43 F.Supp.2d 232 (1999)
Bruce B. REIMER, Petitioner,
v.
UNITED STATES of America, Respondent.
No. 98-MISC-138.
United States District Court, N.D. New York.
March 25, 1999.
*233 *234 Bruce B. Reimer, Edina, MI, pro se.
Thomas J. Maroney, United States Attorney's Office, James T. Foley Courthouse, Albany, NY (Glenn J. Melcher, AUSA, U.S. Department of Justice-Tax Division, of counsel), for respondent.

MEMORANDUM-DECISION & ORDER
McAVOY, Chief Judge.
Petitioner Bruce B. Reimer ("petitioner") moves, pro se, to quash a summons issued by the Internal Revenue Service ("IRS") on Security Mutual Life Insurance Company of New York ("Security Mutual"). Respondent United States ("respondent") cross-moves for summary denial of petitioner's motion to quash, and seeks enforcement of the summons. For the reasons discussed below, petitioner's motion to quash the IRS summons is denied, and respondent's cross-motion for summary denial of the petition to quash the summons and enforcement of the summons is granted.

I. Background
On October 15, 1998, the IRS issued a summons to Security Mutual in connection with an investigation into petitioner's federal tax liability for the year-ended December 31, 1996. The summons was sent to Security Mutual via certified mail[1] and sought the production of the following:

*235 1. Copies of all cancelled checks, front and back, issued to or for the benefit of Bruce B. Reimer for the calendar year covering January 1, 1996 through December 31, 1996.
2. If funds were electronically deposited, the records identifying the account they were transferred to, including the name and location of the bank and/or financial institution and the account number.
3. All written contractual agreements between the payor and payee relating to transactions occurring in 1996.
Gov't Mem. of Law, Ex. A (Summons issued by IRS Agent Matthew Wagner, dated October 15, 1998).
The summons required production of these documents by November 12, 1998. On November 2, 1998, petitioner filed a timely petition to quash this summons pursuant to 26 U.S.C. § 7609(b)(2). Petitioner asserts the following bases for quashing the summons: (1) the summons violates petitioner's Fourth Amendment right against unreasonable searches and seizures; (2) the IRS lacks the requisite jurisdiction over the records requested; (3) the IRS issued the summons in bad faith by failing to comply with the disclosure requirements in 26 U.S.C. § 7521(b) and in the Privacy Act, 5 U.S.C. § 552a(e)(3)(A)-(D); (4) the IRS acted in bad faith by failing to follow its internal regulations regarding the legitimacy of business trusts; (5) the IRS acted in bad faith by using the summons to gather evidence in connection with a future criminal prosecution against petitioner; and (6) the IRS lacks the authority to send the summons to Security Mutual because it is not a "third-party recordkeeper," as defined in 26 U.S.C. § 7609(a)(3).[2] Respondent cross-moves for summary denial of the petition to quash the summons, and to enforce the summons.

II. Discussion
Because Security Mutual, the third-party named in the summons to produce documents resides in the Northern District of New York, this Court has jurisdiction over this matter pursuant to 26 U.S.C. § 7609(h)(1).
To obtain enforcement of a summons, the IRS must make a prima facie showing that: "(1) the summons is issued for a legitimate purpose; (2) the material sought is relevant to that purpose; (3) the material sought is not already within the possession of the IRS; and (4) the administrative steps required by the IRS [C]ode have been satisfied." Nelson v. United States, 1994 WL 519485, at * 3 (N.D.Ca. Sept.19, 1994) (citing United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964)), aff'd, 62 F.3d 1425 (9th Cir.1995); (Ponsford v. United States, 771 F.2d 1305, 1307 (9th Cir.1985)). The Powell framework has been adopted by the Second Circuit in determining the enforceability of an IRS summons. See United States v. Chase Manhattan Bank, 598 F.2d 321, 323 (2d Cir.1979).
Prior to a referral for prosecution to the Department of Justice, the IRS must use its summons authority in good faith. See United States v. LaSalle Nat'l Bank, 437 U.S. 298, 313, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978); see also 26 U.S.C. § 7602(c) (stating that no summons may be issued or enforced if a Justice Department referral is in effect recommending a grand jury investigation or criminal prosecution for violations of the internal revenue *236 laws). If the government can establish a prima facie case for enforcement, the taxpayer must demonstrate "that a genuine issue of triable fact exists as to whether the enforcement of the summons would result in an abuse of the judicial process." See Nelson, 1994 WL 519485, at * 3 (citing Powell, 379 U.S. at 58, 85 S.Ct. 248). In addressing the issue of good faith and the petitioner's burden in alleging abuse of process by the government, the Powell court stated:
It is the court's process which is invoked to enforce the administrative summons and a court may not permit its process to be abused. Such an abuse would take place if the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation. The burden of showing an abuse of the court's process is on the taxpayer, and it is not met by a mere showing, as was made in this case, that the statute of limitations for ordinary deficiencies has run or that the records in question have already been once examined.
379 U.S. at 58, 85 S.Ct. 248; see also LaSalle Nat'l Bank, 437 U.S. at 316-17, 98 S.Ct. 2357 (noting that petitioner has a "heavy burden" of demonstrating an absence of good faith by the IRS because civil and criminal tax investigations are typically coterminous).

A. Whether the Government Has Established a Prima Facie Case for Enforcement of the IRS Summons
To make a prima facie showing for judicial enforcement of the summons, the government need only make "a minimal showing that the Powell requirements have been met." Nelson, 1994 WL 519485, at *3 (citing United States v. Abrahams, 905 F.2d 1276, 1280 (9th Cir.1990)). This showing is met by affidavits or declarations by the investigating agent stating these requirements have been met. See id.; United States v. Balanced Fin. Management, Inc., 769 F.2d 1440, 1443 (10th Cir.1985) ("The burden [on the government] is a slight one because the statute must be read broadly in order to ensure that the enforcement powers of the IRS are not unduly restricted.") (citations omitted) (citing United States v. Garden State Nat'l Bank, 607 F.2d 61, 68 (3d Cir.1979)).
Respondent has submitted a declaration from the investigating agent, Matthew Wagner,[3] which states, inter alia, that: (1) petitioner's 1996 federal income tax return is under investigation; (2) the documents sought by the summons are relevant to that investigation and were requested in accordance with 26 U.S.C. § 7602 in that they are sought to verify petitioner's federal tax liability for the year-ended December 31, 1996; (3) that the books, papers, records or other data sought are not already in possession of the IRS; and (4) that there has been no referral of this investigation to the Department of Justice as described in 26 U.S.C. § 7602(c). See Aff. of Matthew Wagner (hereinafter "Wagner Aff."), at ¶¶ 3-10.
The Court finds that the declarations of Agent Wagner sufficiently establish a prima facie case for judicial enforcement of the summons. Thus, the burden is shifted to petitioner to prove that enforcement of the summons would be an abuse of judicial discretion. See Chase Manhattan Bank, 598 F.2d at 323 (citing United States v. Davey, 543 F.2d 996, 1000 (2d Cir.1976)) ("Once the IRS has made a minimal showing of relevancy ... the burden shifts to the taxpayer to show why the summons might represent `an abuse of the court's process' which should not be enforced."); see also Balanced Fin. Management, Inc., 769 F.2d at 1444 ("The burden is a heavy *237 one. The taxpayer must `establish any defenses or ... prove that enforcement would constitute an abuse of the court's process.' He must `prove a lack of good faith, that the government has abandoned in the institutional sense its pursuit of possible civil penalties.'") (quoting United States v. Genser, 582 F.2d 292, 302 (3d Cir.1978) and United States v. Moll, 602 F.2d 134, 138 (7th Cir.1979)).

B. Whether Petitioner Has Raised a Legally Sufficient Objection to the Enforcement of the Summons

1. Whether the Summons Violates the Fourth Amendment
Because the documents were located at Security National, and, therefore, have been exposed to a third-party, petitioner had no reasonable expectation of privacy, and, consequently, no Fourth Amendment interest in the documents. See Securities and Exchange Comm'n v. O'Brien, 467 U.S. 735, 743, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984); United States v. Miller, 425 U.S. 435, 441-43, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); Donaldson v. United States, 400 U.S. 517, 522, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971) (IRS summons directed to third party does not trench upon any interests protected by the Fourth Amendment); Harris v. United States, 758 F.2d 456, 457 (9th Cir.1985) (summonses issued to a third-party recordkeeper pursuant to section 7602 do not violate the Fourth Amendment); United States v. McAnlis, 721 F.2d 334, 337 (11th Cir.1983) ("As long as the IRS complies with the Powell requirements, it will not violate the summoned party's Fourth Amendment rights."), cert. denied, 467 U.S. 1227, 104 S.Ct. 2681, 81 L.Ed.2d 877 (1984). Because the Court previously held that the summons complied with the Powell requirements, and the documents at issue are in the possession of third-party Security National, petitioner's argument that the summons violates the Fourth Amendment is without merit.

2. IRS Jurisdiction
Petitioner next argues that the IRS lacks the authority to issue and enforce its request for records and documents pertaining to the tax year in issue.
The IRS has the authority to issue a summons to investigate petitioner's tax liability. See 26 U.S.C. § 7602; see also Powell, 379 U.S. at 53, 85 S.Ct. 248; United States v. Saunders, 951 F.2d 1065, 1067 (9th Cir.1991) (citing Harris, 758 F.2d at 457); Johnson v. United States, 1984 WL 297, at *2 (W.D.Tex. January 27, 1984). Accordingly, petitioner's argument that the summons be quashed on that basis is without merit.

3. IRS Disclosure Prior to Enforcement of the Summons
Petitioner argues that the summons be quashed because the IRS failed to comply with the disclosure requirements set forth in 26 U.S.C. § 7521(b) and the Privacy Act, 5 U.S.C. § 552a(3)(A)-(D).
By its express language, section 7521(b) deals with procedures involving in-person interviews with a taxpayer. See United States v. Rice, 1991 WL 322614, at *2 (D.N.M. Nov.22, 1991); Tuccio v. United States, 1990 WL 106805, at *1 (S.D.N.Y. July 27, 1990). Because the summons at issue was directed at a third-party, and did not require an interview with petitioner, the procedures set forth in section 7521(b) are inapplicable.
Additionally, the disclosure requirements in 5 U.S.C. § 552a(e)(3) are not applicable to a summons issued pursuant to 26 U.S.C. §§ 7602, 7609. See Johnson, 1984 WL 297, at * 2. Indeed, only those administrative steps required by the Internal Revenue Code must be followed. See id. (citing Powell, 379 U.S. at 58, 85 S.Ct. 248). Thus, petitioner's argument to quash the summons on these grounds is rejected.

*238 4. Whether Summons Was Issued for a Valid Purpose, Relevant to an IRS Investigation
Under 26 U.S.C. § 7602, a taxpayer is required to produce any books, papers, records, or other data that the IRS determines is relevant to an inquiry regarding the taxpayer's tax liability.
Petitioner argues that because the IRS has recognized the legitimacy of business trusts, its investigation of petitioner's business trusts was therefore undertaken in bad faith. See Petition to Quash Summons, at ¶ 10. This argument, however, fails to recognize IRS notices addressing possible tax liability resulting from the operation of abusive business trust arrangements. See id.
Here, the IRS inquiry concerns petitioner's tax liability for the year-ended December 31, 1996. It appears that a portion of that inquiry concerns business trusts maintained by petitioner. Accordingly, the information requested is relevant to an investigation undertaken for a "legitimate statutory purpose." Gov't Mem. of Law at 10.

5. Potential Future Criminal Prosecution
Under 26 U.S.C. § 7602(c), an IRS summons may not be issued or enforced if a referral has been made to the Department of Justice recommending a criminal investigation or prosecution of the taxpayer be undertaken. Because Agent Wagner stated that no such referral has been made, Wagner Aff. at ¶ 11, the summons is therefore valid and may be enforced. See Chase Manhattan Bank, 598 F.2d at 325-26; 26 U.S.C. § 7602(c).

6. Whether Security Mutual is Subject to the Notice Requirements in 26 U.S.C. § 7609
In instances where a summons issued on a third-party seeks production of transaction records related to the taxpayer being audited, the taxpayer is entitled to notice of that summons. See 26 U.S.C. § 7609(a)(1)(A)-(B). If proper notice is not provided, the taxpayer has the right to intervene in any proceeding involving enforcement of the summons, see 26 U.S.C. § 7609(b)(1), and may also begin a proceeding to quash the summons, on the basis of improper notice. See 26 U.S.C. § 7609(b)(2)(A); see also United States v. Kao, 81 F.3d 114, 116 (9th Cir.1996).
Petitioner does not argue that he was not provided notice of the summons directed at Security Mutual. Rather, petitioner contends that the summons is automatically invalid simply because it was not issued on a third-party recordkeeper.
The requirements in section 7609 deal only with notice, and do not limit the IRS from issuing a summons on someone other than a third-party recordkeeper. Moreover, Congress amended the notice requirements in section 7609 to include summonses issued to all third parties. See Internal Revenue Service Restructuring and Reform Act of 1998, P.L. 105-206, § 3415 (enacted July 22, 1998) (amending 26 U.S.C. § 7609(a)).
Because petitioner does not allege improper service and the summons was validly issued to a third-party under section 7609, petitioner's argument to quash the summons on that ground is without merit.

III. Conclusion
For the foregoing reasons, petitioner's motion to quash the IRS summons is DENIED, and respondent's cross-motion for summary denial of the petition to quash the summons and enforcement of the summons is hereby GRANTED.
IT IS SO ORDERED.
NOTES
[1]  Because the record does not reflect any procedural objection to the summons based on improper service under 26 U.S.C. § 7603, both petitioner and Security Mutual have waived their right to raise that objection in connection with the present motion. See United States v. Myslajek, 568 F.2d 55, 57 (8th Cir.1977) (per curiam) (holding that three month delay in objecting to service of summons constituted a waiver of strict compliance with the requirements of section 7603), cert. denied, 438 U.S. 905, 98 S.Ct. 3123, 57 L.Ed.2d 1147 (1978).
[2]  As the Court discusses later, the section dealing with notice of the issuance of a summons directed at third-party recordkeepers was amended to include all third parties. See Internal Revenue Service Restructuring and Reform Act of 1998, P.L. 105-206, § 3415 (enacted July 22, 1998) (amending 26 U.S.C. § 7609(a)).
[3]  The government has asserted that the name "Matthew Wagner" is a registered pseudonym authorized by the IRS for use in the course of official duties. See Respondent-Gov't Mem. of Law at 1 n. 1.


537 U.S. 1068
PAYNEv.WEST VIRGINIA PUBLIC SERVICE COMMISSION ET AL.
No. 01-10286.
Supreme Court of United States.
December 2, 2002.

1
ante, p. 840. Petition for Rehearing Denied.


253 F.3d 330 (8th Cir. 2001)
BECK, FORMERLY KNOWN AS DAVID WAYNE VANDERBECK, APPELLANT,v.ERIC SKON; DAVID CRIST; CHRISTOPHER CEMAN, DR., APPELLEES.
No. 00-2027
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Submitted: February 16, 2001Filed: June 7, 2001

Appeal from the United States District Court for the District of Minnesota.
Before Richard Sheppard Arnold, Lay, and Hansen, Circuit Judges.
Hansen, Circuit Judge.

1
David Wayne Vanderbeck (Beck) is an inmate at the Minnesota Correctional Facility in Stillwater, Minnesota, where he is serving a 360-month sentence for committing second degree murder. Beck appeals the district court's grant of summary judgment in his 42 U.S.C.  1983 (Supp. IV 1998) action against defendants. Beck contends that defendants violated his constitutional rights under the Eighth and Fourteenth Amendments by failing to relocate him to a different cell, failing to provide him with a prescribed medical device, and conditioning his having needed surgery on his execution of a release of liability. Because there is a genuine issue of material fact about whether the surgical consent forms were releases of prospective liability, as Beck contends, or merely forms authorizing treatment, we reverse the district court's order in part and remand for further proceedings.

I.

2
Beck suffered a gunshot wound on August 23, 1978, that left him with a bullet permanently lodged near his spine that affects his neural functioning. Beck began having pain, cramping, and numbness in his back and lower extremities in 1996. Beck's physicians determined that walking and climbing stairs were exacerbating his injury and recommended that prison officials relocate Beck to a cell that was closer to the cafeteria and infirmary to minimize further discomfort. Beck demanded that he be placed in cell hall D--the cell hall closest to the cafeteria--or be transferred to another penitentiary that housed a medical unit. The Stillwater nursing supervisor explained to Beck that the prison could not fulfill his specific relocation request because Beck did not meet the prison's criteria for cell hall D inmates; cell hall D was restricted to inmates with certain job assignments who comported with stringent behavioral standards. Furthermore, he was not diagnosed with an acute or terminal illness necessitating placement in a medical unit. Instead of relocation, prison officials offered to allow Beck to use a wheelchair or to have meals delivered to his cell. Beck refused both accommodations.

3
Beck also suffers from a right-sided hernia that was diagnosed when he was referred to Dr. Michael Tran in October 1997. Dr. Tran recommended that Beck undergo surgery to repair the hernia, but Beck refused to execute the requisite medical permit forms so the surgery was indefinitely postponed. As a temporary alternative to surgery, Dr. Tran recommended that Beck use a medical device known as a truss. A truss functions similarly to a girdle by holding a muscle wall firmly in place and stabilizing a hernia. Beck refused to be fitted for or to wear a truss.

4
Dr. Christopher Ceman began caring for Beck in January 1999. Dr. Ceman opined that Beck's hernia had appreciably worsened and that surgery was the desired course of treatment. Beck, however, still refused to sign the surgical permit forms, and his hernia remained unrepaired.

5
Beck filed his current action in May 1999 against Dr. Ceman; David Crist, warden at the Stillwater correctional facility; and Erik Skon, the assistant commissioner of the Minnesota Department of Corrections. In recommending that defendants' motions for summary judgment be granted, the magistrate judge concluded that "[n]othing in the record demonstrates that any Defendant was deliberately indifferent to Plaintiff's medical needs. . . . [T]he record indicates that Plaintiff has refused to undergo proposed treatment which would be beneficial to his complaints." (Report & Recommendation at 17.) The district court adopted the magistrate judge's report and recommendation and granted summary judgment to defendants over Beck's objections. Beck appeals, asserting that because genuine issues of material fact are present, summary judgment was inappropriate.

II.

6
The district court's grant of summary judgment is reviewed de novo. Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000). We reverse an award of summary judgment only if we find that a material issue of fact does exist or that the district court made an incorrect conclusion of law. See Fed. R. Civ. P. 56(c). "[W]e must take as true those facts asserted by the plaintiff that are properly supported in the record." Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001). Beck contends that even if we fail to find a genuine issue of material fact, this case must be remanded regardless because the district court neglected to advise him as a pro se litigant how to properly respond to defendants' motions for summary judgment. We disagree. Although several of our sister circuits require a district court to provide particularized instructions to a pro se litigant at the summary judgment stage, we have not. Cf. Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d. 852, 856 (8th Cir. 1996) (recognizing that pro se representation does not excuse a party from complying with the Federal Rules of Civil Procedure); Carman v. Treat, 7 F.3d 1379, 1381 (8th Cir. 1993) (failing to allow pro se prisoner to disregard Federal Rules of Civil Procedure). Like any other civil litigant, Beck was required to respond to defendants' motions with specific factual support for his claims to avoid summary judgment. See Fed. R. Civ. P. 56(e) ("[An] adverse party may not rest upon the mere allegations or denials of . . . [his] pleading, but . . . [must], by affidavits or as otherwise provided in this rule, . . . set forth specific facts showing that there is a genuine issue for trial."); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52 (1986) (explaining that non-movant must offer controverting affidavits or evidence from which a reasonable jury could return a verdict in his favor). Moreover, Beck is a frequent litigator in our court and understands the jurisprudential process.

7
"We look to the substantive law to determine whether an element is essential to a case, and '[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.'" Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997) (quoting Anderson, 477 U.S. at 248). A claim under the Eighth Amendment, as applied to the states through the Fourteenth Amendment, must show both that the state action has denied the prisoner "'the minimal civilized measure of life's necessities,'" and that the state actors have shown deliberate indifference to the prisoner's medical needs. Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)); see also Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (holding failure to supply medical care constitutes an Eighth Amendment violation if it is the result of deliberate indifference to a prisoner's serious medical needs; allegations of "inadvertent failure to provide adequate medical care" are insufficient to establish culpability); Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990) (stating that denial of essential care violates the Eighth Amendment).

8
We have no doubt that Beck suffers from a broad range of physical complaints. He has, however, been seen in the prison infirmary at least sixty times for these complaints, and twenty-six of those visits were with Dr. Ceman during the period from January 11, 1999, to September 30, 1999. Multiple contacts with medical personnel do not necessarily preclude a finding of deliberate indifference, see, for example, Warren v. Fanning, 950 F.2d 1370, 1373 (8th Cir. 1991), cert. denied, 506 U.S. 836 (1992), but in this case, the record clearly reflects that prison officials have conscientiously attempted to meet Beck's medical needs and have continually been rebuffed by Beck's refusal to comply with recommended treatment. Prison officials offered accommodations to Beck, which were intended to minimize his walking such as the use of a wheelchair or to eat meals in his cell, but he refused both of these options. Prison officials repeatedly offered to fit Beck with a truss, but again he refused. Having carefully reviewed the summary judgment materials pertaining to these two issues and the offered care that Beck has received for them, we agree with the district court that Beck has failed to present a triable issue of fact evidencing a violation of his Eighth Amendment rights. Beck's disagreements with the prison medical staff about his care do not establish deliberate indifference and is not actionable. See Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996) (holding prison officials do not violate Eighth Amendment when, in exercising professional judgment, they refuse to implement inmate's requested course of treatment).

9
The issue of the surgery consent forms is a far more problematic matter. Dr. Ceman stated in an August 23, 1999, progress note that Beck would agree to have his hernia repaired, but "only if he didn't have to sign an informed consent and only if he could be put under general anaesthesia [sic]." (Appellant's App. at A243.) In a sworn reply to the defendants' motions for summary judgment filed in the district court, Beck steadfastly maintained that in order for his hernia to be repaired, the prison conditioned the procedure on Beck's release of all future liability that might arise from the surgery. Subsequent to this case being submitted to our court, defendants Skon and Crist filed a motion to supplement the record with sworn statements and documents purporting to be substantially similar to those forms presented to Beck.1 We are troubled by the absence of the consent forms in the summary judgment record. Although mere discomfort and inconvenience do not implicate the Constitution, see Whitnack v. Douglas County, 16 F.3d 954, 956-58 (8th Cir. 1994), if prison officials indeed conditioned a necessary medical procedure on Beck's release of liability, their action could establish a deliberate indifference to Beck's Eighth Amendment rights to basic medical care. See Crooks v. Nix, 872 F.2d 800, 804 (8th Cir. 1989) ("Where a prisoner needs medical treatment prison officials are under a constitutional duty to see that it is furnished."). Beck has had no opportunity to challenge the authenticity of these forms or to depose the affiants about them. Whether Beck will in fact be able to prove that defendants conditioned surgery on a total release of liability is another matter, but for purposes of this appeal, our concern is otherwise. Based upon the insufficiency of the record and the apparent conflicting sworn statements, summary judgment on this issue was premature.

III.

10
For the forgoing reasons the decision of the district court is affirmed in part and reversed in part. Defendants' motions to supplement the record are denied. The case is remanded for proceedings consistent with this opinion.

NOTES:

1
 In August 2000, Dr. Ceman filed a motion to supplement the record with a June 2000 physician progress note. We deny his request.


                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00266-CV

BILLY J. FERRELL                                                      APPELLANT

                                         V.

BETSY PRICE, TAX                                                        APPELLEE
ASSESSOR/COLLECTOR OF
TARRANT COUNTY

                                      ----------

          FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1
                                      ----------

      Appellant Billy J. Ferrell appeals from the trial court‘s grant of the plea to

the jurisdiction asserted by Appellee Betsy Price, Tax Assessor/Collector of

Tarrant County.2 In one issue, Ferrell argues that the trial court erred by granting

      1
       See Tex. R. App. P. 47.4.
      2
       We take judicial notice of the fact that Besty Price no longer serves in this
position. See Tex. R. Evid. 201. The current assessor-collector has not been
substituted as a party.
the plea to the jurisdiction. Because we hold that the trial court did not err, we

affirm the trial court‘s order dismissing Ferrell‘s claims against Price.

      This suit arises out of a dispute over the ownership of a van that Ferrell

had owned. In Ferrell‘s petition, he alleged that he had contracted with A Plus

Mobility, Inc. to perform some modifications and repairs to the van. He asserted

that A Plus agreed to be paid by the Veteran‘s Administration for ―all covered

modifications and repairs‖ and by him for all ―uncovered modifications and

repairs.‖ After performing work on the van, A Plus returned the van to Ferrell,

who refused to accept the van because some of the work had not been

performed or had been performed in a defective manner. Ferrell alleged that the

Veteran‘s Administration refused to pay A Plus for any of the work and that A

Plus refused to complete or correct the work. Ferrell alleged that A Plus then

foreclosed its ―purported‖ mechanic‘s lien on the van and sold the van at a

private sale to Wanda Jean Curtis and Justin Randal Curtis.

      Ferrell filed suit against the Curtises, A Plus, Sandy Patterson (who Ferrell

alleged was the ―alter-ego‖ of A Plus), the Department of Transportation (the

department), and Price. Price filed a plea to the jurisdiction asserting that she

had been sued in her official capacity and therefore the suit was a suit against

Tarrant County.3 She argued that because the suit was against a governmental

      3
        See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007)
(stating that a suit against a state official in his official capacity is actually a suit
against the entity, and when ―a state official files a plea to the jurisdiction, the

                                           2
entity and because Ferrell sought retrospective injunctive relief and monetary

damages, she was immune from suit.

      After Price filed her plea to the jurisdiction, Ferrell filed his second

amended original petition in which he asserted that Price ―caused to be issued a

new title to [the Curtises], even though the proof furnished by [the Curtises] and

A Plus showed a failure to adequately conform with the procedure for foreclosing

a Mechanic[‘s] Lien.‖    He asserted that ―the proper, lawful action of [Price],

refusing to cause to be issued a new title, was a ministerial [act].‖ Ferrell sought

from Price damages ―[f]or loss of the value of his van and loss of use‖ and a

―permanent injunction ordering [Price] and [the department] to cancel the current

Certificate of Title to the van and to issue a new Certificate of Title to [Ferrell].‖

Thus, Ferrell sought both the return of his van and title to it as well as damages.

      Ferrell also filed a response to Price‘s plea in which he asserted that the

trial court had jurisdiction over his claims for injunctive relief and that ―[s]ince

these issues relating to damages are properly before [the trial court] and will

need to be decided at trial, the question of whether [Price] will be liable for said

damages should be reserved until [j]udgment is entered.‖ The trial court granted

Price‘s plea, and Ferrell now appeals.

official is invoking the sovereign immunity from suit held by the government
itself‖).

                                          3
      We review a trial court‘s ruling on a plea to the jurisdiction de novo. 4 A

plaintiff has the burden of alleging facts that affirmatively demonstrate that the

trial court has subject-matter jurisdiction.5

      The state has sovereign immunity from suit and from liability unless that

immunity has been waived.6 This immunity extends to employees sued in their

official capacity because in such suits the real party in interest is the government

entity; ―a suit against a state official is merely ‗another way of pleading an action

against the entity of which [the official] is an agent.‘‖7 Accordingly, because a

plaintiff must allege facts demonstrating jurisdiction, a plaintiff asserting a claim

against a governmental employee in his or her official capacity must allege facts

that affirmatively demonstrate that the legislature has waived immunity for the

claims brought.8 But the immunity of a government employee extends only to the

employee‘s performance of discretionary duties in good faith that are within the

scope of the employee‘s authority.9

      4
      Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 407 (Tex. App.—
Fort Worth 2006, pet. denied).
      5
      City of Fort Worth v. Robinson, 300 S.W.3d 892, 895 (Tex. App.—Fort
Worth 2009, no pet.).
      6
       State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009).
      7
       Koseoglu, 233 S.W.3d at 844.
      8
       City of Arlington v. Randall, 301 S.W.3d 896, 906 (Tex. App.—Fort Worth
2009, pet. denied).
      9
       Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994).

                                           4
      With respect to claims for injunctive relief, a governmental entity is immune

from a suit seeking imposition of an affirmative duty based on a past alleged

actionable wrong.10     Governmental immunity also generally bars suits for

retrospective monetary relief.11

      But an ultra vires claim against a state official—that is, a suit against a

state official for acting outside his or her authority and seeking to require the

state official to comply with statutory or constitutional provisions—is not barred by

sovereign immunity.12 Accordingly, a plaintiff who successfully proves an ultra

vires claim is entitled to prospective injunctive relief, as measured from the date

of injunction.13   And ―where statutory or constitutional provisions create an

entitlement to payment, suits seeking to require state officers to comply with the

law are not barred by immunity merely because they compel the state to make

those payments,‖14 but generally only prospective relief is available.15 To fall

      10
         Randall, 301 S.W.3d at 907. That case noted that a plaintiff may seek
injunctive relief against a governmental entity for constitutional violations, but
Ferrell has not alleged any constitutional violations in this case.
      11
        City of El Paso v. Heinrich, 284 S.W.3d 366, 368–69 (Tex. 2009).
      12
      Tex. Parks & Wildlife Dep’t v. Sawyer Trust, No. 07-0945, 2011 WL
3796347, at *8 (Tex. Aug. 26, 2011); Tex. Lottery Comm’n v. First State Bank of
DeQueen, 325 S.W.3d 628, 633 (Tex. 2010).
      13
        Heinrich, 284 S.W.3d at 376.
      14
        Id. at 371.
      15
       Rolling Plains Groundwater Conservation Dist. v. City of Aspermont, No.
08-0591, 2011 WL 5041964, at *2 (Tex. Oct. 21, 2011).

                                         5
within this ultra vires exception, ―a suit must not complain of a government

officer‘s exercise of discretion, but rather must allege, and ultimately prove, that

the officer acted without legal authority or failed to perform a purely ministerial

act.‖16 Thus, in this case, Ferrell had to have alleged either that (1) Price acted

without legal authority or (2) Price failed to perform a purely ministerial act.

       In his sole issue, Ferrell argues that the trial court erred by granting the

plea to the jurisdiction because he alleged in his pleadings an ultra vires,

ministerial act by Price and because the relief he requested was not solely

money damages, and therefore his pleadings did not affirmatively negate

jurisdiction. He further argues that if his pleadings were not sufficient to establish

jurisdiction, he should have been given the opportunity to amend the pleadings.

       Regarding Ferrell‘s claim for retrospective monetary damages, he failed to

allege any statutory or constitutional provision creating an entitlement to

payment. His injury has already occurred, and he seeks a remedy in the form of

an award of money damages.            Thus, unless immunity was waived by the

Legislature, even if he had alleged an act by Price that was outside her legal

authority or was a failure to perform a ministerial duty, he would not be entitled to

this retrospective relief.17

       16
        Heinrich, 284 S.W.3d at 372.
       17
       City of Dallas v. Albert, No. 07-0284, 2011 WL 3796339, at *8 (Tex. Aug.
26, 2011).

                                           6
      Ferrell did not, however, point to any statutory provision waiving immunity

for his claim for retrospective monetary damages. Although Ferrell did not allege

a waiver of immunity under transportation code section 520.005(b), we take

notice that this section provides that ―[a]n assessor-collector who fails or refuses

to comply with Chapter 501 is liable on the assessor-collector‘s official bond for

resulting damages suffered by any person.‖18 We need not determine, however,

if this section waives immunity from suit for claims against an assessor-collector

for violations of that chapter or if it only provides a source of payment for

successful ultra vires claims19 because not only did Ferrell not allege that this

section waived immunity, but this section is inapplicable on its face to the claims

pleaded by Ferrell.

      For section 520.005(b) to apply, Ferrell would have had to allege that Price

failed to comply with some part of chapter 501. In his pleadings, Ferrell alleged

that Price ―caused to be issued a new title‖ to the Curtises even though ―the proof

furnished by [the Curtises] and A Plus showed a failure to adequately conform

with the procedure for foreclosing a Mechanic[‘s] Lien.‖ But Ferrell did not allege

what part of the procedure for foreclosing on a mechanic‘s lien was not complied

with, whether the procedure was required by chapter 501, what other part of

      18
        See Tex. Transp. Code Ann. § 520.005(b) (West Supp. 2011).
      19
        But see Romo v. Cavender Toyota, Inc., 330 S.W.3d 648, 652 (Tex.
App.—San Antonio 2010, no pet.) (concluding that this section did not waive the
tax assessor-collector‘s immunity from suit).

                                         7
chapter 501 Price should have followed and did not, or what proof furnished by

the Curtises and A Plus showed that chapter 501 was not complied with.

      These defects in pleadings could be cured by amendment. But Ferrell

cannot amend his pleadings to allege any facts showing that Price ―caused to be

issued‖ the certificate of title because she did not do so; the department did.

That is, it is not the county assessor-collector who ultimately issues title to

vehicles. The assessor-collector accepts the application for the certificate of title,

as well as evidence of title delivered to the assessor-collector by the applicant.20

The   assessor-collector    makes    an   initial   determination   of   whether   the

requirements of chapter 501 are met and issues a title receipt. 21           But the

assessor-collector then forwards the application and evidence to the department,

which determines whether the requirements of the certificate of title act are met

and then issues the title.22    Thus, Ferrell failed to allege an act by Price in

      20
        Tex. Transp. Code Ann. § 501.027(a) (West Supp. 2011).
      21
        Id. § 501.024(a) (West Supp. 2011).
      22
          Id. § 501.021 (West Supp. 2011) (stating that ―[a] motor vehicle certificate
of title is an instrument issued by the department‖), § 501.027(b) (providing that
after the department receives an application for a certificate of title and the
department determines that the requirements of this chapter are met, the
department shall issue the certificate of title); see also id. § 520.023(f) (West
Supp. 2011) (providing that when a vehicle is transferred, the department may
not issue a certificate of title for the vehicle until the transferee applies to the
county assessor-collector as provided by transportation code chapter 501), §
501.071 (West Supp. 2011) (providing that in the sale of a used vehicle, the
owner must transfer the certificate of title at the time of the sale using a form
prescribed by the department), § 501.131 (West 2007) (requiring the department
to prescribe forms for a title receipt and other forms the department deems

                                          8
violation of chapter 501 because the ultimate act he complains of—issuing the

certificate of title—was not done by Price, and Ferrell failed to allege any other

act by Price that was without legal authority. Ferrell therefore also failed to allege

that Price failed to perform some ministerial duty because regardless of whether

issuing a certificate of title is a ministerial or discretionary duty, the duty does not

fall on Price to perform.

      For the same reason, Ferrell‘s claim for injunctive relief ordering Price to

issue him a certificate of title to the vehicle also fails. Price did not act outside of

her authority or violate any statutory provisions by issuing the title to the Curtises

for the simple reason that she did not issue the title at all. Ferrell‘s assertion that

Price acted ultra vires fails as a matter of law. Price would have no authority

under the statute to issue Ferrell a certificate of title even if ordered to do so, and

thus his requested relief of a ―permanent injunction ordering [Price] . . . to cancel

the current Certificate of Title to the van and to issue a new Certificate of Title to

[Ferrell]‖ is not available to him.

necessary and to provide those forms to each county assessor-collector). When
Ferrell filed his suit in 2008, the department issued certificates of title. In 2009,
the Legislature amended the law to designate the Department of Motor Vehicles
as the government entity charged with issuing certificates of title. See Act of May
23, 2009, 81st Leg., R.S., ch. 933, § 2D.01, 2009 Tex. Gen. Laws 2485, 2493
(amending Tex. Transp. Code Ann. § 501.002(3) (West 2007)).

                                           9
       We acknowledge that at least one case has stated without discussion that

the tax assessor-collector in that case issued a certificate of title.23 But although

chapter 501 makes the tax assessor-collector an integral part of the title issuance

process, it plainly provides that the department itself performs the act of issuing

certificates of title.

       In sum, because Ferrell failed to allege what provisions of chapter 501 or

any other law, if any, that Price failed or refused to comply with, Ferrell‘s

pleadings do not show any waiver of immunity and are therefore deficient. And

even if Ferrell had pled facts to show that Price had not followed chapter 501,

Ferrell‘s damages are based on his loss of title.        By statute, the department

determined whether title requirements were met and issued the title that Ferrell

complains about. Thus, his claim for monetary damages is not based on any

ultra vires act by Price. Furthermore, Price cannot issue title to Ferrell, and

because she did not issue the title to the Curtises, he cannot say that in issuing

the title to the Curtises, Price failed to perform a ministerial act or that she acted

without legal authority.

       We further note that the transportation code provided a method to Ferrell

for obtaining the certificate of title to the vehicle without resorting to a lawsuit.

       23
          See Romo, 330 S.W.3d at 650 (stating without discussing that the tax
assessor-collector issued a certificate of title that failed to reference the existence
of a lien). But see Credit Indus. Corp. v. Pac. Fin. Corp., 329 S.W.2d 945, 946
(Tex. Civ. App.—Waco 1959, writ ref‘d) (noting that the application for certificate
of title in that case was made through the tax collector to the State Highway
Department, which then issued a certificate of title).

                                          10
Under section 501.051, the department must revoke a certificate of title if, among

other things, the application contains a false statement, the applicant fails to

furnish required information, or the applicant is not entitled to the certificate.24

Ferrell could have invoked this provision of chapter 501 to ask the department to

revoke the Curtises‘ certificate of title.    Chapter 501 further provides that a

person aggrieved by the department‘s decision in such a case may apply for a

hearing on the issue.25 If the person is aggrieved by the result of the hearing, the

person may appeal to the county court.26            If, in the county court, ―the

department‘s action is not sustained, the department shall promptly issue a

certificate of title for the vehicle.‖27 Thus, chapter 501 provides both a remedy

and an administrative procedure (with right of appeal in the county court) for

obtaining that remedy, but Ferrell chose to file this suit instead. Having already

held that the trial court did not have jurisdiction, we do not make the further

determination of whether Ferrell‘s failure to follow this procedure deprived the

trial court of jurisdiction.28   We note the procedure only to indicate that our

      24
        Tex. Transp. Code Ann. § 501.051 (West Supp. 2011).
      25
        Id. § 501.052(a) (West Supp. 2011).
      26
        Id. § 501.052(e).
      27
        Id.
      28
        See Employees Ret. Sys. of Tex. v. Duenez, 288 S.W.3d 905, 908–09
(Tex. 2009) (stating that ―[w]hen an agency has exclusive jurisdiction of a
dispute, the courts have no jurisdiction until administrative procedures are
exhausted‖); see also Tex. R. App. P. 47.1 (providing that the court of appeals

                                         11
holding should not be construed as leaving persons such as Ferrell, who believe

they have been unlawfully deprived of their vehicle, without a remedy.

      Ferrell asks in his brief that if this court determines that his pleadings were

insufficient to establish jurisdiction, he be given the opportunity to amend. But

Ferrell‘s pleadings negate jurisdiction as a matter of law, and we therefore

decline to send the case back to the trial court to allow Ferrell the opportunity to

amend.29 We overrule Ferrell‘s sole issue.

      Having overruled Ferrell‘s sole issue, we affirm the trial court‘s order

dismissing Ferrell‘s claims against Price.

                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

WALKER, J. concurs without opinion.

DELIVERED: December 22, 2011

must hand down a written opinion that is as brief as practicable but that
addresses every issue necessary to final disposition of the appeal).
      29
          See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.
2004) (stating that if the pleadings affirmatively negate the existence of
jurisdiction, then a plea to the jurisdiction may be granted without allowing the
plaintiff an opportunity to amend).

                                        12


122 F.3d 1075
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Barry R. SCHOTZ, Defendant-Appellant.
No. 96-17160.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 25, 1997.**Decided Sept. 5, 1997.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, Chief Judge, Presiding.
Before:  SCHROEDER, FERNANDEZ, and RYMER, Circuit Judges.

1
MEMORANDUM*

2
Barry R. Schotz, a federal prisoner, appeals pro se the district court's dismissal of his habeas corpus petition brought under 23 U.S.C. § 2241.  We have jurisdiction pursuant to 28 U.S.C. § 2253.  We review de novo the district court's decision to grant or dismiss a habeas corpus petition, see Camacho v. White, 918 F.2d 74, 77 (9th Cir.1990), and we affirm.

3
Schotz filed a "Motion for Correction and Clarification of Sentence," which the district court initially construed as a motion to vacate Schotz's sentence pursuant to 28 U.S.C. § 2255.

4
After appointing Schotz's trial counsel to represent him on the section 2255 motion, the district court held a hearing on the motion, which Schotz did not attend.  At the hearing, Schotz's counsel informed the court that the purpose of the motion was to challenge an adverse decision by the Parole Commission that was based in part on the $8 million estimate of victim loss in Schotz's plea agreement and presentence investigation report.  The district court then construed Schotz's motion as a 28 U.S.C. § 2241 habeas corpus petition and dismissed it without prejudice so that Schotz could refile in the proper district.  On appeal, Schotz contends that he received ineffective assistance of counsel in the underlying criminal case, that his counsel in the instant case suffered a conflict of interest, and that the district court improperly construed his motion as a section 2241 habeas corpus petition.  These contentions lack merit.

5
Schotz's claim that he received ineffective assistance in the underlying criminal case was not raised before the district court, and we decline to consider it for the first time here.  See United States v. Beierle, 77 F.3d 1199, 1201 (9th Cir.1996).

6
An attorney's representation is considered ineffective due to a conflict of interest if the defendant can establish that "his attorney actively represented conflicting interests" which adversely "affected his attorney's performance."  Quintero v. United States, 33 F.3d 1133, 1135 (9th Cir.1994) (per curiam).  Here, Schotz's conflict of interest allegations are based on his attorney informing the court that no objection was made at sentencing to the loss figure in the presentence report.  An attorney's truthful answer to such a question by the court does not constitute a conflict of interest.  Cf. United States v. Perry, 857 F.2d 1346, 1349-1351 (9th Cir.1988) (stating that attorney divulging unprivileged information pursuant to grand jury subpoena does not create conflict of interest).

7
Finally, to the extent that Schotz is challenging the Parole Commission's decision, the district court properly construed his motion as a section 2241 habeas corpus petition.  A decision by the Parole Commission is properly challenged through section 2241 rather than section 2255.  See United States v. Doganiere, 914 F.2d 165, 169-70 (9th Cir.1990).  Moreover, a habeas corpus petition must be filed in a district court with jurisdiction over the defendant.  See 28 U.S.C. § 2241 (1994);  Doganiere, 914 F.2d at 170.   Accordingly, the district court properly dismissed Schotz's petition.  See United States v. Brittingham, 982 F.2d 378, 379-80 (9th Cir.1992).1

8
AFFIRMED.

**
 The panel unanimously finds this case suitable for decision without oral argument.  See Fed.  R.App. P. 34(a);  9th Cir.  R. 34-4

*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.  R. 36-3

1
 Schotz also argues that in the event of a remand his case should be heard by a different judge.  We need not reach this issue since a remand is not warranted


442 F.Supp. 826 (1977)
COMPANION LIFE INSURANCE COMPANY, Plaintiff,
v.
Elise I. SCHAFFER and Ted Schaffer, Defendants.
No. 77 Civ. 672.
United States District Court, S. D. New York.
December 20, 1977.
*827 Bleakley, Platt, Schmidt & Fritz, New York City, for plaintiff.
Wehringer & Kojima, New York City, for Ted Schaffer.
Julius Kahn, New York City, for Elise I. Schaffer.

MEMORANDUM ORDER
VINCENT L. BRODERICK, District Judge.
This is an interpleader action pursuant to 28 U.S.C. § 1335 commenced by the filing of an interpleader complaint on February 10, 1977.
This action arises out of a controversy between the interpleader defendants concerning their respective entitlement to the proceeds of a certain insurance policy # XXX-XX-XX issued by plaintiff Companion Life Insurance Company on or about November 14, 1972 on the life of one Michael Schaffer in the face amount of One Hundred Thousand Dollars ($100,000.00).
For purposes of adjudicating the matters presently before me, I find the following facts:
1. The application for insurance by Michael Schaffer was dated October 12, 1972, and designated as beneficiaries the defendants Elise I. Schaffer, his wife, and Ted Schaffer, his uncle.
2. At the time of the issuance of the life insurance policy, Ted Schaffer was an employee *828 of the plaintiff,[1] and an employee of C. H. Juergens Agency, Inc., a general agent of the plaintiff. In November 1972 Ted Schaffer went to Chicago to attend the wedding reception of Elise Schaffer and Michael Schaffer. While in Chicago, Ted Schaffer sold the policy in suit to Michael Schaffer.
3. After its initial preparation, and before submission to plaintiff, the application with respect to Michael Schaffer's policy of insurance was altered. The alteration consisted of a deletion of the provision designating Elise Schaffer as the primary beneficiary and a substituted direction that Elise Schaffer and Ted Schaffer were to "share alike" as beneficiaries. Thus directly above the name Elise I. Schaffer in the application for life insurance the word "PRIMARY" has been crossed out, and directly below the names of the defendants appear the words "ABOVE TO SHARE ALIKE", as follows:
"12. Full names and relationship of beneficiaries. (Given, middle and surname.)
                               PRIMARY
ELISE I. SCHAFFER           WIFE
SAME ADDRESS
TED SCHAFFER                UNCLE
37-09 75 ST., JACKSON HTS., N.Y.    11372
             ABOVE TO SHARE ALIKE                "
4. Michael Schaffer, the insured, died on October 25, 1976. Thereafter, proof of death statements and claims under the policy were received by plaintiff from the defendants or their representatives.
5. First defendant Ted Schaffer made claim for $50,000.00 in benefits allegedly due him under the policy. Upon presentation of this claim by Ted Schaffer, plaintiff remitted $50,312.32 to him (one half of the face value of the life insurance policy at issue, plus interest).
6. Thereafter the defendant Elise I. Schaffer made claim through her attorneys for $100,000.00, the full proceeds due and payable under the policy.
7. When plaintiff received the competing claim from Elise Schaffer, it requested Ted Schaffer to return the money he had received to enable plaintiff to file this interpleader action. Ted Schaffer voluntarily complied.
8. Thereupon plaintiff deposited into the registry of this court the sum of $101,172.60, the total amount due on the life insurance policy at issue.[2]
In the interpleader complaint, plaintiff seeks (1) adjudication of its interpleader status; (2) an order restraining the defendants from instituting any action against plaintiff for the recovery of any proceeds under the insurance policy at issue; (3) discharge from any and all liability; and (4) recovery of its costs and attorneys' fees.
In her answer, Elise Schaffer did not challenge the relief sought by plaintiff, but asked to have the matter adjudicated in the Circuit Court of Cook County, Chicago, Illinois. Ted Schaffer, however, opposed the discharge, counterclaiming against the plaintiff.
Plaintiff has moved for an order pursuant to Fed.R.Civ.P. 12(b), 28 U.S.C. § 1335, and 28 U.S.C. § 2361, inter alia, granting to plaintiff the relief requested in the interpleader complaint, as well as dismissal of Ted Schaffer's counterclaims.
Defendant Ted Schaffer has moved pursuant to Fed.R.Civ.P. 56 for summary judgment.
Finally, defendant Elise Schaffer has petitioned for an order directing the payment to her of one-half of the policy proceeds. Elise Schaffer maintains that the only controversy between the interpleaded defendants concerns the other half of the policy proceeds.
Elise Schaffer contends that Ted Schaffer, without authority and without the decedent's knowledge, altered the beneficiary designation in the application for the insurance policy. She claims that the alteration *829 was not in the decedent's handwriting, nor was it initialed by him. Ms. Schaffer further contends that in a subsequent application for insurance, the decedent referred to the policy in suit and identified the beneficiary thereof as "Mrs. Elise Schaffer."[3] Ms. Schaffer contends that Ted Schaffer orally represented to the parents of Elise Schaffer as well as to her that she, Elise Schaffer, was the sole beneficiary.
The Federal Interpleader Statute, 28 U.S.C. § 1335(a) provides in pertinent part as follows:
(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more, if . . .
(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of any such obligation; and if (2) the plaintiff has deposited such money or property or has paid the amount of or the loan or other value of such instrument or the amount due under such obligation into the registry of the court, there to abide the judgment of the court, . . .
Thus, the Federal Interpleader Statute (28 U.S.C. § 1335), sets forth three conditions for the granting of interpleader status and the exercise of original jurisdiction by the district courts: (1) an amount in controversy in excess of $500; (2) the presence of two or more adverse claimants of diverse citizenship who claim or may claim to be entitled to such money or property; and (3) the deposit by the plaintiff of such money or property into the registry of the court. I find that these requirements have been met and that it is appropriate for this action to proceed before me. Elise Schaffer is a citizen of Illinois and Ted Schaffer is a citizen of New York. Plaintiff has deposited the property in issue into the registry of the court and it exceeds $500.
Accordingly, all parties herein and any person acting in their behalf are restrained from continuing or bringing any action, in any court, concerning the right to and distribution of the life insurance policy proceeds which are the subject of this interpleader action. Any action already commenced is to be discontinued and dismissed, leaving the entire resolution of this matter before me.
I decline, however, to discharge plaintiff at this time. While interpleader is properly invoked it may be that the stakeholder is independently liable, and I therefore hold that it should remain in the proceeding to answer to any claim to that effect which discovery may bring to light.[4]See 3A Moore's Federal Practice, ¶ 22.11 at 3086, et seq. (2d ed.1977). Apparently plaintiff questioned the beneficiary designation disclosed in the application of October 12, 1972, but directed the inquiry only to Ted Schaffer, who was at one and the same time plaintiff's employee, the agent who sold the policy in issue, and a designated beneficiary under the policy. In light of the position Ted Schaffer occupied as a designated beneficiary and the apparent alteration, I am uncomfortable with the procedures employed by plaintiff to insure that *830 the policy was written in accordance with the wishes of the insured. I do note that by letter of January 23, 1973, Frank J. Carbo, president of plaintiff, had asked decedent to review his policy to make certain it was correct in all respects. I am not prepared to hold that this procedure was sufficient as a matter of law to preclude a finding of negligence on the part of the plaintiff.[5] I shall entertain an appropriate motion upon the completion of discovery.
Interpleader is a valuable device to enable the resolution of a many sided dispute within a single proceeding. The stakeholder is freed from the vexation of multiple lawsuits and the claimants are benefited in that conflicting claims are expeditiously resolved in one forum. See generally 3A Moore's Federal Practice, ¶ 22.02 at 3003 et seq. and ¶ 22.06 at 3034, et seq. (2d ed.1977); Pennsylvania Fire Insurance Co. v. American Airlines, Inc., 184 F.Supp. 145, 146 (E.D. N.Y.1960). Attorneys' fees and costs are awarded to an innocent and otherwise disinterested stakeholder who has been required to expend time and money to participate in a dispute not of his own making and the outcome of which has no impact upon him. See Schirmer Stevedoring Co., Ltd. v. Seaboard Stevedoring Corp., 306 F.2d 188, 193 (9th Cir. 1962); Klebanoff v. Mutual Life Insurance Company of New York, 246 F.Supp. 935, 950 (D.Conn.1965), rem'd on other grounds, 362 F.2d 975 (2d Cir. 1966). Cf., Merrimack Mfg. Co. v. Bergman, 154 F.Supp. 688 (S.D.N.Y.1957). However, in cases in which the claims are of the type that arise in the ordinary course of business, fees should not be granted perfunctorily. Such is a cost of doing business which should not be transferred by invoking interpleader. Travelers Indemnity Company v. Israel, 354 F.2d 488, 490 (2d Cir. 1965); Fidelity & Deposit Co. of Maryland v. A to Z Equipment Corp., 258 F.Supp. 862, 863 (E.D.N.Y.1966). Conflicting claims to the proceeds of a policy are inevitable and normal risks of the insurance business. Interpleader relieves the insurance company of multiple suits and eventuates in its discharge. Accordingly, the action is brought primarily in the company's own self-interest. Minnesota Mut. Life Ins. Co. v. Gustafson, 415 F.Supp. 615, 618-19 (N.D.Ill. 1976).
Moreover, as noted above, the plaintiff insurance company may have been responsible in part for this litigation. Certainly more definitive procedures to verify the beneficiary designation could have avoided this dispute. The parties have not addressed the issue of the plaintiff's duty in this regard and the record before me is insufficient for me to determine that issue.
Accordingly, although I am inclined to deny plaintiff's request, I defer decision on the issue of attorneys' fees and costs, See 3A Moore's Federal Practice, ¶ 22.16[1] at 3137 and ¶ 22.16[2] at 3150 (2d ed.1977).
On the basis of the information before me, I hold that this is not an appropriate case for summary judgment, since material factual issues are in dispute. Accordingly, defendant Ted Schaffer's motion for summary judgment is denied.
Upon reviewing Ted Schaffer's counterclaim I am unable to recognize a claim upon which relief can be granted. Ted Schaffer alleges that the application for life insurance when accepted by the plaintiff insurer created a contractual obligation to pay the designated beneficiaries as provided therein. Ted Schaffer contends that further agreement to abide by the policy as written was manifested by the original payment of one half the proceeds thereof to Ted Schaffer. He argues that plaintiff's failure to abide by the policy as written and accepted has required him to incur attorneys' fees and costs to secure what properly belongs to him. See Stuyvesant *831 Ins. Co. v. Dean Construction Co., 254 F.Supp. 102, 108 (S.D.N.Y.1966), aff'd, 382 F.2d 991 (2d Cir. 1967). Plaintiff in bringing this interpleader action is asking this court to decide the issue of entitlement to the proceeds of the insurance policy, and in my judgment counterclaims cannot be grounded upon adherence to such a statutorily authorized procedure.
Upon consideration of the amounts of the conflicting claims and the costs and attorneys' fees likely to be incurred, I find that the entire uncontested portion of the proceeds of the policy, i. e., $50,000 plus interest, is not required to secure the positions of the stakeholder and the adverse claimant, Ted Schaffer. Accordingly, I direct that the sum of Forty-Five Thousand Dollars ($45,000) be paid over to Elise Schaffer from the proceeds on deposit. The remainder of the proceeds will remain on deposit as heretofore directed by me until the resolution of this dispute.
In sum, I find that this action is properly before me as an interpleader action. It is ordered that (1) all parties herein and any person acting on their behalf are restrained from continuing or bringing any action in any court, concerning the right to and distribution of the life insurance policy proceeds which are the subject of this action; (2) any action already commenced is to be discontinued and dismissed, leaving the entire resolution of the matter before me; (3) defendant Ted Schaffer's motion for summary judgment is denied; (4) plaintiff's motion to dismiss defendant Ted Schaffer's counterclaim is granted; (5) plaintiff's request to be discharged is denied with leave to make an appropriate motion upon the completion of discovery; (6) decision on the question of attorneys' fees and costs is deferred; (7) Elise I. Schaffer is to be paid forty-five thousand dollars ($45,000) from the proceeds on deposit; and (8) the remainder of the interpleaded sum shall remain on deposit pursuant to my order of June 1, 1977 until further order.
SO ORDERED.
NOTES
[1]  Wehringer Affidavit, ¶ 28 at 5-6, filed with Ted Schaffer's motion for summary judgment, September 30, 1977.
[2]  Pursuant to my order filed June 1, 1977, these monies were transferred to "day-of-deposit day-of-withdrawal" savings accounts.
[3]  Elise I. Schaffer, Affidavit ¶ 9 at 3-4, filed with Elise Schaffer's Memorandum in Opposition to Ted Schaffer's Motion for Summary Judgment, November 28, 1977 (received with proof of service October 19, 1977).
[4]  Elise Schaffer has not filed a cross-claim against Ted Schaffer, fearing that such might interfere with her rights in a pending Illinois action. Elise Schaffer's Memorandum in Opposition to Ted Schaffer's Motion for Summary Judgment, filed November 28, 1977 (received with proof of service October 19, 1977) at 3 and 16. If such claims are asserted, it may be that plaintiff will be held accountable for Ted Schaffer's acts due to the nature of their relationship. See Elise Schaffer's Memorandum, supra at 7, 11, and 16.
[5]  Elise Schaffer denies having received this letter, and states that had she seen it she would have assumed "from the language used and the manner in which it avoids the problem to which it is addressed, that it was advertising or `good will' literature." Elise I. Schaffer, Affidavit ¶ 11 at 6, filed with Elise Schaffer's Memorandum in Opposition to Ted Schaffer's Motion for Summary Judgment, November 28, 1977 (received with proof of service October 19, 1977).


465 N.E.2d 1388 (1984)
Rocky Dean BEAVERS, Appellant,
v.
STATE of Indiana, Appellee.
No. 782 S 276.
Supreme Court of Indiana.
July 24, 1984.
*1389 Kenneth R. Watson, Williamsport, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
DeBRULER, Justice.
This is a direct appeal from a conviction for first degree burglary, Ind. Code § 35-13-4-4 (since repealed). Appellant also appeals from the jury's determination that he is a habitual offender. The case was tried before a jury. Appellant was sentenced to an indeterminate term of not less than ten years nor more than twenty years for burglary. In addition appellant was sentenced to thirty years, to run consecutively, for being a habitual offender.
Appellant raised several issues on appeal, two of which are treated below in detail: (1) whether the State failed to comply with the discovery order when it did not disclose witness Charles Duh's prior record; and (2) whether the court erred in conducting the habitual offender phase of the trial and in sentencing appellant under the new habitual offender statute, Ind. Code § 35-8-8-1 which was the statute in effect at the time of the commission of the crime.
The facts tending to support the verdict show that on July 9, 1976, the home of Larry Myers was burglarized. Two years later Charles Duh and Robert Stevens were arrested and gave statements to the police implicating themselves and the appellant in the Myers' burglary. Appellant was arrested on August 1, 1979 and charged with burglary and with being a habitual offender. Appellant was convicted of burglary. Furthermore, the State demonstrated that appellant had three prior felony convictions; consequently, the jury determined that he was a habitual offender.

I.
Charles Duh, an admitted accomplice with appellant in the burglary of the Myers' home, testified for the prosecution. *1390 The prosecution had been under a pre-trial order to produce prior convictions of its witnesses for the defense and had not disclosed any for Duh. Immediately before the trial Duh stated to defense counsel during a brief interview that he had a prior conviction in Missouri. During cross-examination attempts by defense counsel to get this conviction before the jury were rebuked because of the lack of specificity in the questions. Because of the frustration of these efforts, defense counsel made a motion to strike all of Duh's testimony, because the prosecution had failed to provide information regarding this prior conviction. The trial prosecutor responded that his department had utilized the usual resources at its disposal and that effort had failed to reveal prior convictions of Duh. The judge permitted voir dire examination of Duh by defense counsel outside the presence of the jury. Duh testified that while AWOL from the Army he had entered a plea of guilty in a Missouri court, but upon being returned to Army custody the record of that had been expunged. The trial court then overruled the motion to strike. Error on appeal is predicated on this ruling.
A motion to strike testimony for failure of the prosecution to properly respond to a discovery order seeks a most severe sanction. That sanction is not proper unless there is a showing that the prosecution engaged in deliberate or other reprehensible conduct which thwarted or obstructed the legitimate aims of the order. Brown v. State, (1981) Ind., 417 N.E.2d 333. From the recital of events above it is apparent that the conduct of the prosecution did not approach the required level. It made reasonable efforts to discover the prior convictions of the witness without success. Therefore, the denial of the motion to strike was correct.

II.
The statute to be applied in arriving at the proper criminal penalty should be the one in effect at the time the underlying crime was committed. Collins v. State, (1981) Ind., 415 N.E.2d 46, 56. The date of the burglary was established by the evidence to be July 9, 1976. The law of Indiana as to a habitual criminal in effect on that date was set forth in Ind. Code § 35-8-8-1 and § 35-8-8-2. The jury instructions instead, however, specifically identified and were patterned after Ind. Code § 35-50-2-8. Though Ind. Code § 35-50-2-8 was enacted in 1976, it did not become effective until July 1, 1977. The two statutes are not identical. They require different burdens of proof and different types of sentences. Consequently, the jury instructions which identified Ind. Code § 35-50-2-8 were erroneous. The trial court erred in overruling appellant's objections to them.
Appellant was sentenced to an indeterminate term of ten to twenty years for first degree burglary. In addition, appellant was sentenced according to Ind. Code § 35-50-2-8 to a thirty year term, to run consecutively, for being a habitual offender. As we previously mentioned, Ind. Code § 35-50-2-8 was not in effect at the time the crime was committed. Moreover, the new habitual offender statute set forth in Ind. Code § 35-50-2-8 was not meant to be applied to the indeterminate sentencing procedures which were in existence prior to October 1, 1977. Furthermore, separate sentences are improper. A single sentence enhanced by reason of the State's habitual offender statute is required.
The conviction of burglary is affirmed. The cause is remanded to the trial court for the rendition of a new sentence not inconsistent with the views taken in this opinion. In light of this remand the other discovery issues need not be resolved because they will not bear upon further sentencing processes.
GIVAN, C.J., and HUNTER, PRENTICE and PIVARNIK, JJ., concur.


815 F.2d 78
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.Kenneth LIPPERT Jr., Plaintiff-Appellant,v.NORFOLK & WESTERN RAILWAY, Defendant-Appellee.
Nos. 86-3017, 86-3018.
United States Court of Appeals, Sixth Circuit.
Feb. 4, 1987.

Before RYAN and BOGGS, Circuit Judges, and BROWN, Senior Circuit Judge.

ORDER

1
This cause having come on to be heard upon the record, the briefs and oral argument of the parties;  and

2
The court having determined that the district court erred in granting defendant's motion for a directed verdict, inasmuch as there was sufficient evidence in the record to create a question for the jury;  it is

3
ORDERED that the judgment of the district court be, and it hereby is, reversed.


739 S.W.2d 680 (1987)
293 Ark. 555
William H. DREW, Appellant,
v.
KATV TELEVISION, INC., Appellee.
No. 87-187.
Supreme Court of Arkansas.
November 23, 1987.
*681 Bob Lawson, Jr., Little Rock, for appellant.
Spencer F. Robinson, Pine Bluff, for appellee.
HICKMAN, Justice.
This is a defamation suit. William Drew, a Lake Village attorney, sued KATV, claiming that the television station defamed him in news broadcasts on July 10, 1984, and July 25, 1984. It was reported during one broadcast that he had been charged with a felony, when he was actually charged with two misdemeanor counts of solicitation to tamper with evidence. These charges were ultimately dismissed at trial. Drew also alleged that the news reports implied that he was involved in a drug investigation being conducted at the Chicot County Memorial Hospital, where he served as Chairman of the Board of Governors.
The trial judge dismissed the case on a motion for summary judgment, reciting in a letter to the parties his finding that Drew was a "public figure."[1] A public official or public figure can only recover damages for defamation against a media defendant by proving that the media's defamatory statements were made with actual malice. There is no evidence of actual malice in this record.
We find that Drew was a public official: a lesser one, perhaps, but nonetheless, one of sufficient importance that the public had an interest in his position and the manner in which he performed it. See Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). Drew was appointed to his position as Chairman of the Board of Governors by the county judge and, evidently, served in that position for fifteen years. In addition it appears that the Chicot County Hospital is publicly owned and operated. While that fact is not seriously disputed, Drew will not actually concede that the hospital is a "public" institution, arguing that it operates on its "own revenues." We deem this distinction too fine to warrant a finding that a material fact is in dispute sufficient to preclude summary judgment.
We often refer to other decisions in determining whether a particular person is a public official. We have held that a lawyer is not a public official. See Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979). However, we have found that an assistant law school dean is; see Gallman v. Carnes, 254 Ark. 987, 497 S.W.2d 47 (1973); likewise, a deputy sheriff is, and so are city police officers. See Hollowell v. Arkansas Democrat Newspaper, 293 Ark. 329, 737 S.W.2d 646 (1987); Lancaster v. Daily Banner-News Publishing Co., Inc., 274 Ark. 145, 622 S.W.2d 671 (1981). Even a grade school wrestling coach has been held to be a public official. See Johnston v. Corinthian Television Corp., 583 P.2d 1101 (Okla.1978).
We find that Drew was holding a position of considerable public responsibility as chairman of the board of a county hospital and was, therefore, a public official. Absent evidence of actual malice, summary judgment was proper.
Appellant argues that upon viewing the broadcasts as a whole, a jury might have reached different conclusions as to the existence of actual malice. He claims, therefore, that summary judgment was improper, and that the presence or absence of actual malice was a question for the jury. However, in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed. *682 2d 202 (1986), the United States Supreme Court held that on a motion for summary judgment, in a case involving the actual malice standard, the court must determine whether the evidence presented could support a reasonable jury finding that actual malice was shown by clear and convincing evidence. Clearly, the evidence in this case could not support such a finding, and the trial judge was correct in granting summary judgment.
Affirmed.
PURTLE, J., concurs.
PURTLE, Justice, concurring.
I concur in the result because I do not believe there were sufficient allegations of fact to support a verdict for damages for defamation. However, I disagree with the opinion in holding that the appellant was either a "public official" or a "public figure" because the facts as developed in the pleadings do not support such a finding. If the issue is disputed, it is the duty of the trial court to make an independent determination of whether the plaintiff is a public official or public figure. Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966). See Cornett & Smith v. Prather, 293 Ark. 108, 737 S.W.2d 159 (Substituted opinion, October 5, 1987). This case was not developed on that issue. However, since there was no genuine issue on defamation, it is not necessary to address the matter of actual malice.
I wish to point out that a media defendant stands in no better position than any other defendant in a defamation action. Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). The media is subject to the same standard as the general public.
NOTES
[1]  KATV contended in its motion for summary judgment that Drew was either a public official or a public figure. Drew responded that he was neither. The order simply granted summary judgment and referred the parties to a letter in which the trial judge found Drew to be a public figure. On appeal Drew concentrated his efforts on arguing that he was not a public figure. Consequently, in Drew's reply brief, he argued primarily that he was not a public official. The trial judge may have been using the term "public figure" loosely, intending it to encompass "public official," too. These terms are used loosely in the record but have distinct meanings in the law of defamation. Ultimately, if Drew was either a public official or a public figure, summary judgment was proper.


NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
OMNI-THERM, INC.,
Appellant,
V.
DAVID J. KAPPOS, DIRECTOR, UNITED STATES
PATENT AND TRADEMARK OFFICE,
Appellee,
AND 1
DUPACO, INC., '
Cross-Appellan,t.
2010-1561, -1562
(Reexan1ination No. 95/000,046)
Appea1s from the United States Patent and Trade-
mark Office, Board of Patent Appea1s and Interferences.
ON MOTION
ORDER
O1nni-Ther1n, Inc. moves without opposition for a 14-
day extension of time, until June 28, 2011 to file its brief
Upon consideration thereof

OMNI-THERM V. KAPPOS
IT ls ORDERE1) TH.AT:
The motion is granted
JUN 2 4 2011
CC.
S
Date
Dean D. Sma1l, Esq.
2
FoR THE CoURT
/s/ J an Horba1y
Jan H0rba1y
C1erk
us c n¥5'e§»°mmR
EdVVE1I'd  CEl11E1I1, ESq. 1'Hg¥EDERM_ C|RCun'
Rayn1ond T. Chen, Esq.
JUN 24 2011
JANlDRBAl.Y
Cl.Ell
5


160 So.2d 395 (1964)
Lawrence JONES
v.
Ike R. DOZIER et al.
No. 6030.
Court of Appeal of Louisiana, First Circuit.
January 27, 1964.
*396 Brumfield, Turner & Cooper, by Robert S. Cooper, Jr., Baton Rouge, for appellant.
Taylor, Porter, Brooks, Fuller & Phillips, by Robert J. Vandaworker, Baton Rouge, for appellee.
Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.
LANDRY, Judge.
This appeal is from the judgment of the trial court rejecting plaintiff's demands for damages for personal injuries sustained in a pedestrian-automobile accident which occurred on Airline Highway in the City of Baton Rouge, Louisiana. Named defendants herein are Ike R. Dozier, driver of the 1958 Chevrolet Sedan involved in the accident, and his liability insurer, Southern Farm Bureau Casualty Company.
It is undisputed that at the scene of the accident the highway is straight and runs in an easterly-westerly direction. The surfaced portion of the roadway consists of two paved lanes for eastbound travel and two for westbound motorists, said opposing lanes being separated by a comparatively wide neutral ground. Defendant Dozier was traveling easterly in the left or inside lane for eastbound vehicles at a speed of approximately 25 miles per hour. The accident occurred when plaintiff, Jones, in attempting to cross the highway from the south shoulder thereof to board his own vehicle parked on the north shoulder, walked or stepped into the right side of defendant's automobile, the point of contact being the approximate front of the right front fender of defendant's car. It further appears the accident occurred at approximately 11:00 o'clock A.M. in the morning of a clear dry day.
Both in brief and oral argument before this Court, able counsel for appellant conceded plaintiff's negligence and acknowledges that plaintiff's cause is predicated solely upon the doctrine of last clear chance. In essence esteemed counsel's brief presents two issues for resolution on this appeal, namely: (1) the trial court erred in rejecting plaintiff's demand and failing to hold defendants liable under the doctrine of last clear chance; and (2) our learned brother below also erred in refusing to admit in evidence the deposition of appellant's witness, Vardie Lee Rancher, taken in a workmen's compensation suit filed by plaintiff against plaintiff's employer predicated upon the injuries sustained by appellant in the same accident upon which this present demand is founded.
In urging our imposition of liability herein on the principle of last clear chance, astute counsel for appellant maintains defendant was guilty of negligence in traveling at an excessive rate of speed and failing to keep a proper lookout inasmuch as defendant Dozier concedes he did not detect plaintiff's presence on the highway until the moment of impact.
The facts of the instant case are for all practical purposes, undisputed.
Testifying in his own behalf, appellant stated that shortly prior to the accident he and an acquaintance, Vardie Lee Rancher, emerged from a restaurant situated on the south side of the highway after having visited the establishment to drink coffee. Appellant and his friend conversed briefly on the south shoulder of the highway following which they exchanged parting remarks and appellant, after looking both ways and observing no vehicles in either eastbound lane, stepped onto the highway and proceeded to walk toward his own vehicle parked on the far side of the road. According to appellant, he never saw Dozier's oncoming vehicle until the moment of impact. Appellant further concedes that as he proceeded across the highway he was looking back *397 over his right shoulder continuing his conversation with his friend, Rancher.
In substance defendant Dozier testified he was proceeding easterly in the inside lane at a speed of approximately 25 miles per hour. He never saw plaintiff prior to the impact and therefore neither blew his horn nor applied his brakes in an effort to avoid the accident.
Plaintiff's acquaintance, Vardie Lee Rancher, in effect testified plaintiff waited on the south shoulder of the highway to permit passage of an eastbound vehicle proceeding in the right or outside lane. After the passage of this other vehicle, appellant immediately stepped onto the highway and proceeded across at a rather brisk pace and into the side of the oncoming Dozier automobile. In essence Rancher testified the accident was unavoidable on Dozier's part inasmuch as appellant, after permitting the car in the inside lane to pass, immediately stepped out behind said car and started to cross at which time defendant Dozier was only 10-15 feet west of the point of impact. Rancher's testimony leaves not the slightest doubt but that, in his opinion, there was nothing Dozier could do to avoid the impending accident. He further testified that it was obvious to him an accident was imminent and he yelled to alert plaintiff of the danger but to no avail.
At one place in his testimony, Rancher described plaintiff's actions immediately preceding the accident as follows:
"A He let one car by him.
"Q Who is he?
"A Mr. Jones let one car go by him in the right lane.
"Q Would that be the lane nearest the cafe?
"A Right, and this other car was just a short ways behind him. He stepped out into this automobile, and the thing, he told me, I'll see you Wednesday, and I was flagging at him, like that, to stop him from walking into it. I seen he was going to hit it." T. 108
On further examination Rancher related the following version of plaintiff's conduct just prior to the impact:
"A He let the first car by and he stepped out.
"Q And started walking?
"A He just made a good step, right into the side of the automobile.
"Q Well, if he was standing on the side of the highway and the automobile that hit him was on the inside lane * * *
"A On the inside lane.
"Q He had to cross all the way across the right hand lane, in order to hit the side of that automobile?
"A Right.
"Q He didn't do that in one step, now, Mr. Rancher.
"A He just made a hop, right into it.
"Q Was he running or walking?
"A He wasn't running. He just was in a part way.
"Q Well, he crossed all the way across that right hand lane before he hit the side of that automobile?
"A You got the automobile 12 or 15 feet backthat would make him come just about right into it.
"Q What part of the side of the car did he hit?
"A The right fender.
"Q The right front fender?
"A The right front fender.
"Q How far from the headlight?
"A I wouldn't say he hit the headlight. He sort of hit it, with his arms out.

*398 "Q You think he saw the car immediately before he hit it?
"A I don't believe.
"Q You don't think he ever saw it?
"A I don't think he ever seen it until he stepped into it." Tr. 118-119.
The jurisprudence of this state is well established to the effect that to warrant application of the doctrine of last clear chance, plaintiff must discharge the burden of establishing three basic factors by a clear preponderance of the evidence. First plaintiff must establish that he was in a position of peril of which he was unaware or from which he was unable to extricate himself. Secondly, plaintiff must show that defendant was in a position to discover plaintiff's peril upon the exercise of reasonable care, caution and observation. Finally, plaintiff must establish that when defendant discovered plaintiff's peril, defendant was possessed of a reasonable opportunity to avoid the accident. McCallum v. Adkerson, La.App., 126 So.2d 835; Whitner v. Scott, La.App., 116 So.2d 180; Newton v. Pacillo, La.App., 111 So.2d 895.
The allegation of excessive speed lodged against appellee is utterly without foundation in the record. The resume of testimony hereinabove set forth negates Dozier's alleged speeding beyond all possibility of doubt. Not even plaintiff's own witness, Rancher, charged Dozier with excessive speed and Dozier's own testimony clearly establishes he was proceeding at the lawful and reasonable speed of approximately 25 miles per hour. Moreover, the record conclusively establishes that upon hearing the impact, Dozier instantly applied his brakes and came to a stop within a short distance.
We believe a fair analysis of the evidence supports the conclusion defendant Dozier did not have the last clear chance to avoid the accident. Granting Dozier did not observe plaintiff's presence until the moment of impact, it does not necessarily follow his prior detection of plaintiff would or could have afforded him reasonable opportunity to prevent the mishap. The record, we believe, preponderates in favor of the finding that plaintiff did in fact wait to permit the passage of an eastbound motorist traveling in the inside lane and then immediately stepped onto the traveled portion of the highway and proceeded to cross the outside lane, (which the record indicates is nine feet in width), at a rather brisk pace. Granting further, the record does not show with clarity the precise location of the Dozier vehicle at the moment plaintiff first set foot on the highway, nevertheless, we believe Rancher's testimony shows Dozier was so near there was little, if anything, he could have done to avoid the accident had he in fact seen plaintiff when plaintiff first started across the highway. Moreover, we are herein concerned with a mature adult, therefore, assuming Dozier had observed plaintiff's presence in the outside lane, he could have relied upon the presumption that a grown individual, apparently in full possession of his faculties, would not recklessly and heedlessly proceed into the inside lane in the face of the obvious danger presented by an oncoming vehicle. We further believe the presence of the vehicle which passed in the outside lane unwittingly contributed to the accident inasmuch as it shielded Dozier's view of appellant as well as appellant's view of Dozier's vehicle.
The fact that appellant was unable to precisely fix the location of defendant's vehicle when plaintiff entered the highway is not to be resolved against appellee. It is incumbent upon plaintiff to establish each facet of his case by a clear preponderance of evidence. Bougon v. Traders & General Insurance Co., La.App., 146 So.2d 535; Taylor v. Firemen's Insurance Co. of Newark, N. J., La.App., 139 So.2d 782; Oliver v. Pitarro, La.App., 129 So.2d 39.
Learned counsel for appellant relies herein primarily upon Ingram v. McCorkle, La. App., 121 So.2d 303, and Guillory v. Lemoine, La.App., 87 So.2d 798, both of which *399 involve instances wherein the rule of last clear chance was applied to impose liability on a defendant motorist who struck a pedestrian in the act of crossing a street.
Our careful analysis of the cited decisions reveal said cases arose under circumstances which readily distinguish them from the case at bar.
Ingram v. McCorkle, supra, involved an accident resulting in injuries to a 15 year old youth attempting to cross a public highway at a fast walk or semi-run. The court therein found defendant motorist was approximately 120 feet distant from the point of impact at the moment the lad started to cross the highway. The Court also found that notwithstanding there was no obstruction or impediment of the driver's vision, the driver did not apply his brakes until he was within 20 feet of the point of where the accident occurred.
In Guillory v. Lemoine, supra, the court concluded the defendant motorist was 150 feet distant when a nine year old girl commenced to cross the street in front of defendant's oncoming vehicle.
In the present case it is not clear just how far distant Dozier was from the point of collision when plaintiff, a grown, mature individual, started across Airline Highway, a main four lane thoroughfare. Rancher, the only person to witness the accident, did not place defendant's vehicle so far from the point of impact, at the time plaintiff herein started across the highway, as to justify the conclusion that if Dozier had seen plaintiff, he, Dozier, had sufficient time to do anything to avoid the accident. Moreover, the testimony of Rancher, the sole witness, is clearly to the effect that, predicated upon his own personal driving experience, Dozier had no opportunity whatsoever to avoid the accident. In our opinion such testimony, elicited from plaintiff's own witness, cannot serve as the foundation of an award of damages predicated upon a legal concept which not only presupposes plaintiff's own contributory negligence but also requires plaintiff to prove, by a clear preponderance of evidence, that defendant had a reasonable opportunity to avoid the accident.
Appellant's contention the learned trial court erred in declining to permit introduction in evidence of a deposition given by Rancher in a workmen's compensation suit instituted by appellant in an action against appellant's employer arising out of this same accident is without merit, as will hereinafter appear. It is of considerable importance that defendants in the present cause were not parties to the workmen's compensation suit instituted by appellant against his employer. Defendants herein, therefore, had no opportunity of cross-examination of Rancher at the time the prior deposition was given. Granting admissibility of the controversial deposition in these proceedings for the limited purpose of impeachment of Rancher's testimony because of inconsistencies between the deposition and Rancher's testimony at the present trial, said deposition was, as to present defendants, admissible for no other purpose. Although our learned brother below declined to admit the deposition in evidence, he did, upon counsel for appellant pleading surprise, allow counsel for appellant to interrogate Rancher regarding several inconsistencies between the deposition and his testimony upon the trial. The deposition in question, which appears in the record as an offering despite the refusal of the trial court to admit it in evidence, confirms the ruling of the trial judge to the effect there were no significant inconsistencies between the deposition and the witness's testimony at the trial of this matter. Moreover, assuming Rancher's testimony on trial to have been impeached, plaintiff's case must of necessity fail, as this would leave the record totally barren of any evidence whatsoever concerning the manner in which the accident occurred. Neither plaintiff nor defendant were able to testify as to the circumstances surrounding the accident. The fact that an accident occurs is not in itself proof of negligence. It is elementary that *400 plaintiff must prove his own case by a preponderance of evidence. In the instant case, take away Rancher's testimony and plaintiff is without any evidence or proof whatsoever.
Accordingly, the judgment of the trial court is affirmed at appellant's cost.
Affirmed.