107 Cal.App.2d 523 (1951)
JOHN M. HALL, Appellant,
v.
RALPH HAGERMAN, Respondent.
Civ. No. 7976.
California Court of Appeals. Third Dist.
Nov. 14, 1951.
 Riggins, Rossi & King for Appellant.
 Ralph Trower for Respondent.
 VAN DYKE, J.
 On July 22, 1947, the parties hereto became copartners under written articles. The business of the firm was the wholesaling and retailing of candy, nuts, gum and allied lines of merchandise. The business centered in Napa and involved three sales routes for the covering of which the partnership had three trucks, two driven by the copartners and one by an employee. On July 23, 1948, the partners executed a document entitled "Agreement for Dissolution of Partnership," and this action arose out of the varying interpretations which the parties thereto placed upon that instrument. The action was begun by Hall who filed a complaint against Hagerman in the form of a common count for money had and received, claiming recovery of the sum of $1,347.90. No mention of the partnership was made in that pleading. Hagerman answered, denying generally the common count allegations of the complaint. He also counterclaimed for money had and received, seeking recovery of $96.54. He cross-complained for the same amount and in that pleading he alleged the execution of the articles of the copartnership and the execution of the dissolution agreement, attaching both documents to his pleadings as exhibits. He declared that by the dissolution Hall had received assets exceeding in value in the amount sued for those he had received. In his prayer, he also asked that an accounting be had of the partnership affairs. [1-4] It is well at this point to refer to the well established rules that an action at law by a partner or copartner ordinarily will not lie on a claim growing out of the partnership transactions until the business *525 is wound up and the partners' affairs finally settled (68 C.J.S. 550); that if an action between partners is for a balance due, the complaint must aver a settlement of firm affairs and a determination of the amount owing by defendant to plaintiff; but that if the action is for money received, based on the theory that a final settlement has been had, a complaint in the form of a common count need not allege that there had been an accounting or settlement of the partnership affairs (Id 565), and, finally, that an action upon a common count for money had and received proceeds upon the theory that a final settlement has been made. (Crudo v. Guida, 43 Cal.App.2d 26, 29 [110 P.2d 109].) It is thus apparent that plaintiff by pleading in common count for money had and received, without mention of the past existence of the partnership between himself and the defendant proceeded upon the theory that a dissolution had occurred and a final settlement and distribution of assets had been arrived at. What the theory of defendant and cross-complainant Hagerman was is not so clear, for he did pray for an accounting, a relief consistent only with the nonoccurrence of any settlement of partnership affairs.
 At the trial the plaintiff placed in evidence the agreement for dissolution and sought by the interpretation which he placed upon the document to sustain his cause of action. It was at once apparent from that document that it contained many inconsistencies and was fraught with much ambiguity. There is practically no contention by either party that the court did not need evidence of the circumstances attendant upon its execution in aid of its interpretation. Such evidence was therefore taken and the trial court construed the document as having constituted not only an agreement for the dissolution of the partnership but also an agreement for final settlement of partnership affairs and for the distribution between the partners of the assets of the partnership with one contingency, which was that if by the immediate sale of certain partnership assets received by defendant Hagerman he should realize a substantial profit or increase over the amount at which the partners had valued these assets, then he was to make a further division of the profit or increase so derived, turning over one half of it to plaintiff Hall. The court found, however, as to this contingency that no such profit had been realized and therefore adjudged the plaintiff was to take nothing. The trial court also disallowed the claim of defendant Hagerman for the sum sued for by counterclaim and cross-complaint *526 and denied Hagerman's prayer for an accounting. Plaintiff Hall has appealed. Defendant and cross-complainant Hagerman has not.
 The question on appeal is whether or not the trial court's interpretation of the contract finds support in the instrument itself, as that interpretation is aided by the evidence taken. The rules by which we are guided in the solution of this problem are well stated in such cases as Woodbine v. Van Horn, 29 Cal.2d 95, 104 [173 P.2d 17], Crillo v. Curtola, 91 Cal.App.2d 263, 272 [204 P.2d 941], and Nuland v. Pruyn, 99 Cal.App.2d 603, 609 [222 P.2d 261]. We need not restate those rules here. Appellant makes some further contentions which will be stated and disposed of later. The written agreement for dissolution contains many contradictions among its terms and is affected by much ambiguity. We think it must be quoted. It reads as follows:
 "Agreement for Dissolution of Partnership"
 "This Agreement made and entered into in duplicate this 23rd day of July, 1948, by and between Ralph Hagerman of Napa, California, party of the first part and John M. Hall of the same place, party of the second part,"
 Witnesseth:
 "That said parties and each of them have mutually agreed and do hereby agree to a dissolution of the partnership entered into by and between them on the 22nd day of July, 1947, and which business has been heretofore conducted by them under the name of Hagerman and Hall. It is understood and agreed upon the execution of these instruments that the party of the second part is to receive and is entitled to withdraw from the bank account of said business heretofore conducted by them as above set forth the sum of One Thousand Six Hundred Eight and 30/100 Dollars ($1,608.30), and the party of the first part shall be entitled to withdraw the sum of One Thousand Dollars ($1,000.00)."
 "The party of the second part shall be also entitled to receive, accept and collect all accounts receivable owing to said co-partnership and the said accounts receivable are hereby fixed and established in a sum of Four Hundred Fifty-seven and 74/100 Dollars ($457.74); second party is also entitled to receive and to dispose of one (1) Chevrolet truck and one (1) Ford truck belonging to said co-partnership and to receive and keep the proceeds derived on the sale of the same."
 "It Is Understood and Agreed that each of said parties *527 did upon the commencement of said co-partnership invest the sum of Five Thousand Seven Hundred and Fifty Dollars ($5,750.00) in said business, and it is the desire and intention of each of the parties hereto that they and each of them shall receive from said business on the dissolution thereof and of said partnership the amount of their original investment plus any profit or proceeds derived on the sale of said business by the party of the first part."
 "It Is Further Understood and Agreed that the accounts payable amount to the sum of Two Hundred Seventy-six and 72/100 Dollars ($276.72), which said amount the party of the first part agrees to assume and pay. The party of the first part is to keep the stock on hand belonging to said co- partnership which by mtual agreement is hereby fixed at Three Thousand Six Hundred Nine and 83/100 Dollars ($3,609.83), and in addition thereto he is to take over the unexpired insurance amounting to Ninety-eight and 65/100 Dollars ($98.65) and the prepaid rent in the sum of Forty Dollars ($40.00) and also one (1) Dodge truck belonging to said co-partnership, all of which shall be and become the property of the party of the first part on the dissolution of said partnership."
 "It Is Further Understood and Agreed that the party of the first part is to try to effect an immediate sale of the business heretofore conducted by the parties hereto, and if and when said sale is effected the amount for which it is sold is to be added to the amount received by the party of the second part and the total is to be divided equally between them. It is further understood and agreed that a notice of this dissolution of partnership shall be published not less than twice in the Napa Register."
 "In Witness Whereof, the said parties have hereunto subscribed their hands the day and year hereinbefore written."
 (Signed) Ralph Hagerman
 Party of the First Part
 (Signed) John Hall
 Party of the Second Part.""
 It is thus seen that unequivocally the parties agree by the document that the partnership is dissolved. This would, of course, lead to such liquidation proceedings as the parties might agree upon or as might be implied in law. It then goes forward, however, to state that Hall, appellant here, *528 is to receive $1,608.30 of the cash on hand, and Hagerman, the respondent here, is to receive the balance of $1,000. This unequal division, when the parties were entitled under the articles of copartnership to equal ownership indicates the beginning of settlement provisions. Appellant Hall is also to receive, accept and collect accounts receivable and is entitled to receive and dispose of two of the three trucks and to "keep the proceeds derived on the sale of the same." These are all terms of settlement. Then, skipping a paragraph, to which we will return, respondent Hagerman assumes and agrees to pay the accounts payable, but is to keep the stock on hand and to "take over" the unexpired insurance, the prepaid rent and the Dodge truck, all of which, says the agreement, "shall be and become the property" of Hagerman "on the dissolution of said partnership." These terms also are terms of final settlement and division of assets. But the paragraph we skipped is now to be considered, and it recites that the copartners had invested in the beginning each the sum of $5,750 and desired and intended that they should each receive on dissolution the amount of these original investments "plus any profit or proceeds derived on the sale of said business" by respondent Hagerman. And the concluding paragraph provided that Hagerman was to try to effect an immediate sale of the business and if and when he did so the sale price was to be added to the amount received by appellant Hall, and the total was to be divided equally between the parties. It is clear that these provisions are inconsistent with any logical interpretation of the other provisions we have referred to and indicate that no settlement had in fact been effected, but that the assignments of property were rather by way of allocation of duties of the two partners in liquidating the partnership.
 [5] Upon the face of the instrument we think that the conflict cannot be reconciled and the trial court of necessity took evidence of the circumstances surrounding the execution of the so-called dissolution agreement. We need only refer to those parts of the testimony taken which support the interpretation of the trial court. And so we find that respondent Hagerman testified that after the agreement was executed no consultations were had between himself and appellant concerning the operation of the business; that the name of the business was changed to that of "Hagerman Candy Company"; that notice of dissolution was published as provided for; that he alone sold the business some three months after *529 his take-over, during which time he had conducted it under the new name; that while he told appellant about the sale, no demand was made by appellant for any share of "profit" nor was any intimation given by appellant that he considered respondent to be continuing a partnership business after dissolution anticipatory to sale; that when he and appellant talked of dissolving the partnership appellant had come to him with a paper upon which he had made notations proposing a settlement; that by this appellant was to get the two trucks, the amount he later got from the bank account, and the accounts receivable, while respondent was to take the remaining truck, the stock on hand and assume the debts; and having agreed upon that they went to a Mr. Graves who drew up the agreement for them. Respondent further testified that the only reason the agreement was drawn up was to protect appellant in case he, respondent, would be able at once to sell the business "at a fine profit," $7,000 or $8,000 profit being mentioned. He testified he endeavored to sell the business, but he could not and was compelled to continue it until a sale could be effected. When asked if there was anything in those conferences about appellant sharing in any possible loss if respondent sold at less than the values mentioned in the agreement, he replied that there was not, but that he told Mr. Graves he "didn't want any figures in there" because he might not be able to sell at a profit, he might have to sell at a loss. The business was actually sold at less than the value of it as stated in the agreement. Respondent testified that two of the routes were abandoned when the trucks by which they had been worked were turned over to appellant and that he continued to drive the remaining route; that the sale he made was influenced as to price by his developing a bad knee with a dislocated cartilage which interfered with his ability to continue driving the truck on the route. We think that in view of the general trend of the agreement which we have noted and which is in favor of a construction of final settlement, the evidence is sufficient to support the court's interpretation that by this agreement the parties not only dissolved the partnership, but completely and finally settled its affairs and distributed its assets with the contingency heretofore mentioned as to further payment to appellant of the profit which respondent might make upon immediate sale.
 [6] Appellant contends further that the court erred in excluding from evidence a certain memorandum. During the course of the trial respondent on demand produced certain *530 business records wherein was found a lead pencil memorandum which it appeared had been made by respondent's wife and which it may be said would tend to show that the parties had not intended a final settlement, but had contemplated a division of assets after respondent should have sold the business. But the proof showed that the memorandum was not a business record, that Mrs. Hagerman was not the bookkeeper or in any way the agent of respondent, that she had no authority to bind him by the memorandum she wrote; and we think, therefore, that the trial court was justified in refusing to admit the memorandum in evidence. The memorandum is characterized by respondent as mere speculation and "doodling" indulged in by respondent's wife and we think this description is accurate. [7] Appellant further contends that the findings do not support the judgment. The rules by which the sufficiency of findings are to be tested and the rules for interpretation thereof where interpretation is needed are fully set forth in Richter v. Walker, 36 Cal.2d 634, 639 [226 P.2d 593], and we need not restate them here. Tested by these rules we think the findings are sufficient. The court found that respondent is not indebted to plaintiff in any amount for money had and received as alleged by plaintiff's complaint; that appellant was not indebted to respondent as claimed in respondent's counterclaim and that although there had been a partnership the same had been dissolved when the dissolution agreement had been signed and that by the dissolution agreement the parties had intended to distribute all the assets of the partnership, with the aforesaid contingency as to a profit upon the immediate sale of the business; that no such profit had been made. No demand for any more specific findings appears to have been made. Summarized, and given the benefit of proper implications, they are to the effect that the parties had dissolved their partnership and made a complete settlement and distribution of assets and therefore that neither had received any property or money for the use and benefit of the others.
 The judgment is affirmed.
 Adams, P. J., and Schottky, J. pro tem., concurred.


345 F.Supp. 4 (1972)
Gerald DUBROW and Kirk T. Nelson, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
SMALL BUSINESS ADMINISTRATION, an Agency of the United States, Government, Defendant.
No. 72-696.
United States District Court, C. D. California.
May 19, 1972.
*5 M. J. Collins, Los Angeles, Cal., and George A. Peters, Sherman Oakes, Cal., for plaintiffs.
William D. Keller, U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief Civil Div., Matthew A. Schumacher, Asst. U. S. Atty., Los Angeles, Cal., for defendants.

ORDER DENYING PRELIMINARY INJUNCTION AND DISMISSING COMPLAINTS
DAVID W. WILLIAMS, District Judge.
Following the February 9, 1971 earthquake, President Nixon declared Los Angeles County a disaster area for purposes of making low interest loans available under the Disaster Relief Act to persons whose property had suffered damage. This relief program was administered by the Small Business Administration (SBA). A damage survey of the disaster area was prepared by the Office of Emergency Preparedness and it was estimated that total damage would approximate 240 to 250 million dollars. Accordingly a loan pool of 242 million dollars was set up for use by the SBA in making loans to those whose applications that agency approved.
About March 1, 1971, the SBA began accepting applications for loans and it fixed February 29, 1972 as the deadline for the filing of such applications. During this one-year period approximately 83,000 applications were filed of which approximately 50,000 were received during the first nine months of the filing period.
Plaintiffs bring this civil action for injunctive relief on behalf of a putative class of some 30,000 people who applied for disaster relief loans during the last three months of the filing period and whose applications were rejected.[1] Plaintiffs seek to enjoin the SBA from requiring those who filed applications during the last three months of the one-year period from having to accompany the application with a structural engineer's report to be prepared at the estimated cost of $150.[2] Such a report was not required of those who filed their applications during the first nine months.[3] Indeed, it is alleged that the SBA never communicated to plaintiffs or members of their class the fact that a structural engineer's report would be required; rather, plaintiffs and others had to call and insist on knowing the reasons why their applications were rejected before they were informed of the new requirement. Also, it appears that those who filed during the last three months were subjected to a financial screening in order to determine their ability to repay the loan whereas earlier applicants were not required to show ability to repay. Plaintiffs contend that to require a structural engineer's report of those who filed during the last three months and to require a strong showing of ability to *6 repay is vexatious and invidious in that, (1) it is arbitrary, unreasonable and unnecessary to a determination of real property damage that is earthquake connected, (2) it unnecessarily imposes a heavy financial burden on poorer applicants, and (3) it unreasonably discriminates against those who applied for disaster relief in the last three months of the filing period and in favor of those who applied during the first nine months.
During the three week period March 10 to March 31, 1972, the Los Angeles office of the SBA processed an unprecedented 27,711 applications for loans under the Disaster Relief Act. Of these 26,724 were rejected, more than eighteen times the number of rejections for any three weeks during the filing period. Plaintiffs allege that rejecting this large a number of applications was both whimsical and arbitrary.
The SBA acknowledges that it changed its requirements during the last few months of the program, but explains that the increase in the number of applications during the last three months was unexpected. Past experience in administering Disaster Relief loans revealed that the first few months of the filing period would attract the majority of those who suffered bona fide disaster connected damage and who could not get reconstruction assistance on as favorable terms from other sources. Based on this same experience in administering past loans, it was expected that past patterns would prevail and that the last quarter of the filing period would see a great diminution of filed applications. During the first eight months of the filing period almost 44,000 loan applications were filed and the total amount of loans requested was $194,000,000 out of which loans totalling approximately $154,000,000 were approved. The last few months, however, brought an inordinate number of applications and it was apparent that this new wave of claims, if approved in the same ratio as past claims, would far exceed the balance of authorized funds. At about the same time it was discovered that many of the earlier applications were misleading and the product of fraudulent misrepresentations on the part of homeowners, some of whom padded their damage claims or applied for funds to repair damage not connected with the earthquake. Appeals to Congress for additional funds proved fruitless. Thus, it was deemed wise to stop the earlier relaxed investigative procedures, originally instituted fresh upon the tragic earthquake, which resulted in attracting fraudulent and ineligible damage claims that siphoned off a substantial part of the loan pool. The SBA therefore sought to preserve the few remaining millions of dollars to those able to establish eligibility by a clear showing of need for the amount requested and reasonable ability to repay.
The SBA contends that it did not change the requirements until after all applicants who were in the "critical" category had received loans. Though some will be inconvenienced by the new requirement, the agency argues that no applicant will experience any real hardship.
The government contends that this court has no jurisdiction to hear this case and relies on, (1) plaintiff's failure to allege a jurisdictional statute, (2) 15 U.S.C. § 634(b) which precludes injunctive action against the SBA Administrator, and (3) 5 U.S.C. § 701(a) (2) which precludes a court from reviewing agency action committed by law to agency discretion.
Since the purpose of the complaint is for the plaintiff to notify the defendant of the facts upon which he relies for recovery, only if jurisdiction does not affirmatively appear from the facts stated in the complaint should the complaint be dismissed. Seese v. Bethlehem Steel Co., 74 F.Supp. 412 (D.Md.), aff'd 168 F.2d 58 (4 Cir.1948). Thus when a complaint is filed the inquiry for jurisdiction begins, and only when it appears to a certainty from the face of the complaint that the plaintiff cannot allege a case conferring jurisdiction *7 should the complaint be dismissed for failure to contain allegations which confer jurisdiction. Johnson v. Park City Consol. Mines Co., 73 F.Supp. 852 (E.D. Mo.1947); see also, McKenzie v. Blidberg Rothchild Co. Inc., 12 F.R.D. 392 (S.D.N.Y.1952).
The government directs my attention to 15 U.S.C. § 634(b) and argues that this Court cannot have jurisdiction in a suit, the object of which is to enjoin the Administrator of the SBA. While some cases have held that the Administrator cannot be enjoined, see, e.g., vonLusch v. Hoffmaster, 253 F.Supp. 633 (D.Md.1966); U. S. v. Mel's Lockers, Inc., 346 F.2d 168 (10th Cir.1965), those cases were predicated on the specific finding that the Administrator was acting pursuant to some authority vested in him by Small Business Act.[4] It should be clear, however, that when the Administrator acts beyond the scope of his authority 15 U.S.C. § 634(b) does not preclude injunctive action.[5] The Court in Lloyd Wood Construction Co. v. Sandoval, 318 F.Supp. 1167 (N.D.Ala.1970), while holding that it had no power to enjoin the SBA Administrator also held that actions and determinations by the Administrator which are beyond the scope of authority granted him by the Act must be set aside by a federal court. Similarly, other federal courts have held that even though certain agency actions may be unreviewable because precluded by statute, yet when there is an abuse of discretion such that the agency no longer acts pursuant to its statutory discretion, the Court may review and set aside the agency action. Scanwell Laboratories v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970); Jones v. Freeman, 400 F.2d 383 (8th Cir.1968); Peoples v. Department of Agriculture, 138 U.S. App.D.C. 291, 427 F.2d 561 (1970); but see, Seatrain Lines, Inc. v. United States, 233 F.Supp. 40 (D.N.J.1964). Thus this Court would have to find that the Administrator abused his discretion and acted outside the scope of his authority in requiring the structural engineer's report and in investigating the financial ability of the applicant to repay the loan before I could conclude that 15 U.S.C. § 634(b) does not preclude injunctive relief in this case.
This Court's jurisdiction, even if not precluded by Section 634(b) is still subject to the Administrative Procedure Act, 5 U.S.C. § 701 et seq. The government contends that there can be no jurisdiction under the Administrative Procedure Act because the determination of whether to grant a Disaster Relief loan is action committed to agency discretion by law and not reviewable by a federal court, vonLusch v. Hoffmaster, supra 253 F.Supp. at 635. The words, "committed by law to agency discretion" are not talismanic. Whether agency action has been committed by law to agency discretion call for a consideration by the Court of the statute under which the action is taken, its language and purpose, and the nature of the activity or conduct being regulated. Sugarman v. Forbragd, 267 F.Supp. 817 (N.D.Cal.), aff'd 405 F.2d 1189 (9th Cir.), cert. denied, 395 U.S. 960, 89 S. Ct. 2103, 23 L.Ed.2d 747 (1969). Thus the Court is to determine whether the entire act complained of is committed by law to agency discretion or whether in performing a discretionary act the agency failed to perform a ministerial duty which caused injury to plaintiffs. Sugarman v. Forbragd, supra; see Jones v. Freeman, supra.
Thus, 15 U.S.C. § 634(b) precludes Courts from assuming jurisdiction unless the Administrator acted beyond the *8 scope of the SBA's authority. Since the determination of whether to grant a loan is action committed by law to agency discretion, this Court is barred by the A.P.A. from reviewing loan determinations except to the extent that those determinations involve the failure to perform a ministerial duty. See, Sugarman v. Forbragd, supra.
The first question is whether the SBA has absolute authority to determine what is necessary to constitute a sufficient showing of earthquake connected damage and whether this authority is by law committed to agency discretion. This calls for a determination whether the requirement of a structural engineer's report was arbitrary and an abuse of discretion or whether it was both appropriate and necessary to preserve the loan pool for those who were able to show bona fide earthquake connected damage.
It is clear beyond question that 42 U. S.C. § 4451 empowers the SBA to administer loans under the Disaster Relief Act in the same manner as it administers the Disaster Loan Program, 15 U. S.C. § 636(b). Under the Disaster Loan Program the administrator has plenary authority to make such loans as in his discretion may be "necessary or appropriate."
Guidelines were promulgated in order to aid prospective applicants to determine what information they would be required to produce in order to file an application meeting the "necessary or appropriate" test for assistance. These guidelines were for informational purposes, however, and were not binding on the SBA. Accord, United States v. Associated Merchandising Corp., 261 F. Supp. 563 (S.D.N.Y.1966). The law in this circuit is clear that an administrative agency should not be bound to a guideline when from experience it appears that the guideline was improvident. Flotill Products Inc. v. Federal Trade Commission, 358 F.2d 224 (9th Cir.1966); see also, Maxwell Co. v. N. L.R.B., 414 F.2d 477 (6th Cir.1969).
It clearly appears that the requirement of a contractor's estimate of the damage, called for by the old guidelines, allowed a large number of applicants to claim more than the amount of actual earthquake connected damage to their property. It also appears that the requirement of a structural engineer's report is both an attempt to discourage fraudulent applications and a way of assuring that those who have bona fide earthquake connected damage will receive assistance. Rejected applicants were either given adequate written notice of the new requirements or they were invited to call and discuss their applications. Under these circumstances, I cannot conclude that the Administrator abused his discretion nor acted beyond the scope of his authority. It is not the duty of a Court to substitute its opinion for that of the administrative agency. Therefore, having concluded that there was no abuse of discretion, I am of the opinion that 15 U.S.C. § 634(b) precludes this Court from assuming jurisdiction over plaintiffs' prayer to enjoin the SBA from requiring a structural engineer's report.
Plaintiffs allege that many of the 26,000 applications rejected during the three-week period were rejected for non-existent or frivolous reasons, and that often the letter of rejection did not respond to the facts recited in the application. They contend, in effect, this indicates that the applications were not reviewed and that the SBA did not exercise its discretion to determine whether or not it will grant a loan to a given applicant.
Though the government contends that under 42 U.S.C. § 4451, the agency has absolute discretion to determine whether or not to make a loan under the Act, it seems to assume that discretion was exercised as no clear explanation has been made to the Court why such a large number of applications were processed in such a short period of time.
The Disaster Relief Act clearly states that the SBA shall administer disaster relief loans in accordance with its *9 administration of the Disaster Loan Program. Under 15 U.S.C. § 636(b) the agency is empowered to make such loans as "the Administration may determine to be necessary or appropriate." This language calls for a determination, which implies that some consideration of each application must be undertaken. While it may be true that an individual has no right to receive a loan under the Disaster Loan Program, he does have the right to file an application and to have his application reviewed. In Simpkins v. Davidson, 302 F.Supp. 456 (S.D.N.Y. 1969) the plaintiff brought a mandamus action seeking to enjoin the SBA from refusing to grant him a loan. The Court held that Sec. 634(b) removed any jurisdiction the Court might have to compel the agency to grant plaintiffs a loan, but that it had a statutory duty to process the plaintiff's loan application. What Simpkins makes clear is that discretionary acts of the SBA may not be reviewed, but, acts which are tantamount to a refusal to exercise discretion are subject to judicial review. Whatever the limits on this Court's authority to review denial of an application, they do not preclude judicial review when the SBA has refused to follow its statutory duty to determine whether the loan to a given applicant is "necessary or appropriate." Simpkins, supra.
Here, plaintiffs have merely raised a suspicion but has shown no hard proof of failure to review. The letters which plaintiffs claim irrefutably show that the SBA did not review the applications all contain a statement to the effect that the agency will answer any questions concerning the rejection. Indeed plaintiffs concede that when an applicant calls he receives whatever information he wants. Under these circumstances I cannot conclude that the SBA failed to exercise its discretion.
Plaintiffs also ask this Court to enjoin the agency from considering the applicant's ability to repay in processing the loan application. When Congress gave the discretion to determine whether an applicant stated a "necessary or appropriate" case for a loan, that discretion necessarily included the applicant's ability to repay. See, St. Petersburg Bank & Trust v. Boutin, 445 F.2d 1028 (5th Cir. 1971). I note that the SBA published its intention to consider the applicant's ability to repay in the Federal Register. 35 F.R. 16167 (1971); 13 C.F.R. 123.7. On this basis it cannot be concluded that the agency abused its discretion or acted arbitrarily in considering the applicant's ability to repay. I am without power to set aside this practice.
I conclude that this Court is without jurisdiction to entertain plaintiffs' application for a preliminary injunction. An order shall issue dismissing plaintiffs' complaint pursuant to Fed.R.Civ. Pro. 12(b) (1).
NOTES
[1]  Plaintiffs omitted to state their jurisdictional basis in the complaint. In memoranda filed in support of their application for a preliminary injunction they have asserted jurisdiction alternatively under 28 U.S.C. §§ 1343(3), 1343 (4) and 1346. During oral argument they also asserted jurisdiction under 42 U.S.C. § 4451 and § 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706.
[2]  Applicants were allowed to increase their loan applications by the amount of the structural engineer's report. If the loan was not approved, however, the SBA would not reimburse the applicant for the expense of the report.
[3]  For those who applied during the first nine months only a licensed contractor's estimate of the nature of the damage and the cost of repair was required. This estimate was without cost to the applicant.
[4]  Of course a federal court always has jurisdiction to determine whether it has subject matter jurisdiction over a complaint. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
[5]  Indeed, the language precluding injunctive action against the administrator is qualified by the introductory clause of 15 U.S.C. § 634(b) "(b) In the performance of, and with respect to the functions, powers and duties vested in him by this chapter . . ."


480 F.3d 1265
Willie MATHEWS, Plaintiff-Appellant,v.James V. CROSBY, Jr., Tim Giebeig, Sgt. Hall, Sgt. Crockett, C.O. Young, in their individual capacities, et al., Defendants-Appellees,C.O. Dobson, et al., Defendants.
No. 05-12515.
United States Court of Appeals, Eleventh Circuit.
March 16, 2007.

Guy Bennett Rubin, Rubin & Rubin, Stuart, FL, Stuart M. Address, Port St. Lucie, FL, for Mathews.
Ronald S. Wasilenko, Michael D. Kendall, Gobelman, Love, Gavin, Wasilenko & Broughan, Jeffrey A. Cramer, Law Offices of Jeffrey A. Cramer, J. Ray Poole, Jr., John F. Dickinson, Margaret Philips Zabijaka, Constangy, Brooks & Smith, LLC, Jacksonville, FL, Theodore R. Doran, Doran, Wolfe, Rost & Ansay, Daytona Beach, FL, Martin A. Fitzpatrick, Broad & Cassel, Tallahassee, FL, for Defendants-Appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before TJOFLAT, BARKETT, and GOODWIN,* Circuit Judges.
BARKETT, Circuit Judge:

1
Willie Mathews appeals the grant of summary judgment in favor of James V. Crosby, former warden at Florida State Prison ("FSP"),1 and Tim Giebeig, former inspector at FSP, on the grounds that they were immune from suit on the basis of qualified immunity. Mathews also appeals the district court's order granting costs and the amount of those costs to Crosby, Giebeig, and other FSP employees who were voluntarily dismissed before trial.2

2
While Crosby was the warden of FSP, Mathews was transferred to FSP and housed on X-wing, where inmates with the most serious disciplinary problems were assigned. Mathews sued Crosby, Giebeig, and several other FSP employees, alleging, inter alia, that they violated his Eighth and Fourteenth Amendment rights by subjecting him to a series of attacks in which excessive and unjustified force was used, resulting in serious injury, including a broken jaw. Mathews alleged that prison guards repeatedly beat him, and that Crosby knew about the general propensity for violence against inmates at FSP — especially by certain corrections officers who were involved in the beatings of Mathews — but that Crosby was deliberately indifferent to the risk of abuse and deliberately indifferent to Mathews' serious medical needs. Crosby and Giebeig moved for summary judgment, and the district court granted it, finding they could not be held liable for their acts as supervisory officials. For the following reasons, we reverse the district court's order granting summary judgment to Crosby, affirm the district court's order granting summary judgement to Giebeig,3 affirm the district court's order granting costs to all defendants, except Crosby and Giebeig, and remand for further proceedings consistent with this opinion.

STANDARD OF REVIEW

3
We review de novo a district court's ruling on summary judgment, applying the same legal standards as the district court. Skrtich v. Thornton, 280 F.3d 1295, 1299 (11th Cir.2002). Summary judgment is appropriate only when the evidence before the court demonstrates that "there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The evidence must be viewed in the light most favorable to the nonmoving party. Skrtich, 280 F.3d at 1299 (citing Augusta Iron and Steel Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir.1988)). That is, courts must construe the facts and draw all inferences in the light most favorable to the nonmoving party and "when conflicts arise between the facts evidenced by the parties, we credit the nonmoving party's version." Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir.2005) (emphasis omitted). Even though the "`facts,' as accepted at the summary judgment stage of the proceedings, may not be the `actual' facts of the case," Priester v. City of Riviera Beach, 208 F.3d 919, 925 n. 3 (11th Cir. 2000), our analysis for purposes of summary judgment must begin with a description of the facts in the light most favorable to the plaintiff, Skrtich, 280 F.3d at 1299.

DISCUSSION

4
As we have often stated, "[q]ualified immunity offers complete protection for government officials sued in their individual capacities as long as their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known." Lee v. Ferraro, 284 F.3d 1188, 1193-94 (11th Cir.2002) (internal citations and quotation marks omitted). In order to receive the protection of qualified immunity, the government official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred. Kesinger v. Herrington, 381 F.3d 1243, 1248 (11th Cir.2004) (citing Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002)).4

5
Once eligibility for qualified immunity is established, the burden shifts to the plaintiff to show that qualified immunity is not appropriate. Lee, 284 F.3d at 1194. This step consists of a two-part inquiry, set forth in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First, we ask, "do the facts alleged show the government official's conduct violated a constitutional right?" Id. at 201, 121 S.Ct. 2151. If a constitutional violation is established, based on the facts in the light most favorable to the plaintiff, we then must determine whether such conduct would have violated federal law that was clearly established at the time of the incident. Garrett v. Athens-Clarke County, 378 F.3d 1274, 1278-79 (11th Cir.2004) (citing Saucier, 533 U.S. at 201-02, 121 S.Ct. 2151).

I. Constitutional Claims

6
We first address the question of whether Crosby violated Mathews' Eighth Amendment right to be free from cruel and unusual punishment. "The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (citations and quotation marks omitted). "In its prohibition of `cruel and unusual punishments,' the Eighth Amendment places restraints on prison officials, who may not, for example, use excessive physical force against prisoners." Id. "Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society." Id. at 833, 114 S.Ct. 1970 (citations and quotation marks omitted).

7
We have held that supervisors can be held liable for subordinates' constitutional violations on the basis of supervisory liability under 42 U.S.C. § 1983. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.2003). Supervisory liability under § 1983 occurs "when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between the actions of the supervising official and the alleged constitutional deprivation." Id. The question before us on appeal is whether there was a causal connection between Crosby's actions or inaction and the beatings suffered by Mathews.

8
A causal connection may be established when: 1) a "history of widespread abuse" puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he or she fails to do so; 2) a supervisor's custom or policy results in deliberate indifference to constitutional rights; or 3) facts support an inference that the supervisor directed subordinates to act unlawfully or knew that subordinates would act unlawfully and failed to stop them from doing so. Cottone, 326 F.3d at 1360.

9
Therefore, we next examine whether the district court erred in concluding that insufficient facts were presented to support liability against Crosby through a causal connection between his actions and the alleged constitutional deprivation committed by Crosby's subordinates.

A.

10
The facts, construed in the light most favorable to Mathews, the nonmoving party, are as follows. Willie Mathews arrived at FSP on July 4, 1999, along with four other inmates from Hamilton Correctional Institution following an incident in which they were accused of assaulting two correctional officers. At FSP, Mathews was placed in isolation on X-wing. On or about July 4, 5, and 10, Mathews claims he was beaten by corrections officers because of the incident at Hamilton. He claims that on or about July 12, 1999, his mother called warden Crosby to inform him that she had received a letter from an officer working at the prison, stating that her son was in danger and was being abused by prison guards. The same day, Mathews was visited by Giebeig, the on-site inspector at FSP. Mathews told Giebeig that he had been repeatedly beaten. Mathews was seen by a doctor, but no other action was taken to protect Mathews from further beatings or to determine the validity of the allegations.

11
Giebeig testified that he "had conversations with [Crosby] every day on everything going on at FSP" and that therefore the inspector was "almost positive" that by July 13, 1999, Crosby was aware of Mathews' allegations that he was being repeatedly attacked. The inspector later testified that he was "sure somewhere between the 13th and the . . . 16th" of July 1999, he "spoke with [Crosby] . . . concerning the Mathews allegations."

12
On July 15, 1999, Mathews filed an emergency grievance stating that he was in fear for his life and was suffering from an untreated broken jaw following repeated assaults by prison guards on X-wing. Mathews urged authorities to send someone to remove him from X-wing "before [he is] killed." By July 16, 1999, Giebeig was advised by dental staff that Mathews had a fractured jaw. Giebeig claims he reported this information to the acting warden, A.D. Thornton. FSP had procedures which required officers to document any use of force against inmates on an official use of force form. Copies of the use of force forms were forwarded to the warden. No use of force forms were completed in this case to explain the cause of Mathews' injury.

13
On July 17, 1999, another inmate, Frank Valdes, housed on X-wing, was repeatedly beaten and killed by several officers, including Timothy Thornton, one of the defendants in this case.5 Only after that incident was Mathews transferred from FSP and surgery was performed on his fractured jaw. Based on these facts, we are satisfied that a jury could find that guards at FSP committed a constitutional violation and thus, we turn to the issue of whether Crosby can be held liable as a supervisor for that constitutional violation.

B.

14
Construed in the light most favorable to Mathews, the nonmoving party, the facts pertaining to whether Crosby was put on notice by a history of widespread abuse at FSP, or whether he had established customs or policies resulting in deliberate indifference to a prisoner's constitutional rights, reflect the following.6 Crosby was preceded as warden of FSP by Ron McAndrew.7 Warden McAndrew testified that when Crosby succeeded him as FSP warden, the two had several phone conversations (Crosby declined McAndrew's invitation to meet in person). In those conversations, McAndrew specifically warned Crosby about certain guards, who McAndrew believed were abusive toward inmates and needed to be kept out of high profile areas, such as X-wing, because "[t]hey were out of hand and [McAndrew] was afraid they would kill an inmate." McAndrew also taped a list of these guards to the center drawer of the warden's desk.

15
One of the guards that McAndrew testified he specifically warned Crosby about was Timothy Thornton, one of the defendant officers in this case accused of overseeing at least one of the beatings suffered by Mathews. When McAndrew left FSP in February 1998, Timothy Thornton had recently been one of the guards involved when a prisoner was extracted from his cell in X-wing and beaten so severely that the prisoner had to be "airlifted by helicopter to a hospital, where he remained for nine days and was treated for extensive injuries and spent several months recuperating." Skrtich, 280 F.3d at 1300. The inmate's injuries from that incident included "(1) left chest trauma with multiple fractures to the left ribs and left hemopneumothorax, (2) back injury with fractured multiple transverse processes, (3) right scalp laceration, (4) left shoulder and right knee injury, (5) abdominal trauma, and (6) post trauma anemia." Id. The inmate's chest "revealed the presence of an extensive amount of injuries with multiple abrasions and contusions and several markings of shoes on his back and left chest," which markings a doctor found "were probably made from a stomping motion as opposed to merely holding [the inmate] down," "consistent with physical abuse." Id. (internal quotation marks omitted).8

16
McAndrew further testified that he moved Thornton off of X-wing and away from areas where he thought Thornton would have opportunities to abuse inmates. McAndrew testified that shortly after he became warden he wanted to terminate Thornton. McAndrew described Thornton as "an extremely dangerous person . . . . [T]his guy's a walking hand grenade . . . and the pin's pulled." McAndrew specifically told Crosby "this guy is dangerous . . . . You need to get him off the payroll." However, McAndrew only reprimanded Thornton based in part on the advice of two of his subordinates, who advised McAndrew that Crosby (who at the time was the state corrections department Director of Security and Institutional Management), had called them to intervene on Thornton's behalf to ask that he be given every possible consideration. Deputy Warden A.D. Thornton, no relation to Timothy Thornton, similarly testified that both he and McAndrew had concerns about Timothy Thornton. Notwithstanding McAndrew's briefing on Thornton, after Crosby became the FSP warden, Timothy Thornton was promoted to Captain, was permitted to work on X-wing, and was personally selected by Crosby to receive preferential staff housing. In his deposition, McAndrew summarized Crosby's approach to Thornton as "[Crosby was] told he has a potential killer on his hands and he promotes the guy from lieutenant to captain."

17
McAndrew further testified that he asked Crosby to sit with him for a "desk audit" to review all issues and problems McAndrew was passing on to Crosby. He wanted to have the "desk audit" with Crosby because FSP "had a notorious reputation for the beating of inmates" and McAndrew was attempting to address the problem. Crosby, however, said he did not have time or was not interested in meeting for the "desk audit."

18
A.D. Thornton also testified that Crosby was instrumental in bringing Montrez Lucas to FSP from another correctional institution where he had worked with Crosby. Lucas had been disciplined before being brought to FSP by Crosby. Lucas bragged about how he had been suspended for using excessive force against an inmate but had not been terminated for it. In addition, shortly after Mathews was beaten, Lucas was investigated for teaching correctional officer trainees improper practices in June 1999, prior to the Mathews beating. The Department of Corrections' investigation report stated that Lucas taught the following techniques: taking "free shots" at inmates while they were handcuffed, using chemical agents on inmates without the required notice and even after inmates became compliant, reviewing medical reports before completing use-of-force forms to ensure conformity between the two, instructing trainees about which areas of the human body could be kicked without leaving bootprints, and bringing inmates to the medical ward for treatment of minor injuries and then beating the inmates severely after they had been returned to their cells.

19
McAndrew stated that while he was warden he hired an "assistant warden who was aggressively helping fight the excessive use of force in the prison." McAndrew specifically hired this assistant warden because he believed the assistant warden could be trusted and would actively pursue McAndrew's goals of reducing inmate abuse. When Crosby became warden, he "transfer[red] her out to another prison."

20
Additionally, evidence was presented that FSP, like most facilities, had procedures for extracting inmates from their cells when they refused to submit to being restrained by handcuffs and leg irons. On X-wing, cell extractions consisted of four or five officers using the physical force necessary to restrain and remove an inmate from his cell. Cell extractions and any other use of force were to be documented by prison officials. Copies of the use-of-force forms were forwarded to the warden.

21
Prior wardens at FSP required officials to videotape cell extractions. Warden McAndrew testified that his predecessor at FSP suggested videotaping cell extractions as a method to cut down on problems during uses of force. McAndrew testified that FSP had a "notorious reputation" as an institution where guards beat the inmates, and he continued videotaping because he felt staff were more likely to act professionally and inmates were less likely to resist the commands of the guards when they knew they were being videotaped. When Crosby became warden, however, he discontinued the practice of videotaping cell extractions. Viewing all facts and inferences in the light most favorable to Mathews, it could be inferred that Crosby's action in discontinuing the use of the cameras once he became warden, despite knowledge that specific FSP officers were suspected of unwarranted assaults upon inmates, sent a message to corrections officers that the administration at FSP was going to permit further abuse of inmates.9

22
Reverend Andrew MacRae, an FSP prison chaplain from 1994 until August 1999, testified about the marked difference in the culture at FSP after Crosby became the warden. MacRae testified that although he never witnessed an inmate being physically abused during any warden's administration, Crosby had a more "handsoff" approach than prior wardens had, thus permitting the "good old boys" network of guards to mistreat inmates. MacRae testified that after Crosby became warden, there were occasions when MacRae was prevented from seeing inmates following uses of force — which previously had been a time that he would often offer counsel to those inmates. MacRae was also familiar with the practice of "touching up" an inmate, wherein an inmate would be subjected to minor injuries during an apparently justifiable use of force and then, following corroboration of the injuries by the medical facility, the inmate would be returned to X-wing and beaten. MacRae testified that he believed these instances increased during Crosby's tenure because of Crosby's hands-off approach.

23
Evidence was also provided regarding the manner in which Crosby handled abuse-of-force complaints from inmates. FSP's procedures relating to prisoners' abuse-of-force complaints required inmates to report an accusation on a grievance form that would then be forwarded to the Inspector General's central office via an on-site prison inspector's report. The central office would review the reports and respond to the on-site prison inspector regarding what further action, if any, should be taken by the inspector. Copies of the inspector's report to the central office and copies of the central office's response would be forwarded to the warden. The central office also would receive inquiries about prison conditions from persons outside the prison, such as an inmate's family or government officials whom an inmate or his family may have contacted. Copies of the documentation of such inquiries and directions about what action would be taken were also forwarded to the warden.

24
Evidence was submitted that despite having the abuse-of-force complaints and use-of-force forms forwarded to him, Crosby did not read them. Rather, Crosby delegated the responsibility of handling the complaints to his secretary, who had no law enforcement background. In his deposition, McAndrew stated that he had "reasons" to believe that the secretary was obstructing inmate abuse investigations. McAndrew told Crosby about his concerns relating to the secretary. Nonetheless, Crosby delegated the responsibility for reviewing and acting on inmate complaints to the secretary. Nearly all of the inmate-related correspondence set forth below regarding alleged abuse contained notations of an "r" next to Crosby's initials, which Crosby testified indicated that his secretary may have handled the matter without him becoming involved or having specific knowledge of the complaints or the secretary's responses.

25
Included in the numerous complaints and inquiries sent to Crosby between December 1998 and July 1999 were a reference to an inmate's complaint that he was "being maliciously harassed and threatened by staff" who "threatened to kill" the inmate and that his efforts to remedy the issue at the institutional level had been "to no avail"; an inmate's complaint that officers were falsifying disciplinary reports against him as a means to keep him in close management confinement; a complaint from an inmate's spouse stating that FSP staff had locked her husband in a stripped cell, were depriving him of food and were "threatening to physically abuse" him; an inmate's letter "concerning drug dealing and physical abuse by staff" which also notes that the Department of Corrections agreed to take steps to ensure that the inmate's safety would not be jeopardized because of his testimony as a witness; an inquiry on behalf of an inmate's family members who were "concerned about the inmate's safety since they allege he was beaten by [a sergeant and] was taken to the hospital for sustained injuries" and had not had contact with him since; an inmate who wrote "alleging fear for [his] life and wishing to file a complaint against four officers" he stated were "trying to kill [him]"; a letter from another inmate who complained of being "harassed and threatened by both staff and other inmates" as a result of his status "as a witness for the State Attorney's Office"; an inquiry on behalf of an inmate who feared for his safety at FSP because he had murdered a corrections officer at another Florida correctional institute more than 15 years earlier; a letter from a death row inmate to the Florida Department of Law Enforcement, asking it to investigate his claims that supervisory staff at FSP failed to investigate allegations that prison officials assigned to death row permitted a violent inmate to be out of his cell without restraints so that he could threaten and intimidate other inmates; letters from several different inmates claiming that corrections officers had threatened to kill them; and a letter on behalf of an inmate discussing allegedly criminal acts committed by various guards, and questioning the need for officers to continue to use force against an inmate once he had already been restrained by handcuffs and shackles.

26
Mathews produced evidence from which a jury could find that Crosby received copies of all the complaints referenced above concerning the abuse of inmates by guards at FSP, including allegations of abuse of Mathews. Furthermore, Crosby had been specifically warned by his predecessor about certain guards whose abuse of inmates was so severe that the prior warden felt one of them might kill an inmate if not stopped. Crosby, however, did not take steps to neutralize those guards and on at least one occasion sought to give one of the guards preferential treatment in housing. Mathews also presented evidence that Crosby had a reputation for being a "hands-off" warden; regularly delegated responsibility for his office's grievance response management to his secretary; and failed to keep guards with known records of alleged abuse away from assignments near at-risk inmates, such as those on X-wing.

27
This evidence, when taken together, is more than adequate to entitle Mathews to proceed to trial and show that inmate abuse at the hands of guards was not an isolated occurrence, but rather occurred with sufficient regularity as to demonstrate a history of widespread abuse at FSP. The facts presented, if found by a jury, sufficiently support a conclusion that Crosby knew of the widespread abuse and was "on notice of the need to correct or to stop" abuse by officers. Cottone, 326 F.3d at 1362.

28
The same evidence, again taken together and in the light most favorable to Mathews, is sufficient to allow a jury to consider whether Crosby had established customs and policies that resulted in deliberate indifference to constitutional violations and whether Crosby failed to take reasonable measures to correct the alleged deprivations. Id. at 1360; see Smith v. Brenoettsy, 158 F.3d 908, 912-13 (5th Cir.1998) (dismissing warden's appeal of denial of summary judgment in light of factual disputes as to warden's knowledge of substantial risk and reasonableness of warden's response where plaintiff, who was stabbed by a prison guard, sent letters to warden complaining of verbal abuse and threats by guard, and warden responded that sheer volume of unsubstantiated complaints made investigation of every complaint unreasonable).10

II. Clearly Established Law

29
Crosby argues that even if Mathews can establish a constitutional violation, Crosby is protected by qualified immunity because Mathews has failed to show that it was clearly established at the time of the beatings that a warden could face liability under § 1983 predicated on his failure to take reasonable steps in the face of a history of widespread abuse or his adoption of custom or policies which resulted in deliberate indifference. We disagree. By 1999, it was clearly established that a warden, the person charged with directing the governance, discipline, and policy of the prison and enforcing its orders, rules, and regulations would bear such liability. See, e.g., LaMarca v. Turner, 995 F.2d 1526, 1539 (11th Cir.1993) (holding that prison warden could face liability when his failure to take appropriate measures to improve prisoner safety created a climate that preordained the ensuing violence); Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir.1985) (holding that safety director whose responsibility included disciplining police officers and setting police department policy could be liable for failing to take corrective steps in the face of a pattern of excessive force engaged in by officers); see also Skrtich, 280 F.3d at 1303 (stating that by 1998 "precedent clearly established that government officials may not use gratuitous force against a prisoner who has been already subdued or, as in this case, incapacitated"); Bruce v. Wade, 537 F.2d 850, 853 (5th Cir.1976) (a violation of § 1983 is clearly stated by the unjustified beating of an inmate at the hands of prison officials).

III. Award of Costs

30
Initially, because we reverse the summary judgment as to Crosby, we vacate any judgment of costs awarded to him. On remand, Giebeig may move for costs, consistent with our discussion of indigency below.

31
As to the other costs awarded, Mathews objects: 1) to any costs, except to those costs awarded to James Poston, because the magistrate judge improperly "assisted" the Defendants by requesting an additional filing; and 2) to the failure of the district court to reduce the amount of costs given that he is indigent.

32
We reject as meritless Mathews' first argument that the magistrate judge improperly "assisted" the Defendants by allowing them to submit an additional filing to address Mathews' indigency. Moreover, Mathews failed to file objections to the magistrate judge's order within the ten days required by Federal Rule of Civil Procedure 72(a). Thus, Mathews failed to timely assert this claim.

33
As to Mathews' second claim that the costs should be reduced based on his indigence, we review a district court's decision about whether to award costs to the prevailing party for abuse of discretion.11 Chapman v. AI Transp., 229 F.3d 1012, 1023-24 (11th Cir.2000). The Defendants, having obtained from Mathews a voluntary dismissal with prejudice, are considered prevailing parties. See also Sequa Corp. v. Cooper, 245 F.3d 1036, 1037-38 (8th Cir.2001) (noting that voluntary dismissal without prejudice under Fed. R.Civ.P. 41(a)(1)(i) does not deprive a district court of authority to award costs) (citing Cantrell v. Int'l Bhd. of Elec. Workers, Local 2021, 69 F.3d 456, 458 (10th Cir.1995) (en banc) (holding that district courts have discretion to award costs when a party dismisses an action, with or without prejudice)). An abuse of discretion occurs if the trial judge bases an award or denial upon findings of fact that are clearly erroneous. Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1323 (11th Cir.2004).

34
Federal Rule of Civil Procedure 54(d)(1) provides that "[e]xcept when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs . . . ." Fed.R.Civ.P. 54(d)(1). Under Rule 54(d), there is a strong presumption that the prevailing party will be awarded costs. Arcadian Fertilizer, L.P. v. MPW Indus. Serv., Inc., 249 F.3d 1293, 1296 (11th Cir.2001). Such costs, however, may not exceed those permitted by 28 U.S.C. § 1920. Maris Distrib. Co. v. Anheuser-Busch, Inc., 302 F.3d 1207, 1225 (11th Cir.2002). Costs that may be awarded under § 1920 include: "(1) fees of the clerk and marshal; (2) fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; [and] (4) fees for exemplification and copies of papers necessarily obtained for use in the case." 28 U.S.C. § 1920.

35
Here, the magistrate judge's report and recommendation went through an extensive analysis of each individual cost under § 1920 and whether Mathews was entitled to a reduction of costs because of his indigence. As we explained in Chapman, a district court needs a "sound basis" to overcome the strong presumption that a prevailing party is entitled to costs. There was none in this case, and the magistrate judge thoroughly considered each cost of the awards individually. Accordingly, we affirm the costs to all parties, except to Crosby and Giebeig as set forth above.

CONCLUSION

36
Accordingly, the district court's order granting summary judgment in favor of Crosby is REVERSED, and in favor of Giebeig is AFFIRMED. The district court's order awarding costs is REVERSED to Crosby and Giebeig and AFFIRMED to all other parties.

Notes:

*
 Honorable Alfred T. Goodwin, United States Circuit Judge for the Ninth Circuit, sitting by designation

1
 FSP is a Florida state maximum security facility

2
 Specifically, Mathews appeals the following cost judgments: $11,333.00 to Crosby and Giebeig; $4,619.40 to James Poston; $6,780.29 to Timothy Thornton, Sgt. Sauls, C.O. Beck, and Charles Brown; and $10,448.59 to Sgt. Hall, C.O. Riner, C.O. Dent, Sgt. Davidson, C.O. Young, Sgt. Crockett, and Steve Dobbs

3
 Mathews' brief fails to set forth any arguments as to how, if at all, the district court erred by granting summary judgment to Giebeig. Mathews names Giebeig in two point headings, but does not direct any of his argument to Giebeig, and only a peripheral part of his factual analysis to Giebeig. Accordingly, we find that he has waived his claims on appeal against GiebeigSee Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989) (stating that passing references to issues are insufficient to raise a claim for appeal, and such issues are deemed abandoned (citing Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir.1979); Davis v. Hill Engineering, Inc., 549 F.2d 314, 324 (5th Cir. 1977))).

4
 There is no question in this case that Crosby was acting within the scope of his discretionary authority as warden of FSP

5
 See Valdes v. Crosby, 450 F.3d 1231 (11th Cir.2006).

6
 We repeat many of the factual allegations set forth inValdes, as the depositions we rely on in this case were also submitted in Valdes.

7
 McAndrew testified that he had over twenty years of experience as an officer, sergeant, lieutenant, investigatory, deputy warden, and warden of another Florida state facility before becoming warden of FSP

8
 InSkrtich, we held that the officer defendants were not entitled to qualified immunity for the alleged beating of Skrtich. Skrtich, 280 F.3d at 1302-07.

9
 In a March 25, 1999, meeting of FSP supervisory personnel allegedly attended by Crosby, there was a discussion about the frequency with which certain officers were being accused of abusing inmates and what steps might be taken to remedy the situation

10
 Mathews also asserts that he was unconstitutionally denied adequate medical care, and that Crosby is liable for this constitutional violation under his supervisory liability. Mathews sets forth little, if any, facts relating to a causal connection between Crosby's actions and the alleged constitutional deprivation in the denial of medical care. All of Mathews' allegations concern the beatings on X-wing and the culture of violence at FSP. Accordingly, Mathews has failed to allege a claim for § 1983 supervisory relief against Crosby for the denial of medical care

11
 There is no question that Mathews timely filed objections relating to this claim, as the magistrate judge's order was issued on March 10, 2005, and Mathews objected on March 21, 2005, within the ten day limitationSee Fed. R.Civ.P. 6(a) (Saturdays and Sundays are excluded from computation of time when under eleven days).


         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 25, 2005

               STATE OF TENNESSEE v. NORMAN KYLE LEWIS

                   Appeal from the Criminal Court for Washington County
                            No. 28841   Robert E. Cupp, Judge

                    No. E2005-00766-CCA-R3-CD - Filed January 27, 2006

The Appellant, Norman Kyle Lewis, was convicted by a Washington County jury of attempted first
degree murder and was sentenced as a Range I standard offender to twenty-five years in the
Department of Correction. On appeal, Lewis argues that the evidence is insufficient to support his
conviction. After review of the record, we conclude that the convicting evidence was legally
sufficient. Accordingly, the judgment of conviction is affirmed.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE, JJ., joined.

James T. Bowman, Johnson City, Tennessee, for the Appellant, Norman Kyle Lewis.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Joe Crumley, District Attorney General; and Dennis D. Brooks, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

        On the evening of March 30, 2003, the Appellant visited Wayne Birchfield, the victim, at his
residence in Washington County. The two had known each other for thirty years, and the sixty-nine-
year-old victim considered the Appellant his best friend. The Appellant was a frequent visitor of the
victim, and only ten days prior to this occasion had obtained a $500 loan from the victim, which
remained unpaid. On this occasion, the Appellant discussed his marital and financial problems while
the two watched television and drank beer at the kitchen table. After several hours of socializing and
beer drinking, the Appellant walked to the refrigerator and looked inside for more beer. The victim
informed the Appellant that he had drunk all the beer, and the Appellant announced that he was
leaving. As the victim remained seated at the table, he felt the Appellant’s hand on his neck, and
after seeing blood gushing from his neck, he realized that his throat had been cut. Immediately, the
victim jumped from the table and grabbed a chair to shield himself from any further assault by the
Appellant. The panic-stricken victim ran across the street to his neighbor’s home, and the Appellant
drove away.

        At trial, the Appellant testified that his assault on the victim was an act of self-defense. He
explained that following an argument between the two men, the victim had pointed a gun at his head
and pulled the trigger with the gun misfiring.1 The Appellant related that at this point he flipped
open a knife on his key chain and “I guess I cut him.” He further stated that the blade was about one
inch long and that he did not know what happened to the knife.

       The victim’s neighbor, Tommy Bailey, testified that he was awakened around 11:00 p.m. on
March 30, 2003, by someone yelling and beating on his front door. He heard “someone just
screaming out, Tommy, it’s Wayne, let me in. I need you to call 911, somebody’s cut my throat.”
Bailey opened the door and saw the victim holding his blood-soaked shirt around his neck.

         Chris Bevins, an investigator with the Washington County Sheriff’s Department, responded
to the scene around 10:50 p.m.. In addition to splattering of blood inside the house, Bevins observed
a trail of blood leading from the victim’s home across the roadway. Moreover, the crime scene did
not indicate that a struggle had occurred prior to the assault. A search of the victim’s residence and
yard for a knife or cutting instrument proved unsuccessful.

        At the conclusion of the trial, the trial court instructed the jury on the indicted offense of
attempted first degree murder and the applicable lesser-included offenses. In addition, the jury was
instructed with regard to the law of self-defense. Following deliberations, the jury found the
Appellant guilty of attempted first degree premeditated murder as charged. This appeal followed.

                                                      Analysis

         On appeal, the Appellant asserts that the evidence is insufficient to support his conviction
for attempted first degree murder. Specifically, he contends that the State failed to prove the element
of premeditation. In considering this issue, we apply the rule that where the sufficiency of the
evidence is challenged, the relevant question for the reviewing court is “whether, after viewing the
evidence in the light most favorable to the [State], any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e). Moreover, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). All questions involving the credibility
of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not
reweigh or reevaluate the evidence presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

         1
         During the victim’s direct examination, he denied that on this occasion that he ever displayed a weapon to the
Appellant.

                                                         -2-
       “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990).

       First degree murder is defined as “a premeditated and intentional killing of another.” T.C.A.
§ 39-13-202(a)(1) (2003). The statute defines premeditation as follows:

       As used in subsection (a)(1) “premeditation” is an act done after the exercise of
       reflection and judgment. “Premeditation” means that the intent to kill must have
       been formed prior to the act itself. It is not necessary that the purpose to kill pre-exist
       in the mind of the accused for any definite period of time. The mental state of the
       accused at the time the accused allegedly decided to kill must be carefully considered
       in order to determine whether the accused was sufficiently free from excitement and
       passion as to be capable of premeditation.

T.C.A. § 39-13-202(d); State v. Sims, 45 S.W.3d 1, 7-8 (Tenn. 2001).

         The element of premeditation is a question of fact to be resolved by the jury and may be
established by proof of the circumstances surrounding the killing. State v. Suttles, 30 S.W.3d 252,
260 (Tenn.), cert. denied, 531 U.S. 967, 121 S. Ct. 401 (2000). Because the trier of fact cannot
speculate as to what was in the defendant’s mind, the existence of facts of premeditation must be
determined from the defendant’s conduct in light of the surrounding circumstances. Although there
is no strict standard governing what constitutes proof of premeditation, our supreme court has held
that premeditation may be inferred from a defendant's use of a deadly weapon upon an unarmed
victim; the cruelty of the killing; declarations by a defendant of an intent to kill; the defendant's
procurement of a weapon; a defendant's preparations prior to a killing for concealment of the crime;
and calmness immediately after the killing. State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998); State
v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536 (1998).

          The Appellant’s insufficiency argument in this case focuses upon the lack of proof of any
premeditation. First, we would observe that, although rejected by the jury, the Appellant’s defense
at trial of self-defense concedes his intentional use of force by means of a knife upon the victim. See
T.C.A. § 39-11-611 (2003). Thus, the question for the jury was whether the intent to kill was formed
prior to the Appellant’s act of cutting the victim’s throat. Applying the above established factors to
the proof most favorable to the State, we conclude that premeditation could rationally be inferred
based upon the facts that (1) the victim was unarmed, (2) the Appellant’s weapon was never located,
(3) the Appellant lunged at the victim from behind and slashed the victim’s throat from ear to ear,

                                                  -3-
and (4) the Appellant remained calm following the assault. Accordingly, we conclude that the
evidence is legally sufficient to support the jury’s verdict of guilt for attempted first degree murder.

                                          CONCLUSION

       Based on the foregoing, we affirm the Appellant’s judgment of conviction for attempted first
degree murder.

                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE

                                                  -4-


669 F.Supp. 163 (1987)
ALEXANDER GRANT & COMPANY, Plaintiff,
v.
Robert B. McALISTER, et al., Defendants.
and
Connie J. HARRIS, Defendant/Third Party Plaintiff,
v.
Jose L. GOMEZ, et al., Third-Party Defendants.
Grant THORNTON, Third-Party Plaintiff,
v.
Marvin L. WARNER, Sr., et al. Third-Party Defendants.
No. 1-85-1068.
United States District Court, S.D. Ohio, W.D.
July 30, 1987.
Gerald L. Draper, Bricker & Eckler, Columbus, Ohio, Stanley Goodman, Goodman & Goodman, Cincinnati, Ohio, for third-party defendant Marvin L. Warner, Jr.
Suzanne Richards, Vorys Sater Seymour and Pease, Columbus, Ohio, for third-party defendants Ohio Deposit Guar. Fund, Donald R. Hunscher and Charles Mayleben.
Leonard S. Meranus, Paxton & Seasongood, Cincinnati, Ohio, for plaintiff/counter-defendant/third-party plaintiff Alexander Grant & Co., counter-defendant/third-party plaintiff William Swisshelm.
Armistead W. Gilliam, Jr., Smith & Schnacke, Dayton, Ohio, for third-party defendant Burton M. Bongard.
James E. Pohlman, Porter Wright Morris & Arthur, Columbus, Ohio, for defendant/counter-plaintiff Connie J. Harris.
*164 Roger J. Makley, Collidge Wall Wolmsley & Lombard Co., Dayton, Ohio, for third-party defendant David J. Schiebel.
Robert Pitcairn, Katz Teller & Hild Co., L.P.A., Cincinnati, Ohio, for third-party defendant Nelson Schwab, Jr.
Patrick J. Cronin, Spraul Reyering Cissell & Cronin, Cincinnati, Ohio, for third-party defendant Robert J. Weeder.
James M. Moore, Lindhorst & Dreidame, Cincinnati, Ohio, for third-party defendants Robert Braun and Stanton Brock.
Norman I. Barron, Brumleve DeKamp Wood & Barron, Cincinnati, Ohio, for third-party defendant Arthur C. Elliott.
Arnold Morelli, Bauer Morelli & Heyd Co., Cincinnati, Ohio, for third-party defendant Gehl P. Babinec.
R. Guy Taft, Steer Strauss White & Tobias, Cincinnati, Ohio, for third-party defendant Marlin B. Arky, Personal Representative of the Estate of Stephen Arky.
James R. Adams, Frost & Jacobs, Cincinnati, Ohio, for third-party defendant Arthur Andersen & Co.,
John P. Kiely, Rendings Fry Kiely & Dennis, Cincinnati, Ohio, for third-party defendant Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A.
Mitchell B. Goldberg, Strauss & Troy, Cincinnati, Ohio, for third-party defendants Fidata Trust Co., Fidata Corp., Fidata Securities Management, Inc., and Bradford Securities Operation, Inc.
Jose Gomez, pro se.

MEMORANDUM OPINION AND ORDER
JOINER, District Judge.
This matter comes before the court on numerous motions to dismiss, strike, and/or sever the third-party complaints of Alexander Grant & Company (Grant)[1] and William Swisshelm.[2] The parties having fully briefed the issues, the court will rule on this motion without conducting oral argument. See Local Rule 4.0.4.
On June 7, 1985, Grant filed a complaint against the Superintendent of the Ohio Division of Savings and Loan Associations, now Connie Harris, alleging wrongdoing on *165 the part of Home State, for which Grant seeks contribution for any other liability in any other action against it, and also damages due to the alleged fact that Grant's professional reputation has been tarnished by the many Home State related lawsuits filed against it.[3] On October 20, 1986, Harris answered the complaint, and also filed a counterclaim which added present and certain past Grant partners as additional counter-defendants. The counterclaim alleges that Grant and its partners violated § 10(b) of the 1934 Securities Exchange Act, 15 U.S.C. § 78j(b), the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, et seq, were grossly and professionally negligent in their auditing of ESM, and participated in a scheme to defraud Home State, among others.
On November 11, 1986, Grant answered the counterclaim, and filed a third-party complaint against numerous third-party defendants[4] seeking contribution if it is found liable to Harris on the securities law, professional negligence/negligent misrepresentation, or gross negligence claims.[5] Finally, on June 18, 1987, Swisshelm[6] filed a third-party complaint against numerous third-party defendants,[7] making the same claims for contribution as those found in the Grant third-party complaint. As mentioned above, numerous third-party defendants now move to dismiss, strike, or sever the third-party claims of Grant and Swisshelm.[8]

DISCUSSION
Third-party defendants raise numerous issues in support of their motions, but given the outcome as to two of these issues, the rest are moot, and will not be discussed. Consequently, this order only deals with Grant's claim for contribution if it is found liable to Harris on her securities laws counterclaim against Grant, and the question of abstention.

I. Securities Law Contribution

Grant seeks contribution for the allegations made by Harris in her counterclaim that Grant has violated § 10(b) of the 1934 Securities Exchange Act, 15 U.S.C. § 78j(b). Third-party defendants allege that Grant is not entitled to contribution for securities violations unless it is plead that Grant and the third-party defendants are joint wrongdoers, and no such allegation can be found in the third-party complaint. Grant responds that all the law requires is that the third-party defendants be concurrent tortfeasors who have contributed to the same injury, and that this has been alleged in the third-party complaint.
The question of whether contribution can be had for alleged violations of federal securities laws is a question of federal, not state, law. Heizer Corp. v. Ross, 601 F.2d 330, 331 (7th Cir.1979); Huddleston v. Herman & MacLean, 640 F.2d 534, 557 (5th Cir.1981), modified on other grounds, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983); Jordan v. Madison Leasing Co., 596 F.Supp. 707, 711 (S.D.N.Y.1984). At one point in the 1933 Securities Act, 15 U.S.C. § 77k, and at two points in the 1934 Securities Exchange Act, 15 U.S.C. §§ 78i and 78r, a right of contribution is expressly provided for. While no such right is expressly provided for under § 10(b), 15 U.S.C. § 78j(b), such a right of contribution between joint tortfeasors has been consistently recognized for this section as well. *166 See Heizer, 601 F.2d at 333-334; Huddleston, 640 F.2d at 559.
Courts which have addressed this issue under federal securities laws are split as to whether there must be joint wrongdoing, as urged by third-party defendants, or whether independent but concurrent wrongdoing will suffice, as argued by Grant. The weight of authority sides with third-party defendants, Stowell v. Ted S. Finkel Investment Services, Inc., 641 F.2d 323, 325 (5th Cir.1981); Stratton Group v. Sprayregen, 466 F.Supp. 1180, 1185 (S.D. N.Y.1979); Greene v. Emersons, Ltd., 102 F.R.D. 33, 35 (S.D.N.Y.1983), aff'd sub nom. Kenneth Leventhal & Co. v. Joyner Wholesale Co., 736 F.2d 29 (2d Cir.1984); but see Marrero v. Abraham, 473 F.Supp. 1271, 1277-1278 (E.D.La.1979); Jordan, 596 F.Supp. at 711; Adalman v. Baker, Watts, & Co., 599 F.Supp. 752, 755 (D.Md. 1984), and the court finds the logic of these cases, as demonstrated in Greene, to be sound:
Contribution is an equitable remedy. It achieves a fair distribution of fault among parties involved in a wrong. But one must ask: what is the wrong? The answer in federal securities laws cases is: fraud. The statute prohibits fraud; the courts have fashioned private remedies for violations. As Judge Duffy correctly held in Stratton Group, contribution lies only between knowing participants in the same fraud. The situation is different in, say, common law tort cases of property damage. There the question is whose acts combined to cause the damage. Independent or concurrent acts of negligence may have contributed. There is no place for this broader concept of contribution in any fraud securities cases. One asks only: who were the fraudsmen?
(citations omitted) 102 F.R.D. at 36. Accordingly, the court holds that in order to state a valid claim for contribution under federal securities laws, Grant must allege that it and third-party defendants are joint tortfeasors.
A reading of the allegations contained in Grant's third-party complaint clearly indicate that Grant does not allege that it and third-party defendants are, assuming Grant is found liable to Harris, joint wrongdoers. There are numerous allegations that third-party defendants have caused an injury to Home State, but nowhere is it alleged that any third-party defendant acted jointly with Grant to cause an injury to Home State. At most, Grant has alleged that it and third-party defendants acted independently, but concurrently, to cause a single injury to Home State, but that is not sufficient under applicable federal law.[9] Consequently, Grant has not made a valid federal securities law contribution claim.
Grant's securities law contribution claim is also not sufficient because it does not claim that any third-party defendant has violated any federal securities laws. Given the policy of deterrence behind the federal securities law, claims for contribution under these laws should only be proper when it is alleged that the party from whom contribution is sought has also violated federal securities laws. See In re New York City Municipal Securities Litigation, 507 F.Supp. 169, 189, n43 (S.D.N.Y. 1980). Indeed, if this was not the case, a federal securities law claim would be no different than any state common law claim as regards the type of contribution claims that could be made, and this surely was not intended. Not only is this conclusion supported by logic, the language of those sections of the securities laws that do provide *167 for contribution also suggest this approach, as is illustrated by 15 U.S.C. § 77k(f):
All or any one or more of the persons specified in subsection (a) of this section shall be jointly and severally liable, and every person who becomes liable to make any payment under this section may recover contribution as in cases of contract from any person who, if sued separately, would have been liable to make the same payment, unless the person who has become liable was, and the other was not, guilty of fraudulent misrepresentation.
(emphasis added). Because Grant fails to allege that any third-party defendant has violated any federal securities law, it is not entitled to contribution.
Accordingly, Grant's claim for contribution if it is found liable to Harris for securities law violations fails because Grant does not claim that any third-party defendant has violated any federal securities laws, and does not claim that Grant and third-party defendants are joint wrongdoers. Grant's federal securities law contribution claims are dismissed.

II. Contribution for Other ClaimsAbstention

Third-party defendants argue that the court should abstain from exercising jurisdiction over the Grant third-party claims for contribution arising out of Harris' claims of professional negligence/negligent misrepresentation and gross negligence pursuant to Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), reh'g denied, 426 U.S. 912, 96 S.Ct. 2239, 48 L.Ed.2d 839 (1976). They argue that the court should defer to the Ohio proceedings involving the identical third-party claims that Grant brings here, as there are no federal interests involved in the instant case.
The abstention doctrine is an extraordinary and narrow exception to the duty of a district court to adjudicate controversies before it, and is justified only in the most exceptional circumstances. County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-189, 79 S.Ct. 1060, 1062-63, 3 L.Ed.2d 1163 (1959); Colorado River, 424 U.S. at 813, 96 S.Ct. at 1244. The Colorado River abstention doctrine is based on "wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation." 424 U.S. at 817, 96 S.Ct. at 1246 (citation omitted). Colorado River abstention is designed to apply to those situations where a federal court is confronted with a suit which is the subject of a concurrent parallel state proceeding. Though the Court refused to prescribe a hard and fast rule for abstentions of this type, it did describe several relevant factors:
It has been held, for example, that the court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts.... In assessing the appropriateness of dismissal in the event of an exercise of concurrent jurisdiction, a federal court may also consider such factors as the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent forums. No one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction and the combination of factors counselling against that exercise is required. Only the clearest of justifications will warrant dismissal.
424 U.S. at 818-819, 96 S.Ct. at 1246-47 (citations omitted). Several years later, in Moses H. Cone Hospital v. Mercury Construction Co., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the Court determined that Will v. Calvert Fire Insurance Co., 437 U.S. 655, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978), added a fifth factor to the Colorado River analysis, being that if federal law provides the rule of decision on the merits, a federal court should be reluctant to abstain. 460 U.S. at 23, 103 S.Ct. at 941. Indeed, the Court concluded that the presence of federal law issues must always be a major consideration weighing against abstention. 460 U.S. at 26, 103 S.Ct. at 942. The court believes that the instant case is *168 one of those rare situations where Colorado River abstention is appropriate. This is certainly a case where the suit in question is subject to a parallel state proceeding, as the Ohio Court of Claims in Harris v. Grant Thornton, et al., has before it third-party claims by Grant identical[10] to those at issue. Of the five factors enumerated in Colorado River and Moses H. Cone, the inconvenience of the forum, the avoidance of piecemeal litigation, and jurisdiction over the res factors are of little import here. However, the other two factors argue strongly in favor of abstention.
All remaining third-party claims only involve state law issues, and as to these claims state law will control. The Ohio courts gained jurisdiction ahead of this court, as the suit in the Ohio courts was started before the claim was made in federal court. Even more important is the fact that the Ohio courts are scheduled to commence trial on Harris v. Grant Thornton, et al., in October of this year, quite some time before the instant case will go to trial. Even though the Ohio Court of Claims has severed several of the Grant third-party claims before it,[11] many will still go to trial in October, and it is most likely that the rest will be resolved, if necessary, before the instant case comes to trial. In a case such as is found here, where there are no federal law issues, and a state court will likely resolve the identical claims in question before they can be resolved in the federal court, the federal court should defer to the state proceedings.

SUMMARY
Because the federal securities law contribution claims made by Grant and Swisshelm are not appropriate, they are DISMISSED. With the only federal law third-party claims dismissed, and the Ohio Courts scheduled to resolve the state law third-party claims before the court will, the court will abstain from exercising jurisdiction over the remaining third-party claims pursuant to Colorado River. Accordingly, the third-party claims of Grant and Swisshelm are DISMISSED in their entirety.
SO ORDERED.
NOTES
[1]  As of the date of this memorandum opinion and order, the following third-party defendants have filed motions to dismiss, strike, or sever the third-party complaint: Estate of Stephen Arky; Marvin L. Warner, Jr.; the Ohio Deposit Guarantee Fund (ODGF); Donald R. Hunsche; Charles Mayleben; Marvin L. Warner, Sr.; the law firm of Arky, Freed, Stearns, Watson, Greer, Weaver, & Harris, PA; Burton M. Bongard; Robert J. Weeder; David J. Schiebel; Arthur Andersen & Company (Andersen); Fidata Trust Company; Fidata Corporation; Fidata Securities Management, Inc.; Bradford Securities Operations, Inc.; and Gehl P. Babinec. In addition, defendant/counter-plaintiff, Connie Harris, has filed a motion to sever the third-party complaint. The following third-party defendants have not filed motions, and have answered the third-party complaint: Nelson Schwab, Jr.; Robert Braun; Arthur C. Elliott; and Stanton G. Brock.

It must be noted that since the above-mentioned motions were filed, the following third-party defendants have been dismissed by stipulation: Estate of Stephen Arky; Arky, Freed, Stearns, Watson, Greer, Weaver, & Harris PA; Fidata Trust Company; Fidata Corporation; Fidata Securities Management, Inc.; and Bradford Securities Operations, Inc. As such, the motions of these third-party defendants are moot, and will not be discussed.
[2]  Swisshelm's third-party complaint is identical to that filed by Grant, except that the following third-party defendants in the Grant action are not sued by Swisshelm: Estate of Stephen Arky; Donald R. Hunsche; Charles Mayleben; Arky, Freed, Stearns, Watson, Greer, Weaver, & Harris PA; Fidata Trust Company; Fidata Corporation; Fidata Securities Management, Inc.; and Bradford Securities Operations, Inc. Except for Hunsche and Mayleben, who are treated alongside the ODGF in the Grant third-party complaint, these omitted third-party defendants have been dismissed from the Grant case by stipulation.

As of the date of this memorandum opinion and order, the following third-party defendants have filed motions to dismiss Swisshelm's third-party complaint, Robert J. Weeder, David J. Schiebel, and Marvin Warner, Sr. The issues raised in these motions are identical to those raised in the motions to dismiss the grant third-party complaint, therefore the discussion and resolution of the motions to dismiss the Grant third-party complaint will govern Swisshelm's as well.
It must finally be noted that the following third-party defendants have answered Swisshelm's third-party complaint: Nelson Schwab, Jr.; Robert Braun; Arthur C. Elliott; Stanton G. Brock; and Gehl P. Babinec.
[3]  While the claims contained in Grant's complaint are directed to the now defunct Home State Savings Bank, because the Superintendent is the liquidating agent of Home State, she is the proper named party defendant.
[4]  See footnote 1 for listing of third-party defendants.
[5]  Grant does not seek contribution for the RICO and fraud claims against it.
[6]  In Harris' counterclaim, Swisshelm is named individually, and as the representative of a class consisting of all present and certain past Grant partners. His third-party complaint is brought on behalf of himself individually, and not on behalf of the class.
[7]  See footnote 2 for listing of third-party defendants.
[8]  Because many issues are raised by more than one third-party defendant, this opinion is organized by issue, rather than by each third-party defendant's motion.
[9]  Indeed, Referee Faulkner and the Ohio Court of Claims concluded that identical third-party claims brought by Grant in Harris v. Grant Thornton, et al., No. 86-03411-PR (Ohio Ct. of Claims), alleged that Grant and third-party defendants were independent, but concurrent, tortfeasors. See Recommendation and Report Re: Motion of Arky, Freed, Stearns, Watson, Greer, Weaver, & Harris PA to Dismiss or Strike Third Party Complaint. Of course, in that case only state claims for contribution were at issue, and given that the Referee concluded that under Ohio law all that was needed was that Grant and third-party defendants were independent, but concurrent, tortfeasors, the Grant claims were not dismissed.
[10]  Not only are the state law third-party claims that Grant makes against third-party defendants identical to those found here, the claims against Grant by Harris for which Grant is seeking contribution, again based only on state law, are also identical.
[11]  Of the third-party defendants in this case who have not been dismissed by stipulation, the following will still have the third-party claims against them tried by the Ohio Court of Claims in October of 1987: the ODGF, Marvin L. Warner, Sr., Burton M. Bongard, and David J. Schiebel. The claims against Donald R. Hunsche and Charles Mayleben were dismissed by Grant, and while Swisshelm makes no claim against these individuals in the instant case, Grant still does. However, since Grant chose to dismiss its identical claims against Mayleben and Hunsche in the state courts, the court does not believe Grant will be prejudiced by its claims against them being dismissed here. The claims against the remainder of the third-party defendants in the state case were severed, and will be resolved at a point after the October trial concludes.