonable expectation of privacy . . . . Moreover, when a police officer stops a vehicle he has `seized' the vehicle and its occupants, and thus, the protections of the Fourth Amendment must be considered. . . . ." 453 Pa. at 111, 307 A. 2d at 877. There is some confusion concerning what level of suspicion the police must have before an automobile may *409 be stopped. See, e.g., Comment, 47 Temp. L.Q. 640 (1974). Swanger suggests that before a stop can be made the police must have probable cause: "We, therefore, hold before a police officer may stop a single vehicle to determine whether or not the vehicle is being operated in compliance with The Vehicle Code, he must have probable cause based on specific facts which indicate to him either the vehicle or the driver is in violation of the code." at 115, 307 A. 2d at 879. On the other hand, in cases not involving automobile stops, the law is clear that something less than probable cause justifies the brief detention of a suspect: ". . . there is nothing unconstitutional about the brief detention of an individual, under circumstances not justifying arrest, for the purpose of investigating possible criminal activity." Commonwealth v. Smith, 225 Pa. Superior Ct. 509, 512, 311 A. 2d 716 (1973). The leading case on such investigatory stops and limited searches is Terry v. Ohio, 392 U.S. 1 (1967), which has recently been interpreted by the United States Supreme Court in Adams v. Williams, 407 U.S. 143 (1972), as follows: "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." 407 U.S. at 145-46.
In Commonwealth v. Boyer, supra, a case decided after Swanger, our Supreme Court reiterated the probable cause requirement for police investigatory stops. Further, the Court rejected the Commonwealth's claim that the search of the appellant was justified by Terry. Boyer involved a vehicle stop that was based solely on *410 the "unusual look" that appellant gave the police as he drove past a patrol car. Although the Court rejected the Commonwealth's argument, the Court impliedly accepted the view that a stop of a vehicle might be justified on the basis of a reasonable suspicion rather than on probable cause: "Nor can the stopping of appellant's vehicle be justified under the rule laid out in Terry v. Ohio . . . since the `unusual look' given by appellant did not constitute `unusual conduct which [led the officer] reasonably to conclude in light of his experiences that criminal activity may be afoot. . . .'" 455 Pa. at 286, 314 A. 2d at 318. See also, Commonwealth v. DeJesus, 226 Pa. Superior Ct. 79, 310 A. 2d 323 (1973). The police excess condemned in the Swanger-Boyer line of cases was carefully delineated in Swanger: ". . . we emphasize the only issue here involved is whether a police officer may stop a single automobile without any outward sign of a violation of The Vehicle Code." 453 Pa. at 110, 307 A. 2d at 877. (Emphasis added). In addition, the Court in Swanger employed a balancing test whereby reasonableness of a search was to be judged by the degree of intrusion upon a citizen's protected interest as contrasted to the extent of the governmental interest in conducting the search.
Therefore, there is no logical basis to distinguish pedestrians who may be detained briefly for further investigation and persons riding in automobiles when the police have a reasonable suspicion of criminal activity. In either situation, when the police have a reasonable suspicion that criminal activity is afoot and that the suspect is armed and dangerous, the police may temporarily detain the individual and conduct a limited search sufficient to insure their safety and the safety of third persons. Cf. Terry, supra; Commonwealth v. Pegram, 450 Pa. 590, 301 A. 2d 695 (1973); Commonwealth v. Hicks, 434 Pa. 153, 253 A. 2d 276 (1969); Commonwealth v. Watkins, 222 Pa. Superior Ct. 146, 292 A. 2d 505 (1972).
*411 The basis for the stop in the instant case satisfied the requirements of the Fourth Amendment. The police were informed that the suspects had fled in a light-colored VW. In addition, the police had a partial description of the robbers and the direction in which they were thought to be going. The traffic on the highway was extremely light because of the hour of the night at which the crime took place. The car was stopped almost immediately after the crime and in the immediate vicinity of the incident. Although the police observed nothing unusual about the operation of the vehicle, the vehicle and its occupants sufficiently resembled suspects in the armed robbery to justify a limited investigatory stop. The police at the moment of the stop did not have probable cause to arrest;[2] they did have sufficient suspicion to stop the vehicle to investigate the crime. Therefore, the officers were justified in using the flashlight because they were legally situated outside the car. In a similar situation, this Court *412 held that the plain view doctrine[3] applied even if an officer was assisted by the use of a flashlight. Commonwealth v. DeJesus, supra. Further, the use of the flashlight was a minimal intrusion into an area of privacy of the appellees when balanced against the police officer's need to guarantee his safety. Here Officer Keeler knew that the appellees were suspects in an armed robbery; the area of the car in which he shined the light was within the reach of the appellees. Therefore, the minimal invasion was justified under Terry. Once the officer saw contraband in the back seat, probable cause existed to arrest the appellees and to seize the contents of the gym bag.
The order of the court below is reversed and the case is remanded for further proceedings consistent with this opinion.
CERCONE and PRICE, JJ., concur in the result.
NOTES
[1]  This Court has jurisdiction to hear this appeal under the authority of Commonwealth v. Bosurgi, 411 Pa. 56, 63-64, 190 A.2d 304 (1963): "From the point of view of the Commonwealth, two possible situations may arise: (a) the order of suppression will result in a termination and conclusion of the prosecution or (b) while the order of suppression will not result in a termination or conclusion of the prosecution, it will result in a prosecution wherein the Commonwealth is substantially handicapped because it cannot present all its available evidence . . . In both factual situations the practical effects of an order granting the suppression of evidence give to the order such an attribute of finality as to justify the grant of the right of appeal to the Commonwealth in both situations." See also, Commonwealth v. Pugh, 223 Pa. Superior Ct. 112, 296 A.2d 864 (1972); Commonwealth v. Manduchi, 222 Pa. Superior Ct. 562, 295 A.2d 150 (1972). The suppression of the physical evidence in the instant case is a sufficient handicap to the Commonwealth's case to permit an appeal from the lower court's order.
[2]  The Commonwealth in the instant case contends that probable cause existed at the time of the stop. The argument is based on Chambers v. Maroney, 399 U.S. 42 (1970). The facts in Chambers are similar to those in the present case: police stopped the appellant's car on the basis of a tip from teenagers who had seen "a light blue compact station wagon" speeding from the scene of a late night armed robbery of a gas station attendant. The only other information given the police was that one robber wore a green sweater and that another wore a trench coat. Within an hour of the crime and in the same vicinity, the police stopped appellant's car and observed that he was wearing a green sweater. The subsequent search revealed the weapon used in the robbery and the money taken from the attendant. The Court passed quickly over the question of whether the police had probable cause and did not analyze the point at which the police had sufficient cause to arrest. A close reading of the case suggests that probable cause to arrest did not exist until after the stop was made because the clothing worn by the suspects was critical to their arrest and was not observed by the police until after the initial investigatory stop of the vehicle. Therefore, Chambers supports the notion that a brief investigatory stop of a vehicle may be made on less than probable cause.
[3]  See Coolidge v. New Hampshire, 403 U.S. 443 (1971); Belsky, Criminal Procedure in Pennsylvania, 78 Dick L. Rev. 209, 250-51 (1973).


804 F.2d 678Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Robert Tyrone MORGAN, Plaintiff-Appellant.v.The UNITED STATES ATTORNEY GENERAL;  United StatesDepartment of Justice;  William Donald Schaefer, Mayor,Baltimore City, Maryland;  County Executive Harford County;Paul J. David, Warden, Baltimore City Jail;  Thomas "Randy"Corcoran, Deputy Warden, Baltimore City Jail;  MartyKatzenstein, Deputy Warden Treatment, Baltimore City Jail;Sheriff of Harford County;  Sheriff's Department HarfordCounty (Specifically Lt. Rector);  Defendants-Appellees.
No. 86-7199.
United States Court of Appeals, Fourth Circuit.
Submitted Sept. 30, 1986.Decided Nov. 6, 1986.

Robert Tyrone Morgan, appellant pro se.
Max Dunham Miller, Miller, Fry & Protokowicz;  Frank Charles Derr, City Solicitor's Office;  Stephen Howard Sachs, Office of the Attorney General of Maryland, for appellees.
D. Md.
AFFIRMED.
Before RUSSELL and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:

1
Robert Morgan filed this suit pursuant to 42 U.S.C. Sec. 1983 alleging that Baltimore City and Harford County Detention employees had violated his civil rights.  The magistrate held a hearing on four issues:

2
(1) Whether Morgan was prevented or in any way obstructed from voting in the Democratic primary for Mayor of Baltimore City;

3
(2) Whether Morgan's right to be free from deliberate indifference to his serious medical needs was violated while he was incarcerated in the Baltimore City Jail;

4
(3) Whether Morgan was transferred out of the Baltimore City Jail in retaliation for or in order to chill his legal activities;  and

5
(4) Whether Morgan was deprived of his right to be free from deliberate indifference to his serious medical needs when fed soup at the Harford County Detention Center which caused an allergic reaction.

6
After the hearing, the magistrate recommended that the district court grant summary judgment for the defendants.  The district court notified Morgan that failure to file objections to the magistrate's report could result in waiver of his right to appellate review.  In addition, the district court granted six extensions of time for Morgan to file objections.  Eventually, the district court adopted the magistrate's recommendation, and Morgan appealed.*

7
The failure to file timely objections to a magistrate's report waives appellate review of the substance of that report, where the parties have been warned that failure to object will waive appellate review.   Wright v. Collins, 766 F.2d 841 (4th Cir.1985);  Carr v. Hutto, 737 F.2d 433 (4th Cir.1984), cert. denied, --- U.S. ----, 54 U.S.L.W. 3392 (Dec. 9, 1985).  The use of this procedure was recently upheld by the Supreme Court.   Thomas v. Arn, --- U.S. ----, 54 U.S.L.W. 4032 (Dec. 4, 1985).  As Morgan was properly warned and still failed to file objections, he has waived his right to appellate review.

8
We accordingly affirm the judgment of the district court.  Because the dispositive issues have recently been decided authoritatively, we dispense with oral argument.

9
AFFIRMED.

*
 We reject the appellees' suggestion that the appeal was untimely.  The district court entered judgment, and Morgan filed a timely Rule 59 motion.  The court denied that motion on June 10, but the denial of the motion was not entered on the docket until June 30.  Morgan noted his appeal on July 17;  therefore it was timely.  See Fed.R.Civ.P. 79(a);  Fed.R.App.P. 4(a)(4) and (6)


32 Mich. App. 28 (1971)
188 N.W.2d 75
PEOPLE
v.
FISHER
Docket No. 9746.
Michigan Court of Appeals.
Decided March 26, 1971.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward G. Durance, Prosecuting Attorney, and Robert J. Rhead, Assistant Prosecuting Attorney, for the people.
Doyle A. Rowland, for defendant on appeal.
Before: FITZGERALD, P.J., and HOLBROOK and BRONSON, JJ.
HOLBROOK, J.
Defendant Norman G. Fisher and Douglas E. Vanderbush were tried in a joint trial and convicted by a jury in the Circuit Court for Midland County on October 21, 1969, of the crime of larceny of property of the value of more than $100. MCLA § 750.356 (Stat Ann 1971 Cum Supp § 28.588). Both defendant Fisher and his codefendant Vanderbush were represented at the trial by the same counsel. Defendant was sentenced to a prison term of from two to five years.
Defendant Fisher has taken a delayed appeal by leave of this Court dated July 17, 1970.
The people presented evidence which showed that at about 2:30 a.m. on August 23, 1969, two police officers, while cruising on the expressway, observed a pickup truck coming out of the Gerace Construction *30 Company without its lights on. This area was occupied by small industrial enterprises. To drive to the vicinity where the truck had been seen, it was necessary for the officers to proceed down the expressway to where a cross-over road was located. Upon reaching the location, they proceeded into a driveway of the Phoenix Sprinkler Company and drove to the rear of the building where they saw a pickup truck with two men loading copper tubing onto the truck. Both officers identified the defendant as one of the two men. The officers stopped their car in close proximity to the truck and the two subjects started to flee. One of the officers pursued the two subjects directly, and the other ran around the building in the opposite direction to prevent their possible escape. In a matter of seconds both Fisher and Vanderbush stopped upon being informed that the officer was a police officer and that he would shoot if they didn't stop. Defendant was on the ground and Vanderbush was standing at the time that they were apprehended. Each had a pair of gloves. Defendant's gloves were on the ground next to him, and Vanderbush's gloves were in his pockets. Both were arrested and taken back to the squad car at which time two other officers arrived. One took pictures of the scene, which were admitted into evidence.
Codefendant Vanderbush took the stand and testified that he had been drinking heavily that night and was not thinking straight. He further stated that there were three individuals at the scene, that they intended to steal the copper pipe, that he and Kenny Fisher (no relation to appellant) were actually loading the pipe, and that appellant was the lookout man. A warrant for Kenny Fisher had been issued some time before the trial, but he was not located in spite of a diligent search for him by *31 various police agencies in the state. Vanderbush contested the number and size of the copper tubing on the truck, stating that there was not more than seven pieces loaded and that nearly all of them were of the one-inch-diameter size. This testimony placed in issue the value of the copper tubing because if he had been correct, and nearly all of the tubing was of the size of one-inch diameter, it would not amount to the value of more than $100. If the value were less than $100, it would be a misdemeanor. Codefendant's sole defense to the action itself was that he was so intoxicated that he did not have the ability to entertain in his mind the necessary intent to steal.
The defendant's mother was a witness for the people and her testimony was to the effect that she had talked with her son at the jail after the occurrence. Her pertinent testimony appears in the record as follows:
"Q. And, did you ask Norman something in the course of this conversation with him?
"A. Yes, I did.
"Q. What did you ask him?
"A. I asked him why he did this.
"Q. And, what did he say?
"A. Well, he said that he didn't know. He said that they had been drinking and that he just didn't know. He said that when he left the house they were just going for a ride.
"Q. Who was he with?
"A. There was Norman, Doug Vanderbush, and Kenneth Fisher.
"Q. And, your son admitted to you that he took these pieces of pipe?
"A. He said that he got up to there with the boys; and, he said he was stoned; and he said they got out of the truck; and he said he was scared and shaking; and that Doug and Kenneth told him to *32 leave if he was scared, just to take a walk; and so, he said he walked up the driveway on the east side of the Phoenix Sprinkler Company and walked out to Savage Road. He said he walked back around the back of the building on the west side and he seen the officers coming and he laid down in the grass and he hollered to Doug, `The police are coming.' Well then, when they run, Doug run toward Norman and Kenneth Fisher run the other way; and, when Doug ran toward Norman, he jumped up and started running with Doug."
Defendant raises two issues on this appeal.
(1) Was it reversible error for the court in its instructions to affirmatively exclude jury instructions on the lesser offense of attempted larceny?
(2) Was defendant denied effective counsel because of the representation of both of the defendants by the same attorney?
I
For the first time on this appeal, it is appellant's claim that the trial court should have instructed on the offense of attempted larceny; appellant cites the applicable statute MCLA § 768.32 (Stat Ann 1954 Rev § 28.1055). We wish to point out that there is no evidence present in this case that would support a verdict of guilty of attempted larceny. The facts appearing in the record are to the effect that the defendants had placed on the truck 23 pieces of one-inch and two-inch diameter copper tubing which were 20 feet long. The only challenge to this evidence was to the effect that not 23 pieces but that not more than seven pieces of tubing, and those mostly the one-inch variety, had been placed on the truck at the time. The fact that the defendant actually failed to make away with the copper tubing does not in any way defeat the charged offense. *33 In 3 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 1798, pp 2143, 2144 it is stated:
"A bare removal, however, from the place in which the respondent found the goods, though he actually does not make away with them, is sufficient to constitute a carrying away."
Also see People v. Bradovich (1943), 305 Mich 329. It is also true that defendant need not have actually moved the goods himself to have been guilty. In People v. Royce Alexander (1969), 17 Mich App 30, 32, it is stated:
"It is well established that the asportation need not be effectuated by the perpetrator of the crime. It may be accomplished by a confederate or an innocent agent."
The trial court's instructions which were satisfactory to defendant's counsel at trial appear to this Court to be proper. Error in failing to charge on the legally possible included offenses may occur only where the defendant's theory encompasses such a defense and is supported by some competent testimony. People v. Hoefle (1936), 276 Mich 428. In other words, in order to warrant an instruction, the offense must be included both legally and factually. People v. Carabell (1968), 11 Mich App 519, 524.
In the instant case, there was no theory advanced by defendant to support a claim that there was an attempted larceny and, further, there is no evidence that would support, in fact, such an instruction. We find no error as to the first issue.
II
It is the appellant's claim that he was denied the effective assistance of counsel when he had to share assigned counsel with his codefendant who testified *34 and implicated defendant by naming him as a participant in the crime.
The codefendant's testimony was, in the main, consonant with the positive and convincing testimony of the two police officers who saw the defendants loading the copper tubing, gave chase when they attempted to flee, and caught them within a matter of seconds. The only inconsistencies were (1) that Kenny Fisher was helping him load the copper tubing instead of defendant; (2) that there had been only seven pieces of copper tubing mostly of the one-inch variety loaded at the time they were discovered, i.e., the value of which would be less than $100, and reduce the crime to a misdemeanor (the trial court submitted this issue to the jury); and (3) that they had been drinking heavily and were intoxicated to the extent that the codefendant could not form in his mind an intent to steal. The first inconsistency is of no harm to appellant, taking into consideration the overwhelming evidence of guilt of both the defendant and the codefendant and the testimony of Mrs. Fisher that appellant had told her that "* * * he walked back around the back of the building on the west side and he seen the officers coming and he laid down in the grass and he hollered to Doug, `The police are coming'". This testimony is inconsistent with any recanting or abandoning his part in the crime. The second inconsistency would benefit appellant had the jury found that the number of pieces of tubing had been seven of the small-diameter type, which would have reduced the value of the goods to less than $100 and made the offense a misdemeanor instead of a felony. The third inconsistency would likewise aid appellant, for both the defendant and the codefendant, according to codefendant, consumed large amounts of beer  especially in view of Mrs. Fisher's *35 testimony stating that appellant told her that he was "stoned" at the time of the offense.
It is difficult to understand how joint counsel in this case, under the undisputed facts, has prejudiced appellant. He fails to point out where the cross-examination of the codefendant would have helped him.
He infers that destroying the credibility of the codefendant might have aided him. It appears to this Court that under the circumstances it would have destroyed any possibility for a verdict of guilty of a misdemeanor or a verdict of not guilty because of intoxication which prevented the defendant from forming in his mind an intent to steal. It is also possible that his trial counsel knew what the answers might be to the unasked questions of which his appellate counsel now insists should have been asked. The procedure followed by trial counsel may have been commendable trial strategy.
The appellant had the perfect right to require the people to prove him guilty and beyond a reasonable doubt. From the record, it appears in this case that the overwhelming evidence satisfied this requirement. There is no evidence in the record to the contrary. The codefendant's testimony was corroborative with the established evidence to a great extent and to the extent that it was inconsistent, it inured to the appellant's benefit.
The recent decision of our Court in the case of People v. Dockery (1969), 20 Mich App 201, is dispositive of this issue. There it is stated in part as follows at pp 209, 210:
"The instant case does not involve one defendant making an exculpatory statement putting most of the blame on the codefendant (Sawyer v. Brough [CA4, 1966], 358 F2d 70), nor would it have profited one defendant to attack the credibility of another *36 (People v. Donohoe [1962], 200 Cal App 2d 17 [19 Cal Rptr 454]); nor was cross-examination of witnesses inhibited because of conflicting loyalties (Craig v. United States [CA6, 1954], 217 F2d 355); nor was counsel restricted in final summation because he might injure one defendant by arguing in favor of the others (People v. Donohoe, supra); nor was representation of one defendant imposed on the retained counsel of the others with knowledge of a possible conflict of interest (Glasser v. United States [1942], 315 US 60 [62 S Ct 457, 86 L Ed 680]); and, finally, this case does not involve defenses which are factually inconsistent (People r. Welch [1963], 212 Cal App 2d 397 [28 Cal Rptr 112]). Moreover, at the sentencing hearing there was no indication that the positions of the codefendants were so divergent that their attorney would have been forced to argue for substantially different penalties. State v. Karston (1955), 247 Iowa 32 (72 NW2d 463).
"The only possible source of prejudice disclosed by the record is the fact that Dockery did not testify, while his codefendants did. Yet, standing alone, in a record totally barren of any indication of a miscarriage of justice, we deem this point insufficient to warrant reversal.
"The right to effective legal representation is fundamental to criminal procedure. Trial courts preferably should not assign a single attorney to represent multiple defendants. Such an assignment, when for good cause made, will only be allowed where the positions of the defendants are not conflicting. The assignment of counsel is designed to aid a defendant and should not itself become a source of prejudice."
Affirmed.
All concurred.


                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-2867
                                  ___________

Karen Esther Williams,                 *
                                       *
            Appellee,                  * Appeal from the United States
                                       * District Court for the
      v.                               * District of Nebraska.
                                       *
KETV,                                  *    [UNPUBLISHED]
                                       *
            Appellant.                 *
                                  ___________

                           Submitted: May 16, 2002
                              Filed: June 13, 2002 (Corrected August 19, 2002)
                                 ___________

Before BOWMAN, MAGILL, and BYE, Circuit Judges.
                          ___________

PER CURIAM.

      KETV appeals the district court's1 June 29, 2001, judgment in favor of Karen
Williams based on her employment discrimination claims under Title VII and the
Nebraska Fair Employment Practices Act. KETV also appeals the district court's
award of attorney's fees. For the reasons stated below, we affirm.

      Williams, an African-American female, has been a part-time Production

      1
       The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
Assistant at KETV since August 6, 1979. On or about January 15, 1996, Williams
began reporting directly to Jerry Olsen, the Operations Manager for KETV and
immediate supervisor of all production employees. On May 28, 1998, Williams left
work at least one-half hour early to attend the funeral of a co-worker's mother.
Before leaving work, Williams notified the director and supervisor on duty of her
plans to attend the funeral. She did so by posting a note on Olsen's door the morning
of the funeral informing him of her plans. Williams did not obtain express permission
from Olsen before leaving work. As a result, on June 2, 1998, Olsen gave Williams
a "final" warning for leaving work early without permission. After receiving the
warning, Williams filed a claim of discrimination with the EEOC and the NEOC
alleging, inter alia, that she was being discriminated against in regard to discipline.
In particular, Williams alleged that Tom Johnson, a Caucasian Production Assistant,
was not disciplined for leaving work early to attend his son's awards breakfast and
that this conduct amounts to discrimination because she was disciplined more harshly
than her non-African-American co-worker.

       After going through the necessary administrative procedures, this case came
to federal district court in the spring of 2000. Shortly thereafter, KETV moved for
summary judgment on all claims, and on June 23, 2000, the district court entered an
order granting partial summary judgment in favor of KETV on some of Williams's
charges. The remaining claims were tried to the court from October 10 through
October 18, 2000. At the close of Williams's case-in-chief, the district court entered
judgment as a matter of law in favor of KETV on one of Williams's claims.

       On December 27, 2000, the district court issued its Memorandum of Decision
in which it found in favor of KETV on all remaining claims (seven in total) except
one. The district court found that KETV discriminated against Williams because of
her race based on the incident where it issued a warning to Williams for leaving work
early, but not to Johnson for doing the same. With respect to this claim, the district
court awarded Williams damages in the amount of $1000 for emotional distress. The
court also awarded Williams attorney's fees in the amount of $38,040.93.

                                         -2-
      In reviewing a district court's order entering judgment after a bench trial, we
review the district court's findings for clear error and its conclusions of law de novo.
Spinden v. GS Roofing Prods. Co., 94 F.3d 421, 426 (8th Cir. 1996). In applying this
standard, we will not overturn a finding of fact if that fact is supported by substantial
evidence, if it is based on a correct view of the law, or unless this court is firmly
convinced that an error has been made. Sawheny v. Pioneer Hi-Bred Int'l, Inc., 93
F.3d 1401, 1407-08 (8th Cir. 1996).

       KETV's primary argument is that the district court erred in finding that
Williams established a prima facie case of disparate treatment based on race
discrimination. In order to do so a plaintiff must prove that: (1) she is a member of
a protected class; (2) she was qualified to perform her duties; (3) she suffered an
adverse employment action; and (4) members of other racial groups were treated more
favorably in similar situations. Clearwater v. Indep. Sch. Dist. Number 166, 231 F.3d
1122, 1127 (8th Cir. 2000). KETV argues that the district court's analysis regarding
prong four was erroneous and that Williams failed to show that she was similarly
situated in all material respects.

       In arguing its position, KETV repeatedly asserts facts that are not supported by
either the record or the district court's factual conclusions. In particular, KETV
asserts that "Olsen [gave] Johnson permission to go to the awards breakfast."
However, the district court expressly found otherwise and the record does not support
KETV's assertion. In light of this fact, this court should not overturn this factual
finding because it does not appear that the district court's conclusion is clearly
erroneous.

      The only fact that may distinguish the Johnson and Williams situations is the
potential absence of any "meaningful advance notice" on the part of Williams.
However, the district court found this fact to be immaterial because in its judgment
Williams "followed the same basic procedure before leaving that Tom Johnson did."
As the district court noted, neither party was given express permission by Olsen to

                                          -3-
leave work early, but only Williams was disciplined for doing so. The fact that
Johnson told Olsen that he was going to be absent from work three days before he
was going to miss work is irrelevant because Olsen never expressly told Johnson he
could leave work early. The notice issue becomes irrelevant unless we assume that
Olsen implicitly gave Johnson permission to be absent from work. Such an
assumption, however, would be error because absent any express indication on the
part of Olsen to allow Johnson to go, this court should not infer such action where the
district court expressly found otherwise. Therefore, the number of days of advance
notice is irrelevant because neither party was told they could leave work early, but
only one party, Williams, was disciplined for doing so. Thus, KETV's argument
misses the mark because they rely on a critical fact that the district court expressly
found not to have existed: Olsen's express permission.

        KETV also argues that the district court's award of attorney's fees was an abuse
of discretion or, in the alternative, was not reasonable. We review such awards for
an abuse of discretion and "give great deference to the district courts on fee matters
having to do with services performed before them." Griffin v. Jamison, Inc., 188 F.3d
996, 997 (8th Cir. 1999). This is so because "[t]hose courts are necessarily more
familiar than we are with the members of their own bar and with the course of
litigation before them." Id. After careful examination of the record, we conclude that
the district court did not abuse its discretion in awarding approximately $38,000 in
attorney's fees to Williams. Also, we believe that the sum awarded, although greater
than the amount awarded to Williams, was reasonable when one views the case in its
entirety.

      Accordingly, we affirm. See 8th Cir. R. 47B.

                                          -4-
A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

                              -5-


81 N.J. Super. 481 (1963)
196 A.2d 18
MARION J. FANNING, PLAINTIFF-RESPONDENT,
v.
TOWN OF MONTCLAIR, A MUNICIPAL CORPORATION IN THE COUNTY OF ESSEX AND STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued November 12, 1963.
Decided December 18, 1963.
*482 Before Judges CONFORD, FREUND and SULLIVAN.
Mr. Robert J.C. McCoid argued the cause for appellant (Messrs. Schneider, Lustbader & Morgan, attorneys).
Mr. Francis F. Welsh argued the cause for respondent.
The opinion of the court was delivered by SULLIVAN, J.A.D.
Defendant municipality appeals from a judgment of $1,000 in favor of plaintiff as well as from the refusal of the trial court to grant defendant's motions for an involuntary dismissal.
The suit arises out of a break in a municipal water main with resultant water damage to plaintiff's property. On June 11, 1960 plaintiff was the owner of premises 85 Upper Mountain Avenue, Montclair. About midnight on that date a break occurred in an underground water main in front of plaintiff's property. Plaintiff telephoned the Water Bureau and reported the incident and a repair crew was dispatched to the scene. The crew arrived about 12:45 A.M., shut off the water in the main, located the break in the pipe and repaired it. However, prior to the shutting off of the main, the escaping water flowed over plaintiff's property in considerable volume and flooded the basement apartment in her house. It is undisputed that plaintiff suffered some damage.
The instant suit charges defendant with negligence in failing to make periodic examinations and tests of its water mains in order to determine their condition and their ability to resist *483 water pressure, and in increasing the water pressure without determining the ability of the mains to withstand the increased pressure.
At trial plaintiff testified to the events of the night in question and the resultant damage to her real and personal property. Plaintiff's other witness was Arnold S. Giannetti, the Superintendent of the Montclair Water Bureau. His testimony may be summarized as follows: Such records as were available in the Bureau indicated that the water main under Upper Mountain Avenue was laid about 1890. It was a 12-inch unlined cast iron pipe. The water runs through the main by gravity from a storage tank in the Watchung Mountains. The water pressure in the main in question at the time of the break was about 100 pounds. No examinations or tests of the pipes along Upper Mountain Avenue had been made in recent years. In December 1959 there had been a break in a water main within a mile of plaintiff's property.
On cross-examination the witness testified that the Bureau ran periodic tests and inspections of fire hydrants and gate valves. He said that the system is manned on a 24-hour basis and has controls and gauges showing water pressure and amount of water in the tank and an alarm system which will respond to any major break.
After plaintiff rested her case defendant moved for a judgment of involuntary dismissal which was denied.
Defendant recalled the Superintendent of the Water Bureau as its witness and showed that he is a licensed professional engineer with a degree in engineering from "Pennsylvania Polytechnic Institute, Renssalaer" (sic). He is also certified by the New Jersey State Board of Health "to operate a water system." He testified that originally the water supply was stored in a smaller storage tank but that in 1929 a larger tank with a greater storage capacity was installed and was still in use in 1960. He intimated that the change-over to the larger tank in 1929 caused an increase in water pressure from about 96 or 97 pounds to the present pressure of about 100 pounds.
*484 The Superintendent was at the scene with the repair crew and described how the main was found about four feet underground. He estimated that the break was repaired and water restored in the main about 6 or 7 A.M. He also testified from the Bureau's graph records for the night in question which showed a rise in the water level of the storage tank up to midnight and shortly thereafter a rapid decline in the water level until about 12:45 A.M., when the decline stopped.
The Superintendent stated that the life of cast iron pipe was indefinite and that such pipe is in service in places in the United States over a hundred years, and much longer in European countries. He testified that at the present time pipe is inspected at the foundry, and also at the time of installation by means of steam pressure, but that once pipe is buried in the ground and goes into service there is no method whereby the pipe can be reasonably inspected and that he "never heard of any water company going after and testing pipe once it is installed and inspected."
On cross-examination he disclosed that he had been employed by defendant in its Water Bureau since 1936. He estimated that since then the system had experienced about 15 breaks. He did not know whether the main in question had actually been tested when installed in 1890. Nor did he know what pressure the main had been built to withstand.
At the conclusion of the defendant's presentation of evidence, plaintiff moved to amend the pretrial order to include an additional charge of negligence based upon the length of time it took the Bureau to get the repair crew to the scene. The trial court denied the motion. Defendant then renewed its motion for an involuntary dismissal, decision on which was reserved, and the matter was submitted to the jury for its determination.
The trial court refused plaintiff's request to charge the jury that the doctrine of res ipsa loquitur applied to the break in the main. However, the court did instruct the jury that defendant, in the operation of its water supply system was exercising a proprietary and not a governmental function so *485 that its liability, if any, was to be determined "under ordinary principles of negligence." The court also instructed the jury that:
"When a municipality constructs and operates a water system it becomes its duty to keep it in repair and free from conditions which will cause damage to private property. Its duty to keep its water system in repair is not performed by waiting to be notified by citizens that they are out of repair, and repairing them only when the attention of the municipal officials is called to the damage they have occasioned by having become dilapidated and defective. Its duty involves the exercise of a reasonable degree of watchfulness in ascertaining their condition from time to time, and preventing them from becoming dilapidated and defective. Where dilapidation and defects are the ordinary result of the use of the water system which ought to be anticipated and could be guarded against by an occasional examination by tests or otherwise, the failure to make such examinations is neglect of duty which renders the municipality liable for damage proximately caused thereby."
Defendant objected to the part of the court's charge quoted above on the ground that there was no testimony in the case to warrant such a charge. As heretofore noted, the jury returned a verdict in favor of plaintiff for $1,000. Thereafter the trial court refused to disturb the jury verdict on motion.
On this appeal defendant does not dispute that its liability is to be measured by principles of ordinary negligence. Rather it contends that the evidence did not establish any negligence on its part.
We conclude that defendant's motion for an involuntary dismissal should have been granted since there was no evidence to support the charge of negligence against defendant.
The record does not disclose what caused the break in the main. The Superintendent who was present when the repairs were made testified that the break was on the top of the pipe, resembled the bow of a ship and was about three feet in length. However, we do not know what was the cause, or even probable cause of the break.
Plaintiff suggests that it might have been a defect in the main when originally installed, or deterioration of the *486 main over the years to a point where it could no longer contain the water pressure, or a result of the increase in pressure in 1929. Yet, it also might have been from a cause unrelated to plaintiff's hypotheses such as a settlement or fall of the earth itself. It has been held in this State that the doctrine of res ipsa loquitur is not applicable to the breaking of an underground water pipe. Stein v. City of Newark, 52 A.2d 66, 25 N.J. Misc. 170, 174 (Cir. Ct. 1947). As heretofore noted, in the instant case, the trial court refused to charge the doctrine of res ipsa loquitur. This seems to be the general rule in this country. 56 Am. Jur., Waterworks § 38, pp. 945-946. However, see George Foltis, Inc., v. City of New York, 287 N.Y. 108, 38 N.E.2d 455 (Ct. App. 1941). In any event, proof of the break in the main, without more, does not entitle plaintiff to an inference that the break was the result of some negligence on defendant's part. Stein v. City of Newark, supra.
Plaintiff also argues that defendant is chargeable with negligence in failing to make periodic examinations and tests of its water mains. This theory of negligence was submitted to the jury by the trial court in the portion of the charge heretofore set forth.
Our difficulty with this part of the charge is the lack of any evidence to justify such a charge. Defendant's alleged failure to examine or test its water mains must be related to some standard of care and feasibility. There is no evidence in this case that proper maintenance of a water system called for examinations and tests beyond those performed by defendant. Plaintiff did not produce any expert testimony to show what other kinds of examinations or tests of the water mains could and should have been made. How can a main which is four feet underground and furnishing water to homes and fire hydrants on a 24-hour basis be tested other than in the manner testified to by defendant's expert? Plaintiff's proof does not furnish any answer. General statements as to defendant's duty to maintain its water system, and its duty to make periodic examinations and tests thereof, are not *487 meaningful without a specification of some generally accepted standard to which defendant should be held.
Here, the only expert testimony was that pipes are inspected at the foundry and then steam-pressure tested after installation and prior to actual operation. The expert "never heard of any water company going after and testing pipe once it is installed and inspected." It is not reasonable that a water utility should be required to dig down to inspect periodically miles of underground piping. Nor are there any facts to indicate an inspection should have been made at the precise point at which this water main break occurred.
The weight of authority in this country is to the same effect. In A. Da Prato Company v. City of Boston, 334 Mass. 186, 134 N.E.2d 438 (Sup. Jud. Ct. 1956), plaintiff sued for damages resulting from the bursting of an underground cast iron water pipe which had been laid in 1892. The trial court directed a verdict for the defendant and the Supreme Judicial Court affirmed, using this language:
"* * * There was no evidence here that the pipe in question was not properly laid or that it was of a kind which after the length of time it had been in the street could not safely be used. It may be considered settled that reasonable care on the part of the city did not require the periodical digging up of the street for purposes of inspection. [Citing cases]." (134 N.E.2d, at p. 439)
In Grace & Co. v. City of Los Angeles, 278 F.2d 771 (9 Cir. 1960), also a suit for damages resulting from a break in a cast iron water pipe, the Ninth Circuit affirmed a judgment in favor of defendant, stating:
"No expert testified that it was the practice in any municipality to dig up underground pipe to ascertain its condition, no matter when it was installed. To the contrary, there was testimony that if any policy had been adopted in other municipalities in California, it was, as in Los Angeles, that after installation of the cast iron water pipe it was used without inspection or replacement until there were sufficient breaks to indicate the pipe had corroded or become undependable." (278 F.2d, at p. 774)
Finally, plaintiff contends that 15 breaks in defendant's water supply system since 1936 was notice to defendant *488 that its mains were deteriorating, so that defendant's omission to test or examine the condition of its mains was negligence. Again the evidence of breaks is not related to any standard. In any water supply system some breakage and repair is normal and to be expected. We do not know whether in a water supply system the size of the one here involved, the occurrence of 15 breaks since 1936 would indicate deterioration of the mains or would be considered normal maintenance and repair of the system. No evidence was presented to support plaintiff's contention in this regard.
Plaintiff urges that defendant's liability can be upheld on the rationale of Clay v. Jersey City, 74 N.J. Super. 490 (Ch. Div. 1962). In that case a property owner was allowed recovery against a municipality for property damage resulting from a defective underground sewer main, the court holding that the failure on the part of the municipality to inspect for defects, or to maintain or repair the pipe until defects became self-apparent was a breach of duty. In Clay, however, the trial court, at the request of counsel, inspected the area involved and observed sewage flowing through a break in the pipe at a point where the main was exposed above the ground. The court also found that not only had plaintiff notified the municipality of the condition in 1957, but that the city had notice of defects in the sewer line long before 1957. It was against this background of notice that the court determined that the failure of the municipality to inspect for leakage or defects over the years, or to maintain or repair the same until defects became self-apparent was a breach of duty. In the instant case the element of actual or constructive notice is not present.
On the basis of the foregoing, we conclude that there was no issue to submit to a jury since there was no evidence that defendant's maintenance of its water mains fell short of generally accepted standards of care.
The judgment herein in favor of plaintiff is reversed with directions to enter judgment in favor of defendant. No costs.


791 F.2d 931
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.ROBERT LEE BOLES, JR., Plaintiff-Appellant,v.SAGINAW POLICE DEPARTMENT; ERNEST L. BRADLEY; ARNOLD BURNS,Defendants-Appellees.
85-1086
United States Court of Appeals, Sixth Circuit.
4/23/86
AFFIRMED

1
E.D.Mich.

ORDER

2
BEFORE:  MERRITT and JONES, Circuit Judges, and THOMAS, Senior District Judge.*

3
Plaintiff appeals the summary judgment for defendants in this civil rights action.  The case has been referred to a panel of this Court pursuant to Sixth Circuit Rule 9(a).  Upon examination of the briefs and the record, the panel agrees unanimously that oral argument is not needed.  Rule 34(a), Federal Rules of Appellate Procedure.

4
Plaintiff filed this pro se civil rights complaint against the Saginaw Police Department and detectives Bradley and Burns alleging deprivation of property without due process.  Plaintiff was arrested for murder in July 1978.  Defendants took $220.00 from plaintiff upon his arrest and also removed some clothing from plaintiff's car under a search warrant.  Plaintiff subsequently confessed to robbing and shooting the victim and was convicted of murder.  He then filed a motion in the state trial court seeking return of the $220.00 and the clothing.  On October 13, 1983, the state court entered an order directing that the clothing and 'the money remaining in Defendant's [plaintiff's] jail account' be returned to plaintiff.  Plaintiff filed this action on December 8, 1983, alleging that defendants refused to comply with the state court order to return his property.  Plaintiff filed a motion for entry of default on February 7, 1984, and default was entered by the clerk on March 6, 1984.  Meanwhile, defendants had filed an answer to plaintiff's motion for default on February 21, requesting an extension of time to file a motion to quash service.  Defendants filed motions to quash service and for summary judgment on March 20, 1984.  The district court referred the motions to a magistrate, who recommended that the motion for summary judgment be granted.  Plaintiff filed objections.  On September 25, 1984, the district court granted summary judgment for defendants.  On September 28, 1984, the court filed an order correcting typographical errors in the original judgment.  Plaintiff filed a motion for reconsideration.  The district court denied the motion on the grounds that the complaint did not state a due process claim since plaintiff failed to plead and prove that state remedies were inadequate.  We affirm.

5
Plaintiff first argues on appeal that the district court erred in allowing defendants to file an untimely motion despite the entry of default judgment.  The district court can set aside an entry of default by the clerk 'for good cause shown.'  Federal Rules of Civil Procedure 55(c).  We find that the district court did not abuse its discretion in allowing defendants to respond after plaintiff's motion for entry of default.  See Traguth v. Zuck, 710 F.2d 90 (2d Cir. 1983).

6
Plaintiff's remaining arguments basically assert that summary judgment was inappropriate because the complaint stated a valid claim.  To state a claim under 42 U.S.C. Sec. 1983 for deprivation of property without procedural due process, the plaintiff must allege that state post-deprivation remedies are inadequate.  Hudson v. Palmer, ---- U.S. ----, 104 S.Ct. 3194 (1984); Parratt v. Taylor, 451 U.S. 527 (1981); Bacon v. Patera, 772 F.2d 259 (6th Cir. 1985); Wilson v. Beebe, 770 F.2d 578 (6th Cir. 1985) (en banc).  Plaintiff claims that he has been attempting to obtain his property since 1979 and defendants continue to withhold it despite the October, 1983, state court order directing its return.  Police retention of property seized in an arrest and criminal investigation is not actionable under section 1983 if state remedies are available for return of the property.  Wagner v. Higgins, 754 F.2d 186 (6th Cir. 1985).  The parties in their appellate briefs state that plaintiff filed a state mandamus action on January 21, 1985.  The state court denied mandamus relief on June 11, 1985, on the grounds that plaintiff's sister had received the property, and even if she had not, plaintiff could sue the defendants for money damages.  Plaintiff argues that these attempts prove that the state remedies are inadequate and therefore he has been deprived of his property without due process, citing Coleman v. Turpen, 697 F.2d 1341 (10th Cir. 1983), and Barker v. Norman, 651 F.2d 1107 (5th Cir. 1981).  In Coleman, the complaint stated a section 1983 claim because it challenged the state statute which authorized retention of seized property until the criminal defendant's execution with no opportunity for a defendant to prove his ownership of the property.  In Barker, the case was remanded because the district court failed to consider the allegation that police retention of seized property violated due process.  The appeal was decided shortly after Parratt v. Taylor, supra, and the court stated that it expressed no opinion on whether Parratt would provide a defense on remand.  In this case, plaintiff does not challenge the adequacy and availability of state procedures.  His claim amounts to nothing more than an allegation that the defendants failed to comply with a state judgment.  This claim alleges random, unauthorized acts by defendants, not inadequate state remedies.  See Bacon v. Patera, supra; Wilson v. Beebe, supra.  Plaintiff's lack of success in the state courts does not prove that state remedies are inadequate.  Cf. McGhee v. Hanberry, 604 F.2d 9 (5th Cir. 1979) (lack of success in 28 U.S.C. Sec. 2255 petition does not show inadequacy of remedy).  Under state procedures, plaintiff was able to file the motion for return of the property and a mandamus action.  He could also petition for a writ of enforcement of the state judgment.  See Mich.  Comp. Laws Ann. Sec. 600.6001; Mich.  Court Rule 741.1; see also, Wagner v. Higgins, supra.  Under these circumstances, plaintiff has not shown deprivation of due process under state law.

7
Accordingly, it is ORDERED that the district court's judgment is affirmed.  Sixth Circuit Rule 9(d)(3).

*
 The Honorable William K. Thomas, Senior U.S. District Judge for the Northern District of Ohio, sitting by designation


765 F.2d 153
*/**Highv.Howell
85-8153
United States Court of Appeals,Eleventh Circuit.
6/6/85

1
N.D.Ga.

AFFIRMED

*
 Fed.R.App.P. 34(a);  11th Cir.R. 23

**
 Local Rule:  25 case